*99431*
A.
Mussin, LL.M.
Financial
police Academy, Kazakhstan
Struggle
on money laundering: international tendencies and threats.
The problem of the struggle
against "money laundering" in more or less familiar to all developed
countries and is actually international. Organized crime, legalizing their
illegal profits, in addition to internal channels effectively uses a system of
international payments, tax havens, and mechanisms of export-import operations.
In this regard, it is closely related to various aspects of other transnational
crimes.
Types and forms of
modern organized crime are extremely diverse, many of its manifestations cannot
be put in a specific offense, defined as a crime with in common criminal law
definitions.
Money laundering
is a serious threat not only for Kazakhstan, but for all countries of the world
community, as this phenomenon to some extent has an impact on the overall crime
situation and the national economy. In Kazakhstan, the harm caused to the State
is quite significant and amounts to billions of tenge. One of the strategyes of
the Agency of Financial Police is - removing the effects of economic crimes. So
for eight months of 2011 the financial police had recovered damages to the
state and citizens in the sum of 767 million U.S. dollars.
One of the key international institutions to combat money laundering of
illicit proceeds and terrorism financing is the Financial Action Task Force
against Money Laundering (FATF), an initiative of the Heads of States and
Governments of the Group of Seven in 1989.
In addition, EAG founded in
2004, united the countries of the Eurasian region: Belarus, India, China,
Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Turkmenistan and Uzbekistan. EAG
has an important role in reducing the threat of terrorism and to ensure
transparency, reliability, and security of financial systems in the region, as
well as the involvement of regional states in the international system of
combating money laundering and terrorist financing.
After receiving associate membership in
FATF Kazakhstan and all nations of the EAG, even without permanent membership
in the FATF, can take part in its work.
As part of the EAG, as well as cooperation on the basis of dvuhstornnego
Kazakhstan participates as a beneficiary of technical assistance programs from
international organizations such as IMF, World Bank, UNODC and the OSCE.
Technical assistance is based on the principles of mutual interest,
practicality and efficiency. Programs are implemented by means of: projects,
personnel training and advice to support the development of individual
elements, and in the whole national system of Kazakhstan on combating
legalization (laundering) of proceeds from illegal and terrorist financing.
During the 19th Plenary Meeting of the Group of financial intelligence
units (FIUs) Egmont, held in Yerevan (Armenia) 11 to 15 July, 2011 an official
decision was made on the accession of the Committee for Financial Monitoring of
the Ministry of Finance of the Republic of Kazakhstan in the Egmont Group as a full
member. This event is a recognition of the national system of financial
monitoring of Kazakhstan in the international arena and will enhance
cooperation with foreign countries in the field of combating money laundering
and terrorist financing, as well as improve the efficiency of the Committee for
Financial Monitoring and strengthen information exchange with financial
intelligence units of the participating countries of the Egmont Group .
Along with Kazakhstan, other members include Azerbaijan, Morocco, Mali,
Samoa, Solomon Islands, and the Republic of Uzbekistan. At this point 127
countries are in the Egmont Group.
Kazakhstan also has consistently taken steps to implement the 40 +9 FATF
Special Recommendations, some of which require appropriate changes in national
legislation. By studying the international experience of combating money
laundering, the Republic of Kazakhstan assesses national legislation and
evaluates its development.
As international practice
shows that in countries with experience fighting this category of crimes, the
presence of law enforcement bodies and special services, special staff
position, with functional responsibilities for monitoring, removal, valuation,
are necessary to follow the confiscation of money or other property acquired
from criminal activity. In this connection it seems appropriate to introduce in
the Financial Police of the Republic of Kazakhstan the appropriate structure
(department, management department).
In addition, one practice has proven its effectiveness in some countries
(eg China, Hong Kong): the repeal of the presumption of innocence for
officials. In the case of detection, seizure of property by value clearly
exceeding the size of the money assets under the official control, such
property would be subject to seizure if the person fails to prove the
legitimacy of ownership. This situation echoes Article 20 of the UN Convention
against Corruption (October 31, 2003, which Kazakhstan joined in May 2008)
Illicit enrichment: Subject to its constitution and the fundamental principles
of its legal system, each State Party shall consider adopting such legislative
and other measures as may be necessary to establish as a criminal offense, when
committed intentionally, illicit enrichment, that is, a significant increase in
the assets of a public official, his or her lawful income, that it can not
reasonably explain.
Applying the above principles will greatly contribute to having a place in
some countries (eg USA), a measure for the introduction of the universal declaration
of expenditure. Hence the size of illicit enrichment will be visible as the
difference between revenues and expenditures of the official. This difference
can be identified by developing the necessary methodology for calculating that
reflects credit and debit transactions, including taxes and other obligatory
payments for budget, balance, etc. It is also necessary to define more clearly
the concept of an official in the criminal law, outlining, and thereby
extending the range of persons covered by this definition to bring it into
conformity with Article 2 of the UN Convention against Corruption: a)
"Public official" means:
i) any appointed or elected person holding any office in the legislative,
executive, administrative or judicial office of a Member State on a permanent
or temporary, whether paid or unpaid, irrespective of that person's seniority;
ii) Any
other person exercising a public function, including for a public agency or
public enterprise, or provides a public service, as defined in the domestic law
of a State Party and as applied in the pertinent area of law that State Party;
iii) any other person defined
as a "public official" in the domestic law of a State Party.
Nevertheless, for the purpose of some specific measures contained in chapter II
of this Convention, "public official" may mean any person exercising
a public function or provides a public service, as defined in the domestic law
of a State Party as applied in the relevant area of law of that State Party.
Another effective tool in combating
the shadow economy and money laundering derived from criminal activities is
reducing the circulation of cash and maximizing non-cash settlements in the
country. An action plan on combating corruption for 2011-2015 by the Ministry
of Finance of the Republic of Kazakhstan tackles this issue. Currently,
according to the National Bank, the ratio of cash to total money supply in
Kazakhstan is 12.7%. In Russia, the ratio is 11.9%. The normal rate is
4.2-6.6%, in Brazil and the U.S. respectively. Cash is after-all a useful tool
for criminals - at leave no traces. Therefore, criminals prefer cash. Cash is
on site at all drug trafficking, arms trafficking, contract killings,
robberies, thefts... almost all crimes. Checks or credit cards for illegal
drugs or for guns cannot be redeemed – because they leave a trail.
References:
1. Pact on 16.12.1966, the
"International
Covenant on Civil and Political Rights."
2. Report EAG "mutual evaluation".
3. "The fight against money laundering derived
from drug trafficking," Guidelines / N.R. Aykumbekov. - Almaty: OONIiRIR
Police Academy RK, 2009. - 50 seconds.
4. Official website of FATF: http://www.fatf-gafi.org
5. Official website of the FSA: http://www.afn.kz/ru