Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
Recibido el 27/03/23 Aceptado el 15/06/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
:
Re vicyhLUZ, In ter na tio nal Po li ti cal Scien ce Abs tracts, Re vis ta In ter ame ri ca na de
Bi blio gra fía, en el Cen tro La ti no ame ri ca no para el De sa rrol lo (CLAD), en Bi blio-
gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
Po li ti cal Scien ce, Re vencyt, His pa nic Ame ri can Pe rio di cals In dex/HAPI), Ul ri ch’s
Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
L
OIRALITH
M. C
HIRINOS
P
ORTILLO
Co mi té Edi tor
Eduviges Morales Villalobos
Fabiola Tavares Duarte
Ma ría Eu ge nia Soto Hernández
Nila Leal González
Carmen Pérez Baralt
Co mi té Ase sor
Pedro Bracho Grand
J. M. Del ga do Ocan do
José Ce rra da
Ri car do Com bel las
An gel Lom bar di
Die ter Nohlen
Al fre do Ra mos Ji mé nez
Go ran Ther born
Frie drich Welsch
Asis ten tes Ad mi nis tra ti vos
Joan López Urdaneta y Nil da Ma rín
Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 41, Nº 79 (2023), 23-35
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Predicate oense in money laundering cycle
DOI: https://doi.org/10.46398/cuestpol.4179.01
Olha Bondarenko *
Lyudmila Telizhenko **
Mykola Starynsky ***
Mykhailo Dumchikov ****
Ruslana Dehtiar *****
Abstract
The article is devoted to the specic topic of the study of the
concept, essence, types and meaning of the crime underlying
money laundering. Special attention is paid to the topical issues of
judicial review under Article 209 of the Criminal Code of Ukraine
on legalization (laundering) of criminally obtained property. The
authors use general, intersectoral and special (sectoral) methods.
The analysis of the judicial practice of Ukrainian courts, carried
out by the authors, allows to state that the majority of cases of
demanding criminal liability for money laundering occur either in case of
existence of a conviction for an underlying oense or with simultaneous
prosecution for both an underlying oense and money laundering. It
is concluded that, the study of best practices in several countries gives
grounds to suggest the possibility of prosecuting asset laundering as a
separate criminal oense. Under such conditions, there will be no need to
prosecute an underlying oense, especially if it is impossible to prove guilt
for its commission.
Keywords: judicial review; judicial practice; predicate crime; legalization
(laundering) of property; money laundering.
* Department of Criminal Legal Disciplines and Procedure, Sumy State University, Ukraine. ORCID ID:
https://orcid.org/0000-0002-2288-1393. Email: o.bondarenko@yur.sumdu.edu.ua
** Department of Fundamental Jurisprudence and Constitutional Law, Sumy State University, Ukraine.
ORCID ID: https://orcid.org/0000-0003-4558-513X. Email: l.teligenko@yur.sumdu.edu.ua
*** Department of of administrative, economic law and nancial of economic security, Sumy State
University, Ukraine. ORCID ID: https://orcid.org/0000-0003-2661-5639. Email: starinskiy_nik@
ukr.net
**** Department of Criminal Legal Disciplines and Procedure, Sumy State University, Ukraine. ORCID ID:
https://orcid.org/0000-0002-4244-2419. Email: m.dumchykov@yur.sumdu.edu.ua
***** Department of Criminal Legal Disciplines and Procedure, Sumy State University, Ukraine. ORCID ID:
https://orcid.org/0000-0002-9661-7640. Email: r.dehtiar@yur.sumdu.edu.ua
24
Olha Bondarenko, Lyudmila Telizhenko, Mykola Starynsky, Mykhailo Dumchikov y Ruslana Dehtiar
Predicate oense in money laundering cycle
Delito principal en el ciclo del blanqueo de capitales
Resumen
El artículo está dedicado al tema concreto del estudio del concepto, la
esencia, los tipos y el signicado del delito subyacente en el blanqueo de
capitales. Se presta especial atención a las cuestiones de actualidad de la
revisión judicial en virtud del artículo 209 del Código Penal de Ucrania
sobre la legalización (blanqueo) de bienes obtenidos por medios delictivos.
