A (IN) VIABILIDADE DO DELITO DE AUTOLAVAGEM DE DINHEIRO NO ORDENAMENTO JURÍDICO BRASILEIRO: UM EMBATE DOUTRINÁRIO E JURISPRUDENCIAL À LUZ DA LEI N° 9.613/1998

Abstract

The usage of the crime’s economic returns, for criminals, is a task of special relevance, as it represents the end goal of the delict and often its reason for being. At the same time, the pecuniary benefit of the criminal offense – chiefly the manner to spend it – might lead to a trail of evidences, which could reveal the authorship of the infraction and entail a criminal prosecution. In this context, the criminalization of money laundering is crucial to curb the activities of most articulate and structured criminal organizations, by repressing, indirectly, the crimes that precede it. Self-laundering, in turn, is the criminal type in which the perpetrator of money laundering also commits the preceding criminal offense that generated the laundered illicit capital. In this sense, there is controversy among criminal law experts regarding the viability of this self-laundering, since money laundering has a limited accessory relationship with the preceding criminal offense, due to the need to have an illicit product to be laundered. In this way, the aim is to answer the following question: is self-money laundering a viable typical criminal offense in Brazil? Therefore, the general objective of this research is to investigate the self-legitimization of capital, in its autonomous delictual capacity, under the aegis of the principles of Constitutional Criminal Law and Brazilian legislation on money laundering – Law No. 9,613/1998. The specific objectives include a detailed examination of the historical-dogmatic construction of the offense, observing the evolution of criminal treatment over the years, as well as discussing the legally protected interests of money laundering, defining them. Finally, the possibility of punishment for self-recycling is addressed. The chosen methodology included a descriptive and, above all, bibliographic research procedure, combined with the hypothetical-deductive method of Karl Popper, testing various hypotheses and theses on the possibility or impossibility of self-laundering of assets. This was done with the support of hermeneutic and dogmatic methodological approaches, analyzing the application of the law within its legislative expression, along with a qualitative concept, to understand the correct penal solution to the problem. After all this scrutiny, it is concluded that the criminal figure of self-laundering is feasible, without offending the principle of strict legality or the nemo tenetur se detegere, providing that the act of laundering is distinct, autonomous, and subsequent to the previous criminal offense, with the specific intent to give the illicit economic benefit an appearance of legality.