The USA Journals Volume 03 Issue 12-2021
98
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
December 30, 2021 |
Pages:
98-104
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue12-15
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
In this article analyzed the sense of international normative-legal acts which regulate income from
criminal activities, having studied the legislation of foreign countries, it was proposed to apply the
preferred aspects to improve national legislation. As a result of this analyze, it was suggested several
suggestions and recommendation for improve of this legislation.
KEYWORDS
Criminal Incomes, Financial Operations, Financing Terrorism, Legalization, Confiscation, Predicate
Offense, Criminal Income.
INTRODUCTION
Decree of the President of the Republic of
Uzbekistan, PF-4947 "On the Strategy for
further development of the Republic of
Uzbekistan" addresses the issue of further
reform of the judicial system in 2017-2021 the
implementation of a number of reforms in this
area through the introduction of a state
program. In 2017-2021, the implementation of a
number of reforms in this area is indicated by
the introduction of the state program on the
issue of further reform of the judicial system.
As a practical continuation of this decree, the
state program received anti - corruption
program for 2019-2020 by the Presidential
Responsibility For Legalization Of Income From Criminal
Activities And Foreign Experience In This Field
Bozorov Makhsudali Makhmudovich
Teacher, Criminal Law Department, Specialized Branch Of Tashkent State Law University,
Tashkent, Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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Decree in 27 may, 2019. Currently, this type of
crime is committed mainly by officials through
the legalization of money or property acquired
after corruption. To date, the legalization of
revenues from criminal activity requires a sharp
struggle against it, reflecting the nature of
international organized crime. In particular, in
the Republic of Uzbekistan, a number of
practical works are being carried out on the
issue of combating this type of crime.
In particular, the amendments adopted on
August 26, 2004 “Law on the fight against
legalization of revenues from criminal activity,
financing of terrorism and financing of
weapons of mass destruction” were change
was introduced within the framework of law
№516, 2019. It was defined as one of the socio
- political guarantees of strengthening the
economic foundations of the state, increasing
the welfare of the people. In particular, the
development of the economy, which is now
based on market relations and in many ways,
the economic crimes that are committed,
especially the legalization of criminal revenues,
are hindering the achievement of expected
economic results. Several sections of the
current criminal law provide for state, official,
and economic crimes against state and public
property, the criminal nature of which is similar
to the legalization of criminal proceeds.
However, this is a similarity in some respects,
as the crime of legalization is a relatively new
crime and is determined based on an in-depth
analysis
of
financial
transactions,
administrative and other actions.
Legalization is conventionally divided into two
forms: simple and complex. The simple form is
a stage of complex legalization in terms of
structure, which includes multilateral financial
transactions,
commercial,
financial
and
banking structures, insurance companies,
other
organizations
and
institutions,
commercial establishments and others. In the
early stages of the transition to a market
economy, the process of denationalization and
privatization was not sufficiently regulated,
which created certain opportunities for the
illegal accumulation of capital (cash and other
property) and its accumulation in the hands of
individuals and legal entities. "Hidden" capital
formed result of criminal activity which
considered as untaxed hidden capital.
Shavkat Mirziyoyev held a video conference on
July 27, 2018 on "Issues of crime prevention,
increasing the responsibility of government
agencies and society in this regard." In his
lecture, President said that to get to the root of
every crime, it is necessary to form immunity to
fight crime in society. Otherwise, we will
continue to worry about the consequences of
the crime.
In this stage, we should give legal concept for
legalization. Legalization – is the legalization of
money from "hidden" capital and putting it
into legal circulation, on the other words, they
give the legal status of the legal property of a
particular individual or legal entity. The term
"money
laundering",
which
means
"legalization", refers to the criminal activities
of the Chicago-based Al Capone mafia in the
1920s, which sought to give full legal status to
"secret" capital obtained through crime. Given
the threats to the economic and financial legal
framework, it is important to prevent criminal
investment from entering the economy and
other government activities. Because the
legalization of criminal assets undermines the
economic security of the state.
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Pages:
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The current fight against money laundering is
also due to the fact that many countries,
including the CIS, are experiencing similar
financial and economic problems due to the
transition from economic planning to market
relations. In the international community, the
fight against money laundering is considered
as one of the most effective tools in the fight
against organized crime, and the crime of
money laundering is included in the category of
international crimes. In the 21st century, these
types of crimes have become transnational in
nature, and new ways of committing them are
emerging. According to Article 243 of the
Criminal Code of the Republic of Uzbekistan,
legalization of proceeds from crime, on the
other words, if the property was found as a
result of criminal activity, legalization of its
origin by its transfer, conversion or exchange,
as well as the transfer of such money or other
property concealment or confidentiality of the
original property, source, location, method of
disposal, transfer, actual ownership of money
or other property or to whom it belongs are
consider as a crime. For these activities
established criminal responsibility.
