Many times during my visits to clients, or when I am teaching courses on the prevention of money laundering, I perceive that there are still many people who are not clear about which money laundering we are trying to prevent.
Accordingly, I think that some fundamental concepts have to be cleared.
The first thing: For there to be money laundering, there has to be, previously, the commission of, at least, a crime, with which someone has profited illegally.
A lot of people, the first thing that comes to mind, when talking about money laundering, is money "B" or money "in black" that has not been declared to finance. And while it is true that this type of money laundering also exists, and we must also try to identify it in application of the legislation on the prevention of money laundering, it must be remembered that for a tax offense to exist, the defrauded quota must exceed 120,000 Euros.
Therefore, those three thousand euros that your aunt keeps under the mattress because she did not declare them when she sold that picture that she had inherited, even if it is something reprehensible, is not the kind of money that should concern us as obligated subjects of the legislation in prevention of money laundering, since, in this case, no crime has been committed. In the worst case, if the Treasury discovers it, it will impose an economic sanction. But there is no crime.
So, it is important that we are clear that the international legislative system related to the prevention of money laundering and the financing of terrorism has been put in place, we have set it up, with the objective of helping the authorities to identify the people who commit crimes of those who obtain an illicit profit, whose origin they then try to disguise in order to use the irregularly obtained money as if it were legitimate money.
Or, in the case of preventing the financing of terrorism, which is a money that is going to be used for the commission of terrorist crimes.
For that reason, the main types of criminals that are persecuted with this system are those that are dedicated to drug trafficking, organized crime, and terrorism.
The second, therefore, is that the alleged offender attempts to pass said illicitly obtained funds as legal or legitimate money. And this will happen the moment you try to make use of this money in any of the ways provided in our society, because at the time you are going to perform any operation, except take a coffee or buy some shoes, you will have to pretend that the money you are using has a legitimate origin. And, it is at that very moment when money laundering occurs.
That is, money laundering occurs when an apparently legal operation is carried out, but which becomes illegal due to the fact that the money that is being used has an illicit origin. For example, buying a flat is a legal operation, but if it is done with the money obtained from a bank robbery, or by ransom for the commission of a kidnapping, then it becomes a crime of money laundering.
The third, consequently, is that the behavior that we observe, and that we should consider as suspicious of being related to money laundering, is a legal conduct, that due to its details, its accessory characteristics, we, as professionals of the corresponding sector, can identify as suspicious. That is why the legislation chooses us as obligated subjects, and imposes all these obligations on us. Because you have to be a good professional, with experience in the sector, to identify suspicious behavior, based on an action that, taken in isolation, is completely legal.
In short, three conditions are necessary for money laundering to exist:
- The existence of a prior crime with economic content.
- The will of that person who has committed and enriched himself in an illicit way, or another who collaborates with the first, who tries to pass these funds through legitimately obtained funds.
- That such attempt is normally made with a completely legal operation.