Los autores utilizan métodos generales, intersectoriales y especiales
(sectoriales). El análisis de la práctica judicial de los tribunales de Ucrania,
llevado a cabo por los autores, permite armar que la mayoría de los casos de
exigencia de responsabilidad penal por blanqueo de capitales se producen o
bien en caso de existencia de una condena por un delito subyacente o bien
con un procesamiento simultáneo tanto por un delito subyacente como por
blanqueo de capitales. Se concluye que, el estudio de las mejores prácticas
de varios países da pie a sugerir la posibilidad de perseguir el blanqueo de
bienes como un delito penal independiente. En tales condiciones, no habrá
necesidad de enjuiciar un delito subyacente, especialmente si es imposible
demostrar la culpabilidad por su comisión.
Palabras clave: revisión judicial; práctica judicial; delito subyacente;
legalización (blanqueo) de bienes; blanqueo de dinero.
Introduction
Current globalization processes require a constant search for eective
regulation of constantly new public relations, which is the main task of state
policy. One of the main such tasks is criminal law policy in the ght against
crime. To solve this problem, state institutions are being created, the law
enforcement and judicial systems are being reformed, and Ukrainian
legislation on criminal liability is constantly being improved (Vorobey et
al., 2022).
The current economic sphere of public life in Ukraine and its constant
focus on European standards is met with some resistance by a part of the
population that uses illegal ways of enrichment, which is why there is a
negative trend of increasing the level of economic crime. Money laundering
has become quite common due to its connection with the business
environment. This phenomenon is used in illegal operations involving the
trade in weapons, drugs, the nancing of terrorism, the proliferation of
weapons of mass destruction, etc.
The purpose of countering money laundering is to make this crime
unprotable (Mbila, 2019). The world community recognizes that money
25
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 23-35
laundering resulting from criminal or other illegal activities has become a
global threat to economic security. Laundering of “dirty” money negatively
aects the investment attractiveness of the country, contributes to
increasing the level of the shadow economy, reduces the eectiveness of
tax policy, undermines work nancial sector of the economy (Zhyvko et al.,
2021).
However, money laundering is a very complex process by which proceeds
of crime are transformed into “legitimate funds” (Korejo et al., 2021).
The issue of countering money laundering in Ukraine is very relevant.
This is conrmed by the existence of a broad regulatory framework to
prevent this act, identify it, and bring the perpetrators to liability. New
challenges and threats contribute to the development of appropriate
mechanisms for responding to them.
Under the conditions of globalization, international and national
nancial and banking systems begin to function according to new principles,
the development of information technology contributes to the emergence
of new ways of legalizing income received in the shadow sector or from
criminal activities. Subsequently, such trends contribute to the active
spread of illegal activities leading to the receipt of dubious income, which
can be used to nance criminal projects and international terrorism.
The issue of countering money laundering and the content of such
criminal activities is given much attention in scientic research. This is
due to the complexity of organizing the activities of law enforcement and
judicial bodies to identify and investigate this criminal oense, the constant
change in money laundering methods, and the problems of proving the
commission of such criminal oenses and bringing perpetrators to justice.
The analysis of judicial practice will make it possible to identify the
current state of the spread of this type of criminal oense, characterize the
content of criminal activity in this area, and the diculties that arise during
the trial.
1. Methodology
The structure of the research methodology of legal phenomena is
a multi-level system and consists of scientic principles cognition,
dominant worldview, scientic type thinking, philosophical foundations,
scientic paradigms, methodological approaches, and scientic methods
(Tikhomirov, 2019). The key place in the complex structure of the
methodology is occupied by the methods of scientic research. The correct
combination of methods ensures the objectivity of scientic research.
26
Olha Bondarenko, Lyudmila Telizhenko, Mykola Starynsky, Mykhailo Dumchikov y Ruslana Dehtiar
Predicate oense in money laundering cycle
The reliability of the obtained scientic results is ensured by the
extensive use of methods of scientic knowledge. The normative-dogmatic
method served as a methodological basis for studying domestic mechanism
for judicial review of property laundering cases, which allowed to conduct
a study of topical issues of judicial review under Article 209 of the Criminal
Code of Ukraine regarding on legalization (laundering) of property obtained
by criminal means.
The critical analysis made it possible to form conclusions and proposals
for improving legal regulation based on the analysis of legislative sources.
In our opinion, analyzing the provisions Article 209 of the Criminal Code
of Ukraine, it is currently possible to consider court cases on legalization
(laundering) of funds as a separate crime. Analytical and statistical methods
allowed for analyzing court sentences and identifying trends in the context
of predicate acts in the criminal cycle of money laundering. This article
mainly relies on and court cases as the main sources of information.
