It is said that money laundering is a process by which assets of criminal origin are inserted into the financial system in order to give them an appearance of legality as if they had been obtained legally. This criminal phenomenon directly affects the legitimacy and transparency of the economic system and hinders the planning of state economic policies.
In the international context, this phenomenon has generated the signing of agreements with the aim of articulating a criminal and preventive financial repressive system. One of the reasons for its criminal nature is due to the close relationship this phenomenon has with organized crime, generating huge amounts of money to finance other criminal activities. As for the preventive and control nature, it is due to the fact that the financial system constitutes a vulnerable channel for asset trafficking[1].
International instruments include the 1988 Vienna Convention; the 1989 FATF proceedings; the 1990 Strasbourg Convention; European Union proceedings (1991 and 2001 Directives); the Egmont Group of Financial Intelligence Units and the 2000 Palermo Convention. Each one has an important development and contribution in terms of criminal repression, international cooperation, as well as the creation of a Money Laundering Prevention System for the financial sector.
The priority in the financial sector is due to the costs that this phenomenon can generate in the world economy due to the enormous capacity to: a) damage or at least threaten to damage the economic operations of the countries, b) corrupt the financial system, reducing public confidence in the international financial system, and therefore increasing the risk and instability of the system, and finally c) as a consequence of the expressed tends to reduce the growth rate of the world economy[2].
This is why, recognizing the essential role of the banking system and financial institutions could play, the Financial Action Task Force on Money Laundering (FATF-FATF)[3], a group of the seven most industrialized countries, on the occasion of the G-7 summit held in Paris in 1989, drew up forty recommendations on how to improve international cooperation in the fight against money laundering[4].
One of these recommendations requires financial institutions to identify their clients – including beneficial owners, not only those who may formally be clients – and to keep the corresponding records (10th to 12th recommendations). As well as the duty to inform the competent national authorities of suspicious transactions (15th Recommendation), adopting the necessary institutional internal control measures (19th Recommendation). And the establishment of an adequate system of control and supervision of financial institutions (26th to 29th Recommendations).
At the regional level, this initiative has also had an echo, since in 2000 the Financial Action Task Force of South America (GAFISUD) was created in the Americas, a regionally based intergovernmental organization that brings together 12 countries of South America, Central America and North America to combat money laundering and the financing of terrorism, through a commitment to continually improve national policies against both issues.
At the local level, Peru has also followed this process through the Law of Creation of the Financial Intelligence Unit – Law 27693 (UIF-Peru), which among its policies establishes that, in order to prevent or detect acts of money laundering, the so-called regulated entities must implement a system for the prevention and detection of money laundering activities[5]. Likewise, a program for compliance and responsible management of effective internal control policies recommended by the SBS[6] was promoted.
In this regard, SBS Resolution No. 838-2008, called “Complementary Norms for the Prevention of Money Laundering and Financing of Terrorism”, provides mechanisms for the prevention and detection of operations related to money laundering[7]. For example, in the case of companies, Art. 3[8] assigns responsibility for the implementation of these mechanisms to the General Management, Board of Directors or equivalent body of the financial institution[9].
Also Art. 4[10] of SBS Resolution No. 838-2008, establish the purpose of the prevention system to give financial sector companies the ability to detect unusual operations and prevent suspicious operations in a timely manner in order to communicate to the FIU-Peru. One of these compliance measures client identification, as well as the duty to adopt measures to register, verify and permanently update information on the identity of clients[11] and as regards operations, Law 27963 establishes which operations must be registered (art. 9.2)[12].
In addition to these recommendations, it is important to designate an official[13] to be in charge of overseeing, together with the board of directors and the general manager of the reporting entities, compliance with the system for detecting suspicious money laundering operations. Thus, numeral 1 of Article 19 of Supreme Decree No. 018-2006-JUS and Article 21[14] of SBS No. 838-2008 provide for the appointment of a Compliance Officer by the Director and General Manager.
Among the functions of the Compliance Officer according to art. 25. Lit. n) SBS Res. 838-2008[15], it states that one of the specific tasks of the compliance officer in the area of money laundering prevention is the preparation and notification of the Suspicious Transaction Report STR[16] to the FIU-Peru “… on behalf of the company”. The latter is also related to art. 8 of Law 27693[17].
Notwithstanding, it is important to mention that non-compliance with this function on behalf of the company may generate the commission of the crime of omission to report suspicious transactions, previously provided for in at. 4 of Law 27765. Currently, while maintaining the typical structure, Art. 5 of Legislative Decree 1106 has increased the punitive framework[18]. Specifically, it regulates the criminal liability for the violation of the duty to inform the competent authority of the suspicious operations detected[19].
At the same time, the laundering regulations provide for another control mechanism in addition to the figure of the compliance officer. The internal and external audit of the companies obliged to report must verify compliance with the money laundering prevention system of the obliged subject established by the corresponding general or sectorial regulations[20]. Specifically, the internal audit must formulate a special audit plan for the money laundering prevention program, aimed at improving the internal control system.
