Self-laundering as a crime directly related to cartel practice: interpretation of the art. 87 of Law 12.529/11

Abstract

Objective: the present article analyzes the suitability of the money laundering crime into the list of crimes disposed in the article 87 of Law nº 12.529/11, for the purposes of granting the criminal benefits indicated in the Leniency Agreement signed with the Administrative Council for Economic Defense (Cade).

Method: the research adopts a qualitative approach, of a legal-dogmatic nature. The scientific reasoning applied was deductive. For the interpretation of the expression “crimes directly related to cartel practice”, as written in the mentioned article 87, the dogmatic method of interpreting criminal law was used. As interpretative criteria, three characteristics of the money laundering are indicated: (i) self-laundering; (ii) the legal object protected; (iii) completion instant.

Conclusions: the main conclusion is that the facts of a specific case, perceived as money laundering, if they meet the proposed interpretative criteria, can be considered a crime directly related to cartel practice, for the purposes of obtaining the criminal benefits outlined in art. 87 of Law nº 12.529/11, notably if it is found self-laundering. Furthermore, one can observe the protection of the economic order as a factor connecting the practices of cartel and money laundering. Finally, the consummation moment is also similar in both offenses, in a way that the ongoing nature of the cartel, combined with the persistence of money laundering, demonstrates the possibility in which both practices are not only directly related at a specific moment but also over a continuous period, supported by the production of evidence common to both offenses.