Abstract
Money Laundering has been characterized as an international phenomenon. In order to guarantee the success of the criminal organizations in the vastness of the dirty business initiated, the target of them is making the structures competent to not paralyze them or render them inoperative and inefficient. States must work together for recovering assets acquired with the proceeds of crime. Forfeiture, confiscation, and repatriation require cooperation.
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Notes
- 1.
Levi and Reuter (2006), p. 296.
- 2.
See also Linn (2007, Sept), p. 407.
- 3.
Article 3 of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances provides as follows:
1. Each Party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:
a) i) The production, manufacture, extraction; preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention; ii) The cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and the 1961 Convention as amended; iii) The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in i) above; iv) The manufacture, transport or distribution of equipment, materials or of substances listed in Table I and Table II, knowing that they are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances; v) The organization, management or financing of any of the offences enumerated in i), ii), iii) or iv) above;
b) i) The conversion or transfer of property, knowing that such property is derived from any offence or offences established in accordance with subparagraph a) of this paragraph, or from an act of participation in such offence or offences, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions; ii) The concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with subparagraph a) of this paragraph or from an act of participation in such an offence or offences;
c) Subject to its constitutional principles and the basic concepts of its legal system: i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offence or offences established in accordance with subparagraph a) of this paragraph or from an act of participation in such offence or offences.
United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988).
- 4.
Kaoma Mwenda (2006), p. 175.
- 5.
Levi and Reuter (2006), pp. 292–293.
- 6.
Alldridge (2008, Dec).
- 7.
Under the model of sovereignty, each country was responsible for its own criminal law and proceeds of the breach of those criminal laws were specific to the jurisdiction because they are specific to that set of criminal laws.
- 8.
According to Simpson and Koper (1992), the benefits of crime weigh more positively than the costs of legal sanctions, p. 368.
- 9.
Spreutels and Grijseels (2001), p. 12.
- 10.
Kleemans (2007).
- 11.
Jovanovic (2009), pp. 221–222.
- 12.
In this sense, see Rababah (2014), pp. 244, 246–248, 250.
- 13.
McCaw (2011), p. 183.
- 14.
- 15.
18 U.S.C. § 983 (c) (1) (3).
- 16.
18 U.S.C. § 984 (a) (2) provides as follows: “Except as provided in subsection (b), any identical property found in the same place or account as the property involved in the offense that is the basis for the forfeiture shall be subject to forfeiture under this section.” 18 U.S.C. § 984 (b) provides: “No action pursuant to this section to forfeit property not traceable directly to the offense that is the basis for the forfeiture may be commenced more than 1 year from the date of the offense.”
- 17.
McCaw (2011), p. 195.
- 18.
European Commission (2012, Mar 12).
- 19.
Baldwin (2009, Jan), pp. 47–48.
- 20.
The extradition treaty specifically addresses international legal cooperation. One conclusion arrived at in Rio de Janeiro on December 10, 1998, was promulgated in Brazil through Legislative Decree No. 605 of Septembe 11, 2003, which became effective internationally on January 1, 2004, as a result of the Treaty of Asunción, creating the South American common market, MERCOSUL (signed March 26, 1991).
- 21.
De Carli (2011), p. 589.
- 22.
Cestari and Toffoli (2009), p. 24.
- 23.
De Carli (2001), pp. 593, 602.
- 24.
Cestari and Toffoli (2009), p. 27.
- 25.
Supremo Tribunal Federal (2006, Dec 15), p. 95.
- 26.
