Crimes against public finances in Cuban criminal law

Introduction

In the globalized world, crimes against public finances have increased due to the high level of organized crime, which is seeking a mechanism to hide the illegality of its actions. In response to this criminal growth, nations have been forced to take administrative and legal measures. Our country, although not with a criminal development in this sense, is not exempt, with the opening to foreign capital and joint ventures, these crimes have begun to be taken into account, an agreement taken as a result of the 1988 Vienna Convention. regulates under the title of Public Finance in our criminal legislation the crimes of Tax Evasion and Money Laundering.

It is necessary to take into account the main causes that determine the scarce treatment of crimes against public finances in Cuban judicial practice, which could be: deficiencies in the drafting of criminal types that make it impossible to typify behaviors that resemble these in Cuba. typicities. Difficulties in proving these criminal acts that even determine from their timely arrest for lack of knowledge and expertise of those involved in the confrontation. The Cuban socioeconomic reality due to its stability and control mechanism does not facilitate the commission of these criminal acts. We consider the study of the legal good public finance of great importance,since the legal asset is an essential element in the structure of the theory of crime and its correct characterization is essential for any task of interpretation, if we take into account that every criminal law has an object of protection and therefore, every crime that it represents a violation of the norm has a legal object.

The term characterize means to accurately determine the qualities or attributes of someone or something: essential or lasting conditions.

That is why we intend to speak on the characteristics of this legal asset.

goals

It becomes necessary:

To base the theoretical bases of the subject from the analysis of the theory of legal good. To locate the problem of tax evasion and money laundering as phenomena of contemporary international crime. To carry out a study of comparative law to illustrate the way in which regulates this criminal family in other legal systems. Carry out a historical legislative analysis to date in Cuban criminal law, regarding the legal asset, with a view to formulating proposals for legislative changes in the improvement of crimes regulated under this title in the Cuban Penal Code.. Evaluate the validity for Criminal Law of the Public Finance legal asset and its component elements.

This work consists of five epigraphs where the previously mentioned elements will be addressed.

Heading 1.

Brief reference to the evolution of the theory of legal good as an object of protection of Criminal Law.

Article 8.1 of the 1988 Cuban Penal Code adopts the materialistic conception of crime when it defines: “Any action or omission socially prohibited by law is considered a crime under penalty of a criminal sanction.” In this definition, an essential characteristic of the crime is observed: the aggression or threat of “something” that must be protected from said aggression or threat. That something is its object, which for this reason has been called the “object of protection, and therefore it becomes the guideline for the study on this subject.

Criminal Law does not protect all criminal legal assets, but those that are of fundamental importance, only those who are truly worthy of criminal protection can be elevated to categories of criminal legal assets. The legal asset is imposed as a limit to the punitive activity of the state: it cannot punish any conduct, but only that which injures or endangers legal assets.

Historically, this injurious object was considered as a subjective right, which was erected as a limit to legislative activity in Criminal Law, since "subjective rights constituted the natural rights of man, not derived from any legal norm" as expressed by Renén Quirós. This theory of subjective rights was rejected by Birnbaun when exposing "if the crime wants to be considered as an injury, this according to its nature is not related to a right, but to a good." It is up to Birnbaun to have introduced the term legal asset in the criminal sphere.

But, if previously subjective law had a character limited to punitive exercise, the theory of norms developed by Binding denies this purpose of the legal good and legitimizes any injury caused by the State to the rights of citizens.

Later Von Liszt gives a social meaning to the content of the legal asset and identifies it as an interest for him: “all legal assets are vital interests, the interest of the individual or the community. It is not the legal system that generates interest, but life, but legal protection elevates vital interest to legal good ”; Bettiol criticizes his identification with the idea of interest, because the difference between the two lies in that "every state of affairs that in any way benefits someone for him an interest" and exposes a simple example of the difference: life (is a legal asset) but its owner may not be interested in it because it is an unfortunate life or for any other reason. The neo-Kantians transferred this problem to the world of values,and they identified the legal asset with an objective value, to which the criminal law conferred its guardianship.

Later VVezel understands that the meaning of the legal good cannot be appreciated in isolation, but in connection with the entire social order, and he himself takes up a question of great importance in himself: the limiting nature of the punitive activity of the State that Binding had given him. denied.

Juan Bustos states: VVezel returns to place the legal asset beyond the law and the State, returns to fulfill a fundamental and guaranteeing function in principle, although it does not have an autonomous function within criminal law, it lacks its own relevance for the configuration of a crime theory.

In the doctrine, the constitution was also considered as a source of legal goods as opposed to this criterion. Juan Bustos declares: “in the Constitution or in Constitutional Law, fundamental rights have a very specific function, which is to regulate relations between individuals and political society and civil society; Legal goods have a much broader and more complex function, since it implies complex social relationships of individuals with respect to the possible subjects or objects that may enter into that relationship.

Throughout the evolution of this concept of legal good, a progressive approximation of its content to social reality is appreciated; But it cannot be said that the social defines the legal good but also the social system.

Renén Quirós poses; "If it is accepted that the object of the crime is what is attacked or threatened by the subject through their behavior and therefore, what is intended to be protected by Criminal Law, it will be necessary to conclude that the legal asset is not the right itself, but the content of those norms, that is, the social relations modeled consolidated in said legal norms.

