Caracas, March 24 to 26, 1999
Magistrate Jorge Eduardo Tenorio
Mr. Secretary General, please put on record the number of countries participating in this II Ibero-American Summit of Presidents of Supreme Courts and Tribunals of Justice, today, Friday, March 26, 1999, at 2:00 p.m.
Secretary General
Magistrate Jorge Eduardo Tenorio, president of the Supreme Court of Justice of the Republic of El Salvador, the presidents or representatives of the presidents of 19 Supreme Courts and Tribunals of Justice are present at this Fourth Plenary Session of the II Ibero-American Summit of Presidents of Supreme Courts and Tribunals of Justice.
Magistrate Jorge Eduardo Tenorio
Mr. Secretary, please announce the specific purpose of this session.
Secretary General
The specific purpose of this session, on the topic of drug trafficking, is to evaluate the identity of common norms, as well as those which could be unified, in order to achieve international standardization of judicial processes and compatibility of penalties in the various judicial systems of the region. I hereby declare the session open.
Magistrate Jorge Eduardo Tenorio
Opening of the session. First speaker: Magistrate Fernando Arboleda Ripoll, vice-president of the Supreme Court of Justice of the Republic of Colombia, Comparative Analysis of Ibero-American Legislation.
Magistrate Fernando Arboleda Ripoll
Representatives of the countries participating in this Ibero-American Summit of Presidents of Supreme Courts and Tribunals of Justice, ladies and gentlemen.
As has been said, the topic of this presentation is of such proportions that its mere title makes it truly unrealizable. A comparative analysis of drug trafficking legislation in the nations of the Ibero-American area requires a formidable effort. Nonetheless, in work document No. 4, on the topic of Drug Trafficking and Its Consequences, the Technical Unit for the Follow-up and Development of the actions proposed in the Caracas Declaration, made a synthesis of current existing legislation, characterized it with various criteria, and arrived at several conclusions as to what the legislative developments have been in Ibero-America, brought about by this type of legislation. Within the framework of the measures proposed by the Caracas Declaration, this allows them to formulate certain conclusions, such as the development of an international instrument, the adoption of an international instrument to combat drug trafficking, compilating the typologies identified in the various statutes and laws in effect in each of the nations included in the concept of Ibero-American area.
Create an Ibero-American court to deal with drug trafficking offenses, identified in normative instruments.
Establish an Ibero-American network of Supreme Courts and Tribunals, which will permit the exchange of concrete information on cases which transcend the national ambit, the continuous propagation of the documentary content of comparative legislation with regard to drug trafficking and its consequences, stored in the data base being developed by the Follow-up Technical Unit. Lastly, it proposes to develop a set of guidelines with the measures and mechanisms to achieve the effective protection of Ibero-American judges and magistrates in charge of drug trafficking cases in the respective countries.
My participation in the tasks of the Summit led me to achieve a greater insight on this topic, subject of this presentation, which varied somewhat from that which the Technical Unit had provided beforehand and which is included in the work document identified as Number 4. But the fact that my insight on the topic is different does not mean that it isn't complementary to the excellent work done by the Technical Unit and presented in the document I have mentioned.
I took another route, not geared toward a detailed examination of the various legislations, although, to tell the truth, I had to do so. I looked for aspects in common in the legislative developments in the Ibero-American region, presenting the criteria used to carry out this analysis, this exploration.
I justify this type of examination in an Ibero-American Summit of Presidents of Supreme Courts and Tribunals of Justice, not only because of the function of the judicial branch with regard to this topic, but especially the judicial branch in Latin America, in view of the high social costs and the lives sacrificed by the judicature as a result of judicial intervention in the regulation of the social phenomenon of drug trafficking.
In my country, during the peak period of the confrontation between the State and the drug trafficking groups, approximately 362 judges lost their lives in this struggle. Furthermore, the trend to judicialize social conflicts in America has led to the social perception that those responsible for control policies not only in the drug trafficking area but in many others, are solely the judges. Consequently, the reaction of those affected by compliance of the duty to apply the law is in such virulent terms as those already lived and, in part, still lived by the Judicature in my country.
Studies which have been carried out regarding the perception of the behavior of judges engaged in drug trafficking cases prove that the perception of drug dealers does not differ, in a sense, from that of the rest of society. Furthermore, as was said this morning with regard to the topic of citizen safety, there exists the idea that the phenomenon will be eliminated, that it can be sufficiently controlled with the sole intervention of the Judicature. As these ideas take root, certain institutional sectors become immune to their responsibility in the political processes of control, and all responsibility is concentrated in the Judicature. But, as both the President and the President of Paraguay said this morning, the intervention of the Judicature is an ex post facto intervention, a secondary intervention, after the forbidden conduct has occurred. But before the intervention of the Judicature, there is the primary intervention of other control mechanisms, for example, the police or the security agencies of the State.
However, when the time comes for accounting and for judging, attitudes are implacable with regard to the judges' behavior and very permissive with regard to the behavior of other institutional sectors. Taking this into consideration, one of the first steps was to see what the determining factors in the legislative processes were. We found that, aside from the significant conditioning elements corresponding to each of the countries, which vary, although the drug traffic phenomenon is common to all, causes change from one State to another. Nonetheless, in one point, as is finally concluded in the adoption of the Vienna Convention of 1981, all this is interconnected in Latin America. Also, when the phenomenon begins to become more visible in the Latin American context, the disparity of regulations had as a result that the phenomenon was transferred, with all its intensity, depending on the types of regulation established in a given country. For example, in Colombia, one of the thesis the Academy sets forth, in view of the strengthening of the drug trafficking phenomenon, has to do with the diversified legislative regulation afforded the phenomenon in the various countries. Colombia had a contraventional type legislation in the mid-sixties and early seventies, whereas other countries very close to ours had stronger regulations. As a result, drug trafficking exploitation moved there under cover of greater permissiveness, tolerance, and weakness in regulations. This is quickly perceived by all countries, particularly those of Latin America, and this becomes the first factor for standardization and generalization of the legislative treatment.
That almost universalization of the phenomenon and its treatment brought about by the law is strengthened by the supra-state instruments which inspire that type of legislation. Consequently, we could say that the Sole Convention on Narcotics held in New York in 1961, and its Modification Protocol of Geneva (1972), the Convention on Psychotropic Substances of Vienna (1971), and, more recently, the Convention of the United Nations against the Illicit Traffic of Narcotics and Psychotropic Substances also signed in Vienna on December 20, 1988, have been the models which have inspired the legislative production in the area with regard to drug trafficking. But those instruments, which could be catalogued as universal not only because of the many states that have signed them, but also because of their coverage, which is universal, are complemented by other types of agreements, very specific to the area, such as the South American Agreement on Narcotics and Psychotropic Substances and its First and Second Additional Protocols of Buenos Aires (1973), and, more recently, the Lara Bonilla Agreement adopted by the member countries of the Cartagena Agreement for the Prevention of the Illegal Use and Repression of the Illicit Trafficking of Narcotics and Psychotropic Substances of Lima (1986). Those instruments impact the legislation produced by the States as a reference in the standardization and unification process of the legislation.
