18 Mar recycling and self-laundering

The provision pursuant to art 648 to c.p., in predicting the criminal figure of money laundering, sanctions – except in cases of complicity in the crime – anyone who replaces or transfers money, goods or other benefits deriving from an intentional crime, or performs other operations in relation to them, in order to hinder the identification of their criminal origin, with imprisonment from four to twelve years and a fine of 5.000 euro a 25.000 euro.
The second paragraph provides for an aggravation of the sentence when the fact is committed in the exercise of a professional activity; while the penalty is reduced, according to the provisions of the third paragraph, for the hypothesis in which the money, the goods or other utilities derive from a crime for which the penalty of imprisonment of less than a maximum of five years is established.
By express provision of the last paragraph, in the end, the crime in question exists even when the perpetrator of the crime from which the money or things come is not imputable or is not punishable, or when a condition of prosecution relating to this crime is missing.
The diversity of objectives pursued by the multiple regulatory interventions adopted with reference to the crime of money laundering, had important repercussions on the identification of the legal object of the crime itself.
In the code, the crime in question finds its place in Title XIII of the second book, dedicated to crimes against property and in particular in Chapter II concerning crimes committed through fraud, however the articulate excursus crime history, easily confuses the interpreters of the law in order to identify the good protected by the law.
It should be noted, after all, that if originally the objective that was sought to be pursued through the introduction of the rule pursuant to art. 648 to c.p. was to discourage the commission of some crimes considered particularly alarming, hindering the use of the proceeds deriving from them, with a view to protecting the individual's assets, with the evolution of the incriminating case, the legislator intended to prevent the conduct of obstruction of justice and contamination of the markets with an illicit economy.
That's it, indeed, that the crime in question has assumed the characteristics of a pluri-offensive crime, protecting, on one side, the patrimonial interests attacked as a result of the predicate crimes, e, on the other, the administration of justice, public order as well as the economic and financial one.
In this perspective, the modification of the money laundering offense can be explained through the intention of repressing those conducts that prejudice or make the verification of the illicit origin of the goods more complex and therefore the carrying out of the investigations, as well as the pollution of the economy and the market, implemented with the relocation of illicit wealth into a flow of licit capital.
The diversity of objectives pursued by the multiple regulatory interventions adopted with reference to the crime of money laundering, had important repercussions on the identification of the legal object of the crime itself. In the code, the crime in question finds its place in Title XIII of the second book, dedicated to crimes against property and in particular in Chapter II concerning crimes committed through fraud, however the articulate excursus crime history, easily confuses the interpreters of the law in order to identify the good protected by the law. In the light of the aforementioned regulatory provision, it must be noted how, indefeasible prerequisite for the existence of the crime, or the prior commission of an intentional crime. It seems essential to note how the constant jurisprudential orientation does not require the exact identification of the type of predicate crime, it being sufficient that the logical proof of the illicit origin of the utilities object of the cleaning operations carried out is achieved. Nonetheless, nor is it essential that the predicate offense be judicially ascertained, having only to be considered subsisting, incidentally, by the proceeding judge for the crime pursuant to art. 648 to c.p. and not having to have been excluded, definitively, by another Judicial Authority. Based on this interpretation, the archiving decrees and the judgments of no place to proceed relating to the predicate crimes will not be capable of excluding the configurability of the crime of money laundering, these are non-irrevocable measures.
The law on money laundering poses an interesting interpretative question regarding the identification of the active subject of the crime. The incriminating case in question is constructed as a crime with a restricted subjectivity, as the same, according to the regulatory provision, can be done by anyone, provided that the subject is not the perpetrator or participant in the predicate offence, as emerges from the exclusion clause of the provision in question. On this assumption, a consolidated doctrinal trend had developed which considered the non-punishability of conduct subsequent to the commission of the crime and aimed at ensuring profit, since they fall into the category of the non-punishable post factum, according to the consumption theory, for which the punishment of the antecedent offense exhausts the total negative value of the tort, given that the subsequent conduct represents only the logical development of the previous one. So much so that the jurisprudence had affirmed the non-integration of the crime of money laundering in the presence of a conduct of use in one's own economic activities of the money obtained from the illicit conduct committed by the same subject. The picture today is significantly changed, following the introduction, by the L. 186/14, dell’art. 648 ter – 1 c.p. which punishes the crime of self-laundering. The newly introduced criminal offense punishes, with imprisonment from two to eight years and a fine of 5.000 a 25.000 euro, whoever - having committed or concurred in committing an intentional crime - employs, substitute, transfers, in economic activities, financial, entrepreneurial or speculative, money, the goods or other benefits deriving from the commission of this crime, in order to concretely hinder the identification of their criminal origin. Without wanting to dwell too much on the problems concerning this new incriminating provision, the critical profiles that arise from the comparison with the crime of money laundering are immediately noticeable. Much of the doctrine has not, indeed, hesitated to report possible violations of the general principles of criminal law, arguing, first, that the post delictum conduct carried out to hinder the identification of the criminal origin of the goods and money would constitute a non-punishable post factum, being, the normal continuation of the crime committed, devoid of independent disvalue. Secondly, it has been argued that the conduct punished by self crime- money