The legal asset is made up of the modeled social relations consolidated in these legal norms.

The legal asset is made up of social relations that, due to their particular social interest, are protected by criminal law, from attacks and threats materialized by behaviors considered socially dangerous.

1.1 Requirements for the regulation of criminal legal assets.

In the regulation of criminal-legal assets, the legislator cannot forget that only the conditions of social life can be protected to the extent that they disturb the possibilities of participation of individuals in the social system. Therefore, legal assets will be legal-criminal only if they are fundamental, that is, when the social conditions to protect serve as the basis for the possibility of participation of individuals in society, trusting in the respect of the individual sphere of individual freedom. of others.

It is necessary that the legal asset to be covered be of sufficient social importance determined by direct proportionality with respect to the severity of the consequences of Criminal Law; This should not be seen, nor should it be a mere sanctioning instrument, since it is required that the legal asset deserving of criminal legal protection be fundamental to social life.

For the classification of collective legal assets, it should be borne in mind that collective interests are important depending on the damage that their injury would cause to individuals, and therefore to the extent that they impact each individual person affected.

The legislator to intervene in the protection of a legal asset, it must possess a triple quality: it must be worthy of protection, in need of protection and capable of protection. The first quality is determined by the value attributed to this criminal protection asset, as far as other branches of the legal system are insufficient to protect them.

1.2 Functions of the legal asset, by Cobo del rosal, Vives Antón and Mir Puig.

The first two only attribute three functions to the legal asset: exegetical or guide to interpretation, systematics and guarantee; while the last one, to these three functions, adds a fourth, as a criterion for mediating the sentence.

Exegetical: the legal asset has been highlighted as the guiding criterion for interpretation. To interpret a penal norm, one must first determine what the legal asset is and then the exegetical process can be started.

Systematic:the legal good systematically plays a double role; on the one hand, it constitutes the basis of the offense, from the moment that the crime is above all injury or endangerment of a legal asset; on the other, it represents an appropriate criterion for classifying the different species of offenses whose similarities and differences are specified, first of all, in the object of protection. The legal asset appears as the basic foundation of the abstract structure of the offense and, at the same time, as an ordered criterion of all the particular offenses contained in the special part. It only makes sense if it is stated that the crime consisting essentially of the injury or endangerment of a legal asset, the political power of the State is subject to certain limits:the legislator cannot punish any conduct, but only those that injure or endanger legal assets.

Criterion of mediation of the sentence: within the margin of arbitration that the law grants to the judge, the greater or lesser severity of the injury to the legal asset or the greater or lesser danger of its attack, can serve as a basis for the concrete determination of the pain.

1.3 Regulation of legal assets in Cuban criminal law.

It can be affirmed that in the Cuban Penal Code legal assets have been established by the legislator in full agreement with the classifications of the legal asset (from its two points of view: according to the extent to which the group of social relations of the crime is characterized by the legal good.

Regarding the first classification and following the trimembre criterion about it:

1. General legal assets: set of social relations, where it is necessary to specify how they behave as an object of protection of Criminal Law.

The contradiction of crime and socialist social relations is determined by the fundamental fact-society relationship, that is, its incompatibility with the laws of development, living conditions, behavioral norms, ideology and values of socialist society and in its concrete historical-social content is expressed as a contradiction with the regularities and development demands of socialist society.

2. Individual legal assets

Title I to XV

3. Private legal assets: example title VIII (crime against life and bodily integrity).

3.1.1 art.261 (Homicide): life.

3.1.2 art. 262 (tumultuous quarrel): bodily integrity.

3.1.3 art. 263 (murder): life.

According to the nature of the owner of the legal asset, collective legal assets are those referred to in titles I, II, IV, V, VI, VII, XIV of the Special Part of the Penal code and personal legal assets referred to in titles VIII, IX, X, XII, XIII in the same Special Part of the Penal Code.

In the classification of legal assets in:

Offenses of injury or damage: examples such as articles 322 (theft), 261 (homicide), 318 (defamation) can be presented. Danger crimes: examples such as articles 110.1 (hostile acts against a foreign State) can be exposed, 174 (havoc), among others.

Heading 2

Tax Evasion and Money Laundering. International problems.

Money laundering is the process by which a certain amount of money is legalized. When an individual obtains money by illegal means or, even if he obtains it by legal means, he does not declare this income to the corresponding monetary authorities, he is creating what is known as black money, compared to legal money (the income declared before the monetary authorities). The process of converting black money into legal money is known as money laundering. There are financial institutions specialized in laundering money from drug trafficking, the sale of arms, the trafficking of white women or any other type of illegal activity, which generates income and income that we cannot declare before the economic authorities.

Currently internationally, as a result of the globalization of the world economy, as well as other external factors, crime has been organizing; developing and gaining more strength, illegal activities such as illegal drug trafficking, human trafficking, organized crime and money laundering from them. The sale and distribution of drugs and human trafficking generate fabulous economic benefits that need to be introduced into the commercial and financial circuits, and which in turn serve as a source of financing, allowing the strengthening of these organized groups and the expansion of their illegal activities. It seems evident, therefore, that we are facing a vicious circle in which all aspects are closely interrelated.