Behavior, during the legislative production of these States, tends to adopt very typical, very common patterns. Thus, the first conventions I mentioned determined the adoption of narcotics statutes or statutes against trafficking of narcotics, where statute is understood to be very comprehensive regulations which correspond to very specific guidelines, governed by the need to control the phenomenon and the gravity it implies. These statutes are characterized by having provisions which refer not only to the matter of prohibiting and punishing certain behavior with regard to the trafficking of narcotics and other behavior derived therefrom, but also by having procedural norms, the design of very particular, very specific procedures aimed at giving a certain level of effectiveness to the action constituting the judicial intervention in the matter. The statutes also contain regulations of other types, such as the organization of administrative entities with tasks basically having to do with the control of consumption and rehabilitation of consumers, or with the very characteristic policy of using the results of this drug trafficking activity for the struggle and control policies against this very phenomenon.
As a result, many entities have emerged in the administrative field, generally constituted by the conjunction of functions of entities already established. Such is the case of the intervention of three or four ministries with thematic affinity with the drug trafficking problem: the ministries of health, education, and development, in connection with control of consumption and rehabilitation of drug addicts, for example. This behavior, which is general and obvious in all legislative production in the seventies and part of the eighties, is clearly apparent in Decree 1188 of 1974 in my country, Colombia, but also in Law 1008 of 1988 in Bolivia, in the Decree of 1981 in Peru and, more recently, although this would have to be examined because this behavior is going to be modified, subsequent to the signing of the 1988 Vienna Convention, Venezuela with its Organic Narcotics Law of 1993, Chile with its Law on Narcotics and Psychotropic Substances of 1995, and Ecuador also with its Law on Narcotics and Psychotropic Substances of 1992. These are extremely comprehensive statutes; for example, Venezuela's has a broad gamut of fields of application and is surprising. In that aspect it is truly paradigmatic: regulations on financing of political campaigns with monies derived from drug trafficking. But, as I was saying, that behavior of opting for statutes, for integral reforms changes with the Vienna Convention and the developments attributed to this Convention are only partial, that is, the commitments taken on in the areas defined by that Convention are applied in a partial manner. My country, Colombia, for example, until last year, issued a statute on laundering of assets, a redefinition with regard to penalties. It strengthens the sanctions and establishes the exercise of the action of annulment of ownership as an action of expropriation of goods resulting from drug trafficking, independent from and parallel to the action which should be taken to establish criminal liability.
Similarly, these statutes, in view of the importance of the topic within the legislative techniques, utilize certain mechanisms to ensure the efficacy of the statute itself, linking the behavior of the operator or applicant of the statute. Thus, for example, Article 39 of Law 30 of 1986, the Statute on Narcotics of Colombia, establishes a particular type of prevarication for the judge, the judicial official and, in general, the civil servant, who, when performing the function of detection, persecution, investigation, carrying out of proceedings, judging or executing the sentence having to do with the drug trafficking offense, favors those implied. Something similar occurs with a regulation that is a little different, Law 1008 of 1988 in Bolivia, which considers judges who let procedural terms lapse without taking due action or who delay proceedings having to do with drug trafficking and resulting behavior, accessories to or endorsers of the crime.
From the point of view of the content of the law, this shows the interest that exists in making control of this type of criminal phenomena timely and effective, but also becomes a criminalization factor for judicial officials. I refer not so much to the Colombian regulation which I mentioned previously, but especially to the Bolivian regulation, because compliance with procedural terms in many cases does not depend on the control which the judicial employee may have of the proceeding; it depends on other types of events. The investigation and judging activity of a criminal matter and, particularly, a criminal matter of these connotations, makes the judge depend on other instances, other offices, services of experts, verification by the lab of the type of substance in question, etc. In the case of this regulation, at least, it seems to generate an inclination to include officials who, in truth, do not have the intention of favoring those who are dedicated to this criminal practice.
So as not to extend too much on this aspect, we might conclude that establishing legislative developments in Latin America implies examining the content of the international instruments which serve as a reference, within the framework of the applications we have mentioned of standardization and uniformity to the legislation, and establishing the type of influence they exercise on these statutes which, as a result of their issuance, are implemented and have been implemented in the different countries. As regards the Vienna Convention which, as we indicated, has achieved gradual development, without breaking the constant factor that consisted in that every time an international instrument was issued, an integral statute was adopted. However, since the Vienna Convention is the most elaborate and international instrument, taking in all the facets involving the institutional control of this phenomenon, it is worthwhile not only looking at its configuration, but also the guidelines it establishes and the developments achieved.
In another dimension, it seems to me that the examination cannot be limited to the formal. The analysis carried out by the Follow-up Technical Unit to recommend the adoption of a general instrument, the perfecting of the procedural system applied to the persecution of drug trafficking and, also, the ongoing training and perfecting of the judge as regards the function of persecuting and applying sanctions to this type of behavior, could also be complemented with a real examination, not only because of all this implies in the realm of legitimacy. Lastly, this examination would be effecting a confrontation between the text of the law and the reality in which it operates. And it seems to me that, since the drug trafficking phenomenon is not legislated only in the areas of persecution and control of illicit practices, but also refers to a series of consequences with a social content, and is thus regulated, it is likewise worthwhile to explore the proposal in this field and at this level, so as to determine what developments have been achieved by these regulations in the reality of each State.
I indicated previously how all these instruments of international law give rise to the constitution of a series of entities in the internal regulations of the states, which will have under their care the various ambits included in the supra-state regulation.
It is very important to establish the composition of those entities, what their actions are, what results have been obtained. The behavior to be followed in the case of other types of phenomena very much depends on this (for example, consumption, rehabilitation of habitual consumers, treatment to be given to those sectors of the population). These phenomena are the ones that justify large-scale production and justify the economic phenomena which drug trafficking ends up being.
It also seems to me that the examination should likewise include other instances that intervene in the attempt to control this phenomenon, such as the police. After all, they are the providers of the raw material for the cases on which the Judiciary will finally act. In addition, they carry out activities that, on many occasions, do not reach judicial instances. I refer to what happens in producing countries, in countries that grow the plants from which the ingredients for the production of drugs are obtained: coca leaf plantations, poppy plantations. There are policies for the eradication of these crops, which depend directly on the action of the police. In my country, in Colombia, there is a specialized entity, the Anti-narcotics Police, where the judicial branch has no control, it has no reason to. That activity remains in the area covered by the police authorities and other complementary control organisms.
It is likewise very important in the field of international cooperation, of the integration of peoples committed to the struggle against this phenomenon, to know the status of these cooperation and integration processes, how they are expressed, what are their strengths and weaknesses. This would be included in the proposal that the Follow-up Technical Unit presents for our consideration, to define procedural patterns that will give an adequate level of standardization to the narcotics control policy in the area.
This is also the case with extradition. It is very important to know the validity of the agreements, of bilateral treaties, of multilateral treaties, or the exercise of reciprocity, which the Vienna Convention itself indicates as the source for the application of this type of instrument.
All of this seems important to me not only to be able to prepare a good diagnosis of the reality of the phenomenon in the area, but also because of that which several speakers already pointed out with reference to what Mr. Tenorio expressed in his presentation, that is, the need to separate responsibilities, to determine what is actually the responsibility of the Judicial Branch. In this regard, I think it is necessary to act emphatically and conclusively because, as I stated previously, there is a social perception that all situations derived from the drug trafficking phenomenon are the exclusive responsibility of the judges. This is the opinion not only of the general public, but also of those linked with this type of practice, and those who would perversely attempt to legitimize, deny or minimize the transcendence and seriousness implied in this phenomenon.
I likewise feel it is very important to verify the expansion of the phenomenon by means of control policies. The phenomenon has expanded and today there are regulations imposed by the Vienna Convention of 1988 and by other types of instruments, such as those created and implemented to combat corruption.
