On July 21 2011 Law No. 25.683 was published in the Official Gazette, amending the Criminal Code (C.C.) and Law No. 25.246 of “Concealment and laundering of criminal assets”. The Law No. 25,246 is part of set of rules issued by the national government to avoid sanctions from the Financial Action Task Force (“FATF”).
Among the additions, a new title was added to the C.C. with the denomination “Crimes against the economic and financial order”, in which money laundering is categorized as an autonomous crime, ceasing to be a crime of concealment as stated by the previous law.
The new section 303 1st subs. C.C. establishes the basic figure of the criminal offense, which is punishable when the value of the illicit act exceeds AR$300,000 (three hundred thousand pesos), and not AR$50,000 (fifty thousand pesos) as stated before. In this case, the C.C. states a penalty of 3 (three) to 10 (ten) years, and a fine of 2 (two) to 10 (ten) times the value of the operation.
Furthermore, Section 304 extends the liability and administrative sanctions to legal entities when the crime of money laundering is done in its name, or with its intervention, or in its benefit. In such cases, the C.C. sets the following sanctions will be imposed to the company, jointly or alternative:
To graduate these sanctions, judges will consider the unfulfillment of internal rules and procedures, the omission of vigilance on the activity of the authors and participants, the extent of damage, the amount of money involved in the offense, the nature and the economic capacity of the legal entity.
The new section 305 gives judges the possibility to adopt, from the beginning of the process, all precautionary measures to ensure the safekeeping, administration, maintenance, enforcement and disposition of the assets which are instruments, product, profit or effects related to crimes of the preceding sections. In money laundering operations, they shall be confiscated without criminal conviction when the illicit origin or the material fact to which they are attached are checked, and the defendant cannot be prosecuted by reason of death, leakage, prescription or any other reason of suspension or extinction of the criminal proceeding, or when the accused has recognized the origin or misuse of the properties.
Seized property will be destined to repair the damage done to society, including the victims or the State. Any claim or dispute on the origin, nature or ownership of goods will be resolved through administrative actions or civil restitution.
With regard to the amendment of the Law of “Concealment and laundering of criminal assets”, Law No. 26.683 strengthens the role of the Financial Information Unit (FIU), declaring its autonomy and financial autarky. On one hand it assigns to the FIU a fixed budget contribution (equivalent to 0.6% of the Ministry of Justice’s budget), and on the other hand, widens its faculty to request information from national, provincial or municipal public agencies and from the subjects required by law to supply data.
In reference to the FIU’s designation proceeding, Law No. 26.683 requires that a public selection process is made in the sphere of the Ministry of Justice, which must be open and transparent, and that the Executive Power can remove the FIU’s president and vice-president from their charges when they incur in poor performance of their duties or gross negligence, when they are convicted for committing intentional crimes, or because of their physical or mental disability after their appointments.
Finally, Law No. 26.683 extends the period of 30 (thirty) days to 150 (one hundred fifty) days in which the FIU must report suspicious transactions. Additionally, the FIU is prohibited from initiating court-appointed investigations from automatic reports.
Should you have any question or comment regarding the foregoing, please contact us by calling at (54-11) 5252-2462, via Fax to (54-11) 5252-2463 or by e-mail to info@canosa.com.ar.
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Javier Canosa wrote an opinion piece in the latest edition of Alternative Latin Investor, "Tax Incentives Software Development in Argentina" (Only available in english). Click here to access the article »
Javier Canosa wrote an opinion piece on the current projects for amending the Argentine law on financial entities in the latest edition of Alternative Latin Investor. (Only available in english). Click here to access the article »
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Javier Canosa wrote an opinion piece on the current activity of the Financial Information Unit, administrative entity responsible for preventing and prosecuting money laundering activities in Argentina in the edition of November 19, 2010 of the Argentine Newspaper “El Cronista Comercial”. (Only available in spanish).
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Javier Canosa has contributed to the 2010 Argentine Chapter of Getting the Deal Through - Banking Regulation 2010, (published in April 2010; contributing editor: Craig Wasserman of Wachtell Lipton Rosen & Katz). (*)
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The link to June's Contributor Most Read In Argentina »
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Javier Canosa was distinguished in Real Estate & Construction section of Who’s Who Legal for the 2008 edition. “His competence is well known throughout the community” said the distinguished UK publication.
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