This Superior Court of Justice decision reads as follows:
The Office of the Federal Prosecutor in making the complaint sought to assemble an exhibit with all documents (in Russian and in English) and forward it on to the Attorney General for the Attorney General for the Russian Federation, along with corresponding official translations (folios 163-165). In the opening statement of the acknowledgment of receipt of that exhibit (folios 167/168), this Court ordered that Attachments be compiled to include all documents alluded to, and they were named as follows: ‘Attachments VII and VIII.’ The following was granted on an item ‘c’ of the decision set forth on folios 169-214, the petition likewise formulated by the Attorney General’s Office for forwarding copy of the hard drives to the Office of the Attorney General of the Russian Federation, as requested by that Authority. The devices in question were at the Federal Police Intelligence Bureau in Brasilia for forensic analysis and were apprehended in May 2006 in the possession of Boris Abramovich Berezovisk, pursuant to a search warrant, as well as a bench warrant naming the suspect, who was then taken to the Office of the Attorney General in this capital city to depose on facts being investigated in Brazil and theoretically related to the racketeering offense (Art. 288 of the Criminal Code), given the suspect’s supposed association with other persons for the constant and ongoing purpose of engaging in illegal ‘laundering’ of money, by exploiting the partnership entered into between MSI and Sport Club Corinthians of São Paulo. At the time of the seizure, consideration was also given to the fact that the suspect had entered Brazil using the name Platon Ilyich Yelenin, and was also included in the Red Notice issued by Interpol requesting that the individual be located and arrested for extradition, even though at the time the warrant had not been through proceedings in Brazil for purposes of certification by the Supreme Federal Court (folios 932-934, 1052, 1057-1060, 1061, 1063-1064, 1065-1072, 1082-1084, 1092, 1094 and 1098 of record No. 2006.61.81.005118-0/Attachment VII, admitted in connection with the Criminal Action). The copies in question were forwarded through official communiqué No. 1040/2007-rba dated 09/28/2007 to his Excellency, Russia’s Ambassador to Brazil Wladimir Turdenev, for forwarding to the Attorney General’s Office in Russia (See folio 75 of the Addendum compiled pursuant to Order No. 18/2005 of this Court). The Russian Federation, like Brazil, is a signatory to the UN Convention against Corruption known as the Mérida Convention, after the Mexican city in which it was signed. It has been signed by 150 countries, 95 of which enforce it internationally, foremost among them being Argentina, Australia, Spain, the United States, China, France and the United Kingdom. The procedure adopted by this Court in response to the request formulated by the Ministry follows the recommendations set forth in that Convention, notably in the chapter relating to International Cooperation in its Articles 43, and 46, among others, and by the 2000 UN Convention at Palermo on transnational organized crime, in particular in its Articles 18, 27 and 28. And this was accomplished with no deviation from Brazil’s own legal proceedings, inasmuch as it also followed the form outlined in Article 7 of Resolution No. 09 of 05/04/2005 by the President of this Respectable Court, to wit: ‘Art. 7 Letters rogatory may request decisional acts or non-decisional acts. Sole paragraph. Requests for international cooperation which do not involve prima-facie evaluation by the Superior Court of Justice shall—even if classified as letters rogatory—be forwarded or returned to the Ministry of Justice so that all necessary steps may be taken to comply with them by direct assistance.’ (Emphasis ours). Direct assistance, absent better options, follows from the application of the rules of procedure of the Mérida and Palermo Conventions as from the measure requested by the Office of the Federal Prosecutor, to say nothing of the policy of reciprocity which, in the absence of specific rules, underlies international relations. This is why it was unnecessary to raise the issue of the granting of exequatur as set forth in Article 105, subsection I, clause ‘i’ of the Federal Constitution. In fact, the Palermo Convention stipulates the duty of mutual legal assistance between the Parties when the Requesting State has reasonable grounds to suspect a transnational infraction, and hence the duty to provide all legal cooperation (Article 18, items 1 and 2), to which is added the recommendation that special investigative techniques be used, such as electronic eavesdropping (Article 20, item 1). It further provides an interchange of information to keep the State Parties apprised of trends in organized crime on their territory, of the circumstances in which it operates and of professional groups and technologies involved, and may, to that end, be shared among them (Article 28, items 1 and 2). Furthermore, and in particular, this cooperation is aimed toward detecting and tracking the proceeds of crime, transfer methods, and the dissimulating or disguising of these proceeds in the ‘fight against money laundering and other financial crimes’ (Article 29, item 1, ‘d’). The international treaty in question, now duly integrated as the law of the land, provides a basis for the investigation, but in addition, urges the State Parties to effectively repress transnational criminal organizations. The UN Conventions against Organized Transnational Crime and against Corruption, it can actually be said, amount to an attempt by all sovereign states to eliminate groups rooted in a certain criminal milieu which systematically resorts to obstruction of justice—in addition to engaging in criminal behavior which affronts the rule of law, and often operates by what amounts to intimidation. What we have here are global legal guidelines. There has been no news yet of forensic analysis of the hard drives, but please note that documented proof by examination was already on the record before this Court, for it was produced on account of the search warrant issued by the Brazilian Federal Justice System in May 2006 in record of proceedings under No. 2006.61.81.005118-0/Attachment VII, as we have seen, and THIS DID NOT RESULT from any request submitted by a foreign authority, so that the prima-facie evaluation was never an issue. This is simply a case of sharing legitimate evidence produced here. In the Complaint lodged before this Honorable Court, Plaintiff also holds that the official foreign documents were neither translated into Portuguese nor stamped with diplomatic or consular certification required to make them stand up in any court of law, and further postulates renewed application of Code of Criminal Procedure Articles 780 et. seq. [Jurisdictional Relations with Foreign Authorities], as previously submitted on occasion of filing for Habeas Corpus No. 2007.03.00.091069-0. No such argumentation would apply absent additional information, at the heart of a Complaint expostulating only about jurisdiction. In any case, in the aforementioned writ, in proceedings before the Second Panel of the Hon. Regional Federal Court for Region 3, the petition was not granted by the Eminent Rapporteuse for the Habeas Corpus, Her Excellency, Federal High Court Justice Cecília Mello. The foreign language document in question is accompanied by a certified translation, in full compliance with Code of Criminal Procedure Article 236. Hence no taint of irregularity or affront to the law may be ascribed to the admission of those documents, for what we have is a true copy duly forwarded by an agency of the Russian Government. This Court also understands that the provisions contained in Articles 780 et seq. of the Code of Criminal Procedure do not apply as claimed in the Complaint, for the instant case does not involve transmittal of letters rogatory. The reasons set forth in the documents comprising the record are beyond reproach, inasmuch as all provisions of the Code of Criminal Procedure which govern the matter have been fully complied with. Observe that the Claimant, in the reasons for filing the aforesaid writ acknowledged that the ‘… Code of Criminal Procedure contained no specific provision on admissibility of foreign documents intended as evidence in criminal proceedings…’ that only being expressly required for letters rogatory (folios 952-953). The admissibility of the foreign documents is in order, in no small part for having been obtained from a foreign authority free of any imputations of illegal behavior given the absolute lack of any grounds for indicating such a thing. There is no denying that international recommendations now seek to simplify procedures and international cooperation, provided there is not, as in this case, any reason to question authenticity, and also provided there is no infringement of our national legal system. Even absent all of the above, one could still argue that the Claimant is a Russian citizen and has resided in the United Kingdom for a considerable time, circumstances that warrant the conclusion that both Counsel and Claimant ought to be familiar with the probative material. Indeed, the aforementioned Article 236 of procedural law does not even require the translation where it is patently unnecessary. Although this Court has been unable to discern any irregularity in the documentation forwarded by the Russian Authorities, it has been previously noted that if the Defense so wishes, the Defense could produce a new translation of the documents so as to clear up its misgivings. And so it did, inasmuch as it requested the translation into Portuguese of all documents contained in folios 08, 11 and 12 of Attachment No. 12, which request was met by the order issued on 11/14/2007 (folios 1392 and 1400-1414).
- 27.
Rapporteur Minister Teori Albino Zavascki (2009, Dec 16).
- 28.
Rapporteur Minister Marco Aurélio (2012, Mar 14).
- 29.