One of the most visible and transcendental ambits of the corruption phenomenon is the corruption derived from drug trafficking. It is recognized that its corrupting power is truly unmanageable in many spheres and proof of this is apparent in the confrontations various judicial authorities in the are going through in connection with the subsidy of many political careers, of many electoral debates, through drug trafficking money. I believe this field should be explored and explored not only from the point of view of the formality of the legal instruments which regulate that function, but also in the field of reality. Other types of entities are linked to these cases: superintendencies, public offices, controllers of the financial activity, of the banking activity, of the registry of properties, etc. I think this is extremely important, especially because of the transcendence given today to the criterion that fighting against the economic aspect of the phenomenon, it will suffer a strong blow and might even be disarticulated.
There are truly prodigious developments in this field, of unimaginable range. From the point of view of criminal behavior, the phenomenon also reaches truly unpredictable possibilities: the placement of funds abroad through electronic means, technological developments in the systems area, communications possibilities. All these become very useful instruments for hiding the intention to legalize dividends, to legalize the earnings obtained from this criminal practice.
From this viewpoint, it is an irrefutable fact that only through international cooperation will it be possible to confront this type of manifestations of criminality and ensuing criminal behavior. Without international cooperation, isolated States, with their concepts of nation-states, with their criteria of territorial sovereignty, would not be able to face this phenomenon, which, as is known to all, has acquired truly notorious globalization levels.
I believe this level of consideration becomes invaluable information that, as it is exchanged, will consolidate cooperation and integration among nations, required to be able to successfully confront this phenomenon.
But I believe one of the most important applications, and I want to insist on this, is precisely that it allows us to separate responsibilities, to show what is the truth regarding the responsibilities which correspond to the judicial authorities, who are often burdened with the attribution of the generalization of the phenomenon and, of course, with the generalization of the responsibility of its control. And this occurs despite the fact that it is common knowledge that the intervention of the judicial authorities has a specific time, a specific opportunity, specific resources and, consequently, that it is not possible to arrive at such generalization. That is a cost that the judicial authorities must place in its just proportions, from the point of view of social perceptions, and I believe that this should be a commitment of this Summit. Thank you, Mister President.
President
We are going to introduce a modification in the agenda, so as to make the best of the time we have left. There are four presentations and the second one will now follow instead of the coffee break. Magistrate. Jorge Bodes Torres, president of the Criminal Court of the Supreme Popular Court of Cuba, will now give his presentation, followed by the coffee break and the other two presentations. As the last point of this Fourth Plenary Session, members will participate, and, for the benefit of all, we hope to have the Conclusions Plenary this afternoon. I inform you that this change has been introduced and I leave you with Magistrate Bodes Torres.
Magistrate Jorge Bodes Torres
Mister President of the afternoon session, Magistrate Jorge Eduardo Tenorio, Presidents of Supreme Courts and Tribunals or their representatives who accompany me.
Maybe Cuba is not the best exponent to transmit experiences and ideas on this problem of drugs and minors, but we have tried to compile information on the matter, with the modest intention that our presentation will open the way for an enriching debate and the topic may be approached by other colleagues who will contribute real crucial points, measures and solutions (why not?) to this important and current phenomenon that expands daily, takes root and even emerges in our Luso-Ibero-American realities.
I would like to explain that, in Cuba, we are not faced with the drug addiction phenomenon, inserted in the lives of our society. The island does not produce coca leaves and its climatic conditions only allow the growing of marijuana in the Eastern region of the country, where, on occasion, it appears. Furthermore, the just and emancipating action carried out during the revolutionary process begun on January 1, 1959, eliminated the social disgraces and vices inherited from the previous stage; consequently, there is no consumption habit among the population and, much less, among minors. Nonetheless, attempts have been made to use the country as a transit point, because of its geographical location between the consumer North and the producer South; because of its specifically bridge-like situation between underdeveloped countries in which the drug is produced and the developed capitals in which consumption provides economic dividends to producers and dealers.
It is a well-known fact that the seas surrounding our archipelago are bombed with drug packets thrown from pirate planes from the South, which are left floating to be picked up by speed boats that arrange to take them North.
Some of these packets containing drugs, generally marijuana or cocaine, cannot be picked up by those for whom they are intended, and the waves of the Caribbean bring them to our shores. Here they are picked up by people who, previously having no knowledge of this substance and without any culture as to drug consumption or dealing, handed them over to the authorities. This currently continues to be the case, but not in all cases as occurred previously.
The disappearance of the socialist field and the disintegration of the old Soviet Union brought about the collapse of our foreign trade and made it necessary to reorganize the Cuban economy, which, from one day to the next, was immersed in a special period of crisis.
This situation led to the necessary economic reorganization, to the insertion of Cuba in the world market, to the search for new markets in the increasingly strong economic blockade which the Government of the United States has imposed on the small island of Cuba. For this reason, the country adopted survival measures to resist the situation created, without giving up the social conquests achieved. Thus, the island began to develop new sources of income such as tourism, it modified the Constitution and allowed foreign investments in a controlled manner, it permitted the free circulation of the U.S. dollar, it broadened the opportunities for self-employment, it handed over land to new persons interested in cultivating it, and adopted other measures to fix up its economy and finances, which little by little have shown positive results, with the revaluation of the Cuban peso, the increase in tourism and other economic areas which have recovered and have fomented a sustained increase in our GNP in the last five years.
However, this situation of economic impoverishment, outlined synthetically and a grosso modo, which the country underwent from 1990 through 1994, and which since that time until now it has been slowly overcoming, had its impact on social factors and material living conditions of the population, producing certain changes and the appearance of situations which were previously unknown.
Consequently, the growth of tourism, mainly from developed countries, with drug-consumption habits, caused the appearance on the social scene of a market for these substances. This incentivated the need by some to hide the packets of marijuana or cocaine, when found on the costs of the island, in order to trade them among that tourism sector that wanted the drugs. Although the prices paid were extremely low, in comparison with those in their respective countries, nonetheless, they still constituted stimulating income for the person who had not had to pay anything for the merchandise.
Furthermore, this opening up to trade and tourism has, in turn, implied an increase in traffic within our borders. Thus, international drug dealers seek to use the island as a transfer point to get the drugs to other countries.
Cases of drug carriers, known as "mules," have increased, captured at our borders in transit to third countries. It was recently discovered for the first time that a company with foreign capital, headquartered in Cuba, was being used surreptitiously to transfer containers of cocaine from South America to Europe.
Unfortunately, as is well known, drug trade subsequently implies the emergence of consumption, and we have already begun to observe those cases, especially in young people who fall into the temptation of trying it, at the risk of becoming addicts. Luckily, this process is in an initial phase, and the country's authorities, led by its political administration and National Drug Commission, have every intention to eliminate this problem and maintain the situation at levels that can be efficiently controlled.
On March 15 of this year, revisions to the Criminal Code went into effect that, among other measures, establish stricter sanctions against drug trafficking, as part of the endeavor to confront this phenomenon effectively. Drug trafficking, as criminologists who have studied this scourge for mankind have demonstrated, given its structure and functioning, responds to the same mechanisms of capitalism. It is based on the same market laws which prevail in other spheres of the economy; it is just another enterprise that is looking for the enrichment of its owners at no matter what cost. Minors, as the title of the topic calls them, may be the subject of the corrupting and immoral aggression of the drug phenomenon in two fields: one, as an element that forms part of traffic and production; the other, as the object of the market. Many minors are immersed in the production and traffic of narcotics as a way for survival which they do not easily find in society; others are dragged into consuming these substances by unscrupulous individuals, corrupters of minors, in a process that has a generational influence on determined impoverished sectors of society, broadening the range of those who become dependent and, consequently, drawn to marginality and crime. It is also well known that there are cases of those who find their way into sectors where they are in contact with students and young people, provide drugs to create consumers and achieve the market they are looking for.
