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1.3. Recommendations FATF

The following important block of international legal certificates in sphere protivoyodejstvija to washing up is accepted by special body - Group of working out of financial measures on struggle against money-laundering.

FATF has been created in July, 1989 in Paris at meeting of heads of the states and the governments of the countries «Big seven» and soon became the most authoritative organisation in counteraction sphere otmyyovaniju illegally received incomes [31]. Now members FATF javyoljajutsja more than 30 countries.

First Forty Recommendations FATF have been developed in 1990 as initsiyoativa on protection of financial systems against the persons washing money resources, obtained from sale of drugs. In 1996 of the Recommendation have been reviewed for the first time taking into account developing tendencies and ways of money-laundering and expansion of sphere of their application far beyond washing up of a gain from proyodazhi drugs. In October, 2001 FATF has expanded the mandate, having included in not its problems of financing of acts of terrorism and terrorist orgayonizatsy, and having accepted Eight (later are expanded to Nine) Special RekoYOmendatsy on struggle against terrorism financing. Recommendations FATF have been reviewed in second time in 2003 and together with Special Recommendations have been recognised more than 180 countries and are the international standard on counteraction to money-laundering and terrorism financing.

Besides development of positions, FATF carries out coordination dejayotelnosti the international and internal bodies of the state-participants, and also watches performance of certain rules and other states. In
Case of absence of progress in the decision of the questions connected with performance treyobovany on entering of respective alterations in the legislation and pereyosmotru politicians concerning struggle against washing up of capitals, rises voyopros about application of economic sanctions concerning such states and vneyosenii them in «the black list». On the basis of the developed recommendations mutual estimations of member countries are spent. By their results the report, soderyozhashchy all lacks and progressy in system UNDER/FT considered the countries is developed.

After end of the third round of mutual estimations of members FATF in close cooperation with Regional groups as FATF and oryoganizatsijami-observers, including the International Currency Fund, VseYOmirnyj Bank and the United Nations, has reviewed and has updated Recommendations FATF. Changes consider new and arising threats, clear up and strengthen many from suyoshchestvujushchih obligations, keeping at the same time necessary preemstvenyonost and severity of Recommendations.

For fuller disclosing of genesis of considered world situations, it is necessary to carry out the comparative analysis previous and new redakyotsii.

Edition of 2003 contained 4 sections: legal systems; measures which should be accepted financial institutions both not financial predprijayotijami and trades for UNDER/FT; institutsionalnye and other measures, neobhodiyomye in systems for UNDER/FT; the international cooperation. As a whole, sections reflect the basic directions developed by the given document. However it is possible to add this list with the several questions, passing in the through image through all sections.

So, especially it is necessary to allocate creation questions, polnoyomochy and functions of division of financial investigation (Financial Intelligence Unit - FIU) and questions of criminalisation of washing up of criminal incomes and finansiroyovanija terrorism.

The analysis of Recommendations will be spent concerning the most important poloyozheny, concerning directly criminally-legal regulation - voproyosov criminalisations and confiscations.

Edition of 2003 (the recommendation 1, 2) fixed necessity kriminayolizatsii money-laundering on the basis of the Viennese convention of 1988 and the Palermsky convention of 2000, established the requirement to apply a money-laundering crime to all serious offences, including the widest range of predicate crimes. Ways of definition of predicate offences - all offences were established; the certain threshold connected with kateyogoriej of an offence or with term of imprisonment; an establishment of the list of predicate crimes; a combination of approaches. Independently, however, from podyohoda, should be fixed as predicate all pravonarusheyonija which the countries on internal legislation are considered as seyoreznye or are punished by imprisonment for the term of more than one year.

Predicate offences should include and what were soyoversheny in territory of other country. However can be provided, that a condition for this purpose is that the given offence would be considered pravoyonarusheniem and on internal legislation of this country.

For an establishment of the subjective party from conventions are transferred poloyozhenija that the countries provide, that knowledge and intention at committing a crime the money-laundering demanded for proving its fact soversheyonija, can be deduced from objective actual facts.

The countries also should guarantee, that the criminal liability and in case it is impossible, civil and administrative responsibility should be made to legal bodies, that, however, should not stop imputation of responsibility for the given crimes in parallel and to physical persons.

