The rapid spread of virtual coins has long raised many concerns about their possible use for recycling. Precisely to address these risks, the legislator has long drawn up a series of anti-money laundering obligations for cryptocurrency operators. The work addresses this aspect, especially in order to understand whether the current anti-money laundering legislation is sufficient or whether it needs to be remedied.
Remarks to the Directive (UE) 2018/1673 of the Europian Parliament and the Council, 23rd October 2018, concerning money laundering and criminal law
In the last fifteen years, technological innovation has revolutionized the cultural and social aspects and the methods of consumption and production of products and services, transforming the web into a possible source of business for businesses. The regulatory “barriers” of the capital raising process requested by the banks and by the authorized financial intermediaries contributed to the affirmation of advanced financing instruments. Consider, in particular, Crowdfunding and ICOs, which are instruments of "disintermediation" of the collection of savings to finance, directly and without intermediaries, projects with global scale ambitions. It is clear that the opportunities that these new tools offer are accompanied by very serious threats, which intercept a worrying transmigration of entire sectors of economic and financial crime towards virtual space. In this perspective, technological innovation requires, today, the penal system to undertake a process of "de-individualization" of typical contrasting instruments, indeed, of a criminal law without a victim that aims to protect widespread and abstract interests.
The increasing use of virtual currencies has posed questions over the time about links with criminal activities, i.e. the possibility of becoming an alternative financial instrument for money laundering purposes in the lack of supervision by the authorities. Recently several preventative measures have been adopted both at the domestic and the supranational level: the risk of money laundering through virtual currencies can be indeed managed also from a preventative perspective. This paper aims to analyse the preventative instruments, in order to identify the most apt to combat unlawful practices, by studying the supranational legislation and comparing it with the Italian one, to analyse the whole scenario and the future developments.
The phenomenon of virtual currencies, among which the Bitcoin is a renowned example, has become increasingly relevant in this decade both at a national and a supranational level. This paper aims to analyze the risk of unlawful use of virtual currency and the possibility that such an instrument for on-line transactions is used for criminal activities. The focus will be on the peculiarities of virtual currencies, highlighting how they can be apt to “conceal” the value transferred in the borderless virtual world, so being potentially instrumental to money laundering and self-money laundering. Then the repression will be analyzed, also in order to assess if cyber-laundering and self-cyberlaundering can be subsumed in the criminal provisions under articles 648-bis and 648-ter1 of the Italian Criminal Code without any breach of the nullum crimen sine lege principle as a consequence of analogy.
The need to ensure adequate protection against the risks of unlawful data processing from virtual space has highlighted the close link between cybercrime and privacy, inducing the European legislator to promote prevention, by encouraging the adoption of effective means to protect personal data in networks and computer systems. The GDPR adopts a new risk-based approach, highlighting how the unlawful data processing is not the result of the conduct of the individual, but derives from a precise business policy. This leads to question the possibility of constructing and adopting an integrated organizational model that guarantees coordination between the provisions of Legislative Decree no. 231/2001 and the legislation on privacy.