The international community in the face of this problem of drug trafficking and organized crime has expressed great concern, which was faithfully reflected in the Preamble of the Vienna Convention of December 20, 1988, when it was stated that “the links that exist between illicit trafficking and Other organized activities undermine licit economies and threaten the stability, security and sovereignty of states, and that the considerable financial returns it generates allow transnational criminal organizations to invade, pollute and corrupt public administration structures, activities legal commercial and financial companies, and society at all levels ”. one

Given the rise of these problems, new mechanisms have been necessary for States and the international community in criminal, financial, and international cooperation. As a result, during the last years of the eighties, there have been constant initiatives to make money laundering stop being an unpunished activity, as well as the need to adopt measures to avoid this type of behavior.

In the international area, different legal relationships have been enacted in order to contribute to the fight against drug trafficking and organized crime, such as the Council of Europe Recommendation of June 27, 1980, the Committee's Declaration of Principles of Rules and Practices for the Control of Banking Operations of December 1988 (better known as the Basel Declaration), the United Nations Convention against illicit trafficking in narcotic drugs and psychotropic substances approved in Vienna on December 20, 1988, the Convention of the Council of Europe opened for signature in Strasbourg on November 8, 1990 regarding the laundering, identification, seizure and confiscation of the proceeds of crime,The Directive of the Council of the European Communities of June 10, 1991 on the prevention of the use of the financial system for money laundering, and the report of the International Financial Action Task Force (FATF) of 1990, constitute the supranational legislative body that it has obliged the different States to modernize and adapt their internal rights in order to uniformly regulate the prevention and repression of such acts.

Money laundering should be mainly combated with criminal measures in the framework of international cooperation between judicial and police authorities, due to the importance of this and the use of credit institutions and financial institutions for product laundering. Criminal activity can seriously jeopardize both the strength and stability of the entity or institution in question and the credibility of the financial system as a whole, thereby causing the loss of public confidence. Money laundering is carried out, in general, in an international context that makes it easier to cover up the criminal origin of the funds, so that the measures adopted exclusively at the national level, without taking into account international coordination and cooperation,would produce very limited effects.

The means and ways of laundering money are infinite and depend only on the sagacity and imagination of the person who owns black money. Money can be laundered by buying a property and paying part of the amount with black money; an individual who buys a house at the declared price of one hundred thousand dollars, who pays with legal money, but since the real sale price is two hundred thousand dollars, pays the difference with black money. If this same individual sells the same house a few years later for two hundred thousand dollars, this time declaring the exact price. By doing so, he will have laundered a hundred thousand dollars, the same that he had in black money. When a country's tax fraud is very high, the first agent interested in money laundering is the government itself,therefore, when fraudsters are granted a fiscal amnesty, the government often creates a series of mechanisms that allow money laundering.

The term money laundering emerged in the United States in 1920, when certain groups of street criminals tried to find a legitimate source for the money their shady businesses generated. His motives could be very diverse: to hide his financial success from a corrupt police officer who tried to extort money for protection; avoid sparking the (often brutal) interest of envious competitors; or later, to avoid the possibility of being accused of tax evasion, weapons, which was filed in the early 1930s against criminals, against whom no other charge was prospering.

To achieve these goals, these criminal gangs sometimes acquired service businesses payable in cash. They often opted to buy laundries, car wash services even though vending companies and other businesses could be equally helpful. The purpose was to mix legal and illegal funds and declare your total income as profit from your cover business.

However, from one country to another, other names are recognized, the most common being “money laundering”, which is used more frequently in Europe. In short, the essence is the same, the purpose is to transform illicit money into apparently licit, to be able to be used.

The entire financial world knows and knows that the Offshore Band is the tax haven of money laundering, and yet this flourishing industry continues to function normally.

According to the report of the month of November 1999, of the "Task Force of the United States Parliament" (Report Of. Legislative Task Force), the "money laundering", can be defined as the "method that is used to convert profits from illegal income as if they were legitimate resources, income or profits. ” The "money laundering", also called "money laundering" or "legitimization of assets", is not only carried out with the profits or products from drug trafficking, but can also come from terrorist activities, the illicit sale of weapons, especially nuclear weapons, smuggling, tax evasion, illegitimate income of corrupt officials, kidnapping extortion, clandestine gambling, crimes with manipulation of actions, insurance crimes,of computer crimes, of telemarketing crimes (new criminal modalities recently discovered in Canada and the United States of America).

In Central and South America, huge amounts of dirty money are handled, with Tax Evasion, Smuggling and Drug Trafficking being the main source of this.

In the last two decades, there has been a massive increase in domestic drug consumption in the central and South American countries, showing an increase in violence as a result of said consumption, as well as a new flow of money from drug trafficking, especially in some countries., whose microeconomics are managed by few families that control all power.

It is for all these reasons that the most important international organizations, such as the United Nations, the European Union, the Council of Europe, the Organization of American States and the Group of Supervisors of Offshore banking, are currently striving to create policies and programs against money laundering, following the recommendations of the FAFT (Finantial Action Task Force).

