The Requirements of Combatting Money-Laundering in Iranian Criminal Law in the Light of Transnational Criminal Law

دانشنامه حقوق اقتصادی

Article 6, Volume 25, Issue 14, October 2018, Pages 121-156   

Document Type: Scientific research

DOI: 10.22067/le.v25i13.66027

Authors

Tohid Shafizadehdizajy^* ; Mohammad Ali Ardebili

Shahid Beheshti

Abstract

Introduction
Mainly the crimes happen within the borders of the countries. Because of that, the criminal law is defined as a law that has a very narrow connection with the sovereignty of the states. No country can combat the crimes out of its territory. This situation has been altered. Today, the way some crimes are committed has been changed and they cannot be confined within national borders. These crimes are called transnational crimes. Crimes with transnational features do not affect the core values of the human being’s life as it is in the crimes of international criminal law, rather these crimes make an international concern. They concern all the countries in one area and make it necessary to take new and effective measures to combat them. The inability of countries in combatting these crimes on their own, leads them to organize a transnational system or at least develop a transnational strategy based on regional cooperation. As mentioned, these crimes have a transnational feature and to combat them effectively, there must be a global and regional order. However, there are some problems such as the principle of sovereignty and non-interference in the affairs of countries. Because of these, countries are not reluctant to give their powers to other states in the field of combatting crimes and applying criminal sanctions.
Literature Review
From the point of theoretical studies' view, money-laundering is one of the most important transnational crimes because this crime can be a base for other crimes. This crime changes the illegal profits of crimes to legal and legitimate money that nobody can discover its origin and therefore this money can be used to commit other crimes such as terrorism. Money-laundering is highly related to the financial systems of countries. In other words, we can say that it happens in this context. So, when money-laundering happens in more than one country, the financial systems of all the involved countries must be taken into account. Therefore, to combat money-laundering, it needs to take special measures regarding the relation between the countries such as international cooperation.
Methodology
The method that has been used in this paper is to study and scrutinize all Iranian laws and regulations in order to find exactly what the role of international cooperation is to combat money-laundering in Iranian criminal law and what can be done to improve it. The main aim of doing so is to make it obvious how much the Iranian legislator has taken international combatting transnational crimes into consideration. In this regard, two most important laws have been studied: The Iranian Law of Combatting Money-Laundering 2007 and the Iranian Law of Combatting Terrorism Financing 2015 and their by-laws and related regulations. Moreover, in this paper, the agreements between Iran and other countries that has been passed by the parliament and became laws has been studied.
Results and Discussion
In Iranian Law of Combatting Money-laundering 2007 this kind of cooperation has been mentioned but there are still substantial defeats that make the measures ineffective. The mentioned kind of cooperation is very low-level and cannot satisfy the main needs of combatting transnational crimes. In this law, just judicial cooperation for exchanging information is predicted whereas the main part of international cooperation to combat transnational crimes is the active kind of cooperation such as accepting the legal orders issued by the judicial authorities of other states. But, in agreements between Iran and other countries, in some points we can see effective improvements. Some of these agreements are specialized in combatting transnational organized crimes. In one of them, i.e., The Agreement on Cooperation in the Security of the Caspian Sea 2014, the important factor of region has expressly been taken into account. However, it seems that these agreements can be more improved so that they can be used for effective combatting transnational crimes. In other words, it needs to seek for a new context and effective measures.
Conclusion
Based on what has been studied in this paper, it seems that due to its structure, history, and functions, the Economic Cooperation Organization (ECO) can be the best choice for making new orders to combat the transnational crime of money-laundering The main function of this organization is to promote the economy of the parties and this end is directly threatened by money-laundering. As we mentioned, money-laundering can threaten the financial systems of countries by making some notable problems for right and smooth operation of them. Therefore, if this organization wants to achieve its goal and do its functions properly, it must remove all the issues that threaten the economies of the parties. Moreover, ECO has a very suitable structure to make new arrangements between parties to combat money-laundering. When we study the measures of this organization, we see the ‘ECO Regional Center for Cooperation of Anti-Corruption Agencies and Ombudsmen’. The same center can be organized for combatting money-laundering. Also, ECO wants to make a common police force between countries, i.e., ECOPOL. This police can play a very important role in combatting the transnational crime of money-laundering. This cooperation can be structured based on the reciprocal recognition of judicial decisions that is highly recommended for international cooperation to combat transnational crimes.

