Money laundering: definition and penalties
Article 324-1 of the Criminal Code defines the whitening how “facilitate, by any means whatsoever, the false justification of the origin of the assets or income of the perpetrator of a crime or crime having procured a direct or indirect profit” and keep saying it “The act of assisting in an investment, concealment or conversion of the direct or indirect proceeds of a crime or crime also constitutes money laundering. »
Bleaching is divided into three distinct phases:
- investment: consists of introducing illicit profits into the financial circuit;
- conversion or stacking: aims to steal funds from their fraudulent source or mix them with other funds, especially from legal sources;
- integration: it is about reintroducing these funds into the legal circuit through legal activities.
This crime is punished with imprisonment of up to 5 years and a fine of up to €375,000.
In the light of these provisions, it appears that the crime of money laundering, since it must be rigorously assessed, is limited by a very narrow scope.
However, it is not uncommon for the quarrelsome behaviors adopted by persons implicated in this type of crime to fall outside the strictly defined scope of the law.
In that case, the defendant should benefit from a decision to dismiss at the pre-trial investigation stage or an order to dismiss at the judicial investigation stage.
Failing that, an effective criminal defense will allow him to benefit from an acquittal sentence pronounced by the criminal judge.
In fact, various parameters, which must be scrupulously analysed, make it possible to escape a conviction.
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In addition to the classic checks relating to compliance with the right of defense or the prescription of the public action, common to every criminal case, can constitute elements of certain specific features of the money laundering crime defence scary things your lawyer can’t do without.
So it is with the existence of a infringement initial, the laundering of which is, if not incidental, at least consecutive (drug trafficking, tax evasion, tax evasion, theft, etc.). Because if the money laundering offense can be validly preserved without the perpetrators of the offense from which it derives having been identified or prosecuted, the Public Prosecutor must in any case provide proof of the existence of this offence. Therefore, the defendant cannot be accused of having concealed the criminal or illicit origin of goods or income, or of having participated, even indirectly, in this concealment, without having demonstrated the prior existence of the fraudulent origin of the recycled goods.
Likewise, the judicial and/or criminal authority must provide proof of the offender’s mental element.
Since laundering constitutes an intentional crime, the judge cannot validly start a conviction proceeding without having ascertained, with certainty, the illicit or penal knowledge of the origin of the recycled goods on the part of its perpetrator.
However, it is often on this basis that proof of the existence of the constituent elements of the crime is lacking.
For example, the Criminal Section of the Court of Cassation held that the fact, by the defendant, of depositing false checks in several machines, located in different places and mixing them with duly drawn checks, was not sufficient to constitute the proof of knowledge, by the defendant, of the fraudulent origin of the checks and, therefore, could not as such justify his conviction pursuant to art. 324-1 criminal code (Criminal Cassation, 17 February 2016, n. 14 -86,969).
Likewise, when the money laundering proceeding is initiated with the aggravating circumstance of organized association, on the basis of article 324-bis of the Criminal Code, proof of knowledge of the fraudulent origin of the funds or of the recycled goods, by one of the members of the organized gang , is not sufficient, as such, to characterize the fraud of another member of the organized gang.
It is therefore necessary to ensure the precise adequacy of all the elements ascertained by the investigative or judicial authorities to the conditions of the law. This is the heart of the mission entrusted to whom you will have to choose to ensure the defense.
Indeed, knowing the law is one thing. Ensuring an effective criminal defense is another.
Avvocati Picovschi, competent in Criminal lawaccompanies you in solving your legal problems.