In our opinion, the confrontation of these social phenomena cannot be limited to the sphere of the State and, within it, specifically to the repressive criminal activity, as can be observed in many societies, the results of which confirm that, far from reducing the conflict, it grows from day to day. We believe that the struggle against drugs and, in particular, to achieve a healthy development of children and adolescents, requires profound changes in the current prevailing criteria, serious transformations in the living conditions of our peoples, of proper and decisive policies, far from mercantile criteria, of the action of the State, civil society and the family. As I indicated previously, during the fifties, Cuba lived its worst phase of corruption, vice and impoverishment since it emerged as a republic. The tyranny of Fulgencio Batista came into contact with representatives of the North American Mafia and the establishment of a network of casinos in Havana was projected by Meyer Lanki, second in charge of the North American Mafia, and other Mafiosi such as Humberto Anastasia and Santos, drug dealers, father and son, linked with illicit gambling, drugs, prostitution and other social sores. Toward the end of the thirties and especially in the forties, drug trafficking and consumption took an upward turn with a connection that joined Barranquilla and Bogota with Camagüey and Havana in the direction of the drugs that went to the United States. Luciano used Cuba as an intermediate point between the heroin sources and the consumer markets in North America, through Amletto Batista y Lora who lived in Havana.
This illicit traffic was done by those famous personalities by air and sea, using the landing strips of Government officials and military airports. Even privately owned airlines participated in this traffic. These activities were officially tolerated, although legally prohibited. Even the police knew where the brothels were, where illicit gambling took place, where and who sold and traded drugs; nonetheless, far from fighting against these illegal activities and repressing them forcefully and effectively, they allowed them to go on in exchange for receiving economic benefits, thus permitting them to become generalized. The Cuban revolutionary process, in order to correct this situation, eliminate vices and illegal activities, protect minors and achieve even more general goals that would provide better living conditions for the poorest population, began serious and radical social transformations. Honest work opportunities were created for all citizens; land was given to the farmers who worked it and large estates were eliminated; rents were lowered first and then tenants were made owners of the property; education became free for all and access was guaranteed for all children and young people; a public health system for the entire population was established and is dispensed free of charge; the State assumed the productive and financial activities of the country on a basic level. And all this took place in a brief period which did not exceed three years. Gambling centers were also eliminated, as were brothels, and drug activity was restricted. Positive results were obtained in all ambits, eliminating these sores as a social phenomenon and reducing their presence to a minimum. Citizens, grouped in social associations and institutions and with a high constructive spirit, helped to effectively execute these projects.
All this activity produced a new spirit in the country, new social conceptions, high ethical and moral sense, within the cell of society, the family, which also made an effective contribution toward the achievement of these objectives. During three decades, drugs were something alien to our reality, whereas in the remaining countries it was taking greater hold and reaching surprising dimensions. The standard of living achieved by all citizens, guaranteeing them dignified living conditions, with secure and stable employment, housing in quite a broad extension and/or with possible solutions for pending cases, education and health with high levels of quality, as well as equality and social justice promoted a legal confrontation with drug addiction and narcotics trafficking, which prevented their presence in the country. Today, after the crisis to which I referred initially, during whose most acute period standards of living achieved were damaged, as were those of material satisfaction of the living conditions of the population, as well as the quality of health and even of education, and equality among members of society also suffered; nonetheless, we are in the process of recuperating and we maintain better conditions than other societies for confronting the drug problem and the protection of minors.
Cuba has the legal instruments to attain these proposed objectives. As regards minors, we have withdrawn from the penal system those cases where infractions are committed by youngsters below 16 years of age. These cases are handled by a tutelary system for minors, created in the country as a legitimate aspiration of the legislators who, in the thirties, drafted the now annulled Social Defense Code. The system for attending to minors with behavior problems takes preventive action and gives them social care. It is directed jointly by the Ministry of Education and the Ministry of the Interior, that consider the minor at fault not as the subject or object of the criminal process, but as a social being without the sufficient capacity to direct his behavior and make correct decisions. That minor must be redirected by way of study and work so that he may be formed correctly and, in the future, become another member of society. In this regard, the minor is evaluated by psychologists, teachers, sociologists and lawyers and appropriate measures are adopted so that he is either incorporated in centers specialized in the treatment of these minors, or placed in schools with appropriate personnel for his treatment, or placed in a school especially designed for those who present deviations in conduct. If considered necessary, other measures for the social treatment of care and prevention of the minor may be taken. Adolescents between 16 and 18 years of age are given individualized penal treatment, as are those whose ages range between 18 and 20, who have diminished capacity and penal responsibility.
In 1998, no known cases of youngsters below 16 years of age, involved in drug consumption or participation in production or trafficking problems, were registered. We do have cases in this age bracket of minors with problems of fortuitous ingestion of psychomedication together with alcoholic beverages, but to date this does not really constitute a social problem. During 1998, among youngsters of 16 to 20 years of age, there is no record of commission of acts linked to international drug trafficking. There are only a few cases of drug possession, a total of 10 youngsters in this category were processed and sanctioned for possession of drugs. Of the 10, there were 7 males and 3 females. Additionally, our penal legislation offers protection to minors with regard to drug problems. According to recent modifications introduced in the Penal Code by the National Assembly of Popular Power in Cuba, sanctions established for drug trafficking and drug possession offenses, as well as corruption of minors, were increased. Jail sentences were set at 7 to 15 years for those using a minor for any form of drug trafficking or illicit consumption of drugs. Similarly, the penal text obliges those who have minors under their jurisdiction, custody and care to be concerned with their education, maintenance and assistance; if they do not comply, they may be punished with jail sentences of 3 months to one year or fines of 100 to 300 installments, or both. In Cuba, no minor is left unattended because there is a system of houses for minors with no filial protection, where much love and specialized personal care make up for the absence of a family. The State provides the funds needed for maintenance and education until the minor comes of age and begins to work.
Furthermore, the social organizations and institutions that bring the citizenry together in groups also play an important role in influencing the family and caring for minors, especially the Federation of Cuban Women that performs a meaningful task with regard to minors and the family. What good would it do to save minors from drug trafficking and drug consumption, if they die of illnesses in alarming numbers before reaching adulthood, if they have no educational or cultural life, if the majority lacks the necessary medical care, if they are submitted to infrahuman subsistence levels? How could the effort of saving minors from the pernicious effect of drugs and drug trafficking be successful in those conditions? In Cuba, in 1998, the infant mortality rate was reduced to 7.1 per 1000 born alive. Children below 15 years of age have been vaccinated against 11 illnesses. Ninety-nine percent of minors have received schooling through sixth grade; there are 425 special schools for children with various problems, in which 57,438 minors study and are cared for; each child receives, at a price subsidized by the State, a basic meal which includes an indispensable ration of milk. We have as yet not recovered the levels of the previous decade nor the objectives we have proposed, but we estimate that the situation allows us to wage a better battle to achieve the extinction in the country of this phenomenon of minors with drug-related problems.
