Ocultação e dissimulação próprias da lavagem de dinheiro: conteúdo, limites objetivos e razões da incriminação

Abstract

The present work has as its main objective to understand which conducts are effectively covered by the prohibition of article 1 of Law n. 9,613/1998, which criminalizes money laundering. To do so, the initial stage of the research was guided to identify the reasons that cause the incomprehension of the law, being identified as the main cause the rule of the caput that describes the prohibited conduct in a vague manner, through the verb to conceal. This vagueness consists in the fact that the text does not precisely inform in relation to whom/what the prohibited concealment is carried out, implying a lack of understanding about the very contours of the prohibited concealment. Next, it was identified that in other criminal laws of the Brazilian legal system that use the same verb, when the being to whom the concealment is intended is not explicit, it is possible for it to be interpreted based on the relationship established between the verb and the object, as well as by means of the context in which the norm is inserted. Based on this identification, premises were established for an interpretation in line with the principle of legality and that took into consideration the nuances of the norm that was the object of the interpretation, a criminal law. The interpretative methodology established was guided by a prevalence of grammatical interpretation, guided by the common language, which only in the scope of the possible literal meaning admits contextualization by elements of systematic and historical interpretation, and that in the end should be confirmed by criteria of teleological interpretation. Applying such method, it was identified that the interpretations of the law that summarize the prohibition to the conducts of concealing or disguising the assets derived from criminal infraction, without considering the six attributes listed in the law, are infringing the principle of legality. It was also identified that the context in which article 1 of Law n. 9,613/1998 is inserted is the one established by this legislation and must be understood under normative guidelines. In this sense, it was found that the money laundering phenomenon covered by the national anti-money laundering system consists of that operated through the registration of financial transactions, real or simulated, which are apt to provide an apparent economic reason for the history of a property of illicit origin. It was also identified that this conduct is harmful to the administration of justice, which is the object of protection of the criminal law. At the end, it was understood that the activity of to conceal or disguise the nature, source, location, disposition, movement or ownership of assets, rights or values deriving, directly or indirectly, from a criminal infraction, is operated in relation to the administration of justice/anti-money laundering system, in a context of making inaccurate or false records of financial operation. Finally, a dogmatic analysis of this offense has been made, as well as pertinent considerations regarding the other offenses established in the Brazilian Anti-Money Laundering Law.