Therefore, anti-money laundering prevention involves all economic sectors. In the case of the financial system, the responsibility is greater because this sector receives and channels a large part of the flow of capital in the economy, which makes it easier for money of illicit origin to be confused with resources of legal origin[21]. Thus, non-observance and non-compliance with these preventive mechanisms, regardless of the liabilities that may arise, entails a serious social ethical reproach that delegitimizes the entity[22].
1] Cf. Comisión Andina De Juristas, Money Laundering. El Sistema Legal y su Impacto Socioeconómico, p. 11.
2] See Tanzi, “Money Laundering and the International Financial System”, May 1996. IMF Working Paper. Pg. 2; see also on the economic effects William F. Wechsler, “Follow the Money”, Foreign Affairs, July/ August 2001. P. 41 et seq.; William C. Gilmore, “Dirty Money The evolution of money laundering counter-measures”, Council of Europe Press, 1995, p. 25 et seq.
3] With the same purpose, but in different spheres of action, there are other regional entities with which the G.A.F.I. maintains relations, such as the A.P.G. (Asia/Pacific Group on Money Laundering). (Asia/Pacific Group on Money Launching), C.F.A.T.F. (Caribbean Financial Action Task Force). (Caribbean Financial Action Task Force), PC-R-EV (Council of Europe Committee), and O.G.B.S. (Offshore Group of Banking supervisor).
4] RODRIGUEZ VILLAR Pacifico, GERMAN BERMEJO Mateo, Prevención del lavado de dinero en el sector financiero, Ed. Ad-Hoc, Buenos Aires, First Edition, 2001, p. 61.
5] Cf. ASMAT COELLO, Diana Marisela “Sobre el delito de omisión de comunicaciones de operaciones sospechosas en la legislación peruana” in KAI AMBOS, CARO CORIA, EZEQUIEL MALARINO (Coord.), Lavado de activos y compliance, perspectiva internacional y derecho comparado. Jurista Editores, Lima, First Edition, 2015, p. 412.
[6] With greater precision, see Cfr. SALCEDO MACHADO, Rocío del Pilar. “El deber del compliance en la prevención del lavado de activos y financiamiento del terrorismo en el ámbito financiero peruano” in CARO CORIA, REYNA ALFARO. Compliance y prevención del lavado de activos y del financiamiento del terrorismo. Cedpe, Lima, 2013, p. 22.
7] The State establishes control mechanisms to ensure that the actions of companies do not have socially harmful consequences or, in any case, reduce them to tolerable levels. This circumstance leads to the coexistence of regulatory subsystems that aim to prevent the various business risks. From this perspective, to cite a fairly common example, companies engaged in mining activities must be involved with regulatory subsystems aimed at preventing environmental risks (General Environmental Law), risks to the health and safety of workers (Occupational Health and Safety Law), risks of diversion of controlled inputs and chemical products for drug trafficking (Control of Chemical Inputs and Controlled Products Law), risks of corruption, etc.
8] Article modified by Article 1 of SBS Resolution No. 11695-2008, published on November 28, 2008.
9] In the same sense, Article 19, numeral 1 of Supreme Decree No. 018-2006-JUS.
10] Modified by Article 1 of Resolution SBS 6561-2009, published on June 26, 2009.
11] For example, when the operations are equal to or greater than ten thousand US dollars or its equivalent in local currency (art. 6 of the Regulation). Article 9 of SBS Resolution 383-2008 also establishes the need to visit the client’s home or office, conduct personal interviews and others.
12] For further details regarding the operations carried out in a calendar month, see Article 9.
13] Article 20 of the regulations of Law 27693.
14] Modified by Article 1 of SBS Resolution No. 6561-2009 published on June 26, 2009.
15] SBS Resolution 838-2008, modified by SBS Resolution 11695-2008.
16] STR stands for Suspicious Transaction Report. A suspicious operation is one that lacks apparent economic or licit basis, and is characterized by not being related to the client’s economic activity, either by magnitude, periodicity, among other characteristics, or not being compatible with the market in which the client operates.
17] Amended by Law 28009 and Law 28306.
[18]Vid. ANDY CARRIÓN/GUSTAVO URQUIZO. “La responsabilidad penal del oficial de cumplimiento en el ámbito empresarial” in KAI AMBOS, CARO CORIA, EZEQUIEL MALARINO (Coord.), Lavado de activos y compliance, perspectiva internacional y derecho comparado. Jurista Editores, Lima, First Edition, 2015, p. 386.
19] According to article 11 of Law 27693, suspicious transactions are defined as “those of a civil, commercial or financial nature that have an unusual magnitude or speed of turnover, or conditions of unusual or unjustified complexities, that are presumed to originate from some illicit activity, or that, for any reason, have no apparent economic or lawful basis”.
[20] GARCIA CAVERO, Percy, Criminal compliance, Palestra, Lima, 2014. P.80
21] Cfr. RODRIGUEZ VILLAR, Pacifico and GERMAN BERMEJO, Mateo. Prevención del lavado de dinero en el sector financiero. Ad-Hoc. Buenos Aires, First Edition. 2001, p.140.
22] As regulated by Art. 105 of the Criminal Code with respect to the accessory consequences of the legal person.