Consequently, in view of the above, we conclude that it is not possible to adequately protect minors from the degrading influence that the drug activity has on them, if the confrontation of the delinquency phenomenon is not successfully achieved at the level of the entire society, and indispensable conditions for the subsistence and healthy development of these minors are not created. As drug trafficking and consumption of narcotics become more rooted and diffused in society, minors will be more exposed to the nefarious influences and actions of drugs. The confrontation of the drug phenomenon and the preservation of a healthy childhood and youth are intimately related to the conditions of society's material and spiritual development, and the degree of equality and social justice it possesses. That is our perception of the problem. Thank you very much.
President
The session is suspended for a brief moment for the coffee break. Thank you.
We are going to continue the session with the third presentation regarding the topic of drug trafficking. The speaker will be Magistrate Armando Figueira Torres Paulo, Vice-president of the Supreme Tribunal of Justice of Portugal.
Mr. Armando Figueira Torres Paulo
Mr. President of the table, Mme. President, dear colleagues, ladies and gentlemen:
The drug problem and all that it entails is recognized at this time as a global phenomenon that affects, with greater or lesser intensity, all nations and social classes, groups and age groups of the population. Drugs endanger social peace, state security, institutional activities, public health, the economy and even international relations. The seriousness of the problem is so great that many countries consider drug trafficking, consumption and related crimes a question of state. The current situation with regard to this matter, despite the efforts undertaken by various countries and international organizations, continues to be truly worrisome. In view of the brevity of this presentation, I will try to outline, in a synthesized manner, a general overview of this matter.
Although it is not possible to quantify the broadness of the phenomenon, given its clandestine nature, all countries are affected by illicit drug trade. Psychotropic substances are consumed, in more or less intensity, in all countries. As regards the European Union, during the period 1980-1990, data on consumption of forbidden substances show signs of stabilization or even decrease; however, the number of deaths caused by overdose and by illnesses brought about by the consumption of illicit drugs has increased considerably, expanding among age groups and social categories affected. Among youngsters between the ages of 15 and 16, more than 4% have already consumed one type of illicit drug. Cannabis continues to be the illicit drug most consumed in the European Union. Between 5 and 30% of the population already experimented at least once. As for heroin, it is estimated that total consumers in all of the European Union amount to between half a million and one million persons, and that at least 1% of the population has already consumed this drug. Cocaine continues to be consumed, in the majority of cases, by a socially integrated group of young people, and close to 3% of the population has experimented with this drug. In addition to the so-called classical types of drugs, the world has been witness to the pronounced increase of synthetic drugs such as "ecstasy," which in the European Union is consumed preferentially by young people in discothèques, and others such as amphetamines and LSD. Another new drug, derived from cocaine, "crack," has also been adopted worldwide, especially in the United States. Its effect is quick and intense, provoking overconsumption and, consequently, very violent behavior.
As indicated above, the entire planet is affected by drugs and drug use is a common occurrence. As regards the production and trafficking of drugs, we would like to point out the following: the data we have at our disposal seems to continue to show as main producers the countries situated in the Near East: Lebanon, Southwest and Southeast Asia, Afghanistan, Iran, China, India, Thailand, and Vietnam; in Latin America: Mexico and Colombia.
The heroin route between Southwest Asia and the markets of Europe (everything points to part of the border between Afghanistan and Pakistan), crosses Iran until reaching the southwest of Turkey, and is then transported by land by means of trucks, buses and cars to the main consumer countries in Europe: Germany, Italy, Holland, Belgium, Spain, France, and the United Kingdom.
As a result of the fall of Communism and the opening up of the countries of Central and Eastern Europe, this region began to be used for storing drugs and as a transit point.
As regards heroin coming from the Asian countries, from the southeast, known as the Golden Triangle, Thailand, due to its privileged strategic location and to its good means of communication, continues to be the main transit country, en route to international markets. Taiwan, China, as well as Malaysia, Singapore, Philippines and Indonesia are also important transit centers for heroin destined to North America, its main market. The United States also consumes heroin coming from Mexico and Colombia.
Cocaine produced mainly in Peru, Colombia and Bolivia, is placed in circulation via Brazil and Venezuela, on its way to the United States and Europe. Transportation to the U.S. is done by sea, air and land; the latter, through Mexico. To Europe, cocaine is transported by sea, going through the islands of the Atlantic: Canary Islands, Azores, Cape Verde, and Madeira. Portugal, a consumer country, is likewise a transit point for cocaine going to Western Europe.
In addition to this constant flow of drugs, there has also been an increase in the number of laboratories for the processing of cocaine in Europe. In 1992, several were dismantled in Germany, Italy and Spain. Many countries on the African continent, among which Nigeria stands out due to its geostrategic location and because of the extremely low standard of living of its population, constitute an important transit zone for cocaine destined for Europe.
Cannabis, under the form of hashish, is produced mainly in the north of Africa, in Morocco. Close to 2,000 tons per year are produced, making this country the main provider of hashish in Europe and the greatest exporter worldwide. Transportation is by land and sea; the latter through the Atlantic islands previously mentioned: Canary, Azores, Cape Verde and Madeira.
Currently, this drug circulates through Central Asian countries and the Soviet Republics due to their geostrategic importance and because of their vicinity to countries such as Turkey, China, Afghanistan and Pakistan.
With the fall of the Soviet régime, the dismantling of its institutions, the flaring up of nationalism, and the economic crisis, the consumption of drugs in the countries which emerged has increased dramatically. This is a new and growing market, with millions of consumers and has brought about the most intense relationship among the various criminal associations (see World Atlas of Drugs, page 181). The same is occurring in the countries that have traditionally been producers of narcotics and transit points: drug consumption is on a constant rise and there are signs of an overwhelming propagation of infectious-contagious diseases that prove the existence of a true epidemic.
Just like other licit economic activities, drug trafficking is currently a worldwide phenomenon. Drug trafficking networks have modern and sophisticated technological and information media for attaining their objectives. They pay special attention to the development of economies in the various countries. They know how the respective political systems function and are especially informed regarding the preferences and needs of consumers. It can thus be said that as concerns this global problem, currently the common aspects are more numerous and important than the peculiarities typical of each country.
We come then to the inevitable conclusion that only a concerted action of cooperation among states, based on solid information, can confront the seriousness and complexity of this worldwide scourge. At the level of International Law, this effort is being carried out mainly under the auspices of the United Nations. In addition to other instruments, the U.N. approved the Convention against the Illicit Trafficking of Narcotics and Psychotropic Substances of 1988, which, for the first time, highlighted the devastating and growing effect of the trafficking of narcotics and psychotropic substances and their reflection on the economic, cultural and political bases of society.
The seriousness of the behavior linked to the trafficking of narcotics, such as laundering of capital and other securities through the declaration of their loss on behalf of the State, has been accentuated.
The European Union, of which Portugal is a member country since 1987, has participated in several measures taken on the international level to combat drugs: it signed the aforementioned United Nations Convention and introduced, in the Community's budget, an allowance aimed at fighting the drug phenomenon. It had the Regulation and Guidelines published for avoiding diversion of certain substances for the illegal manufacturing of narcotics and psychotropic substances and the use of the financial system for the laundering of capital. The Maastricht Treaty of 1993 instituted the institutional bases for an integrated global approach of the European Union, which strengthened the Amsterdam Treaty.
Article 129 of the Treaty of the European Union establishes that the Community will contribute to the prevention of drug dependency, encouraging research regarding this phenomenon, as well as health-related information and education.
The member states are obliged to cooperate among themselves in articulating with the Commission, policies and programs in this area. The Community and its member states will promote cooperation with other countries and international organizations, especially the United Nations, that have developed a global strategy for the struggle against drugs.