However, in examining the appeals requesting clarification, the Rapporteur noted as follows:
There was warning of a defect, at the beginning of the voting, in that it had not been issued by a judicial authority per se, which brought up the provisions of Article 202, subsection I of the Code of Civil Procedure. It was deemed apropos to remark on not having taken proper account of the fact that Article 784 of the Code of Criminal Procedure makes reference to letters rogatory issued not from judicial authorities, but from competent foreign authorities. Moreover, consonant with item 1 of Article 1 of the Treaty on Legal Cooperation in Criminal Matters entered into between Brazil and the Republic of Italy—promulgated through Ministerial Decree No. 862 of July 9, 1993—“each of the parties shall, on request, provide to the other party, in the form set forth in this Treaty, ample cooperation for criminal proceedings conducted by the judicial authorities of the requesting party.” The reference to judicial authorities by the requesting party suggests, initially, agencies clothed in judicial appointments, as in the Brazilian system. However, in Italy, the Attorney General’s office is part of the judicial system, per Articles 107, 108 and 112 under the title headed “The Courts” (Italian Constitution, Part II, Title IV). The judicial branch is organized institutionally in a linear fashion, within that same Branch, its duties involving judgment or work traditionally included in the area reserved to the Office of the Public Prosecutor. Briefly, it is a blending of functions, all of them subject to the Superior Council of the Courts. As pointed out by best doctrine, the Attorney General’s Office in Italy is an agency for the administration of Justice, and includes all measures that may be taken there for purposes of criminal investigations. See “O Ministério Público na Investigação Penal Preliminar,” by Marcos Kac. Hence, the Supreme Court of Justice, in Letter Rogatory No. 998/IT, through a unanimous panel decision authored by Minister Humberto Gomes de Barros, concluded: “The Attorney General’s Office together with the Tribunal of Parma does have standing to request Brazilian cooperation in investigations.”
- 30.
Legislative Decree No. 501 of March 21, 2012, provides as follows:
Art. 1 – This Decree establishes procedures for letters rogatory and both active and passive requests for direct assistance in criminal and civil matters in the absence of any bilateral or multilateral international legal cooperation agreement, and applies only subsidiarily to this case.
Art. 2 – The following considerations apply for purposes of this Decree:
I. Request for passive direct assistance, the request for international legal cooperation which does not require a prima-facie evaluation by the Superior Court of Justice, pursuant to Art. 7, of Superior Court of Justice Resolution No. 9 of May 4, 2005; and
II. Passive letter rogatory, a request for international legal cooperation which does require a prima-facie evaluation by the Superior Court of Justice. Sole Paragraph. Definition of the request for active direct support and an active letter rogatory is in accordance with the domestic legislation of the Requested State.
Art. 3 – In all cases in which the request for passive international legal cooperation does not entail the granting of exequatur by the Superior Court of Justice, and may be handled through administrative channels, not requiring intervention by the Judicial Branch, the Ministry of Justice shall, together with the competent administrative authorities, see to its granting.
Art. 4 – The Ministry of External Relations shall forward to the Ministry of Justice all requests for passive international legal cooperation, on criminal and civil matters, transmitted through diplomatic channels.
Art. 5 – In the absence of bilateral or multilateral international legal cooperation agreements, the Ministry of Justice shall forward to the Ministry of External Relations all active requests for international legal cooperation on criminal and civil matters, to be handled through diplomatic channels.
Art. 6 – The Ministry of Justice shall:
I. Provide attachments and opinions to and coordinate the granting of requests for international legal cooperation in criminal and civil matters, by forwarding these to the competent judicial or administrative authority;
II. Issue and publish understandings on international legal cooperation within the scope of its powers.
Art. 7 – Letters rogatory must include:
I. Identification of the requesting and requested courts;
II. The address of the requesting judge;
III. A detailed description of the measure requested;
IV. The purpose to be achieved by the requested measure;
V. Complete name and address of the person to be cited, notified, served a summons or questioned in the jurisdiction of the requested court, and, if possible, full particulars, specifying the mother’s name, date of birth, place of birth and passport number;
VI. Closure, with the judge’s signature; and
VII. Any other information which might be of use to the requested court for purposes of facilitating compliance with the letter rogatory. § 1 – Should a requested measure consist of interrogation of the party or questioning of a witness, it is recommended, under penalty of inability to comply with the measure, that the letters rogatory further include: a) The text of the questions to be asked by the requested court; b) Setting up a hearing, beginning with the transmittal of the letter rogatory to the Ministry of Justice, with a lead time of at least: (i) Ninety (90) days, for criminal matters; and (ii) One hundred eighty (180) days, for civil matters. § 2 – In the event of civil cooperation, letters rogatory must also include, where appropriate, the full name and address of the person responsible, at the addressee end, for payment of court costs and procedural fees arising from performance of the letter rogatory in the requested country, except for those taken from actions: I. Handled under the auspices of free justice; II. For the sending of foodstuffs abroad, for countries bound by the New York Convention, promulgated in Brazil by Ministerial Decree No. 56826 of September 2, 1965, pursuant to Article 26 of Law No. 5478 of July 25, 1968; III. Coming under the jurisdiction of child and adolescent courts, pursuant to Law No. 8069 of June 13, 1990.