In addition to choosing specic methods of scientic research, the
methodology of legal research needs one more thing - nding the optimal
ratio of empirical and theoretical. Until recently, legal science has shown
increased attention to empirical research in the development and evaluation
of law. However, one must agree with the special value of using not only
empirical research methods in the evaluation of judicial practice, but also
theories of social sciences (Kopcha, 2020).
2. Results and Discussion
• The Concept of a Predicate Oense
The eectiveness of developing criminological plans to counter crime in
general and counter money laundering signicantly depends on a qualitative
quantitative and qualitative analysis of factors of criminal behavior. In
the context of the study of money laundering, a special place is occupied
by the predicate oense, which in fact is the initial stage in the cycle of
criminal behavior. Money laundering becomes a kind of continuation of the
rst criminal act. Therefore, it is much more dicult to counteract money
laundering. It is necessary to take into account both the rst (predicate)
oense and the second one. The range of such acts can be very wide. In
the context of the theoretical analysis of the conceptual apparatus, it is
necessary to explain the concept of “predicate oense”.
Money laundering is preceded by any criminal actions that directly
or indirectly lead to its illegal acquisition. Honcharuk (2020) denes the
denition of “predicate oense” under this construction. The lack of a
legislative denition of this concept causes pluralism of scientic views.
27
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 23-35
As for the regulation, today there is a single regulatory approach to the
denition of the concept of “predicate oense”, which means any criminal
oense, as a result of which income has appeared, which may become in the
future the subject of criminal oenses related to money laundering, the list
of which is specied in Article 6 of the Convention on Laundering, Search,
Seizure and Conscation of the Proceeds from Crime and on the Financing
of Terrorism (Council of Europe, 1990).
Regarding the approach of the judicial authorities, in the resolution of
the plenum of the Supreme Court of Ukraine No. 5 dated April 15, 2005,
which provisions are intended for the correct and unanimous application
by the courts of legislation on liability for money laundering and due to
issues, that appeared during the consideration of this category of cases.
Even though the resolution was adopted in 2005, it can be stated that
its provisions are still relevant in terms of general approaches to the
interpretation of the “predicate oense” (On the practice of application by
courts of the legislation on criminal liability for legalization (laundering) of
proceeds from crime, 2005).
The previous version of Article 209 of the Criminal Code of Ukraine,
which provides for liability for money laundering, contained a note to
the article, paragraph 1 of which contained the denition of a predicate
oense. The article contained the following provision: A socially dangerous
illegal act that preceded money laundering, according to this article, is an
act for which the Criminal Code of Ukraine provides for the main penalty
in the form of imprisonment or a ne of more than three thousand non-
taxable minimum incomes of citizens, or an act committed outside of
Ukraine if it is recognized as a socially dangerous illegal act that preceded
money laundering, according to the criminal law of the state where it was
committed, and is a crime under the Criminal Code of Ukraine and as a
result of the commission of which income was illegally obtained.
The current version of Article 209 of the Criminal Code of Ukraine does
not describe a predicate oense. Still, the disposition indicates “property
in respect of which factual circumstances indicate its receipt by criminal
means.” (The Criminal Code of Ukraine, 2001: part 1 of Article 209).
Analysis of the latest version of the article makes it possible to determine
the features of predicate oenses:
(1) a predicate oense is no longer necessarily a socially dangerous
crime. Now it can be any oense. However, in our opinion, this approach
is not justied. We are convinced that if the predicate oense was not a
crime, the person could not be subject to criminal liability in the future.
One of the main features of property that is the subject of a crime under
Art. 209 of the Criminal Code, its immediate origin from another socially
dangerous act that preceded legalization itself. That is, the subject of the
crime is directly related to a certain predicate unlawful socially dangerous
28
Olha Bondarenko, Lyudmila Telizhenko, Mykola Starynsky, Mykhailo Dumchikov y Ruslana Dehtiar
Predicate oense in money laundering cycle
act, its obligatory feature is criminal origin. In the legal theory of Ukrainian
science, administrative oenses dier from criminal ones in the severity
of the harm they cause. Thus, administrative oenses are socially harmful,
and crimes are socially dangerous. A systematic interpretation of the legal
theory allows refuting the approach about the possibility of recognizing an
administrative oense as a predicate oense in money laundering.
(2) it is claried that there is no need to prove a predicate oense. The
illegal origin of property can be proved based on factual circumstances.