The struggle against drug dependency is considered a question of common interest, and the member states have exclusive power as regards judicial, customs, and police cooperation. However, as regards the remaining aspects of the struggle against drugs, they share this power with the Commission. The European plan of action with regard to drugs for the period 1995-99, has as its purpose to intervene in the ambit of reducing the search in the battle against drug trafficking, cooperation with other countries, development of information, and coordination among all member states regarding the drug phenomenon. The financial resources subsidized by the European Union for the struggle against drugs have increased continuously: beginning at 5.5 million ECU's in 1987, they were increased to 54 million ECU's in 1996.
In closing, I will announce certain aspects that seem important to confront this difficult problem. It is considered essential that the various states strengthen their security systems, in order to confront the increasing power of the international trafficking networks. This necessarily implies the reinforced and articulated performance of the different police entities (Interpol, Europol), based on rigorous information systems and on an efficient border control within the parameters of their international obligations, be it over merchandise or persons. It is likewise indispensable to stress international judicial cooperation with regard to penal matters and to grant it the respective means of action. It must act with severity in all matters related to laundering of capital and the question of bank secrecy must be reconsidered. As was previously stated to the maximum representatives of judicial authority of the respective countries that make up the Ibero-American Summit of Presidents of Supreme Courts and Tribunals of Justice, drug trafficking is a crime against humanity, that transcends the jurisdictional ambit of each country; consequently, it is of maximum importance that a supranational criminal court be created.
In the case of the drug producing and transit countries, which in general continue to be those of the Third World, the international community should increase its support to the sustained growth of its economies, allowing the development of the greatest possible number of alternate crops in economic terms. At the internal level, it is imperious to effectively combat the supply and dissuade the demand for drugs. This implies carrying out strong and imaginative prevention campaigns based on rigorous informative data, previously studied in a multidisciplinary manner. Lastly, and although there is still a lot to say, the drug addict should be increasingly considered a human being with an illness, who needs treatment and not repression. Thank you.
President
Thank you. Very precise. The following presentation will be that of Magistrate María M. Naveira de Rodón. We would appreciate your limiting your presentation to 15 minutes, because we have very little time left for the rest of the program. Thank you.
Mrs. María M. Naveira de Rodón
The purpose of this presentation is to describe briefly the money laundering process, to explore related problems, to alert countries with regard to its consequences and to suggest several alternatives to avoid its vertiginous growth and globalization. I will do this briefly, as promised, since time does not allow me to extend on the topic.
Money laundering is an international problem that affects us all adversely. Its tentacles envelop society and its poison tends to subvert not only the Government, but all social components, eroding values and firmly establishing corruption as something normal, as the way to do business. Despite the fact that banks and other financial institutions are often the primary means through which this activity is carried out, all sectors in the social ambit are affected. Its harmful effects are felt in all that surrounds us and, as I indicated previously, its tentacles make us do things contrary to those that our society would normally do. The latest figures I have indicate that money laundering in the world has mobilized approximately 120 to 500 billion dollars net per year. That is a lot of money and a lot can be bought with that money. That is why we have to concern ourselves with this phenomenon. I am going to define money laundering.
In general terms, money laundering is the process whereby an effort is made to conceal the origin of certain income, masquerading it to give it a legitimate or legal appearance in form, so that the funds may be used without problem in the legitimate economy. The importance of this link in the delinquency chain cannot be underestimated. After all, what good is a criminal enterprise if those managing it cannot enjoy the fruit of their labor? How can the leaders of an underground economy continue to successfully expand their illicit business if they don't have the mechanisms to easily move their money on a worldwide basis?
With the growth of the money laundering industry, a new type of delinquent has emerged who actively participates in this enterprise. This delinquent is not associated with the so-called underlying crimes, which are the ones that produce money. These persons are normally professionals: we're talking about lawyers, accountants, investors, bankers. They are the ones who manage the laundering of funds. These persons, obviously, do not coincide with the traditional stereotype of the lowlife criminal. They form part of our society and can be your friends and you may not be aware of that fact. They are not easily identifiable because we as yet have not acquired the necessary ability to detect them.
The money laundering process is complex and has multiple partial operations, all of which are necessary for its success. However, generally speaking, regardless of the method used, there are three essential basic steps: first, placement; second, concealment; third, integration. Placement implies converting the funds derived from a delinquent activity into a form that will allow its introduction into the economy's main stream. This is the most crucial stage for the main actors of the money laundering enterprise. The first practical problem they confront is how to move massive amounts of money, usually in small denominations. In the case of the United States, it's five, ten and twenty dollar bills, and we're talking about roomfuls of five, ten and twenty dollar bills. How do you move that amount of money so that you can transfer it around the world? The easiest and simplest, of course, is to take it to a financial institution and deposit it. That would be the most logical procedure. Or you could transport it in suitcases, vans, or whatever. But if they do it that way, countries and authorities are already prepared to deal with this simplistic way of moving money; consequently, they no longer do it this way. Now, it is necessary to find a mechanism to masquerade the money and be able to move it. This can be done by a chain involving innumerable countries.
There was a case in the United States, for example, where the drug trafficking money was deposited in several small banks, usually in various states. After being deposited there, it was transferred (no longer in cash) to a bank in Tampa. From there, electronic transfers were made to a bank in New York, and from there, electronic transfers were made to so-called haven countries. These are countries where laws closely protect the secrecy of banking transactions: Grand Cayman, the Bahamas, Panama and, on a smaller or larger scale, Switzerland and Pakistan. Once deposited in one of those countries, instead of transferring the funds, a counterbalance loan was made in another country, using the money in the haven country as collateral. By generating this loan in another country, tracking the money became more difficult because it was now a question of negotiable instruments. The money was finally returned, via electronic transfer, to Tampa, and from Tampa, once again to New York, then to Uruguay, and finally it reached the hands of the Colombian Mafia. That was the route. As you can see, this becomes very difficult to trace for one country and it affects many countries. It is a veritable chain.
After placement, the second stage is concealment. Investigation and criminal processing efforts have found this stage very difficult because of the international and global nature of banking. The main characters in the money laundering process are often successful in concealing the illegal origin through electronic transfers from overseas banks. In the example I gave you, the first two stages were used: first, they deposited the funds in the bank, then they transferred them to the havens and, finally, to Colombia.
Once the money reaches the third stage, you can forget about detecting it. It is just a question of moving the money, whose origin has been concealed, into the normal economy and using it in any business which seems to be legitimate or for the expansion of a series of illegitimate businesses.
In the United States, in the seventies, there was a dawning of awareness that organized crime was taking hold of society, was seizing the most important institutions, especially financial institutions. When this problem arose, there were no mechanisms to deal with it. They had to begin to think how a country can deal with money laundering. With no money laundering, crime does not pay. If that is the fruit to be enjoyed, then attacking this aspect is of prime importance.
The first thing that occurred to them, the first legislation aimed at dealing with money laundering, was to attack it through banking institutions because banks were the necessary place to convert illicit funds into licit funds. Banks were asked to provide information regarding any transaction in cash exceeding ten thousand dollars, with the dual purpose of detecting suspicious transactions so that investigations could be made, and to dissuade bankers from becoming a useful hand for laundering money for organized crime. In this way they penalized the bank official, not the delinquent, because the one who had to inform was the bank official. They soon realized that regular, normal laws used for dealing with fraud, misappropriation of funds, etc., were totally inadequate to deal with the money laundering agent. With the necessary information, the authorities then began to do their own investigations and approved another series of laws to try to deal with this problem.