The FAFT is an intergovernmental body, created in Paris in 1989, to examine and study all those measures necessary to combat money laundering. They are members of the FAFT, 26 countries of the world. Among which are: Germany, Austria, Belgium, Canada, Denmark, Spain, United States of America, Finland, France, Greece, Honk Kong, Holland, England, Iceland, Ireland, Italy, Japan, Luxembourg, New Zealand, Norway, Portugal, Singapore, Sweden, Switzerland, Turkey, and last year Argentina, Brazil and Mexico were invited to participate as observers.

This intergovernmental body, in 1990, has implemented 40 basic recommendations to combat money laundering, and these recommendations refer, among others, to anti-money laundering bills, application of the criminal law, regulation of the financial system and international cooperation.

Another of the crimes that are booming at the international level are tax crimes, which require the budget of a previous tax relationship between the taxpayer and the public entity called to collect taxes. The tribute, is usually included in the theory of state public income, represents a set of rules that regulate a plurality of legal relationships, rights, obligations, powers, duties and restraints around what has been called existing tax legal relationship between citizens and the Public Treasury, by virtue of which it realizes its right to collect charges and obligations.

The object of the tax is a provision of cash terms (periodic or not, depending on the fact that motivates it) to which the taxpayer or citizen subject to their payment is obliged, but exceptionally in some regulations the provision is recognized in kind, for example in hydrocarbons in which a percentage must be delivered, or artistic heritage where works of art are accepted in payment of inheritance or inheritance tax. Three types of taxes are recognized: taxes, fees and the special contribution. two

Heading 3.

Comparison with other legal systems.

The crime of money laundering is regulated in the following Penal Codes that are shown, it can be affirmed that in some countries they have not been collected, they can be found in special laws. 3

3.1 Colombian Penal Code:

We quote verbatim: article 323. Money laundering. Whoever acquires, safeguards, invests, transports, guards or administers assets that have their immediate or immediate origin in activities of extortion, illicit enrichment, kidnapping, extortion, rebellion, arms trafficking, crimes against the financial system, the public administration, or related with the proceeds of the crimes subject to a crime-related concert, related to the trafficking of toxic drugs, narcotic drugs or psychotropic substances, or give the goods derived from said activities the appearance of legality or legalize, conceal or cover up the true nature, origin, location, destination, movement or rights over such goods, or carry out any other act to hide or cover up their illicit origin will incur, by that single conduct,in prison from six (6) to fifteen (15) years and a fine of five hundred (500) to fifty thousand (50,000) legal monthly minimum wages in force.

2 "Tribute." Microsoft Encarta 2007 (DVD). Microsoft corporation, 2006.

3 From the investigation carried out, it is concluded that these behaviors are not typified in the penal codes of countries such as Chile, Bolivia, Ecuador, Spain, Venezuela, Uruguay and Mexico. It cannot be stated that these crimes have not been categorically regulated, or that they have been incorporated after the year 2000, the date on which the material used for this work was made.

The same penalty will be applied when the conducts described in the previous paragraph are carried out on assets whose domain has been declared extinct.

Money laundering will be punishable even when the activities from which the bines originate, or the acts punished in the previous sections, have been carried out, totally or partially, abroad.

The penalties of deprivation of liberty provided for in this article shall be increased from a third to a half when, for the conduct of the conduct, foreign exchange or trade operations are carried out, or goods are introduced into the national territory.

The penalty increase provided for in the preceding paragraph shall also be applied when contraband goods are brought into the national territory.

Article 324. Specific circumstances of aggravation. The penalties for deprivation of liberty provided for in the preceding article shall be increased from a third to a half when the conduct is carried out by someone belonging to a legal person, a company or an organization dedicated to money laundering and from half to three quarters when they are developed by the heads, administrators or managers of said legal persons, companies or organizations.

Article 325. Omission of control. The employee or director of a financial institution or of cooperatives that carry out savings and credit activities that, in order to hide or cover up the illicit origin of the money, fails to comply with any or all of the control mechanisms established by the legal system for Cash transactions will incur, for that single conduct, imprisonment of two (2) to six (6) years and a fine of one hundred (100) to ten thousand (10,000) current legal monthly minimum wages.

3.2 Costa Rican Penal Code.

Article 185 states: Whoever acquires, converts or transfers assets, resources or rights, which come from crimes related to the illicit traffic of controlled substances, crimes committed by public officials in the exercise of their functions or crimes committed by criminal organizations, with the purpose of hiding or covering up his nature, origin, location, destination, movement or real property, he will be punished with a prison sentence of one to six years and a fine of one hundred to five hundred days.

This type of criminal offense will apply to the conduct described previously, even if the crimes from which the illicit earnings come have been committed totally or partially in another country, provided that those acts are considered criminal in both countries.

Article 185 states: Create the Financial Investigations Unit, which will form part of the organic structure of the Superintendency of banks and Financial Entities. The executive power, through a Supreme Decree, will establish its organization, powers, the creation of decentralized units in the financial regulation system, the procedure, the form of transmission and the content of the declarations sent to it, the regime of administrative infractions and the procedures for the imposition of administrative sanctions.