Factors such as the development of modern
information and communication technologies,
the development of international money
transfer systems, and the emergence of virtual
money have also made the crime of money
laundering a topical issue internationally. This,
in turn, requires the development of
international cooperation in the fight against
such crimes, the training of qualified specialists
in the fight against these crimes, the study of
foreign experience in this field. The danger of
money laundering is that the perpetrator
legitimizes the proceeds of crime and conceals
the source of the proceeds. This, in turn,
conceals the crime committed and gives free
access to criminally obtained property.
Legalization of criminal proceeds generally
means concealment of the sources of such
proceeds and their legal entry into economic
circulation. The reason for the international
attention to the crime of money laundering
was primarily the ban on the use of money
laundering through the proceeds of drug
trafficking. It is precisely these crimes that have
endangered the legitimate economy as a result
of the free flow of money into the economy.
Therefore, on December 20, 1988, the United
Nations Convention against Illegal Traffic in
Narcotic Drugs and Psychotropic Substances
(Vienna Convention) was adopted in Vienna to
combat drug and psychotropic substance
trafficking. Following the adoption of this UN
convention, money laundering has led to the
need to criminalize international norms. In
particular, the UN Convention against
Transnational Organized Crime of 15 November
2000 and the Convention against Corruption of
31 October 2003 criminalize money laundering
and make it a crime for member states to
criminalize money laundering. Article 6 of the
Convention defines understanding, purpose
and intent as an element of the crime structure
based on the objective fact of the case. That is,
the Convention states that the intentional,
deliberate commission of a crime is an element
of the crime.
Thus, the purpose of the perpetrator in the
crime of money laundering is to conceal the
source of the proceeds by giving a legal
character to the criminally obtained property
or income. The basic provisions of this article
are also in line with the provisions of Article 6
of the UN Convention against Transnational
Organized Crime of 15 November 2000. It also
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Pages:
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provides for liability for money laundering as a
result of offenses provided for in this
Convention.
It also states that, as the basic principles of
domestic law allow, States Parties may impose
a separate liability for money laundering that
does not apply to persons who have
committed a major crime (a major crime or a
crime that causes income). Both of the above
conventions provide for liability for money
laundering as a result of certain crimes. Linking
money laundering to specific crimes makes it
difficult for states to form a common view on
criminal liability.
Therefore, a special Convention on the
Legalization, Detection and Confiscation of
Proceeds from Crime was adopted by the EU
Member States on November 8, 1990 in
Strasbourg. Article 6 of this convention, in
contrast to the above conventions, is called a
crime of money laundering. The Convention
provides for the legalization of proceeds from
any crime. The rules of this convention were
further
developed
by
the
European
Convention on About money laundering,
detection, confiscation, confiscation and
terrorist financing which was adopted in
Warsaw on 16 May 2005.
The Financial Action Task Force (FATF),
established in 1989, plays an important role in
ensuring cooperation between countries in
combating money laundering and developing
international standards.[2] While the FATF's
decisions are of a recommendatory nature,
their recommendations reflect an international
program to combat money laundering by
individuals and legal entities using the
opportunities of the financial system.
Implementation of the FATF recommendations
is of practical importance in the fight against
money laundering schemes, money laundering
from real criminal activities. The FATF’s
recommendations provide an opportunity to
respond quickly to crimes in this area. In
addition, a number of regional and inter-union
agreements also set out specific commitments
to combat money laundering. The following
are
important
in
criminalizing
money
laundering:
Signs of the subject of the crime (income or
property obtained through crime);
Methods and signs of legalization;
An open or closed list of the main (predicate)
crimes from which the proceeds of these
crimes are earned.
The concept of illegal (criminal) income was
first introduced in the framework of an
international convention, Article 1 of the UN
Convention on the fight against drug and
psychotropic substanceswhich adopted on
December 20, 1988. [2] According to this article
any property acquired or obtained directly or
indirectly as a result of illegal trafficking in
narcotic drugs and psychotropic substances
(here property means any form of asset,
tangible or intangible, movable or immovable,
divisible or indivisible, means (legal documents
giving the right to own or participate in such
assets) is defined as illegal (criminal) income.
Thus, the Convention does not refer to criminal
proceeds from any crime, but to proceeds from
the illegal trafficking of narcotic drugs or
psychotropic substances. The European
Union's Warsaw Convention of 16 May 2005
gave a broader definition of criminal proceeds.
According to him, any economic benefit
obtained directly or indirectly as a result of the
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commission of a crime is understood. The
concept of income from criminal activity differs
from the Vienna Convention on the
confiscation of this criminal proceeds in the
case of property or assets acquired at the
expense of these proceeds. According to the
convention, if the proceeds of crime are
transferred to another property, the property
will be confiscated, not the proceeds.
