Lavagem de dinheiro e deveres de compliance : equiparação da omissão à ação

Abstract

The work that now begins talk about the omissive money laundering arising from nonCompliance with a Compliance duty, and more precisely, how such an offense can be equated with money laundering through commissive conduct. In this context, the analysis begins with the delimitation of what constitutes Compliance, as well as its origin, in order to provide subsidies to understand its application in money laundering. On this point, Brazil has internalized some provisions contained in treaties, conventions and norms of international organizations, elements that explain the Compliance duties specifically applicable to money laundering, in order to enable in large measure the understanding of the posture of an omissive agent who breaches of his duty and allows, if this is the case, the transformation of illicit values into licit ones. Thus, the understanding of the questions concerning omission and action from a criminal perspective is a necessary measure, but especially its distinction, in which the idea advocated by the finalism is adopted here, in the sense that the omission corresponds to no action, exemplifying "A" and "Non-A". From this, it focuses specifically on the object of study, since the imputation of criminal responsibility to the individual who has not complied with a Compliance duty can not only reside in the discussion about the guarantor position, but it is necessary to go further, in the questions concerning the subjective element. It is at this point that the present dissertation is structured, whereas it advances in the analysis, from the idea of Jorge de Figueiredo Dias that the devaluation of the omission must be equal to the devaluation of the action, of the subjective element of the money laundering of that individual who failed to comply with a Compliance duty. It is perceived the need to demonstrate their intention, a situation that in Brazilian legal system occurs, through consistent indications, under penalty of affront to constitutional dictates. Finally, it is understood that there is at this point a relevant question of approximation of the criminal law to the criminal process, more precisely in relation to the proof of this subjective element. However, a response to the colombian legal system arises as a viable way of resolving such confusion, namely, the creation of a specific criminal type for omission of a Compliance duty, known as "Control’s Omission".