Please note that since its original publication, the proposed amendment was passed by Congress and signed into law by the President with the content described above, except that Article 25, which would have prevented the Financial Information Unit from acting as a prosecuting party in criminal proceedings, was vetoed by the President.
The House of Representatives has already approved and sent to the Senate this bill, which aims to adjust Argentine legislation to the international standards and recommendations of the Financial Action Task Force.
On May 4, 2010, the House of Representatives approved the Bill, which is now under consideration by the Justice and Criminal Matters Commission of the Senate, and is expected to be discussed by the Senate on June 1, 2011. The Argentine Government wants to have the amended Anti-Money Laundering and Terrorist Financing Law adopted before the plenary meeting of the Financial Action Task Force ("FATF") takes place in Mexico at the end of June 2011, in order to avoid eventual sanctions.
The principal modifications of the current statute by the Bill would be the following:
1. Incorporation of the money laundering crime as an autonomous crime
The Bill proposes to remove the money laundering crime from the actual figure of concealment – today typified as a crime against the public administration – and grant it full autonomy as an economical and financial crime. For that purpose, the Bill proposes two modifications to the actual definition: (i) to eliminate the requirement of non participation in the precedent crime by the person who commits money laundering; and (ii) to raise from AR$ 50,000 to AR$ 300,000 the amount required for the crime. The elimination of the requirement of non participation in the precedent crime will allow the sanction of self-laundering ("autolavado").
2. Precedent crimes
The Bill proposes the incorporation of extortion and human trafficking as crimes that merit the special attention of the Financial Information Unit ("UIF").
3. Modification in the categories of obliged subjects
Exporters, importers and customs agents are eliminated from the obliged subjects category. Also, other entities are incorporated to this list, such as:
- registered real estate agents or brokers and/or any real estate brokerage companies,
- legal entities set forth in Laws No. 20,321 and No. 20,337, respectively;
- legal entities and individuals whose main activity consist on the sale of land, sea and air transport machinery;
- entities and individuals acting as trustees, beneficiaries and/or trustors; and
- legal entities in charge of organizing and regulating professional sports activity.
4. Fiscal secret
The current statute gives different treatment to the fiscal secret in comparison with banking, stock-broking and professional secrets, and confidentiality agreements. In this sense, the Anti-Money Laundering and Terrorist Financing Law establishes that the obliged subjects may not invoke these secrets in order to avoid giving information to the UIF; meanwhile the Federal Administration of Public Revenues (AFIP) only is obliged to reveal information if a reported suspicious transaction is being investigated. The Bill suggests that when analysing suspicious transaction reports, obliged subjects "may not invoke to the UIF banking, fiscal, stock-broking or professional secrets, or confidentiality agreements."
5. Criminal administrative regime
In the current law, the main infraction contemplated under Article 24 is the breach of the "duty to inform". The Bill eliminates the reference to the duty to inform, widening the punitive possibilities to reach other failures to comply with applicable regulations.
6. The UIF as plaintiff in criminal proceedings
Nowadays, the authority of the UIF to participate before a criminal court as plaintiff is not contemplated in the current statute but instead in Decree No. 2.226/2008. The Bill expressly establishes that the UIF "will not be able to participate as plaintiff before criminal courts."
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
