Читать книгу Anti-Money Laundering State Mechanisms - Michele Sciurba - Страница 7

The purpose of money laundering (ML) is to circulate money originating from a criminal offence back into the regular money cycle in order to legalise it. The history of fighting against ML began in the United States (US) in the 1920s. Probably the best-known money launderer was gangster boss Alphonse Gabriel “Al” Capone. Although Capone laundered income from illegal bootlegging and contract killings through various fictitious companies and fake transactions, the US investigative authorities could not produce adequate proof that he was engaged in money laundering. The US Federal Government, however, was able to charge Capone with tax evasion.¹ In United States v Sullivan², which was a precedent for Capone’s prosecution, the Supreme Court had ruled that illegal income must be taxed. In the end, Al Capone was sentenced for tax evasion in 1931 based on the fact that he failed to submit tax declarations in 1928 and 1929.³ The fight against money laundering and organised crime has ultimately become a key issue for law enforcement. The Bank Secrecy Act of 1970 (BSA)⁴ requires financial institutions to have compliance mechanisms in place to monitor and report daily aggregates surpassing USD 10,000 in order to counteract organised crime and prevent money laundering.⁵ At the same time, however, the BSA de facto greatly reduces banking secrecy and the privacy of bank customers, which was previously protected, so that the government can receive information about customers banking operations. The adoption of the Right to Financial Privacy Act (Privacy Act)⁶ in 1978 initially served as a counterbalance to this legislation.

The basic three-tier model of money laundering includes: (1) the laundering of money obtained from illicit activities, such as drug trafficking or insider trading, (2) via sham businesses, such as restaurant chains, (3) in order to integrate the seemingly legal “dirty” money into the normal banking system.⁷ The fight against money laundering has been connected to the fight against organised crime and international drug trafficking from the beginning. In the 1970s, the “war on drugs” was the starting point for developing international Anti-Money Laundering (AML) regulations, such as the United Nations (UN) Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances⁸ in 1988.⁹ In addition, the leading industrial nations decided to take joint action in order to curb the criminal misuse of the financial system for the purpose of laundering drug money at the G7 summit in Italy in 1987, which resulted in the creation of the Financial Action Task Force on Money Laundering (FATF) in 1989, an intergovernmental body commissioned with setting global AML standards.

In 1990, the FATF issued 40 recommendations that served as AML standards for financial institutions. In addition, the FATF created a blacklist of non-cooperative countries and territories (NCCT) faced with severe restrictions in terms of international financial market participation.¹⁰ This list illustrates the FATF’s major global influence notwithstanding its lack of legislative status. After the September 11 attacks fundamentally changed the world’s security situation, the FATF published nine specific recommendations on the fight against terrorist financing (TF). Taking into account this new focal point, the UK adopted the Proceeds of Crime Act (POCA) 2002¹¹ in addition to the Terrorism Act 2000¹² and the Anti-terrorism, Crime and Security Act 2001¹³. The European Union (EU) implemented the Second Anti-Money Laundering Directive (2nd AMLD)¹⁴ in December 2001, through which the FATF Recommendations first applied in the European Community.

In the wake of rising national and international security concerns, banks are exposed to severe sanctions and bear legal liability if they fail to comply with AML and Counter-Terrorism Financing (CTF) legislation. As a result, banks have implemented de-risking policies. These policies, however, undermine the confidential nature of the relationship between banks and their customers and disregard the central importance of the duties of loyalty and confidentiality. Based on the risk profiles of their customers, banks try to limit their own risks preventively, for example, by denying accounts or terminating existing accounts of legitimate customers. The risk-profiling policies animate banks to dismiss less profitable customers, discriminate against specific customer groups and justify this conduct with the need to mitigate risks. Using this approach, banks de facto not only act as extensions of law enforcement, but also raise civic and human rights concerns by disregarding the private relationship to their customers. The competent authorities have created a security structure with a significant risk of a restriction of freedom through the increasing cooperation in the centralisation and exchange of personal data. Today, the authorities’ extended power of intervention allows them access to the personal data of any citizen without reasonable suspicion of wrongdoing. The current Anti-Money Laundering regime has evolved into a system that puts the constitutional state at risk and essentially jeopardises the achievements of the state under the rule of law.