Thus, the legislator once again emphasizes the need for strict compliance
with the principles of belonging and admissibility of evidence during their
collection and registration.
• Procedural signicance of the fact of committing a predicate
oense
In addition to the material signicance and essence of the predicate
oense, the procedural one also plays an important role. The rst point
of view is because “pre-trial investigation of money laundering is justied
when a predicate oense is already being investigated” (Klepytskyy, 2002:
15).
Another argument is the opinion that from the moment of committing
a crime under Article 209 of the Criminal Code of Ukraine until the entry
into force of a guilty verdict for a predicate oense, a signicant period
may pass, which makes it impossible to withdraw income obtained by
illegal means. It is also suggested that one of the mandatory conditions for
qualifying an act on the grounds of committing a crime under Article 209 of
the Criminal Code of Ukraine is the criminal origin of the income received.
Thus, the author considers it expedient to investigate the main crime and
the circumstances of money laundering (Pavlyutin, 2015).
The second point of view is that criminal prosecution for money
laundering should be preceded by a court conviction for the main (predicate)
oense. In conrmation of this, we will consider the provisions of scientists’
research:
(1) it is essential to start proceedings under Article 209 of the Criminal
Code of Ukraine only if a court verdict of guilty for a predicate
oense comes into force, i.e., money laundering must be fully legally
recognized for each specic case (Popovych, 2001: 397);
(2) a decision to prosecute for money laundering is not possible in the
absence of a conviction for “predicate” oenses that have become a
source of income intended for laundering because it is contrary to the
principle of presumption of innocence (Arkusha, 2010);
29
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 23-35
(3) if it is sucient for the perpetrators of a criminal oense to realize
that they are carrying out actions with property obtained by illegal
means, then “the person investigating such criminal activity for
money laundering needs a legal basis (in this case, a guilty verdict)
to bring the perpetrator to criminal liability under Article 209 of the
Criminal Code of Ukraine”.
On this occasion, the Resolution of the Plenum of the Supreme Court
Of Ukraine No. 5 of April 15, 2005, notes that bringing a person to criminal
liability under Article 209 of the Criminal Code is possible both if the fact
of receiving funds or other property as a result of committing a predicate
oense is established by the court in the relevant procedural documents
(verdict or decisions, decisions on the exemption from criminal liability, on
closing the case on non-rehabilitating grounds, etc.), and in the case when
the person was not brought to criminal liability for the predicate oense.
In the latter case, a person is simultaneously brought to criminal liability
for a predicate oense and for laundering of funds or other property obtained
as a result of its commission, i.e., for the totality of these crimes, since the
person is aware of laundering such funds (property) (On the practice of
application by courts of the legislation on criminal liability for legalization
(laundering) of proceeds from crime, 2005).
In the international judicial arena, there is a general practice where
prosecutors focus on the criminal prosecution of a predicate oense
and ignore the money laundering associated with it or do not consider it
dominant at all (Netherlands, Belgium). This phenomenon occurs for
various reasons. In some criminal cases, it is easier to satisfy a conviction
for a predicate oense, for example, when the prosecutor has gathered
enough evidence to bring charges for a predicate oense, but the nancial
evidence base, which is essential for bringing charges of money laundering,
is insuciently prepared.
Pre-trial investigation of money laundering and a predicate oense
usually requires a lot of resources and time. In some jurisdictions, there
is no incentive to bring money laundering charges because, in the end, the
sentence will be nearly the same if the accused is charged with a “predicate
oense” (Richardson and De Lucas Martín, 2021).
Such a simplied approach and the desire to improve success statistics in
Ukraine is unacceptable in the international arena. After all, international
standards provide for the possibility of investigating and bringing to
criminal liability for money laundering as a separate crime. Based on
the facts of unexplained enrichment or inconsistency in tax reporting,
investigators can initiate an investigation into money laundering even if
there is no direct evidence of a particular predicate oense.
30
Olha Bondarenko, Lyudmila Telizhenko, Mykola Starynsky, Mykhailo Dumchikov y Ruslana Dehtiar
Predicate oense in money laundering cycle
In most foreign countries, the competent authorities care not only
about the positive dynamics of statistics on “winning cases” but also about
countering crime. This is conrmed by a ruling by the Supreme Court of
the Netherlands, which clearly stated that in money laundering cases, it
is not necessary to prove who, where, and when committed the predicate
oense. The Amsterdam Court of Appeal issued a decision in 2013 (known
as the “6-Step decision”) that provides a brief description of the procedure
for assessing at the national level the facts of money laundering when the
predicate oense is unknown (Court of Appeal of Amsterdam: 11-01-2013,
ECLI: NL: GHAMS: 2013: BY8481, 2013).