Financial entities and their directors, managers, administrators or officials who contravene the obligations established in the regulatory Supreme Decree, will be liable to the imposition of administrative sanctions established in the legal norms that regulate the financial system. The directors, managers, administrators or officials in charge of reporting possible cases of legitimization of illicit profits to the Financial Investigations Unit will be exempt from administrative, civil and criminal liability, provided that the complaint meets the standards established in the regulatory decree.

The highest executive authority of the Financial Investigations Unit will substantiate the determination of administrative responsibility and the Superintendent will apply the corresponding sanctions, subject to the legally established regime. To determine the corresponding sanction, the seriousness of the breach and the degree of participation and guilt of the responsible subjects will be taken into account. In these cases, the regime of appeals and appeals of its resolutions will be subject to the provisions of the law.

Financial entities and their bodies may not invoke bank secrecy when the agents of the Financial Investigations Unit require information for the proper fulfillment of their functions. The information obtained by the Financial Investigations Unit may only be used in order to investigate the legitimization of illicit profits.

In Switzerland, for example, they have very severe laws against money laundering from drug trafficking, however Switzerland does not give information to the foreign police, except that it is authorized by a local judge, the same happens with requests of foreign judges, who are studied by the Swiss judges. There is in Switzerland the "Intelligence and Information Unit" and the "Money Laundering Reports Office".

When a Bank has suspicions of money laundering from drug trafficking, the Attorney General's Office is intervened. The Bank's “suspicion” must be precise, it must be accompanied by a detailed report, with an analysis that is incorporated into a “Money Laundering Database” that is connected with the different police of all Swiss cantons and with the international police.

The "Information and Intelligence Unit" after a precise suspicion has 5 days to make the report.

The attorney general is the one who then initiates the investigation and who orders to freeze the funds, then a judge is given intervention, who can block the money for a period of six months, until the investigation ends. While the blocking of these funds lasts, the bank must continue to pay the interest agreed upon with the client, which obviously is also blocked until the investigation is completed.

If criminal action is not verified for 5 years, the client's information must be deleted from the Money Laundering Database.

Heading 4.

Legislative evolution of crimes that affect the legal good Public Finance.

The Spanish Penal Code of 1870, which was extended to Cuba by Royal Decree of May 24, 1879, which provided in its title for four of the falsehoods, the crime of fraudulent concealment of goods or industries, conduct that threatened the treasury. It required the requirement of personal requirement by a competent official, it was more like disobedience than falsehood. From this, concepts such as the patrimonial injury produced by tax crimes, considered multi-offensive, begin to be managed. The crime of tax evasion was inserted into current Cuban legislation; it disappeared with the repeal of Law No. 21/1979 and was reincorporated after the modifications that were made by Decree-Law 150/94 to the Penal Code.Completed in article 14 and acquires legal significance among Cubans as of June 10 of the same year. As a result of this, article 343.1 is modified, which constitutes a blank criminal law, since the regulations of this crime in this sense suffer from an ab initio defect, since there was no tax system in our country, and it is not until on August 4, 1994, which establishes law 53/94 containing the regulations of the current tax system. The article was modified by Decree Law No. 175 of June 17, 1997, which eliminated the requirement that the administrative route be exhausted previously and reduced the amount of the fine penalty to sections 1 and 3 (GO Ext. No. 6 of June 26, 1997. Article 35, pages 45 and 46).It introduced criminal figures hitherto unregulated and reformed the precepts regarding tax evasion in order to adapt to the existing social economic reality and efficiently develop the technique of regulation, legislation. Sections 1 and 2 of article 344. were modified by decree-Law No. 175 of June 17, 1997, which added the contributions and eliminated the requirement that it may cause damage to the national economy, which is complicated to assess (GO Ext. No. 6 of June 26, 1997. Article 36, pages 46). Section two was modified by Article 36 of Decree-Law No. 175 of June 17, 1997, in the sense of not penalizing any damage to the national economy as regulated by Decree-Law No. 150 of 1994, but only considerable damage.

In Cuba, in addition to the concept that we must recognize in the Penal Code, contained in the Guide prepared for the detection and prevention of illegal money laundering, established in Resolution 91/97 of the BNC, it is conceptualized as “the process by which, knowingly It is carried out by itself or by a person, natural or legal, with other persons or a banking, financial or any other type of establishment, transactions with money from illegal activities, or false information is provided for the opening of the account or for the realization of such transactions. It is any operation that is carried out with the spirit of the true source and the property of the beneficiary. Money laundering emerged as a criminal figure in Law number 87 of February 16, 1999, amending the Penal Code,collecting it in the title XIV "crimes against the public Treasury," Chapter II.

After 5 years, the first criminal proceeding for this criminal offense has not yet been initiated, so we dare to conjecture as a probable cause of it precisely the link to certain previous crimes.

The crime of drug trafficking has been widely established in recent years, based on the measures of confrontations adopted by the leadership of our country, it should have been the logical source for the cases of laundering from these crimes to be repressed, but This has not really had that apparently logical answer. Certainly, the existence of alternative administrative mechanisms in the faculty of the persecuting body may have led to this. The other probable illicit "Trafficking in Persons" apparently due to the characteristics of the cases detected, his investigation has not led to. Well, arms trafficking and organized crime are not phenomena that still have a reference in our criminal incidence.