Art. 8 – Letters rogatory must be accompanied by the following documents:
I. Initial petition, criminal information or complaint, depending on the nature of the matter;
II. Background documents;
III. Court order for its transmittal;
IV. Original copy of the official or certified translation of the letter rogatory and all accompanying documents;
V. Two original copies of the letter rogatory, of the translation and all accompanying documents; and
VI. Other documents or exhibits considered indispensable by the requesting court, in accordance with the nature of the action. Sole paragraph. Where the purpose of the letter rogatory is forensic examination of a document, it is recommended that the original be sent to the requested court, the copy remaining in the record of the requesting court, otherwise the measure may not achieve fruition.
Art. 9 – All petitions for direct assistance must include:
I. Indication of provision contained in an international bilateral or multilateral legal cooperation agreement or reciprocity agreement;
II. Indication of the requesting authority;
III. Indication of Central Authorities in both requesting and requested States;
IV. Summary containing the number(s) of proceedings or lawsuits in their requesting State, to serve as the basis for the request for cooperation;
V. Complete and accurate particulars on all persons to whom the request makes reference (name, last name, nationality, birthplace, address, birth date and, wherever possible, mother’s name, profession and passport number);
VI. A clear, objective, concise and complete narrative couched in the actual verbiage of the request for international legal cooperation, of the events which gave rise to it, to include: a) Place and date; b) Causal nexus between the ongoing proceedings, all those involved, and measures solicited in the request for assistance; and c) All documentation attached to the request.
VII. References to and full transcripts of all applicable laws and regulations, especially, on criminal matters, criminal laws;
VIII. Detailed description of the assistance requested, indicating: a) In cases of tracing or freezing of bank accounts, the account number, the name of the bank, the bank location and the endpoints of the desired timeframe, along with specific instructions as to how the documents to be obtained shall be forwarded (physical or electronic media); b) In cases requiring notice, citation or summonses, full particulars on the person to be served notice, cited or issued a summons, and the corresponding address; c) In cases of interrogations and questioning, the list of questions to be asked.
IX. Description of the purpose of the request for international legal cooperation;
X. Any other information which might prove useful to the requested authority, for purposes of facilitating the granting of the request for international legal cooperation;
XI. Other information solicited by the requested State; and XII. Signature of the requesting authority, location and date.
Art. 10 – This Decree revokes Foreign Office/Justice Ministry (MRE/MJ) Interministerial Order No. 26 of August 14, 1990, and the MRE/MJ Interministerial Order of September 16, 2003, published in the Federal Official Gazette on September 19, 2003.
Art. 11 – This Order shall take effect as of the date of its publication.
- 31.
According to Goal No. 02 of 2004 from the National Strategy for the Fight Against Money Laundering Report (ENCLA), now the National Strategy for the Fight Against Corruption and Money Laundering (ENCCLA), requests for active international cooperation from the Judicial Branch or the Office of the Public Prosecutor and federal and state police authorities, regarding authorization for direct cooperation on operations (which require an international reciprocity agreement), all go through the Ministry of Justice Asset Recovery and International Legal Cooperation Council Department (DRCI) (Art. 13, IV, of Decree No. 4991 of February 18, 2004).
- 32.