Keywords

Money-Laundering; Transnational Crime; Transnational Criminal Law; Model of Cooperation; Cooperation Agreement

References

[1] Bagherzadeh, Ahad. (2016). Comaparative Study of Money-laundering, Tehran, Mizan Publication, 3rd Edition. (in Persian)

[2] Bartlett, B. L. (2002), The Negative Effects of Money Laundering on Economic Development, An Economic Research Report: The Asian Development Bank Regional Technical Assistance Project No. 5967 Countering Money Laundering in the Asian and Pacific Region.

[3] Boister, Neil (2003), Transnational Criminal Law, European Journal of International Law, No. 14.

[4] Boister, Neil (2012), An Introduction to Transnational Criminal Law, Oxford University Press.

[5] Gholami, Ali & Pourbakhsh, Mohammadali. (2011). Combatting Money-laundering in Iranian Laws and International Instruments, The Review of the Syudy of Islamic Economy, Number 7, Autumn and Winter, pp. 93-120. (in Persian)

[6] Gounev, P. and Bezlov, T (2010), Examining the Links between Organised Crime and Corruption, Trends in Organized Crime, Vol. 13, No. 4.

[7] Hemmati, Mohammadbagher. (2012). Preventive Measures and Punishments in the Law of Combatting Money-laundering, Tehran, Khorsandi Publication, 1st Edition. (in Persian)

[8] http://bimstec.org/overview/

[9] http://yadanabonnews.com/dailynews/international/item/14475-anti-money-laun-dering-and-combat-ing-financing-of-terrorism-discussed

[10] Karsai, Krisztina (2008), The Principle of Mutual Recognition in the International Cooperation in Criminal Matters, Zbornik Radova, No. 42.

[11] Mitsilegas, V. (2006), Countering the chameleon threat of dirty money: ‘hard’ and ‘soft’ law in the emergence of a global regime against money laundering and terrorist financing; in: Edwardsand, A. & Gill, P. (eds.), Transnational Organised Crime: Perspectives on Global Security, Oxon: Routledge.

[12] Safferling, Christoph (2009), Europe as Transnational Law – A Criminal Law for Europe: Between National Heritage and Transnational Necessities, German Law Journal, Vol. 10, No. 10.

[13] Saki, Mohammadreza. (2016). An Introduction to Money-laundering, Tehran. Judiciary Press and Publication Center, 2nd Edition. (in Persian)

[14] Schneider, F. and Windischbauer, U. (2008), Money Laundering: Some Facts, European Journal of Law and Economics, Vol. 26, No. 3.

[15] Sieber, Ulrich (2009), Die Zukunft des Europäischen Strafrechts, Ein neuer Einsatz zu den Zielen und Modellen des europäischen Sttrafrechtssystems, Zeitschrift für die gesamte Strafrechtswissenschaft, No. 121, Heft 1.

[16] Sieber, Ulrich (2009), Objectives and Models of Transnational Criminal Law, BKA (Bundeskriminalamt) Autumn Conference, Wiesbaden, November 25.

[17] Sieber, Ulrich (2010), Legal Order in a Global World, The Development of a Fragmented System of National, International and Private Norms, in: Von Bogdandy, A. & Wolfrum, R., Max Planck Yearbook of United Nations Law, Vol. 14.

[18] Tiba, Firew Kebede (2016), Regional International Criminal Courts: An Idea Whose Time Has Come?, Cardozo Journal of Conflict Resolution, Vol. 17.

[19] Utama, Paku (2010), International Cooperation Calling as an Urge in Fighting International Financial Organised Crime; Global Corruption, Indonesian Journal of International Law, Vol. 7, No. 2.

[20] Yepes-Enriquez, Rodrigo and Tabassi, Lisa (Edited by) (2002), Treaty Enforcement and International Coopeartion in Criminal Matters, T.M.C. Asser Press.

[21] Yousefi Sadeghlou, Ahmad & Daneshjou, Hamed. (2016). The Challenges and Weakness of Combatting Money-laundering in Iranian Law, The Review of Researches of Private and Criminal Law, Number 29, Autumn, pp. 53-72. (in Persian)