This situation has led some to consider that the intention to include this crime in Cuban criminal legislation is due to responding to the International Conventions, and therefore it would not be virtual as long as the preceding crime had that character (international drug trafficking or people with the participation of international criminal organizations that are dedicated to it), so that drug trafficking or “creole” people would not have a criminal impact as a preceding crime for the crime of money laundering. In any case, if this is true, it should have been clearly defined and thus avoid further confusion, at least for this concept. In Cuba, Money Laundering is introduced as a crime with the criminal modification introduced by Law 87/99, in the Title “crimes against the Public Treasury,”Is regulated in article 346 and states the following:

4.1 Cuban Penal Code:

Article 346.1. regulates that: The one who acquires, converts or transfers resources, goods or rights related to them, or tries to carry out these operations, knowingly or knowingly, or rationally assuming due to the occasion or circumstances of the operation, that they come directly or indirectly from acts related to illicit drug trafficking, illicit trafficking in arms or people, or related to organized crime, incurs a punishment of deprivation of liberty for five to twelve years.

2. The same sanction is incurred by the person who covers up or prevents the real determination of the nature, origin, location, destination, movement or true ownership of resources, goods or rights related to them, knowingly, and knowing or rationally assuming, for the occasion or circumstance of the operation, which came from the crimes referred to.

3. If the acts referred to in the preceding sections are committed due to inexcusable ignorance, the sanction will be two to five years of deprivation of liberty.

4. The crimes provided for in this article are sanctioned independently of those committed on the occasion of them.

5. Those declared responsible for the crimes set forth in the preceding paragraphs are also subject to the accessory sanction of confiscation of property.

Due to the recent existence of the figure object of our study and despite doctrinal and jurisprudential efforts, there is still no unanimity in the identification and recognition of the protected legal good. There is a certain tendency to protect the socio-economic order as a macro-social legal asset, as long as it is affected by a whole series of illicit transactions of a large and economic nature that, from the abstract, carry serious danger to the economic system of any country.

Heading 5.

Public estate. Its component elements.

In our country, Law number 87, of February 16, 1999, amending the Penal Code, Title XIV contains the “Crimes against the Public Treasury,” structured in two chapters that each correspond to the crime of evasion tax and money laundering, respectively.

5.1 Tax evasion:

Article 343.1 regulates that: Whoever, once the debt has been determined and the term of the request for payment made by the competent official has expired, evades or attempts to evade, in whole or in part, the payment of taxes, fees, contributions or any other obligation of a tax nature, to which it is obliged, incurs a punishment of deprivation of freedom for two to five years or a fine of five hundred to a thousand quotas or both.

2. If the facts provided in the previous section are carried out by hiding, omitting, or altering the data of the established sworn statement, or by presenting false or altered documents or other means of accounting information records, the sanction is the deprivation of liberty of three to eight years.

3. Anyone who, having the responsibility of contributing totally or partially to the treasury withheld amounts for the concepts referred to in section 1, does not do so, incurs a punishment of deprivation of freedom for two to five years or a fine of five hundred to one thousand fees or both.

Article 35 of Decree-Law No. 175 of June 17, 1997, modified this article, which was drafted as it appears.

Article 344.1 regulates that: He who, by reason of his position, has the obligation to register and offer information that is related to the calculation, determination or payment of taxes, fees, contributions or any other obligation of a tax nature, hide, omit or alter the true information, so that it may cause damage to the national economy, it is sanctioned with deprivation of freedom for one to three years or a fine of three hundred to a thousand quotas or both, provided that the act does not constitute a major crime.

2. If, as a consequence of the events foreseen in the previous section, considerable damages are caused to the national economy, the sanction is deprivation of liberty for two to five years or a fine of five hundred to five thousand quotas or both.

3. In the same sanction to the one foreseen in section 1, the person who, knowing the illegal act or should have foreseen it, incurs the benefit of the act, for himself or for a third party.

Article 36 of Decree-Law No. 175 of June 17, 1997, modified sections 1 and 2 of this article which were drafted as they appear.

Article 345 regulates that: those declared responsible for the crimes provided for in the previous articles may also be subject to the accessory sanction of confiscation of property.

Article 4 of Decree-Law No. 150, of June 6, 1994, adds Title XIV Chapter I, articles 343, 344 and 345 to Law 62, of December 29, 1987, Penal Code, which were drafted the way they appear.

The essence of the crime of tax evasion lies in the non-receipt of tax revenue to which the respective farms are entitled.

In the doctrine a certain controversy is evident when framing this figure as common or special crimes, however it is special crimes, since third parties are not considered as active subjects of the tax credit, thus criminal liability is required of the taxpayer all Once the direct taxpayer is considered, it is sufficient that he does not pay the tax to consider the criminal act committed; In the case of the redeemer, criminal conduct consists in not entering the amounts used, as well as in the case of the recipient, the amounts received. In the event that the declaration is not presented and is not sanctioned as a fiscal crime, then only the responsibility for misappropriation is required.

Taxable persons may commit the crime, as well as those who are obligated or legitimized to pay, whether in their own name or that of others. The specific active subjectivity of legal entities and whether the responsibility of their representatives is not questioned.