The Belgian Supreme Court ruled that the burden of the proof
requirement of criminal and illegal origin is met if any legal origin is
denitely excluded. Thus, the illegality of the origin of assets should be
established there. Still, to make a decision, the criminal court does not have
to know precisely which criminal act led to nancial gain. It is sucient for
the court to exclude any legal origin with the help of the case le.
The Spanish Supreme Court ruled on the validity of indirect or
indirect evidence in money laundering proceedings, provided that three
requirements were met: there was unproven enrichment or nancial
transactions involving large amounts of money; no legitimate economic or
business activity to explain such an increase; and the existence of a link to
illegal activities (Richardson and De Lucas Martín, 2021).
Thus, from the results mentioned above of the study of the procedural
signicance of the fact of committing a predicate oense for bringing those
responsible to justice for money laundering, with the passage of time and
the introduction of appropriate changes to the disposition of this article
there is no need to prove the commission of a predicate oense. Today, this
issue requires additional research and the adoption of a new resolution of
the plenum of the Supreme Court of Ukraine on the practice of applying
the legislation on criminal liability by courts under Article 209 of the
Criminal Code of Ukraine. The adoption of this decision will contribute to
an adequate trial and the adoption of fair punishment for this oense.
• Analysis of judicial practice on the commission of a
predicate oense for bringing to criminal liability for money
laundering
The peculiarity of the crime, which is provided for in Article 209 of the
Criminal Code of Ukraine, in the presence of previous criminal activity,
which is a source of obtaining property (income), and various actions
(acquisition, possession, use, disposal of property, carrying out a nancial
transaction, making a transaction with such property, etc.).
31
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 23-35
The analysis of judicial practice will allow identifying criminal activity
that become elements of ocial statistics and will help to reveal the content
of common predicate oenses and peculiarities of actions aimed at money
laundering (Lysenko, 2021).
Analysis of judicial practice, mainly for 2019-2021 (more than 100
sentences from all regions of Ukraine), made it possible to state a fairly
wide variety of criminal activities in the eld of money laundering – from
the simplest use of funds obtained by criminal actions for their own needs
to special ways of hiding the source of monetary income using banking
services, multiple transfers of funds to special accounts of enterprises,
individual entrepreneurs created for this purpose.
The considered judicial materials made it possible to identify the most
common predicate oenses that were presented by us in Table 1 (Predicate
oenses in money laundering). The analysis of court cases shows that one of
the “main” predicate oenses in judicial practice is crimes against property.
In the sphere of ocial and professional activities related to the provision
of public services, criminal oenses are also frequent in the structure of
predicate oenses. They are a source of funds for their laundering. In this
case, the person was oered intermediary services to facilitate the receipt
of a foreign passport by employees of the Krasnolymanskyi State Migration
Service of Ukraine in the Donetsk region. As a result of the “assistance”
provided, 16 thousand UAH was received. The court qualied these actions
under Part 2 of Article 369-2 and Part 1 of Article 209 of the Criminal Code
of Ukraine. These funds were later used for their own needs through the
purchase of goods, etc (Slavyansk City District Court of Donetsk Region:
31-10-2019, sentence in the case № 1-кп/243/947/2019, 2019).
Among the most common cases, there are also cases of using third-party
assistance to commit predicate oenses and then launder money. Such
persons agree to be nominally the founder and director of the business
entity, perform measures to open current accounts and receive funds for
remote management of them (Pechersk District Court of Kyiv: 24-12-2020,
sentence in the case № 757/12515/20-к, 2020). The same occurred in
other court cases, where other persons performed nancial and economic
activities (Pechersk District Court of Kyiv: 29-03-2019, sentences in the
case № 757/9882/19-к, 2019; Kherson City Court of Kherson Region: 05-
06-2019, sentences in the case № 766/6200/19, 2019).
The analyzed court cases make it possible to show that among the ways
of money laundering were both simple and complex nancial ones, with the
help of which it was possible to hide the criminal origin of funds (property),
giving them the appearance of legal through receiving them from the sale
of property, business activities, etc. Managers and direct organizers of
money laundering schemes most often were not established by the pre-trial
32
Olha Bondarenko, Lyudmila Telizhenko, Mykola Starynsky, Mykhailo Dumchikov y Ruslana Dehtiar
Predicate oense in money laundering cycle
investigation bodies. Only persons who directly performed actions aimed
at money laundering were brought to criminal liability. In all the cases
considered, the “performers” agreed to perform these actions for a certain
monetary reward.
