The recent jurisprudential arrest of the EU Court of Justice (judgment of 2 September 2021 – C. 790/19) establishes the imputability for the crime of self-laundering, in addition to the main crime of tax evasion, admitting the compatibility of the crime of self-laundering with the law of European Union.
The Court concluded as follows: “Article 1, paragraph 2, letter a) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for of laundering the proceeds of criminal activities and terrorist financing, must be interpreted as meaning that it does not preclude national legislation which provides that the crime of money laundering, within the meaning of that provision, may be committed by the perpetrator of the criminal entity which generated the capital in question”.
On 15 November 2018, the Court of Brașov (Romania) sentenced a Romanian citizen to prison for the crime of money laundering deriving from a tax evasion crime committed by the same citizen. In the present case, the crime of evasion derived from undeclared receipts which had been transferred, through the artifice of a credit assignment contract, to a bank account of a company managed by a third party and then withdrawn both by the defendant than by the third party.
The Brașov Court of Appeal had suspended the criminal proceedings, doubting that the aforementioned conduct, which could be qualified as “self-laundering”, could be said to be compatible with European Union law and in particular with Article 1, paragraph 3, letter a), of Directive (EU) 2015/849, the literal interpretation of which, in the opinion of the referring court, implied that the crime of money laundering, while always deriving from another crime, was committed by a person other than the perpetrator of the main crime.
Furthermore, according to the Romanian judge, making both crimes converge against the same subject was equivalent to violating the principle of ne bis in idem contemplated by art. 50 from the European Charter of Fundamental Rights of the Union, as well as from the art. 4, Protocol no. 7, European Convention on Human Rights.
Although the referring court’s question had been raised regarding Article 1(3) of Directive 2015/849, the European Court of Justice observed that, in the present case, the national law under which the defendant was sentenced had transposed into Romanian law Article 1(2)(a) of Directive 2005/60, which was in force during the period at issue in the main proceedings, and therefore focused its attention on that legislative text.
Adhering to the conclusions of the Advocate General, the European Court of Justice has found that the laundering of capital, pursuant to article 1, paragraph 2, letter a), of directive 2005/60, or the conversion or transfer of assets, carried out with the knowledge that they come from a criminal activity or from a participation in such activity, for the purpose of concealing or disguising the illicit origin of the goods themselves, is constituted by an act distinct from the deed constituting the main offence, even if this money laundering is carried out by the author of the main crime and therefore attributable to him.
With reference to the principle of the prohibition of ne bis in idem, the Court finally clarified that it is up to the trial judge to verify the non-coincidence of the facts constituting the main crime, i.e. tax evasion, with those in relation to which the defendant is prosecuted for self-laundering. In the event that it were found that the facts which gave rise to the criminal proceeding, by way of money laundering, are not the same as those which constituted the main crime of tax evasion, the violation of the ne bis in idem principle would be indeed excluded.