Money laundering occurs while the accused are deprived of their liberty for a period of up to two years. Besides money, assets of any nature are also considered in this scourge. Should the Public Prosecutor's Office and the police be prepared and specialized, the statistics will be reversed. In the country, several agencies are working to combat this crime, also known as money laundering or asset laundering.
In Mexico, 97 percent of those who have been accused of money laundering are declared innocent in the sentence that decides the criminal process, and only three percent are punished. This statistic refers to the fact that the Public Prosecutor's Office could not look for well-founded evidence to prove guilt beyond a reasonable doubt, experts pointed out during the II International Virtual Congress on Criminal Law. Carlos Daza Gómez. In memoriam. The accused are declared innocent in the sentence, but have been deprived of their liberty for a period of up to two years, said Luis Gerardo del Valle Torres, an academic from the School of Law (FD).
During the round table "Prevention of money laundering", the university student wondered if there is a violation of human rights, of due process about the treatment given to this illicit act in our country; if there is a violation of the principle of presumption of innocence by inverting the burden of proof to those who are accused in this matter so that they have to prove the origin of their resources and assets, since the authority must be in charge of prosecuting the crime and must prove the illicit nature of the resources and their illegitimate origin, their illegality.
Regarding this crime, the presiding judge of the Fifth Collegiate Court in Criminal Matters of the First Circuit, Lorena Josefina Pérez Romo, considered that we are not only talking about money but also about goods of any nature, including intangible goods, such as shares and certificates. In the global context, she recalled, Mexico signed the Palermo Convention whose purpose is cooperation to effectively prevent and combat transnational crime, among others. At the national level, this practice was established in the Federal Tax Code as an unnamed crime, because it has different denominations such as financial recycling, legitimization of assets, illegal collection of money, or illicit financial resources.
In 1996, this figure was repealed in the law and was introduced in the Federal Criminal Code as it is currently known: operations with resources of illicit origin. In 2012, the Federal Law for the Prevention and Identification of Operations with Resources of Illicit Origin was created. To prevent, detect and combat it, there are specific authorities and agencies, for example, the Ministry of Finance and Public Credit, the Bank of Mexico, the National Insurance and Bonding Commission, the Financial Intelligence Unit (UIF), the Attorney General's Office (FGR) and state agencies, as well as the Judiciary.
The coordinator of the Criminal Law Commission of the Illustrious and National Bar Association of Mexico (INCAM), Albertico Guinto Sierra, emphasized: what is lacking in our country is due preparation or specialization in the investigation of evidence to prove the crime and the due administration of justice. The Public Prosecutor's Office must make use of all the science, in the different specialties, to fulfill this objective. If the social representation and the police have this preparation, the statistics will be reversed. Then, 97 percent of the accused would be found guilty and the rest would go free, he said.
In the criminal process, it is necessary to use scientific knowledge in all matters, and the prosecution must carry out scientific, methodological, and technical investigations. This transgression of the law has to do with economic criminal law, but it is not only a matter of organized crime, smuggling, or sale of weapons but of any illicit activity, such as fraud. For this reason, the federal entities are obliged to typify it so that not everything has to do with the federal level.
The coordinator of INCAM's Money Laundering Prevention Commission, Graciela Pompa García, reminded that it is the process through which money comes from an illicit activity (drug trafficking, corruption, tax fraud, human trafficking, etc.) is introduced into the financial or commercial systems. Various institutions have been working for years to combat money laundering. The Financial Action Task Force (FATF) is an intergovernmental body created in 1989 to promote legal, regulatory, and operational measures, and also to fight against the financing of terrorism and the proliferation of weapons of mass destruction, among other threats.
In 1990 it was consolidated and issued 40 recommendations (including extradition treaties), which are the backbone that any country must follow to join this organization. Mexico did so in 2000, said the expert. Our country strengthens and creates institutions to comply with its international commitments, among them the National Banking and Securities Commission, the Financial Intelligence Unit (UIF), or the Attorney General's Office (FGR). Now it is imperative that in the coming years each entity has a patrimonial and economic intelligence unit, concluded Pompa.
Mexico improves in six recommendations after combating money laundering
As a result of Mexico's progress in strengthening its measures to combat money laundering and terrorist financing since its evaluation of the country's framework, the Financial Action Task Force (FATF) upgraded six out of seven recommendations that the country's financial authorities requested to be reclassified.
The intergovernmental body -which seeks to develop policies to combat money laundering and terrorist financing- resolved that Mexico improved in the recommendations on non-profit organizations, customer due diligence, politically exposed persons, new technologies, wire transfers, and reliance on third parties.
The only item with no progress was FATF recommendation 18, which deals with internal controls and affiliates and subsidiaries. In total, the organization promotes 40 recommendations to countries to prevent money laundering and terrorist financing; in the 2018 evaluation, Mexico fully complied with only five.
Last December, the country -through the Financial Intelligence Unit (UIF)- asked FATF to reclassify seven recommendations that the body that develops policies to help combat money laundering and terrorist financing had left as "partially compliant".
The day before, with the approval of Mexico's Third Enhanced Follow-Up Report with a request for reclassification of those seven recommendations, FATF determined that it was possible to reclassify six of them, half to "compliant" and the rest to "largely compliant".
The agency determined that the country is fully compliant with recommendations 12 on politically exposed persons, given that -among other measures- it expanded the list of occupations considered in that classification, to adjust it to FATF criteria, and introduced requirements for insurance and bonding companies about life insurance policies for those subjects.
It also considered full compliance in the area of wire transfers -which is recommendation 16- given that the lack of requirements about beneficiary information, the absence of information on procedures to determine when to exercise, reject or suspend a wire transfer without the required information, or to identify occasional clients that transfer Mexican pesos.
At the same time, recommendation 17 regarding reliance on third parties was reclassified as "compliant", given that it addressed the lack of requirements for all financial institutions to report on the countries in which a third party may rely on and the lack of comprehensive requirements to ensure that the third party is regulated and supervised for compliance.
Regarding the rest that was reclassified as "mostly complied with", the delay in the Mexican Congress to approve the anti-money laundering law. This was the case with recommendation 8 on non-profit organizations, as well as with recommendations 10 and 15, respectively, on customer due diligence and new technologies.
It was also confirmed that Mexico complies with the new requirements of the recommendations that were recently modified, so the ratings remain unchanged 2 in cooperation and national coordination as "mostly compliant", 7 in targeted financial sanctions as "compliant" and 21 in disclosure and confidentiality as "mostly compliant".