It is also important to note such a common method of money laundering
as using bank accounts opened by individuals to conduct business
(individual entrepreneurs). Such a scheme provides that for a certain
monetary reward, a person is invited to open a bank account in a banking
institution.
Among the court cases, some cases involve using third parties to commit
a predicate oense and money laundering on the territory of other states.
In the materials of a similar case, it is noted that in February 2019, a citizen
of Ukraine, to improve his nancial situation, was invited to participate in
criminal activities involving money laundering. For this purpose, it was
necessary to travel to the Czech Republic and open a current account in a
banking institution. Funds were credited to the account under the guise of
prepayment for the purchase of a truck. The money received fraudulently
was cashed out and transferred to the persons who committed the predicate
oense (Lipovets district court of Vinnytsia Region: 26-10-2020, sentence
in the case № 136/947/20, 2020).
Conclusions
Summing up the above, we would like to note that the complex legal
nature of money laundering complicates its detection and investigation.
In addition, there are several objective and subjective reasons that hinder
this process. Objective legislation includes imperfect and not unambiguous
legislation, in particular, in the context of the interpretation of the
concept of “predicate oense”. Subjective reasons include the desire of
law enforcement agencies, both those directly involved in investigations
and employees of the prosecutor’s oce, to improve their performance
indicators and therefore slow down the study.
The analysis of criminal court cases carried out by the authors has
shown various money laundering methods – from simple to relatively
complex nancial schemes to conceal the illicit origin of money. To commit
predicate oenses and direct actions to launder money, the organizers of
criminal activity involve unauthorized persons, usually the perpetrators,
who are brought to criminal liability.
Unlike the previous version of Article 209 of the Criminal Code of
Ukraine, its current version does not contain the concept of a predicate
oense. The involvement of the “predicate factor” in the elements of the
33
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 23-35
forensic characteristics of this category of crimes demonstrates that money
laundering is an integral part of specic methods of illicit enrichment,
which provide for a set of interrelated criminal actions, where laundering
itself is the last part in this illegal activity.
In our opinion, analyzing the provisions of Article 209 of the Criminal
Code of Ukraine, it is now possible to consider court cases on money
laundering as a separate oense. This issue requires further research for
an eective trial.
Bibliographic References
ARKUSHA, Larysa. 2010. Legalization (laundering) of proceeds from organized
legal activities: characterization, detection, investigation. Odesa, Ukraine.
COUNCIL OF EUROPE. 1990. Convention on Laundering, Search, Seizure
and Conscation of the Proceeds from Crime. Council of Europe.
Ratication 1997. Available online. In: https://zakon.rada.gov.ua/laws/
show/995_029#Text. Consultation date: 01/11/2022.
CRIMINAL CODE OF UKRAINE. 2001. Law № 2341-III. Information
of the Verkhovna Rada of Ukraine. No. 25-26. Available online. In:
https://zakon.rada.gov.ua/laws/show/2341-14. Consultation date:
23/11/2022. (in Ukrainian).
GERECHTSHOF AMSTERDAM. 2013. ECLI:NL:GHAMS:2013:BY8481.
Available online. In: https://www.recht.nl/rechtspraak/?ecli=
ECLI:NL:GHAMS:2013:BY8481. Date of consultation: 25/02/23.
HONCHARUK, Vladyslav. 2020. “Types of predicate crimes in the domestic
criminal legislation” In: Our law. No. 3, pp. 105-115.
KLEPYTSKYY, Ivan. 2002. Money laundering» in modern criminal law.
State and law. Available online. In: http://www.oupi.ru/ilibr/kv/2.pdf.
Consultation date: 10/11/2022. (In Russian).
KOPCHA, Vasyl. 2020. “Methodology of legal phenomenon research: concept,
structure, tools” In: Journal of the Kyiv University of Law. No. 01, pp.
54-58.
KOREJO, Muhammad; RAJAMANICKAM, Ramalinggam; MD. SAID,
Muhamad Helmi. 2021, «The concept of money laundering: a quest for
legal denition» In: Journal of Money Laundering Control. Vol. 24, No.