The second type of legislation was directed more toward the money laundering agent. In the second stage, both the agent and the bank official were aware of the fact that the money was derived from an illicit business (drug trafficking, kidnapping, embezzlement, etc.). Consequently, the authorities were faced with the following problem: how to prove this. Well, this can be proven with circumstantial evidence because, in the majority of cases, it will be impossible to have direct proof. They approached the problem from the point of view of interstate transactions. They complemented this with reports to the Internal Revenue Service for transactions of less than three thousand dollars. They were looking for mechanisms to help them with their investigations. But organized crime and money laundering, you must realize, are constantly changing activities. These people can pay for the best brains, they can pay any amount; consequently, they keep a step ahead of the authorities. That process must be reversed: we must keep one step ahead of criminal activity. They use state-of-the-art technology and keep up to date with regard to technology in the offing so as to be able to make the best use of it.
I don't know whether you are familiar with cybernetic banking and the so-called intelligent cards. These cards are a marvelous technological development for legal trade, for banking and for all that is positive in society with regard to business. But it is a lethal weapon in the hands of criminals. With this intelligent card, transferring funds is no longer a problem; it is very easy to do so as you like, wherever you like. Consequently, once you pass the first two stages, with the intelligent card, you can forget about tracking illicit money – it is truly difficult.
There is another technological advancement that complements the intelligent card and makes it very difficult, if not impossible, to detect these criminals. It is the disposable telephone. They are just like disposable cameras. You can make two, three, four calls and then throw it away. Tracing a phone call, finding out where it originated and to whom it was made, is no longer possible. That's the type of organization we're dealing with. Laws include jail sentences, fines, confiscation of property and licenses, and there are a series of means to deal with these, but all of this will be of no avail if all the countries in the world do not become aware of the fact that borders do not exist for criminals, there is no national sovereignty. Consequently, they have no problem going from one country to another. But we can pose problems to the authorities for them to investigate; we can cause problems in this type of investigation. We have to erase the concept of traditional sovereignty; we all have to come together. That is the only way to combat this evil that is enveloping our society. If we do not wage the battle together, we will lose it. And this is not a momentary battle, nor is it an easy one.
There is currently a group in the United States that is constantly researching these technological advances, to see how they can be used by organized crime for money laundering. They then try to counterbalance this new advance in order to avoid its misuse. Mechanisms must then be established to share that information.
There are several work groups, called taxboards, made up of personnel from various countries, who train others to detect and subsequently process people in this type of scheme. They also help to compile information and with investigations and processing itself.
I think we are beginning, but I think we need to acquire a serious and profound awareness of the problem we face and that if we do not attack it in a dual manner (both money laundering and the underlying crime), we are going to lose control of our countries. Do it, please. Thank you.
President
Thank you, Magistrate de Rodón. The debate is now open. We have half an hour; consequently, I would appreciate it if the speakers could limit their participation to a maximum of five minutes. Thank you. The delegate from Panama.
Magistrate José Andrés Troyano Peña
Thank you, Mr. President. I am going to refer to the presentation just made by the representative from Puerto Rico, because I am truly concerned with what she has just told us and also because of the concern caused by a personal experience.
A claim was filed against the Panamanian Court because an article or law we issued to curb money laundering and drug trafficking was considered unconstitutional. There was a norm, an article, in that law that authorized listening in on telephone conversations. As arbitrator, I was personally involved in this claim and, consequently, I was concerned about what was said that I had to be aware that we have to do something at the level of legal authorities. However, the opinion of my colleagues was the same as mine, and I was able to convince those who differed.
The Administration Attorney or the Attorney General of the country must intervene in this type of claim, and it was the opinion of the Administration Attorney that the norm, in effect, was unconstitutional and had to be annulled, that is, eliminate the power of the legal entity, of the corresponding judges to listen in on telephone conversations, so as to repress, investigate and uncover this type of crimes and scourges against humanity. I used arguments pro and against, I convinced my colleagues of the court; however, it was difficult to convince the Administration Attorney, who strictly adhered to the law, since the Constitution forbids listening in on telephone conversations and that is why they were claiming that the law was unconstitutional. Thank God, we were able to have the norm declared constitutional, thus permitting listening in on telephone conversations in these specific cases and prior to complying with several requirements, so as not to affect people's privacy.
Now, I ask myself, what is more important, what weighs more: people's privacy or really repressing drug crimes?
I take advantage of this opportunity to see whether it is possible to make a statement in this regard, as the representative from Puerto Rico just did. The legal official must become aware, the legal entity must become aware that it is necessary to find the way to repress and stop this type of crime from spreading. Also, we, as members of the legal entity, and even the Public Ministry, must become truly aware of what is happening and of the harm being done to society. We are lawyers, we are magistrates, we represent an entity that has to interpret and apply the law, but we are living – and we must be realistic – in a world that is abusing the law, that is abusing society and we must weigh what is most beneficial for the country, for the world we live in.
Consequently, I am in complete agreement with all that has been said by the representative of Puerto Rico. There are many innovations and we must keep a step ahead, and one of those steps is precisely to try to place ourselves in the reality in which we live and adapt the laws to that reality. Only then will we be truly aware. If possible, I would suggest that a declaration be drafted to this effect. Thank you.
President
Thank you very much. Magistrate Enrique Antonio Sosa Elizeche.
Magistrate Enrique Antonio Sosa Elizeche
Thank you, Mr. President. I will be very brief with regard to these two enlightening presentations we have had the pleasure to hear. The first comment is concerning the topic of drug trafficking. I would simply like to point out that my country, as possibly all the countries we represent, also has a new law incorporated in the Penal Code, which not only represses as a crime the trafficking of dangerous drugs and psychotropic substances, but also proposes the prevention of the crime, the follow-up of improvement measures such as medical treatment and rehabilitation for drug addicts. Sanctions established are quite drastic: jail sentences of from 5 to 25 years.
I would also like to point out that my country has legislation in our recent Penal Code, issued in October of last year, regarding money laundering. But the presentation by the distinguished representative of Puerto Rico has alarmed me and I wonder whether this legislation will be sufficient to really combat this scourge. It represses anyone hiding an object derived from a crime, a punishable act carried out by a member of a criminal association, or a punishable act concerning drug trafficking, and establishes sanctions in this case. But I think this is a much more complex problem and there is a lack of knowledge regarding how these criminals operate. To me, it is a complete mystery how the laundering of illicit money is done and, frankly, I can't understand the mechanism involved. Maybe we should be informed of those mechanisms so as to detect when we are in the presence of a phenomenon of this nature. In my country, we often see a proliferation of gas stations and people say: that's money laundering. But, how was it done? Why do we say this? These are all things we ignore.
And since we're on the topic of money laundering, I think there is a laundering of money derived from illicit trafficking, but the same thing occurs in the opposite direction. Money derived from illicit activities in our underdeveloped countries, from corruption and, unfortunately, those crimes remain unpunished and it is impossible to recover the money deposited in other countries. Consequently, there must be true cooperation not only to combat the laundering of money derived from illicit activities in First World countries, but also to recuperate the money so badly needed, dishonestly obtained within our own societies at the expense of national funds. That is all, Mr. President.
