Reckless money laundering crime

In the criminal legislation of Central American countries.

By: Jeovanny Hernández, Consortium Legal.

Before addressing the crime of reckless money laundering in the Central American region, it is important to note that many international instruments have encouraged countries to pass laws to more effectively combat this illicit activity.

The United Nations has approved two instruments ratified by Central American countries:

1. 1. United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.
   2. United Nations Convention Against Transnational Organized Crime.

By ratifying these instruments, the States Parties undertake to:

• • Criminalize the conversion or transfer of property knowing that it derives from offenses established in the Conventions.
  • Adopt measures to authorize the confiscation of:
  • Proceeds of offenses covered by the Conventions or property equivalent to such value.
  • Property, equipment, or other instrumentalities used in the commission of these offenses.

Likewise, the States Parties must allow the identification, tracing, freezing or seizure of assets derived from illicit activities, generally linked to organized crime.

The Financial Action Task Force (FATF) also recommends:

• • Criminalize money laundering.
  • Approve measures to freeze, seize and confiscate assets related to this crime.

In compliance with these recommendations, Central American countries have legislated to:

• • To deprive of the domain assets coming from crimes or without licit origin.
  • To typify the crimes of money laundering with intent and reckless (or negligent) laundering.

In this article I will deal with the imprudent modality, that is, when the typical conduct is not carried out with knowledge and will, thus differentiating it from intentional money laundering.

According to Muñoz Conde (2004), the core of reckless crime lies in the divergence between the conduct performed and the conduct that should have been performed according to the necessary duty of care. Criminal law punishes both intentional actions and those performed carelessly, and which generate prohibited results. The purpose is to motivate citizens to act with diligence and avoid harmful consequences.

Knowing what the crime of reckless money laundering consists of is vital since no company is exempt from being used by criminals. Even if the entrepreneur is honest, his business can be subject to this crime if he does not employ the duty of care. Therefore, it is crucial:

• • Not to act with negligence or disdain in business management.
  • Implement compliance programs to identify, assess, and manage the risks inherent in doing business.

Experience has shown that even prestigious financial institutions have fallen victim to this crime, despite having compliance areas in place. This is because criminals are ingenious and look for new ways to launder assets from illicit activities.

In countries such as Costa Rica, Honduras, and El Salvador, legal persons are admitted to criminal liability in addition to criminalizing this offense. This means that, if a company is used for money laundering due to the negligence of its administrators, it may face:

• • Pecuniary sanctions.
  • Suspension of activities.
  • Closure of premises or establishments.

Therefore, companies must have a compliance program to manage the risks inherent to their activity. This should not be considered an expense, but an investment that protects the continuity of the business and avoids criminal lawsuits with serious consequences. The time has come to seek specialized advice to act ex ante and not ex post.