The recommendation 17 established, that there should be accessible to primeneyoniju to physical or to the legal bodies who are not fulfilling the requirements on UNDER/FT, effective and proportional sanctions, whether it be criminal, grazhdanskoyogo or administrative character.

Edition of 2012 has introduced some corrective amendments in considered polozheyonija, however mainly technical character. The formulation in dejstvuyo
jushchej (the recommendation 3) establishes editions only, that to the countries follows rasyosmatrivat washing up of incomes as a crime on the basis of Viennese konvenyotsii and the Palermsky convention and to apply concept of a crime of washing up deyoneg to all serious crimes for the purpose of scope as more as possible a wide range of predicate crimes. Other positions on criminalisation byyoli are transferred from the text of Recommendations to Explanatory notes to rekomendatsiyojam, realising a principle of economy of the text. Important addition that corresponding additional crimes to a money-laundering crime, including participation, sotrudnicheyostvo or arrangement to the committing a crime purpose, attempt, assistance or podyostrekatelstvo should be criminalised, however, is, the simplification and a summer residence of recommendations in committing a crime, esyoli only it is not forbidden by base principles national zakonodatelyostva.

The essential step also has been made for many legal systems, stalkiyovajushchihsja with a question of necessity of adjudgment on a predicate crime, and also with a question of the minimum cost washed imushcheyostva (that has been put already in pawn by the Warsaw convention of 2005). So, item 4 pojasniyotelnoj of a note to the Recommendation 3 says, that «the money-laundering crime should extend on any type of property, irrespective of its cost which is direct or oposredovanno represents the income from prestupleyonija. At proving, that the property is the income of a crime, condemnation of the person for a predicate crime» should not be required. Such obrayozom, FATF has confirmed, that the legislation of the countries-participants should preduyosmatrivat absence as consideration compulsory condition imushcheyostva, as received criminal by, adjudgment on a predicate crime.

To recommendations in the given section the requirement kriminayolizatsii corresponding additional crimes to a crime otmyyovanija money, including participation, cooperation or arrangement to the committing a crime purpose, attempt, assistance or instigation, simplification and a summer residence to a yard is new also
komendatsy in committing a crime if only it is not forbidden by base principles of the national legislation.

Also positions about criminalisation of crimes, svjayozannyh with terrorism financing have been added. If the previous edition obliged to establish criminal character of financing of terrorism, acts of terrorism and the terrorist organisations the operating fixes that it is necessary to recognise as a criminal offence not only financing of acts of terrorism, but also financing of the terrorist organisations and separate teryororistov even in the absence of communication of their actions with concrete act of terrorism or certificates. According to an explanatory note, the purpose of the given position was, among other, to underline communication between terrorism and money-laundering and the obligation of the countries to include a crime of financing of terrorism in kayochestve predicate to money-laundering.

The question of an establishment of financing of terrorism as a predicate crime demands special consideration as new edition RekomenYOdatsy fixes wide enough concept of the given act, and as the predicate criminalisation fiyonansirovanija terrorism should precede an establishment, certainly. So, it is underlined, that qualifications of a crime fiyonansirovanija terrorism should extend on any person who soyoznatelno gives or collects means in any image, directly or indirectly, with illegal intention, that they should be used, or knowing, that they are intended for use, in full or in part: (a) for realisation of act of terrorism (certificates); (b) terrorist organizatsiyoej; or (c) the separate terrorist. And it is especially explained, that for sootyovetstvija to this position not enough one criminalisation of assistance and instigation, attempt or arrangement to terrorism. Has also no value, whether the means intended for financing, from lawful or illegal sources are received. Should not be an obligatory sign of a crime and that means have been actually used for realisation or popytyoki realisation of act of terrorism (certificates); or have been connected with konkretyo
nym act of terrorism (certificates). Does not play also a role, whether there is the person who is carrying out financing, in the same country, as terrorist orgayonizatsija (terrorist) or where were acts of terrorism (will be made.

Should be besides, criminalised in the relation finansirovayonija terrorism: committing a crime attempt; participation in quality soobshchniyoka; the organisation or a management of other persons; assistance which should be intended and should be carried out for the purpose of contribution of criminal activity or the criminal purpose of this group when such activity or the purpose provide committing a crime of financing of terrorism; or (ii) to be carried out with knowledge of group intention to commit a crime of financing of terrorism. At last, the criminal liability and sanctions and where it is impossible (because of discrepancy to base principles internal zakoyonodatelstva), civil or administrative responsibility and sanctions should be applied to legal bodies.