The authors who understand it as a common crime, recognize that the tax or accounting advisor can commit the crime, when he evades the payment of taxes due by his client, or tends to improperly enjoy tax benefits, etc. If we analyze the nature of the links attacked and the harmful result, despite the intervention of other subjects, not debtors in the legal tax relationship, but whose actions obstruct the flow of taxes to the Public Treasury, it is evident that the crimes that affecting this legal asset must be classified as special.

It is then configured as a taxpayer of tax evasion, the owner of the protected legal asset and active subject in the tax relationship, the State, represented by the tax administration, derived power body responsible for the collection, control, oversight and collection of tributes. It is a crime characterized by the intention to defraud or evade payment. The subject who must make the payment acts in a conscientious manner, with the intention of defrauding the treasury, causing property damage. The presence of the subjective element of the unjust, which implies that criminal behavior is excluded from malicious behavior, it is enough that the intention to evade the payment of the tax fee is present. Tax crimes can only be committed intentionally,since the realization of this figure is incompatible with the imprudent and guilty forms for the commission of the crime.

There is a jurisprudential consensus to locate the final moment of tax evasion at the last business moment to make the corresponding income. As established in article 73 of Decree-Law 169/1997. It is considered completed after the administrative determination of the debt and the term of 15 days after the fiscal scope has expired. Our penal regulation in this regard, recognizes it as a crime of early consummation, when referring to the terms “evade or try to evade”.

The phase of the iter criminis, attempt, is appreciable in the conducts directed to deceive the authorities, directed to produce the fraud jointly with the damage of the treasury coffers. This is nothing more than the formal consummation, when the subject performs all the subjective and objective elements provided for in the law, verified to the detriment of the treasury.

You cannot speak of exhaustion, since the possibility of enforceability of the payment and imposition of sanctions is only extinguished when the prescribed term of 5 years elapses, which concludes the administration's credit right.

5.2 Money Laundering.

This crime protects the public treasury property in its dynamic sense in our legal system. It is about raising financial resources for the development and realization of public income and spending. Seen from the environment of the state's financial activity, the latter understood as the process of concentration, distribution and use of financial resources so that the sovereign entity that per se satisfies the obligations that are imposed on it.

In article three hundred and forty-six, which is made up of five sections, is regulated, the crime of money laundering. Noting in sections one and two that the repressed actions are linked to the traditional figures of concealment and reception, but are only punishable when they originate from the commission of a crime of illicit drug trafficking, illicit trafficking in weapons or people, or related to organized crime.

And section two in the same sanction incurs the one that conceals or prevents the real determination of the nature, origin, location, destination, movement or true ownership of resources or goods or rights to them rationally, for the occasion or circumstances of the operation, which came from the crimes referred to in the previous section.

5.2.1 Typical elements of behavior:

If we analyze the criminal types foreseen in this chapter of our substantive Criminal Law, we easily notice the complexity of its elaboration and, consequently, of its analysis. A simple reading allows us to appreciate an alternative mixed criminal type, before the repeated use of the disjunction "or".

The precept is presided over by the typical and genuine behavior of money laundering "acquisition, conservation and transfer of the illicitly obtained capital." The acquisition involves the incorporation of the asset into the new heritage, by means of any type, onerous or free. It means obtaining, obtaining whatever the means used. It implies the act by which one becomes the owner of a thing. The verb to acquire includes everything that is achieved or achieved by purchase, donation or any other title; includes what you get for money, fit, skill, industry, or the like.

The conversion implies the transformation of the assets into assets of any type or their transmutation into others. It is the transformation of one act into another, which is effective through confirmation or validation, or also the action or effect of converting, which in turn is to change, modify, transform something.

The transmission, or where appropriate the transfer, occurs through any form of assignment or transfer of assets, rights, capital to third parties. In this environment, acquisition and transfer are part of the bilateral relationship, since in order to acquire it is necessary to transmit, and vice versa "The transfer can not only be material or factual, but it is also possible to legally transfer, change ownership of a certain right, but that does not imply a factual displacement of the object on which such right falls.

The material object of the crime according to our legislation is constituted by resources, assets or rights. Such assets are to be understood as any economically valuable benefit. It is not just about money, hence the perceptible incardination of the denomination crime with its material object, since the latter is susceptible to appreciation in other benefits.

In addition to this, although the text does not provide for it, each resource, goods or rights must be the object of commercial traffic, an essential requirement for the idea of incorporating them into the legal economy, shaping the ratio legis of incrimination.

Subjective Element:

The subjective element is essentially and naturally determined by the malicious content of the unjust. The norm does not require a particular subjective component, and the knowledge and understanding of unlawfulness springs from the natural occurrence of the fact.

As Dr. Ramón de la Cruz Ochoa said, “To the best of the author's knowledge, it implies the existence of real, effective knowledge that the property is the product of a crime. In this sense, knowledge does not extend to the extent that the offender knows what the crime is committed and the circumstances of its perpetration, it is enough that he knows that things come from a crime. Here we can see a case of direct intent, since the individual acted consciously, with the will to carry out the action, even when he knew the spurious origin of the assets. In this case, any hypothesis of acting guilty or even of possible fraud must be rejected. From the expression "having to rationally suppose", I infer intentional ignorance.It is considered that this expression aims to cover the hypothesis in which the perpetrator of the crime places himself before the possibility of verifying the origin of the goods, but with will and intention prefers not to know it, ignore it, not verify it, not complying with the obligation.