Confiscation applies only to the amount of
illegal (criminal) income if the proceeds of
crime are added to other lawfully obtained
sources, the property is obtained by combining
the lawfully obtained income and the illegally
obtained income. In addition, the proceeds of
crime will be confiscated. An analysis of the
above international documents shows that the
Vienna Convention against Transnational
Organized Crime of 2000, the Convention
against Transnational Organized Crime of
2000, and the Convention against Corruption
of 2003 limit the scope of the main (predicate)
crime in the concept of money laundering. the
Strasbourg Conventions of 2005 and the
Warsaw Conventions of 2005 reinforced the
notion of legalization of proceeds of crime as a
result of any crime.
We believe that money laundering is an
attempt to deliberately legitimize an asset
obtained as a result of any crime. Thus, in the
context of this article, the legalization of
income from criminal activity is the legalization
of property found as a crime, that is, to give it
a legal character, to conceal its source. The
decision of the Plenum of the Supreme Court
of the Republic of Uzbekistan "On some issues
of judicial practice in cases of money
laundering" from February 11, 2011 ye No. 1 In
each case, the fact that the legalized property
is the result of a crime must be established in
order to resolve the issue. This means that in
order to prosecute a person under Article 243
of the Criminal Code, the first (predicate) crime
must be identified. It should be noted that the
crime under Article 243 of the Criminal Code is
committed intentionally by a subject.[11-12]
That is, when a person commits a crime, the
transfer of proceeds of crime, the legalization
of its origin by transferring it to property or
exchange, the original nature, source, location
of the proceeds of crime, disposal is carried out
for the purpose of concealing or keeping secret
the method of transfer, the actual ownership
of money or other property or to whom it
belongs. For example, a person has criminal
income from drugs, bribery, human trafficking
and other crimes, and in order to legitimize the
origin of this income, that is, to freely dispose
of these funds, he acquires high-value real
estate. buys at a low price. He then sells the
property for tens of times more. In practice,
the property is provided free of charge or at a
low price. In this case, the person officially
legalizes the property at contract price. That is,
it legitimizes the proceeds of crime and
conceals its source. This example is an example
of money laundering, and a person
intentionally commits these acts in order to
legalize the proceeds of crime.
It should be noted that the transfer of any
criminal proceeds does not constitute money
laundering. The following explanation is given
in the above Plenum decision. "Courts should
differentiate between money laundering and
the acquisition or transfer of criminally
obtained
property.
In
particular,
the
acquisition or transfer of property found as a
result of a crime (for example, looting of
another's property) if such property is not
given the appearance of legal ownership (for
example, for the sale of a technical passport or
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a stolen car) the power of attorney issued is
forged), does not constitute a component of
income legalization (Article 243 of the Criminal
Code).
Depending
on
the
specific
circumstances of the case (including the
purpose of the transaction with the looted
property),
such
actions
may
involve
participation in the looting of another's
property (in the form of an assistant) or the
acquisition or transfer of criminally obtained
property (Article 171 of the Criminal Code), and
if there are grounds for it, it can also be
qualified as forgery of documents. That is, in
this explanation, the person does not attempt
to change the source of the property in the
acquisition or transfer of the criminally
obtained property. Legalization through
transactions refers to transactions, debts,
gifts, pledges, leases, exchanges, etc., which
are made in the same way as in civil law. the
structure of contracts is understood. In our
opinion, the perpetrator of money laundering
must prove that his actions are aimed at money
laundering in the course of the above
operations or transactions. Failure to prove
this intent will result in a person being
prosecuted for a crime (predicate) that is the
basis for the seizure of criminally obtained
property. Foreign countries also have norms of
liability for money laundering. The Criminal
Code of the Russian Federation provides for
two articles of liability for legalization. In
particular, Article 174 of the Criminal Code of
the Russian Federation is entitled "Legalization
of money or other property obtained as a
result of a crime committed by another
person", while Article 1741 is entitled
"Legalization of money or other property by a
person who committed a crime". is called In
other words, the Russian Criminal Code
establishes a special responsibility for the
legalization of property found as a result of a
crime committed by another person, as well as
for the legalization of property acquired as a
result of a crime committed by him.
In addition, the Criminal Code of the Russian
Federation provides for differentiated liability
for legalization of criminally obtained property.
In particular, the commission of a large amount
by Part 2, by a group of individuals with prior
conspiracy or using their official position, Part
3, and by a large number or by an organized
group aggravating the crime as a case, Article
1741 of the Criminal Code is the basis for
prosecution under Part 4. In addition, all types
of alternative penalties are identified. In
conclusion, all of the above can be seen in the
practical results of the development of modern
technologies in the fight against money
laundering and the methods used in developed
countries to reduce crime.
It is also time to consider the confiscation of
the subject of the crime, given that the
transformation of property and other means of
criminal activity will be included in the national
economy. A comparative analysis of foreign
legislation is important for the rapid detection
of money laundering offenses and the
improvement of national legislation. A study of
the experience of foreign countries has led to
the conclusion that some of the norms used in
their legislation should be implemented in our
national legislation.
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Criminal Code of the Republic of
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Pages:
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