Marking loan of the given positions in bolshej parts from the Convention on struggle against financing of terrorism of 1999, it is necessary to tell, that some expansion concept of "terrorism financing» in comparison with the Convention and, accordingly, with the previous edition of Recommendations (otsylayojushchih to the Convention) is observed. Earlier, for example, there were no instructions on criminalisation fiyonansirovanija the terrorist organisations and separate terrorists even in the absence of communication of their actions with concrete act of terrorism or certificates. Attention accentuation on insufficiency criminal otyovetstvennosti only for assistance and instigation, attempt or arrangement to terrorism is new also.

As to sanctions for considered crimes as predyduyoshchaja, and operating edition specify in necessity of maintenance of a set of effective, proportional and constraining sanctions criminal, admiyonistrativnogo or civil character, applicable to physical and juridiyocheskim to the persons breaking the requirements UNDER/FT. Into 2012 the condition is entered, that these sanctions should be applicable not only to the financial
To establishments and UNFPP (the established not financial enterprises and profesyosii), but also to their directors and the senior management.

The following block of significant criminally-legal questions concerns konfisyokatsii property. In the Recommendation 4 the property types which confiscation should be provided the national legislation are established: 1) otyomytoe property; 2) the incomes received from money-laundering either predicate crimes, or the tools used or intending for isyopolzovanija for money-laundering or fulfilment of predicate crimes; 3) the property which is the income either is used, or it is supposed, or is intended for use for terrorism financing, terroristiyocheskih certificates or the terrorist organisations; 4) property of equivalent cost. The previous edition did not provide item 3, its introduction is connected with rapprochement of spheres of washing up with counteraction to terrorism. The recommendation 38 fixes positions about mutual legal aid in questions zamorazhivayonija and confiscations: « The countries should have powers for realisation opeyorativnyh actions in reply to the inquiries which have arrived from foreign countries about vyjavyolenii, freezing, arrest and confiscation of the washed property, incomes of money-laundering, predicate crimes and financing means terroyorizma, used or intended for use at fulfilment of such crimes; or property on the corresponding cost. These polnoyomochija should include ability to answer the inquiries submitted on osnoyovanii of procedures of confiscation of incomes without adjudgment and sootvetstvujuyoshchih obespechitelnyh of measures if it does not contradict main principles of their internal legislation. The countries should have also effective mehayonizmy for management of such property, tools or property sootyovetstvujushchej costs, and also arrangements on coordination of procedures izjayotija and confiscations of incomes which should include section of the confiscated actives ».

The orientation of international bodies on compulsion of confiscation concerning the property received from otmyyo is once again underlined
vanija and on absence of necessity of adjudgment for confiscation. However here there is a reservation «if it does not contradict the cores printsiyopam internal legislation», possibility leaving to the parties not rasyosmatrivat to possibility implementatsii the given positions.

1.4.

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A source: Filatova Maria Alekseevna. CRIMINAL LIABILITY FOR LEGALIZATION (WASHING up) of MONEY RESOURCES OR OTHER PROPERTY, RECEIVED CRIMINAL BY, UNDER the LEGISLATION of Russia And Austria. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2014. 2014

More on topic 1.3. Recommendations FATF:

  1. tendencies of voluntary execution of recommendations
  2. § 1. Features of voluntary execution of the decision and recommendations.
  3. CONCLUSIONS AND RECOMMENDATIONS
  4. CONCLUSIONS AND RECOMMENDATIONS
  5. stages of voluntary execution of recommendations
  6. the Conclusion, conclusions and recommendations
  7. the Conclusion, conclusions and recommendations
  8. 4.5.1.7. Recommendations
  9. recommendations
  10. Recommendations about realisation of technology of structurization kodifitsirovannyh certificates
  11. Conclusions and recommendations
  12. PRACTICAL RECOMMENDATIONS
  13. PRACTICAL RECOMMENDATIONS
  14. PRACTICAL RECOMMENDATIONS
  15. Practical recommendations:
  16. PRACTICAL RECOMMENDATIONS
  17. CONCLUSIONS AND RECOMMENDATIONS
  18. CONCLUSIONS AND RECOMMENDATIONS