laundering would be an integral part of the predicate offence, therefore it would not be punishable in accordance with the ne bis in idem principle. Furthermore, some authoritative authors have claimed that the newly introduced case would also be in conflict with the principle according to which nemo tenetur se detegere, by virtue of which no one can be held to self-incrimination. Lastly, the problem was also raised of the incongruity of the disciplinary treatment that the person held responsible for money laundering and self-laundering crimes would face. The highlighted contrasts of the new provision with the guarantee principles mentioned above, as well as the difficult application contours of the exclusion clause specific to the crime of money laundering represent problems that the doctrine but above all the jurisprudence are starting to deal with but which will certainly not be easy to resolve. The subjective element of the money laundering crime is characterized by the awareness of the criminal origin of the money, of goods or other utilities and is supplemented by generic fraud, which includes both the will to carry out activities aimed at preventing or hindering the identification of the illicit origin of the res, is, precisely, awareness of that provenance. With regard to the consummation of the crime in question, it must be identified in the action of substitution, of the transfer or of the operation which hinders the identification of the criminal origin. Despite being instant consumption, laundering is a free-form crime that can also be perpetrated through fragmented and progressive methods, transforming, in this case, possibly permanent crime, the consummation of which ceases with the last of the operations carried out. As for the configurability of the attempt, the formulation of the case as a crime of anticipated consummation has been abandoned, the same must certainly be considered configurable. The dividing line between the crimes of receiving stolen goods and money laundering has been clearly outlined by the jurisprudence of the Court of Cassation, which offered precise discretionary criteria to diversify the two cases. Pursuant to art. 648 c.p. commits the crime of receiving stolen goods, chi, in order to obtain a profit for himself or for others, buy, receives or conceals money or things deriving from any crime. Well, If on one hand, the two crimes in question are united by the assumption of the crime, or the illicit origin of the goods, the structural differences must be identified in the objective element and in the psychological one. With reference to the first aspect, it suffices to observe that receiving stolen goods is essentially consumed with the receipt of the criminal res, while in recycling a quid pluris is needed, having to carry out a further activity of obstacle to the identification of traces of the criminal origin of the goods.
The psychological element is also different, which in the case of receiving stolen goods can be qualified in the specific fraud constituted by the aim of procuring a profit for oneself or for others, while in laundering it requires only generic fraud, understood, as seen, what willingness to launder money, goods or other utilities. The relationship between the two cases is, to evidence, that of the specialty, having to believe - as constantly affirmed by the jurisprudence - that recycling is a special rule with respect to receiving stolen goods, identifying the common core, in the receipt of goods of illicit origin e, the specializing element, in that particular conduct of obstacle to the identification of the criminal origin. It has been observed that, abstract line, it is possible to hypothesize a material concurrence of crimes between the two cases, when to the action of receiving the goods that come from a crime, in order to make a profit, achieves a subsequent substitution conduct. Hypothesis, as mentioned, theoretically configurable, but which on a practical level finds residual application spaces given that, at the norm, the behavior of substituting "dirty" money with "clean" money eliminates the moment of receipt as an autonomous harmful event, posing as a mere non-punishable background. In light of this consideration, therefore, the concurrence of the aforementioned crimes would be admissible only in the case of distinct conduct, both on a psychological level, what material, as well as chronological. The jurisprudence of legitimacy, with two compliant pronunciations, deemed the competition between receiving stolen goods and recycling admissible in the hypothesis in which, albeit in a single time frame, a subject receives a plurality of things of criminal origin, belonging to the same person, making himself responsible, with reference to some of them, of the crime of receiving stolen goods e, with reference to others, than recycling. Then, according to the opinion of the Supreme Assembly, we are in fact in the presence of a plurality of juridical events and therefore of crimes; it's not about, indeed, of an apparent combination of rules in relation to the same conduct but of distinct crimes committed with reference to different assets. He must, moreover, observe what part of the doctrine believes, instead, that there is a relationship of reciprocal specialty between the two cases. According to such authoritative authors, indeed, money laundering punishes conduct that is concretely capable of hindering the identification of the criminal origin of the money or goods, while the recipe provides, in addition, a specific fraud. Consequentially, according to this line of interpretation, conduct aimed at profit would fall within the scope of receiving stolen goods, unless the suitability of the same to hinder the ascertainment of the criminal origin of the goods is clear. Even more problematic are the relationships between money laundering and the use of money, goods or other utilities of illicit origin. The rule punishes anyone, outside the cases of complicity in the crime and the cases provided for by the articles 648 e 648 to, employs money in economic or financial activities, goods or other benefits deriving from crime. The subsidiarity clause contained in the law must be interpreted as aimed at excluding the behavior of those who use the money, goods or other utilities, having received them directly from the perpetrators of the predicate offences. The use of the aforementioned assets by these subjects constitutes, therefore, by express legislative provision, a mere post factum not punishable of the crimes of receiving stolen goods and money laundering, similarly to what is provided for the competitor in the predicate offense who invests the proceeds of his criminal activity. The applicability of the standard, therefore, remains bound to the hypothesis - of residual realization - in which the receiving or laundering has already been carried out by others and the subsequent recipients use the money received in the awareness of its criminal origin.