Magistrate María M. Naveira de Rodón
I would like to extend myself a little since I forgot to mention that there are many means. You should have an idea of the ingenuity, of the creativity of these criminal minds to introduce massive amounts of money into the economy. They use common citizens because the temptation is incredible. Let's say you have a house worth $300,000 and you have already paid your mortgage. A man comes to you with a suitcase filled with $375,000 and buys your house for that amount. You make out the deed and, with that, he has laundered the money. You have the $375,000 and he has the deed. He doesn't register it, because that makes it more difficult for the investigators to find out who the owner of the house is. He leaves it in your name. When he registers the house, it still appears in your name, but he has a piece of property which seems legitimate. They buy extremely expensive goods – yachts, cars - in the same way, using common citizens who have nothing to do with drug trafficking.
I would like to mention another case, a classical example, which I call money laundering in reverse because the money is not illicit. It is licit money but the company or person is not interested in letting its origin be known. They want to conceal the origin, as is done in the case of money laundering. What for? For an illegal activity: for buying officials. That's what the multinational companies do. It's called floshfones in the United States. In this case what is illegal is not the money that is going to be used but the way in which it is going to be used. In the example used yesterday in the mock trial, it seemed to me that the Space Corporation was laundering its money by giving away a million-dollar house. That is one way of concealing the money. I don't know if you noticed that the man's name did not appear anywhere and, possibly, with a few more steps, that type of transaction could have been effectively concealed. We have to be alert because the criminal mind is always thinking: how to use things, how to do it, backwards and forwards.
There is another type of money laundering which is beneficial and is the one used by the CIA, the FBI and Interpol. Why? Because they don't want the money to be traced so that it can be used for certain operations. They also set up financial screens so that it isn't possible to determine where the money, used for certain activities, came from.
It is a fascinating area. Take the casinos, for example. What do casinos do to launder money? Very easy. They buy the chips. The criminals send their entire families, give them $100,000, $50,000, and tell them to go and play. Then they change that money into chips and play all night. They may lose $1,000 or $2,000. When the evening is over, they turn in the chips and are given a check in return, a negotiable instrument. It is no longer cash; they gave the cash to the casino. How can you possibly trace that? They use false names taken out of the phone book. There are innumerable examples of how the criminal world manages to introduce its cash into the regular economy.
And beware, those countries that still don't have this problem but have a false, underground economy, a thriving economy because it is being maintained by drug trafficking, be careful. That economy is a mirage and you are selling your country to those criminals. That is a passing situation; the problems will become more serious later. Thank you.
President
Does anyone else wish to make a comment regarding the four presentations? We will then close this part of the session. Let us continue with the demonstration of the network of Supreme Courts and Supreme Tribunals, called Iudicis, which will be presented by the Venezuelan representatives.
With the permission of the distinguished participants, may I present Mr. Alvaro Leal, Coordinating Manager of the Modernization Project of the World Bank before the Supreme Court of Justice, who will demonstrate the prototype of the on-line connection of the Supreme Court of Justice of the Republic of Venezuela.
Mr. Alvaro Leal
Messrs. Presidents and Vice-presidents, Magistrates. It is a pleasure to make this presentation. Among the conclusions of the I Summit of Presidents of Supreme Courts and Tribunals of last year, was the analysis of the possibility of creating a network for interconnecting the Supreme Courts and Tribunals of Ibero-America.
As part of the work done during this year, member-delegates of the Follow-up Technical Unit have been sending information to Caracas which has been compiled to set up a data base. Data is complete for two of the four topics which you have been discussing today and almost complete for the four topics.
The topics which are complete in the date base are drug trafficking and human rights; the information loaded on the data base is almost complete for corruption and judicial organization. With that data base, a prototype was prepared to give you a graphic explanation of how the network might potentially function.
Before beginning, the last thing I want to say is that the conception of the network is that it function with two interfaces: a private and a public interface. The private interface should be connected via a private network to the Supreme Courts for the exchange of specific information on particular cases or problems, and the public interface will permit the general citizen to access the data base via Internet.
The program used is any Internet explorer. As the President of the Venezuelan Court mentioned in her opening words, the name Iudicis (Latin for court) was used. This would be the home page, which would be in three languages: Spanish, English, and Portuguese.
I am going to use the connection in Spanish. When you click there, you may have private access, restricted exclusively to court members, or public access.
If I go to the private access, there is a warning that it is a restricted access and that it is limited only to those who have the password. If we go to public access, obviously introducing the password, you could connect. At this time it is only a demo.
If we go to public access, we would have general information on the network, the scope of the project, its objectives and the member countries of the network. You could also have information on the network itself, so that the members may be informed of any advances, or you could have direct contact via e-mail with the network administrator.
Here are the four selected topics: judicial organization, corruption, human rights and drug trafficking. If you click on any of the topics, for example, human rights, we would have, first, this screen which would represent once again access to the private part of the network, restricted exclusively to network members. On this side, the public part, with data organized according to topics and countries. Now it is no longer a search. First, I'm going to show you the menu.
Studies and statistics that there may be on this topic, news, organizations related to the topic, in this case, organizations related to human rights, chat-style discussion forums on Internet or a mailing list whereby all members may receive the same information that wants to be transmitted.
The same would apply for the other topics, for example, drug trafficking. We would have the data base and we could do a search. The data base is loaded with the information sent by the delegates of the Follow-up Technical Unit. We could search by country, for example, Argentina. There is Law No. 23.737, Offenses against Public Health and Narcotics, a description of the law and some comments sent me by the Technical Unit delegate.
Under studies and statistics we can have information that has been sent. It has been processed to make comparative charts. We are going to give you, for example, this comparative chart, with the types of sanctions contemplated in the legal ordinances of the network's member countries, with the information which has been supplied.
Here we could see, for example, the sanctions contemplated for disqualification. Argentina, Bolivia, Colombia, Costa Rica, as well as Spain, Guatemala, Mexico, Nicaragua, Panama, Paraguay, Peru all have legislation covering disqualifation. The same would hold for any other sanction.
Here we have a comparative chart of delinquent typologies: drug trafficking, complicity of cooperation; and the countries whose legislation covers these crimes.
As I already showed you, the data base to do another search: Guatemala. We have the Guatemalan law, specific norms, concrete articles that cover corruption offenses and types of sanctions. There would also be news, organizations related to the topic, forum or discussion, and the mailing list, just like the other topics.
If we wanted, if the user were a restricted-access user, as I mentioned previously, and wanted to get out of this part I have shown you, the public part to which any citizen may have access, to go to the private part that I showed you at the beginning of the presentation, just click here and you go back to the private zone. By introducing the password you can get into the private zone where you can send or receive safe mail encrypted in 128 bits, participate in video conferences among the magistrates who want to discuss a particular topic, or consult the private mail directory of member magistrates, or have access to news that is of interest to the members, but not to the public.
This is a very brief demonstration of what this could be. As I explained previously, it is simply a prototype we have prepared with the assistance of the World Bank, the Knowledge Management Group which has cooperated with us, and the Venezuelan company Fabriart. This is simply a demonstration of what the network connecting the Ibero-American Supreme Courts could be like.
One of the interesting elements is that the network would not have to be limited to the Ibero-American countries; it could be broadened to include other international countries.
Thank you. Do the Magistrates have any questions?
President
The session is adjourned.
Magistrate Cecilia Sosa Gómez
With the permission of the distinguished audience, we will have a 5 to 10 minute recess, while we prepare the stage for the concert of the Supreme Court of Justice Choir. Thank you.
President
The concert will take place in this auditorium in a few minutes, and will be followed by the V Plenary Session.
Magistrate Cecilia Sosa Gómez
As indicated in the program which will be handed out, the concert will take place in this same auditorium. Please take your personal belongings and documentation, so that the stage may be organized.