4, pp. 725-736.
34
Olha Bondarenko, Lyudmila Telizhenko, Mykola Starynsky, Mykhailo Dumchikov y Ruslana Dehtiar
Predicate oense in money laundering cycle
LYSENKO, Volodymyr. 2021. “Characteristics of criminal activity regarding
legalization (laundering) of property obtained by criminal way (according
to judicial practice)” In: Bulletin of Luhansk State University of Internal
Aairs named after E.O. Didorenko. Vol. 94, No. 02, pp. 128-140.
MBILA, Chimamaka. 2019. Understanding the predicate oence of Money
laundering; The Money laundering cycle, typologies and proered
solutions for banks to mitigate their risks to enabling money
launderers. Available online. In: https://www.researchgate.net/
publication/337245033_Understanding_the_predicate_offence_
of_Money_laundering_The_Money_laundering_cycle_typologies_
and_proffered_solutions_for_banks_to_mitigate_their_risks_to_
enabling_money_launderers. Consultation date: 12/11/2022.
PAVLYUTIN, Yuriy. 2015. “Peculiarities of proving legalization (laundering) of
proceeds from crime” In: South Ukrainian Law Journal. No. 03, pp. 169-
172.
POPOVYCH, Volodymyr. 2001. Economic and criminological theory of de-
shadowing of the economy. Irpen, Ukraine.
RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF UKRAINE.
2005. On the practice of application by courts of the legislation on
criminal liability for legalization (laundering) of proceeds from crime.
Visnyk Verkhovnoho Sudu Ukrainy. No. 5. Available online. In: https://
zakon.rada.gov.ua/laws/show/v0005700-05#Text. Consultation date:
12/11/2022.
RICHARDSON, Ian; DE LUCAS MARTÍN, Ignacio. 2021. Handbook on
money laundering identication, investigation and prosecution for
Ukraine. Available online. In: https://u.gov.ua/assets/userles/200/
Typologies%20(International%20Studies)/ENG_Handbook%20
on%20ML%20prosecution.pdf. Consultation date: 20/11/2022.
SENTENCE IN THE CASE № 136/947/20 (proceedings 1-кп/136/50/20).
2020. Lipovets district court of Vinnytsia region. Register of court
decisions. Available online. In: https://reyestr.court.gov.ua/
Review/92461108. Consultation date: 23/11/2022. (in Ukrainian).
SENTENCE IN THE CASE № 243/3955/19. 2019. Slavyansk City District
Court of Donetsk Region. Register of court decisions. Available online.
In: https://reyestr.court.gov.ua/Review/85305626 (2019, October, 31).
Consultation date: 23/11/2022.
SENTENCE IN THE CASE № 757/12515/20-к. 2020. Pechersk District Court
of Kyiv. Register of court decisions. Available online. In: https://reyestr.
court.gov.ua/Review/93803612. Consultation date: 23/11/2022.
35
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 23-35
SENTENCE IN THE CASE № 757/502/19-к. 2019. Pechersk District Court of
Kyiv. Register of court decisions. Available online. In: https://reyestr.
court.gov.ua/Review/80449864 (2019, March, 13). Consultation date:
23/11/2022.
SENTENCE IN THE CASE № 757/9882/19-к. 2019. Pechersk District Court
of Kyiv. Register of court decisions. Available online. In: https://reyestr.
court.gov.ua/Review/81527076 (2019, March, 29). Consultation date:
23/11/2022.
SENTENCE IN THE CASE № 766/6200/19. 2019. Kherson City Court of
Kherson Region. Register of court decisions. Available online. In:
https://reyestr.court.gov.ua/Review/n82951199. Consultation date:
23/11/2022.
TIKHOMIROV, Denys. 2019. “The structure of the methodology of state policy
research in the eld of security” In: Philosophical and methodological
problems of law. Vol. 18, No. 2, pp. 46-51.
VOROBEY, Petro; VOROBEY, Olena; MATVIICHUK, Valerii; NIEBYTOV,
Andrii; KHAR, Inna. 2022. “Criminal law principles in the ght against
crime” In: Amazonia Investiga. Vol. 49, No. 11, pp. 156-164.
ZHYVKO, Zinaida; RODCHENKO, Svetlana; VYSOTS'KA, Inna. 2021. “The
impact of the legalization of proceeds of crime on economic security” In:
Social and humanitarian bulletin. Vol. 37. pp. 48-51.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en octubre de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79