Attorney Marco Farinella reports on a recent ruling by the Supreme Court (2nd criminal division, 25 January 2022, no. 2868) on #self-laundering and #cryptocurrency: is such a coexistence possible?
With judgment no. 2868 filed on 25 January, the 2nd criminal division of the Supreme Court ruled that self-laundering can constitute a crime via transactions which – through the transfer of currency to foreign companies acting as intermediaries n the purchase of cryptocurrencies by means of a nominee – pose an obstacle to the identification of the final beneficiary of the transactions.
The Court ruled on the legitimacy of a preventive seizure decree against the appellant, concerning the profit obtained from the predicate offences of aiding and abetting prostitution, then transferred to foreign companies used for the sale of cryptocurrencies. These transfers were made by bank transfers in euros through Postepay cards owned not only by the suspect himself, but also by nominees. It is precisely the transfer of currency, including through nominees, to foreign companies acting as intermediaries in the purchase of bitcoins which, according to the Court, hinders the identification of the appellant as the final beneficiary of the transactions and the actual holder of bitcoins. The Court reiterated a principle, which had already put forth several times, according to which – in order to identify the crime of self-laundering – the conduct does not necessarily have to entail a total hindrance to the identification of the illegal source of the money, assets or other benefits. In contrast, any activity that is essentially hindering the ascertainment of their origin is sufficient. In this sense, it seems interesting to note that a verification of the subsequent use of the bitcoins obtained by the appellant has no relevance, since the crime of self-laundering was already identified by the preliminary currency exchange operation carried out through foreign companies.
Moreover, the Court adds, the currency exchange activity is financial in nature, so much so that – at the national level – it is regulated by law and there is an obligation for the person who exercises it to register in special registers.