4 August, 2008
European judges do not have a uniform conception regarding the elements of legalization of the proceeds from crime. There exist various opinions regarding the definition of a criminal offence and the definition of the standard of the law stipulating responsibility for the legalization of the proceeds from crime. It was the conclusion of the Judge of the Chamber of Criminal Cases Anita Polakova after she returned from the regional seminar for the judges of the Central and Eastern Europe.
In some countries, and it mostly refers to the countries of the territory of the former USSR, there exists an understanding that the legalization of the proceeds from crime means only such operations with the proceeds from crime which have been undertaken with the goal to hide or disguise the origin of financial means or other assets, namely, in the result of such operations the guilty person may indicate to as if a legal origin of such proceeds. However, in other countries the legalization means almost every action undertaken regarding the proceeds from crime – keeping, usage.
After the discussions with the colleagues from different countries the Judge has come to a conclusion that the reasons for various conceptions are to a great extent connected with the fact whether the national legislation stipulates criminal responsibility for hiding without a prior promise, obtaining and disposal of the proceeds from crime. Another reason for the differences in the understanding is a varying opinion regarding the conception of a criminal offence and a differing definition of the law standard stipulating responsibility for the legalization of the proceeds from crime.
The principal goal of the seminar was to provide additional knowledge in criminal prosecution and adoption of court rulings in the cases regarding money laundering or legalization of the proceeds from crime. The judges were offered to study the adoption of court rulings from the legal and practical aspect, to learn the basic tools of the international law on the basis of which the respective national legislation is worked out, to receive practical advices regarding the application of law which regulates seizure and confiscation of the proceeds from crime. The lecturers being practitioners of law enforcement structures from different countries – judges, prosecutors, pre-trial investigators, representatives of international cooperation organizations provided information regarding the international standards and measures to combat money laundering.
The judges were recommended to apply the following international regulative documents in their work: the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances adopted on December 20, 1988, the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime adopted on November 8, 1990, the UN Convention against Corruption adopted on October 31, 2003, resolutions of the UN and the European Security Council, the EU directives. Several resolutions are not available in Latvian, therefore the Judge names them in English: United Nations Security Council Resolution 1267 Adopted 15 October 1999, United Nations Security Council Resolution 1373 Adopted 28 September 2001.
While presenting information on the criminalization of money laundering, the analysis of connections between the money laundering and predicative crimes was given, and a discussion was opened regarding differences in understanding of elements of a criminal offence in different countries. During the discussion circumstances of a specific criminal case were discussed and analyzed.
The judges also learned about the main basic principles of financial investigation during the pre-trial investigation, as well as temporary measures in the actions with arrested proceeds from crime and confiscation of such assets in various countries. Regarding this theme, information may be obtained in the Principal Decision 2005/212/TI of the European Union dated February 24, 2005, on confiscation of the proceeds from crime, tools of the crime and property.
Besides, the judges were also informed on the possibilities of receiving international mutual legal assistance and cooperation to settle these matters.
To promote the participants of the seminar to exchange views and to disclose differences and contradictions in the regulative documents and court practice of various countries, the participants of the seminar had practical exercises – solution of cases in specific criminal cases. During the practical exercises the participants of the seminar had an active discussion, and the seminar provided an ample insight in the various conceptions of the discussed issues in different countries, and at the same time offered new motives which may be used in the every day work, admitted the Judge Anita Polakova.
The regional seminar for the judges of the Central and Eastern Europe was held in Vienna, Austria, on July 3 – 4.
Information prepared by
Head of the Division of Communications of the Supreme Court Rasma Zvejniece
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