The great challenge at this point is to further popularize the benefits of adopting a single Central Authority for all International Legal Cooperation issues and broaden the horizon of this institution. With the assistance of the policies of Brazil’s Justice Ministry, through the National Anti-Money Laundering Qualification and Training Plan (PNLD), the idea is being spread that, even in the absence of an agreement, it is possible to have requests for active or passive cooperation routed through the Central Authority.
- 33.
A bill is being submitted in Brazil (No. 1982, dated September 16, 2003), by national Congressman Eduardo Valverde, to regulate International Legal Assistance on Criminal Matters, irrespective of the transmittal of rogatory letters. It would provide for temporary administrative freezing of proceeds of crime undergoing laundering. It also establishes a Council on International Legal Assistance, empowered to formulate directives, and serving as a permanent clearinghouse for information among the various government agencies it represents (the Federal Courts, Office of the Federal Prosecutor, Ministry of External Relations, Office of the Attorney General, Brazil’s Federal Revenue Secretariat, the Central Bank, the Council for Financial Activities Control (COAF), the Federal Police Department, and the Office of the Comptroller General), all offering guidance to Brazilian authorities needing to secure international cooperation.
- 34.
28 U.S.C. § 2467(d) provides as follows:
(d) Entry and Enforcement of Judgment.
(1) In general.— The district court shall enter such orders as may be necessary to enforce the judgment on behalf of the foreign nation unless the court finds that—
(A) the judgment was rendered under a system that provides tribunals or procedures incompatible with the requirements of due process of law;
(B) the foreign court lacked personal jurisdiction over the defendant;
(C) the foreign court lacked jurisdiction over the subject matter;
(D) the foreign nation did not take steps, in accordance with the principles of due process, to give notice of the proceedings to a person with an interest in the property of the proceedings in sufficient time to enable him or her to defend; or
(E) the judgment was obtained by fraud.
(2)Process.— Process to enforce a judgment under this section shall be in accordance with rule 69(a) of the Federal Rules of Civil Procedure.
(3) Preservation of property.—
(A) Restraining orders.— (i) In general.— To preserve the availability of property subject to civil or criminal forfeiture under foreign law, the Government may apply for, and the court may issue, a restraining order at any time before or after the initiation of forfeiture proceedings by a foreign nation. (ii) Procedures.— (I) In general.— A restraining order under this subparagraph shall be issued in a manner consistent with subparagraphs (A), (C), and (E) of paragraph (1) and the procedural due process protections for a restraining order under section 983(j) of title 18. (II) Application.— For purposes of applying such section 983(j)— (aa) references in such section 983(j) to civil forfeiture or the filing of a complaint shall be deemed to refer to the applicable foreign criminal or forfeiture proceedings; and (bb) the reference in paragraph (1)(B)(i) of such section 983(j) to the United States shall be deemed to refer to the foreign nation.
(B) Evidence.— The court, in issuing a restraining order under subparagraph (A)— (i) may rely on information set forth in an affidavit describing the nature of the proceeding or investigation underway in the foreign country, and setting forth a reasonable basis to believe that the property to be restrained will be named in a judgment of forfeiture at the conclusion of such proceeding; or (ii) may register and enforce a restraining order that has been issued by a court of competent jurisdiction in the foreign country and certified by the Attorney General pursuant to subsection (b)(2).
(C) Limit on grounds for objection.— No person may object to a restraining order under subparagraph (A) on any ground that is the subject of parallel litigation involving the same property that is pending in a foreign court.
- 35.
United States v. Opportunity Fund and Tiger Eye Investments, Ltd., 613 F.3d 1122 (D.C. Cir. 2012).
- 36.
Pursuant to ENCLA 2005 Target No. 40, the Justice Ministry’s Asset Recovery and International Legal Cooperation Council Department agreed to share information on the need to keep within limitations on the use of documents obtained through International Legal Cooperation, and reaffirmed the principle of specialization at the international level.
- 37.
Two judges per country, along with U.S. federal prosecutors, attended the meeting organized by the U.S. Department of Justice.
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De Sanctis, F.M. (2017). Efforts to Combat Money Laundering. In: International Money Laundering Through Real Estate and Agribusiness. Springer, Cham. https://doi.org/10.1007/978-3-319-52069-8_4
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