Regarding the "suspicion" of the legitimate origin of the goods, it can be seen that who doubting or suspecting their illicit origin, also carries out the activity, works with some malice, hiding some knowledge.

As for the expressions "should have known" and "should have known", the doctrine is divided. For some, the perpetrator of a crime that he should have known or presumed acts guilty, because what is repressed is "a lower step of criminal activity, which seeks to border on guilt." For others, the conduct is intentional - as conditioned intent - but such reference is made in terms of reception, where the profit motive agreed to the possibility of guilt.

The behaviors foreseen in the basic figure are not incompatible, with the eventual fraud or with any kind of fraud; furthermore, what sense would there be in excluding that when even “inexcusable ignorance” is sanctioned?

“The incrimination of imprudence in laundering does not seem to us to be correct. And this is because we start from the idea that socio-economic crimes must contemplate behaviors that intentionally threaten the legal framework in which economic activities must be carried out. The administrative sanctioning law can adequately prevent and suppress negligence that damages the socioeconomic order ”.

RECOMMENDATIONS

In this way, an analysis can be made of the main articles that endorse Law 62/87 on crimes of Tax Evasion and money laundering. For this we make the following recommendations.

Regarding the first.

In the case of art.343.1 when reference is made to: Any other tax obligation, which may raise doubts as the intention of the legislator is not understood, since only three tax categories are recognized (taxes, rates and contributions), since formal duties are fiscal obligations but their non-compliance receives administrative treatment.

It could include:

Any other non-tax obligation, which includes tariffs, and consequently we would be in the presence of a contraband crime modality, as opposed to the treasury, whereby export and import are violated.

In art. 344.2 The identification of what the legislator identifies as considerable damages, denotes the need to establish a legal minimum regarding fraud behavior. This would solve a problem raised in practice, since when there are offenses constituting the crime of tax evasion, the tax administration will report the matter to the competent authority, abstaining from knowing about these offenses until the judicial decision or order of dismissal is affirmed.. Based on the formula of art. 104. of Decree-Law 169/97.

In art. 345 the accessory sanction of confiscation of goods is incorporated, however, sanctions for loss of the right to obtain tax incentives, nor for the closure of commercial establishments or withdrawal of the license to carry out commercial activities, all of these of the Decree-Law before mentioned.

The Cuban legislator does not refer to conducts consisting in falsifying or altering the documentation or information required to obtain exemptions, deductions or returns of a tax nature. Such behavior, given its social dangerousness, must be considered a fiscal crime and not attributed as a tax offense.

As for money laundering, it is linked to the issue of the protected legal asset, it is located in Cuba under the title "Crimes against the Public Treasury" sharing space with the crime of Tax Evasion, although some, including ourselves, consider that it is a crime that affects the socioeconomic order in general, it cannot really be pointed out that it is an incorrect legal objectivity, since it really is related to what it is intended to protect.

There is a certain tendency to protect the socio-economic order as a macro-social legal asset, as long as it is affected by a whole series of illicit transactions of a large and economic nature that, from the abstract, carry serious danger to the economic system of any country.

The penalty of the perpetrator or participant in the primary crime arises from the norm of the article of our substantive criminal text, since if the legislator had tried to exclude his criminal responsibility, he would resort to the formula "out of cases of complicity" or "without have participation ”or some similar term to those used in the crimes of concealment and reception. That is to say, the perpetrator of the basic crime is liable to be considered also in money laundering, when his conduct damages the legal good protected there and is not subsumable in reception or in disguise.

CONCLUSIONS

Currently internationally, as a result of global globalization, as well as other external factors, crime has been organizing and gaining strength, illicit activities such as illegal drug trafficking, human trafficking, organized crime and money laundering. money from them.

When characterizing this legal asset, we have been able to perceive that due to the recent existence of the figure object of our study and despite the doctrinal and jurisprudential efforts, there is still no unanimity in the identification and recognition of the protected legal asset.

These crimes have developed recently, in our legal system their application is practically null, since these criminal behaviors are not frequently typified.

Money laundering is a complex or multi-offensive crime since, in addition to protecting the Public Treasury, it also protects legal assets such as health, State Security, commercial and financial activities.

BIBLIOGRAPHY

III International Justice Meeting 2006. Chapter I: International Legal Norms that regulate the crime of money laundering.

Hyperpem of the Faculty of Law of the University of Camagüey, on money laundering and drug trafficking.

Competition questions, taken from: vvvvvv.accionpenal.com by Dr. Marcelo H. Fainberg.

Textbook of Special Criminal Law volume II of Edmundo Larramendi Domínguez… Havana: Editorial Félix Varela-page 261/289.

Microsoft Encarta 2007

Legal Texts: Law 62 / 1987- Penal Code

Criminal Law Manual I. Renén Quirós Pérez; 1999

Criminal Law general part. M. del Cabo, del rosal and TS Veig Antón.

The legal asset and its role in Criminal Law. Paz M de la Cuesta Aguado. Internet

The conceptualization of the protected legal good in a guarantee criminal law. José Luis Diez Repollés.

General Part Criminal Law. Francisco Muñoz Conde.