On 9 February, the Italian Supreme Court of Cassation filed its judgment in which it clarified, inter alia, the constituent elements of the offence of self-laundering, holding that the existence of a profit is an optional rather than a necessary element for the offence to be made out, which arises whenever the perpetrator of the predicate offence reinvests its proceeds for concealment purposes.
The offence of self-laundering
The provision penalizes any person who, having committed or participated in the commission of a criminal offence, employs, substitutes or transfers the illicit proceeds thereof in economic, financial, entrepreneurial or speculative activities, with the purpose of obstructing the identification of their criminal origin. It is aimed at combating the concealment and reinvestment of unlawful proceeds, thereby strengthening the protection of the economic and financial system.
Background of the Case
A financial adviser had been convicted at first instance and on appeal of fraud, unlawful provision of financial services, and self-laundering. In particular, the trial courts held that the offence of self-laundering had been consummated by first transferring the funds deriving from the frauds to foreign bank accounts held in his name and subsequently investing them through online investment platforms, thereby definitively concealing their criminal origin.
The Appeal to the Court of Cassation
The defendant lodged an appeal before the Italian Supreme Court of Cassation, alleging, inter alia, the absence of criminal liability for the offence of self-laundering. In particular, he argued that the transfer of funds deriving from the frauds into bank accounts attributable to him did not constitute the offence, as such conduct was not capable of concealing their unlawful origin. According to the defense, no profit had been generated from the sums allocated, since, not having been invested, they had produced no return; indeed, the transaction amounted to a mere transfer of funds. Accordingly, the constituent elements of the offence were said to be lacking, namely the use of unlawfully derived funds in a financial activity, the concealment capability of the reinvestment transactions, and the identification of any profit.
The Decision of the Supreme Court
The Italian Supreme Court of Cassation observed that the mere deposit of the proceeds of theft into a current account or prepaid credit card held in the name of the same person who committed the predicate offence does not, in itself, constitute the offence of self-laundering. However, it further clarified that, in the present case, it had been established that the funds deriving from the frauds had initially merely passed through foreign accounts held in the name of the financial adviser — a circumstance irrelevant for the purposes of establishing the offence — whereas the funds were subsequently placed on online investment platforms, an activity which prevented the reconstruction of the transactions and thereby fulfilled the concealment purpose required by the statutory offence.
The decisive point, the Court of Cassation held, lies precisely in that latter step for the purposes of establishing the offence.
Identification of Profit in Money Laundering Offences
The Italian Supreme Court of Cassation clarified that the profit deriving from the offences of money laundering and reinvestment of funds consists in the value of the sums forming the subject matter of transactions aimed at obstructing the identification of their criminal origin, since, absent such transactions, those sums would be liable to definitive seizure as proceeds of the predicate offence.
The Court’s reasoning is grounded in the recognition of the wrongful nature of self-laundering conduct, which essentially lies in the reintroduction into the lawful economic circuit of assets deriving from prior unlawful activity.
It follows that, for the offence to be consummated, the existence of an investment transaction possessing a concealment capability is sufficient.
Accordingly, the profit of the offence of self-laundering must be identified as the entire value of the assets subjected to concealment conduct, and not merely as any hypothetical quid pluris resulting from the concealment-oriented investment activity.
Statement of Legal Principle
The Italian Supreme Court of Cassation laid down the legal principle that the offence of self-laundering is made out by the reintroduction into the lawful economic circuit of assets of unlawful origin, even in the absence of any additional profit being generated, and that the profit of the offence may coincide with that produced by the predicate offences.
Outcome of the Appeal to the Court of Cassation
The Italian Supreme Court of Cassation found this ground of appeal to be plainly unfounded.
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