On the Punishability of the Perpetrator of a Crime for the Laundering of the Respective Proceeds (Sobre a punibilidade do autor de um crime pelo branqueamento das vantagens dele resultantes)

Abstract

This paper discusses the cases where the perpetrator of a crime has obtained proceeds by committing such crime (the predicate crime) and subsequently goes on to ‘launder’ such proceeds, thereby commiting the crime of ‘money laundering’. This raises the extremely frequent question of determining whether the perpetrator ought to be convicted and sentenced for both crimes (the predicate crime plus money laundering) or whether the punishment for the predicate crime should be sufficient.

The issue amounts essentially to a discussion as to whether such accumulation of crimes would represent a cumulative conviction based upon conduct that should not be separately punished.

The problem is relatively complex given that international law provisions regarding the crime of money laundering intentionally refrain from taking a position on this issue and a comparative law study reveals different solutions for the problem.

The discussion focuses of the legal system of Portugal, where the 2004 reform of the Penal Code has addressed the matter by stating that there may be accumulation. In 2007, both the Constitutional Court and the Supreme Court of Justice passed judgments agreeing with this view.

The discussion of this issue has broader implications for the general understanding of the problem of concurrence or accumulation of crimes and is not confined to the question of money laundering. This is because both Courts tend to see this as just an instance of a rule of the General Part and not just a matter specific to one particular crime. In this manner, the paper engages a general discussion of the criteria for the accumulation of offenses for all crimes. In this regard, the generally held criteria of the difference or similarity between the interests protected by each crime is rejected, for being a conceptualistic approach.

The paper affirms that the problem is best understood from the point of view of what should be the reaction of the legal system after any crime has been committed. The observation is made that the claim to apprehend and try the suspect, and seize the instruments and evidence of crime, is not backed by additional criminal offenses where the suspect does not cooperate with the enforcement of criminal law against himself or herself. Suspects do lie, run away from the police, and destroy evidence all the time. However, in liberal and democratic States, a suspect is not forced to cooperate with the machinery of criminal law against himself or herself, and therefore this lack of cooperation does not attract additional penalties.

However, the accumulation of money laundering with the predicate offense breaks with this liberal rationale. Therefore, such accumulation of crimes is not warranted and should not take place. Note: Downloadable document is written in Portuguese.

Note: Downloadable document is written in Portuguese.

Keywords: money laundering, predicate crime, criminal law