Fällande dom till varje pris? En analys av penningtvättsbrottet och dispositionsförbudet ur ett rättssäkerhets- och effektivitetsperspektiv

Sammanfattning: If money with illicit origins enters into circulation in the financial system it poses a threat to the mechanisms of the financial system. Financial Action Task Force have concluded that the Swedish legal requirements for combating money laundering is insufficient, and the organisation have advised Swedish authorities to effectuate preventive measures. Therefore, the Swedish legal system is not considered enough efficient to combat nor prevent money laundering. Sweden has recently addressed the inefficient requirements to combat money laundering. On the 1st of July 2014, a new criminal Act, the Money Laundering Offences Act (2014:307) became statutory. The Money Laundering and Terrorist Financing Prevention Act (2009:62) was also changed. The aim of the research investigates how changes in Swedish regulations on combating money laundering affect national law. The efficiency in combating money laundering could be improved, however, they may also have an effect on the requirements of due process and predictability. The deficiencies in the former criminal provision on money laundering, in chapter 9 6a§ and 7a§ of the Penal Code, were both complicated and difficult. This affected the predictability of the criminal provision on money laundering and decreased the application of offences. The new criminal provision on money laundering are more efficient but the effectiveness of the new Money Laundering Offences Act could improve. Since the Money Laundering and Terrorist Financing Prevention Act identifies other types of actions that a suspect later on can be prosecuted for, according to the Money Laundering Offences Act, there is a risk that the penalty for money laundering might be limited. The new Money Laundering Offences Act, resulted in a change that made money laundering an own offence. Self-laundering (when the perpetrator to the predicate offence also commit money laundering) is now also a criminal offence. Prior to the Money Laundering Offences Act, self-laundering offenders were “co-punished” with predicate offence. One effect of the new offence might be that it contradicts the principle of: ne bis in idem. There is also a risk that the offence is conflicting with the right not to incriminate oneself. Another change is that there is no need for a prosecutor to provide information regarding predicate offence. This contributes to a more efficient way to combat money laundering, but it may also cause a less predictable enforcement. In order to combat money laundering more effectively, a prohibition to temporarily stop suspicious transactions has been introduced in the Money Laundering and Terrorist Financing Prevention Act. This will give more time for the police and prosecutors to decide if investigation on money laundering should being. A decision about stopping a transaction cannot be appealed, which may contradict with the right of an effective remedy according to article 13 Convention for the Protection of Human Rights and Fundamental Freedoms. The new criminal provision and new measures to prevent money laundering have resulted in a more effective system to combat money laundering. There is however a price that to pay for a more efficient system. In order to reach a higher number of convictions it might decrease the provisions of predictability and due process of law.