Can the FIU (Financial Intelligence Unit) use the information it collects in criminal proceedings?

Can the FIU use the information it collects in criminal proceedings?

In today’s blog we will talk about the Financial Intelligence Unit (for its acronym FIU) and the importance it has to use your information in a criminal process of any kind (in the majority of cases money laundering).

The UIF is a unit belonging to the Ministry of Finance and Public Credit (SHCP), its powers are provided for in article 15 of the Internal Regulations of the Ministry of Finance and Public Credit. Its purpose is to contribute to the prevention and combat of crimes of operations with resources of illicit origin (money laundering) and financing of terrorism. This was created by decree published in the Official Gazette of the Federation on May 7, 2004 during the six-year term of President Vicente Fox Quezada.

The Financial Intelligence Unit is the national central body for:

Receive reports of financial operations and notices of those who carry out vulnerable activities;

Analyze financial and economic operations and other related information;

Disseminate intelligence reports and other useful documents to detect operations probably related to money laundering or terrorist financing, and, where appropriate, file the corresponding complaints with the competent authority.

The main tasks of the Financial Intelligence Unit consist of implementing and monitoring mechanisms for the prevention and detection of acts, omissions or operations, which could favor, provide assistance, assistance or cooperation of any kind for the commission of the following crimes foreseen in the Federal Penal Code:

Operations with Resources of Illicit Origin

Article 400 Bis. A five to fifteen year prison term and a one thousand to five thousand day fine shall be imposed on anyone who, by himself or through a third party, performs any of the following conducts:

I. Acquire, transfer, manage, custody, possess, exchange, convert, deposit, withdraw, give or receive for any reason, invest, transfer, transport or transfer, within the national territory, from this to abroad or conversely, resources , rights or assets of any nature, when you are aware that they come from or represent the product of an illegal activity, or

II. Conceal, conceal or intend to conceal or conceal the nature, origin, location, destination, movement, property or ownership of resources, rights or goods, when it is aware that they come from or represent the product of an illicit activity.

For the purposes of this Chapter, it will be understood that resources, rights or assets of any nature are the product of an illegal activity, when there are well-founded indications or certainty that they come directly or indirectly, or represent the profits derived from the commission of any crime. and its legitimate origin cannot be proven.

In the case of conducts provided for in this Chapter, in which the services of institutions that make up the financial system are used, a prior complaint from the Ministry of Finance and Public Credit will be required to proceed criminally.

When the Ministry of Finance and Public Credit, in exercise of its oversight powers, finds elements that allow presuming the commission of any of the crimes referred to in this Chapter, it must exercise the powers of verification conferred by the laws and Report the facts that are likely to constitute such crimes.

From Financing to Terrorism

 Article 139 Quáter. The same penalty indicated in article 139 of this Code will be imposed, without prejudice to the penalties that correspond to the other crimes that result, to which, by any means that may be directly or indirectly, contributes or collects economic funds or resources from any nature, with the knowledge that they will be used to finance or support activities of individuals or terrorist organizations, or to be used, or intended to be used, directly or indirectly, totally or partially, for the commission, in national territory or abroad, of any of the crimes provided for in the following legal regulations:

I. Of the Federal Penal Code, the following:

1) Terrorism, provided for in articles 139, 139 Bis and 139 Ter;

2) Sabotage, provided for in article 140;

3) International Terrorism, provided for in articles 148 Bis, 148 Ter and 148 Quáter;

4) Attacks on the communication channels, provided for in articles 167, section IX, and 170, first, second and third paragraphs, and

 5) Theft, provided for in article 368 Quinquies.

II. From the Law that Declares Mining Reserves the Uranium, Thorium and other Substances from which Splittable Isotopes that can produce Nuclear Energy are obtained, those provided for in articles 10 and 13.

Its mission is to contribute successfully to the achievement of the purposes of the Mexican State aimed at:

-It prevents the carrying out of money laundering and terrorist financing.

However, although the FIU within its powers may gather and request the necessary documentation to complain for any of the crimes indicated in advance, the information collected through them only serves for the purposes of SUPPORTING the complaint.

That is, for this information to be incorporated into a criminal process, it must first be validated by the Federal Public Ministry Prosecutor who, in turn, must request, according to his powers, investigative acts through his ministerial officials. so that they can validate that the information and documentation presented in the complaint by the FIU was obtained without violation of fundamental rights.

Does my financial information violate or not that it is collected by the FIU fundamental rights?

Obtaining your financial information, account statements, freezing of bank accounts, bank secrecy, is protected by article 16 of the Constitution that literally tells us:

¨ No one can be disturbed in his person, family, domicile, ROLES or POSSESSIONS, except by virtue of WRITTEN COMMANDMENT of the competent authority, which founds and motivates the legal cause of the procedure.

Everyone has the right to the protection of their personal data, to access, rectification and cancellation of the same, as well as to express their opposition, in the terms established by law, which will establish the cases of exception to the principles that govern the data processing, for reasons of national security, provisions of public order, public health and safety or to protect the rights of third parties.

And the power that the Public Prosecutor of the Public Ministry has to obtain your banking information must be requested by means of an authorization from a Control Judge, which establishes and motivates the reason why such information is required, as established in article 252 of the National Code of Criminal Procedures:

Article 252. Investigative acts that require prior authorization from the Control Judge.

With the exception of the investigation acts provided for in the previous article, all investigation acts that imply violation of the rights established in the Constitution, as well as the following:

I. The exhumation of corpses;

II. Search warrants;

III. The intervention of private communications and correspondence;

IV. Taking samples of body fluid, hair or hair, extractions of blood or other analogous, when the requested person, except the victim or offended, refuses to provide the same;

V. The recognition or physical examination of a person when that person refuses to be examined, and

SAW. The others indicated by the applicable laws.

This by virtue of the fact that article 242 of the same ordinance established the assurance of assets or rights related to financial operations, said article was declared invalid by a ruling of the Supreme Court of Justice of the Nation generating an action of Unconstitutionality, published in the Official Gazette. of the Federation on June 25, 2018, so that in order for them to freeze your bank accounts, request information on account statements, among others, the Prosecutor of the Public Ministry must request it by means of a court order.

You can review the sentence here:

In conclusion, if the FIU investigates you for any crime regarding money laundering or terrorist financing, presenting as evidence your bank statements, income, expenses, financial information, account freezing and presented to the Federal Public Ministry Prosecutor, this It may be combated since that information ONLY and EXCLUSIVELY must be requested by means of a court order once a criminal proceeding has been initiated against you and there are sufficient elements to consider that you are responsible for any of these illicit acts.

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