MLC - TEXT - Helo by osx12863

VIEWS: 6 PAGES: 13

									Legal Challenges for Foreign
Investment in Latin America

  ABA - Section of International Law
  Latin American Caribbean Committee


    The war against money laundering
             and corruption


                May 2008
             Sao Paulo, Brazil
          The war against Money
              Laundering

   Law n. 9.613, 3 March 1998:
       Defines money-laundering as a criminal offence
        (article 1);
       Sets forth special procedural provisions (articles 2-8);
       General rules of compliance (articles 9-13);
       Creates COAF – Financial Activities Control Counsil
        (the Brazilian FIU) (articles 14-17).
The war against Money Laundering
key-features of the offence of money laundering in Brazil


   It follows the general provisions set forth in the UN
    Vienna Convention of 1988.

   The offence of money-laundering is described in article
    1 of Law n. 9.613, and on its paragraphs 1 and 2 (the
    only rule that criminalizes such conduct).

   Predicate crime: list of specific predicate offences
    (article 1) = the only ones able to turn the proceeds of
    crime “dirty” in connection with the money-laundering
    offence defined thereto.
The war against Money Laundering
key-features of the offence of money laundering in Brazil



   According to Article 1, it is crime “to conceal or to
    disguise the true nature, origin, location, disposition,
    movement, or ownership of assets, rights and valuables
    that result directly or indirectly from the following
    crimes [...]”.

   Sentence: incarceration for a period of 3 to 10 years
    and a fine.
The war against Money Laundering
key-features of the offence of money laundering in Brazil



   The predicate offences are:

1. Illicit drug trafficking;
2. Terrorism and its financing;
3. Smuggling or trafficking of weapons, ammunitions or
   materials used for their production;
4. Extorsion through kidnapping;
The war against Money Laundering
key-features of the offence of money laundering in Brazil




5. Crimes against the public administration, including
  direct or indirect demands of benefits on behalf of
  oneself or others, as a condition or price for the
  performance or the omission of any administrative act;
6. Crimes against the Brazilian national financial system;
7. Crimes committed by a criminal organization;
8. Crimes against a foreign public administrative office.
The war against Money Laundering
key-features of the offence of money laundering in Brazil


Article 1, paragraphs 1 and 2
The predicate offences are the same for the next forms of
  money-laundering.
 “§ 1. The same punishment shall apply to anyone who,

  in order to conceal or disguise the use of the assets,
  rights and valuables resulting from the crimes set forth
  in this article:
       I – converts them into licit assets;
       II - acquires, receives, exchanges, trades, gives or
         receives as guarantee, keeps, stores, moves, or
         transfers any such assets, rights and valuables;
       III – import or exports goods at prices that do not
         correspond to their true value.”
The war against Money Laundering
key-features of the offence of money laundering in Brazil




   “§ 2. The same sentence also applies to anyone who:
I – through economic or financial activity, makes use of
  any assets, rights and valuables that he/she knows are
  derived from the crimes referred to in this article;
II – knowingly takes part in any group, association, or
   office set up for the principal or secondary purpose of
   committing crimes refered to in this Law.”
The war against Money Laundering
key-features of the offence of money laundering in Brazil




Requisite mental element
   Mens rea.
   Offences require both knowledge and purpose to
    committ the crime.
   It is excluded, under Brazilian law, any possibility of
    liability on a negligence basis.
The war against Money Laundering
key-features of the offence of money laundering in Brazil




Final remarks: position of lawyers and legal professionals


    1. If a legal professional obtains, in the
    performance of his/her duties, the
    information that a ML offence was or is
    being committed, there is no reporting
    obligation under Brazilian law.[1]
The war against Money Laundering
key-features of the offence of money laundering in Brazil




Final remarks: position of lawyers and legal professionals

    2. If a legal professional (especially criminal
    attorney) receives in payment of fees
    valuables derived from a predicate offence
    he/she is not committing ML.
The war against Money Laundering
key-features of the offence of money laundering in Brazil


Final remarks: position of lawyers and legal
   professionals

    3. If a legal advisor, through his/her legal
    advice, is actually taking part in money
    laundering activities, he/she is committing
    the crime of ML.
    A recent case.
The war against Money Laundering
key-features of the offence of money laundering in Brazil




                         Contact:
                     Heloisa Estellita
             heloisa@toronadvogados.com.br
                     + 55 11 3822 6064

								
To top