
Another influential international mechanism has been the Financial Action Task Force or FATF, as it is known in English. FATF was created following the 1989 Paris Summit of the Heads of State or Government of the seven major industiralized nations (Group of Seven or G-7). The Summit concluded that there was "an urgent need for decisive action, both on a national and international basis to counter drug production, consumption and trafficking as well as the laundering of its proceeds." As a result the Summit created the FATF whose mandate was "to assess the results of co-operation already undertaken in order to prevent the utilization of the banking system and financial instiutions for purpose of money laundering, and to consider additional preventative efforts in this field, including the adaption of the legal and regulatory systems so as to enhance multilateral judicial assistance."
Given this mandate the experts duly met and produced a report in 1990. The report has become a landmark in anti-money laundering efforts and the 40 recommendations for action have been hailed by most observers as the single most important prescription for effective controls on money laundering produced The 40 recommendations encompass and enhance the provisions of the 1988 UN Convention and are designed to cover all aspects of money laundering. They cover the criminal justice system and law enforcement, the financial system and its regulation and international co-operation. Moreover, the recommendations are meant to be universal; they are guiding principles that give States the flexibility required by different legal traditions and constitutional arrangements.
As noted, the recommendations were first drawn up in 1990. Following six years of experience they were revised in 1996. The revised recommendations are reproduced at Appendix One. The changes over the six years are not dramatic but they do reflect the real experience of the 26 countries and two international organizations included in FATF membership. Membership carries with it the requirement that implementation of the 40 recommendations is monitored by an annual self assessment and a more detailed mutual-evaluation process which includes an on-site examination by experts from other member States.
THE FINANCIAL ACTION TASK FORCE RECOMMENDATIONS
The recommendations are, as noted above, intended to be comprehensive. They do not rely on the criminal law alone although the first set of recommendations call for strengthening of legislative and enforcement techniques and particularly those designed to take the profit our of crime. In this respect, they reinforce one of the central messages of the 1988 UN Convention.
A. General Framework Of The Recommendations
The first recommendation is the countries should ratify and implement the 1988 UN Convention.
The second recommendation calls on States to frame secrecy laws applying to financial institutions so as not to inhibit the implementation of the FATF program (or the UN Convention).
Third, FATF calls for increased multi-lateral co-operation as noted above.
B. Role Of National Legal Systems In Combating Money Laundering
Scope of the Criminal Offence of Money Laundering
Recommendations 4,5 and 6 call on States to criminalize money laundering and determine which crimes should be designated as predicate offences. The term "predicate offences" refers to the fact that in most countries with money laundering statutes there must be evidence of a previous serious crime before the provisions of money laundering statutes can be applied. That is, if there is, for example, evidence of illicit drug sales, then prosecutors can move to seize and forfeit the proceeds of the predicate crime. Beyond this, recommendation 5 urges that legislation be framed in such a way that knowledge of money laundering can be inferred from objective factual evidence. Thus, those facilitating money laundering schemes, lawyers and accountants, for example could be charged with money laundering if the facts can support the view that they knew or ought to have known that the money was the fruit of crime. They need not, therefore, have been party to the predicate offence. The final recommendation in this section calls on States to invoke the concept of corporate criminal liability so that the corporation and not just employees can be held liable. This is easily accomplished in common law jurisdictions but is more difficult for countries with civil law traditions that have normally not incorporated the idea of corporate criminal liability.
Provisional Measures and Confiscation
Recommendation 7 urges that appropriate legislative measures and procedures be put in place to allow for the ultimate confiscation of proceeds of crime together with "instrumentalities"(that is such things as cars, boats, planes, property) used to commit crimes. The measures, to be effective, must allow authorities to identify, trace and, in the case of valuables which can be moved or otherwise disipated, to freeze, pending determinations by a court.
C. Role Of The Financial System In Combating Money Laundering
Recommendations 8 and 9(Annex to Recommendation 9) address themselves to the variety of financial institutions. Banks, as this group well knows, have competitors. Thus, FATF urges that recommendations 10 to 29 should apply to banks, but also to non-bank financial institutions.
Customer Identification and Record-keeping Rules
There are, of course, a series of recommendations (10 through 13) dealing with identifying customers and keeping adequate records. Anonymous accounts or accounts in obviously fictitious names are frowned upon. Financial institutions are urged to rely on reliable identifying documents. With respect to legal entities, financial institutions are urged to verify the existence and the structure of companies and to verify that persons purporting to act on the company's behalf are so authorized.
Records of customer identity and of transactions should, FATF urges, be kept for five years. These records should be available to domestic competent authorities in carrying out investigations and prosecutions.
Increased Diligence of Financial Institutions
Recommendations 14 through 18 deal with suspicious and unusual transactions. They recommend that such transactions be investigated and that the information be brought to the attention of competent authorities -- supervisors, auditors and law enforcement agencies. If there is suspicion that the funds stem from crime, then there ought to be a requirement to report to supervisors and to law enforcement. Requirements such as these should be balanced by legislation which saves harmless from criminal or civil liability the institution and it's directors, officers and employees when, in good faith, they disclose information ordinarily protected by other legislation or regulation.
Financial institutions are further urged to co-operate with competent authorities by not warning customers and to comply with instructions from the competent authority.
Finally, in this section, financial institutions are urged to develop programs against money laundering that, minimally would see the development of policies and procedures and the involvement of management in the process. On-going employee training programs and audit checks of the system are also recommended.
Measures To Cope With The Problem Of Countries With No Or Insufficient Anti-Money Laundering Measures
The weakest link in the international chain of anti-money laundering measures is the complete non-compliance of several countries whose economies depend on their ability to provide tax havens and bank secrecy. Many such countries make it legal and easy to set up shell companies whose beneficial owners are unknowable. The legal use of nominees as directors of companies and the issuance of bearer shares makes identification of the beneficial owner more than difficult. Given this, recommendations 20 and 21 effectively say, "try your best." They do urge that, in the case of branches or subsidiaries, the same principles applying to the parent institution should apply as well to the subsidiary, where law permits.
Other Measures to Avoid Money Laundering
It was noted above that criminals like banks for the many of the same reasons as law-abiding persons. This does not mean that cash is entirely out of fashion. Many small time criminals use nothing but cash and there are still cash economies and places where banks are not trusted, even by ordinary citizens. There is also much smuggling of cash across borders, frequently so that it can be deposited in banks with less stringent regulations and practices. FATF therefore recommends that countries consider the feasibility of measures to detect cross border transportation of cash and consider as well reporting currency transactions over a threshold amount.
Implementation, And Role Of Regulatory And Other Administrative Authorities
Recommendations 26 through 29 urge regulatory authorities to develop and share information and guidelines on money laundering and to ensure that supervised institutions have adequate policies and programs in effect. Countries are urged to ensure that regulations cover the full range of non-bank financial institutions. Finally, regulators are urged to be vigilante about criminals acquiring significant interests in financial institutions.