Criterios de cierre del proceso de puja simultánea

Criminal law regulates money laundering in Article 279 of CC. This criminal offence, after amending the Criminal Code in 2008 (NN 152/08), is now entitled ‘money laundering’. The previous name was ‘concealment of illegally acquired money’. The new name is much more appropriate because it better highlights the difference with the concealment of a criminal offence (Article 236 CC) and it better expresses the nature of this crime (in Germany for example, basically the same term, Geldwäsche is used). According to the Croatian conception, this crime has two basic forms, which is in accordance with the Vienna Convention of the United Nations against illicit traffic in narcotic drugs and psychotropic substances. These are the following forms.

- Money laundering by concealing the sources of money, which can be committed only in the banking or other financial operations. The activity is described alternatively as an investment, downloading, replacement or otherwise;

- Money laundering by acquisition, which need not to be in banking or other financial operations. The activity is described as the acquisition, possession or marketing.

The object of this crime is not just money, but it can also be subjects purchased with money obtained through criminal offense and the rights acquired by such funds. Criminal activity from which they must originate is not specified in Croatian law, so the money can come from any criminal act. Such a solution is not good because it greatly expands the criminal zone14 and loses sight of the ratio of the offense. It is also difficult to distinguish it from the criminal offence of concealment of Article 236 CC.15

This offense can be committed intentionally and negligently. Intent may be direct or indirect. From the text of CC one might conclude that the offence can be committed only with the direct intent.16 However, that is not sustainable if we take into account that negligence is also punishable. Otherwise the interpretation would lead to contradictory

14 _{Same in P. Novoselec, ur., Posebni dio kaznenog prava [Special part of criminal} law] (Zagreb, 2007) p. 339

15 _{For the differences between those two criminal offences see ibid., p. 338.} 16

It seems that Bačić and Pavlović think so when they say that the perpetrator ‘knows the origin of money’. See Bačić and Pavlović, op. cit. n. 13, at p. 976.

István László Gál – Igor Vuletić

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result, according to which punishable direct intention and negligence would be, but not indirect intent. The indirect purpose would be, for example, if the offender allowed the possibility that money, or other objects are originating from criminal offences and, despite that, would continued his activity.17 Negligence refers to the fact that the money, or other specified facilities obtained through a criminal offense, which means that concerning the other features of this criminal offence, there must exist intent.18

Qualified form of this criminal offence exists if the perpetrator commits a criminal offense as a member of a group or criminal organization. In this case, the penalty is imprisonment for one to ten years, which is also the strictest possible punishment for this crime under Croatian law. Thus it is approaching the German regulations, which, for the most serious cases also provides up to ten years in prison. Prosecution of the qualifying forms is subject to the Office for Combating Corruption and Organized Crime (hereinafter: OCCOC).19 The OCCOC is a part of the State Prosecutions Office established for the territory of the Republic of Croatia with headquarters in Zagreb.20 The jurisdiction and powers of OCCOC are regulated by LOCCOC.

In terms of penalty, it should be pointed out that the basic form of this criminal offense was originally punishable by imprisonment of six months to five years. When the CC was amended in the year 2000, that penalty was erased by mistake. This situation lasted until 2005, when the Secretary of the Croatian Parliament made a correction (NN 84/05) which returned an earlier penalty in the legal text. After that, the Croatian Supreme Court (hereinafter CSC) adopted, following requests for protection of legality, the decision (Kzz 1/05) in which it held the view that this correction is only valid from the date of its enactment and the basic forms of money laundering committed from 2000 until the law’s correction in 2005 remain unpunishable.21

17

Example taken from P. Novoselec, Uvod u gospodarsko kazneno pravo [Introduction to economical criminal law] (Zagreb, 2009) p. 195 and further. 18

See ibid., at p. 340

19 _{See Art. 21. para 1/3. LOCCOC.} 20

See Art. 2. para 1. LOCCOC.

21 _{See P. Novoselec, Brisanje kazne i ispravak kod kaznenog djela pranja novca,} sudska praksa, Hrvatski ljetopis za kazneno pravo i praksu [Deleting of the sentence and correction by criminal act of money laundering] (Zagreb, 2006) p. 340.

Main characteristics of Hungarian and Croatian anti-money laundering systems __________________________________________________________________________________________________________________________

The Croatian model of money laundering regulation, as well as German and Swiss laws, allows the predicate offense to be committed abroad.22 But in this case, the Croatian model goes beyond these laws because it allows prosecution and conviction, even if the dual criminality condition is not fulfilled, but with the further condition of approval by the Attorney General.

The law provides that the money obtained through a criminal offense and items that were purchased with money obtained through criminal offense shall be forfeited and the rights acquired by such funds shall be undone. This is actually a special form of security measure of forfeiture (Article 80 CC),23 which should be distinguished from forfeiture of property used (Article 82 CC). To stimulate the perpetrators for self – denunciation, CC provides that the perpetrators of all forms of money laundering who voluntary contribute to the detection of criminal offenses may be remitted by the Court. The institute of effective remorse is at issue here.24

Regarding whether one can be held responsible to launder money from his own criminal activities, this question has not been sufficiently discussed in Croatian scholar literature. One possible solution is that, in this case, money laundering is an unpunishable subsequent activity, which is in apparent concurrence with the predicate offense. This opinion is based on an analogy to the crime of hiding. It argues that money laundering does not bring new criminal amount, so it should not be penalized. This solution was adopted in some foreign jurisdictions, such as in Austria. In Croatia, this solution is, however, represented in part of the State Attorney’s practice.25 Another possible position is to be condemned for the concurrence because it produces various legal goods (legal properties). In addition, given the fact that money is usually washed out of organized criminal activity, it would be unjustified to set

22

More about German and Swiss law in S. Preller, ‘Comparing AML legislation of the UK, Switzerland and Germany’, 11 Journal of Money Laundering Control (2008), available at: <http://www.emeraldinsight.com/Insight/ViewContentServlet? Filename=Published/EmeraldFullTextArticle/Articles/3100110303.html>, (last accessed on 20.04.2010).

23 _{See more in P. Novoselec, op. cit. n. 21, at p. 341.} 24

Ibid. More information about the institute of effective remorse see in P. Novoselec, Opći dio kaznenog prava [General part of criminal law] (Zagreb, 2009) p. 325.

25

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free someone for money laundering simply because in some way he participated in the commission of predicate offenses, especially if, for some reason, he can no longer be punished for the predicate criminal offense.26 There is also a third, compromise position, which is based on the German model. The German Penal Code includes a provision that is designed to allow punishment for laundering money from criminal activity only in cases in which there is no possibility of punishment of predicate offenses. Given that the Croatian provision is silent on this issue, this compromise interpretation could be applied to Croatian law. It seems that Novoselec also represents this opinion, when he says that this solution is acceptable, but only if we already have a prior conviction for a predicate criminal offense.27 But one could add that to fulfill this requirement, assessment should always be done in concreto, bearing in mind which predicate offense is in question and if there is a place for concurrent consideration for violation of legal goods. Sometime it will be better to condemn for concurrence of crimes because it will be better to include the amount of crime recorded and it will avoid unjustified privilege for the offenders.

2. The main features of the Law on Prevention of Money