MONEY LAUNDERING AND ASSETS RECOVERY IN MEXICO

Prof. PhD. Humberto Ayala Herrera

Professor of Criminal Law, National Institute of Criminal Sciences INACIPE Mexico.
Email: humberto@ayalasorianoabogados.com

[Abstract] Derived from international guidelines, Mexico has focused its attention on money
laundering, also named operations with resources of illicit origin, making it one of the
fundamental axes of its criminal policy, which constitutes an evident expansive manifestation of
Criminal Law, breaking postulates of a guaranteeist Criminal Law, of a subsidiary nature and
minimal intervention, turning Criminal Law into a political instrument of repression, thus
confusing the corresponding object of the crime, in order to protect the criminal law, no
amendment on criminal law can be accepted if it is not perfectly aimed at the true protection of
a legal asset, for which said legal asset has to go through the corresponding value of the
action.

[Keywords.] Money laundering, Expansion of the punishment, Drug Trafficking, Organized

Crime, Assets Recovery, Virtual currencies, Corruption.

I. INTRODUCTION.

As the Spanish Professor Ignacio Berdugo Gómez de la Torre states, “today we live in
a time at a crossroads where the effectiveness-guarantee tension inherent to the punitive order
has been resolved too often in favor of hardening and punitive expansion. However, the
crushing reality shows us that more serious penalties, that more criminal law, is not necessarily
equal to less crime, to greater efficiency”. 1
It is evident that in the face of criminal expansionism that leads to the effective appearance of
new risks2, there are legitimate causes for the classification of new behaviors 3, this derived
from the fact that the social reality itself is changing and with it also the legal rights, that is why
We must bear in mind that criminal law is always conditioned by the prevailing social reality,
resulting in the criminalization of facts of little value by the legislator, making criminal law the
only ratio, thereby causing a true hypertrophy of criminal law , especially in criminalities such
as economic, which in their actions violate various legal assets of novel creation, as well as
various collective ones, which leads to the protection of legal assets taking as a parameter not
the effective injury to the legal asset, but an anticipation of the harmful results, ignoring the
importance that the figure of the legal right you For this purpose, it is for this reason, as
Hassemer affirms, is that “Modern criminal policy departs from the forms of typification of
conduct and determination of legal rights typical of traditional Criminal Law. Its characteristic
criminal form is the crime of abstract danger and the universal legal good loosely configured ...
the reforms are focused on the Special Part and do not entail the reduction of weight or the

Attorney at law, PhD in Criminal Law, Proffesor at the National Institute of Criminal Sciences (INACIPE)
MÉXICO.
1
Berdugo Gómez de la Torre, Ignacio: “Prologue”, in Berdugo Gómez de la Torre, Ignacio / Sanz Mulas,
Nieves (coords.): Criminal Law of the Democracy vs Public Security, Comares, Granada, 2005, p. IX.
2
Silva Sánchez, Jesús María. The expansion of criminal law, aspects of Criminal policy in post-industrial
societies, p. 11 and 12.
3
“Today's society is characterized by its ability to generate risks that escape control based on the traditional
mechanisms of reasonable forecasting and the calculation of probabilities of the natural sciences. The rapid
technological and social changes of recent times place us before a perspective of incalculable risks [...] Many
of these risks are present in the industrial production that is currently carried out through complex business
organizations. In our postindustrial society, the company constitutes one of the main risk generators”. Cfr:
Zúñiga Rodríguez, Laura: Business crime, organized crime and models of criminal charges in Ruiz Rengifo,
Hoover W. (coord.) AA. VV.: Organized crime and economic crime, Juridical Editions Gustavo Ibáñez, Bogotá,
2002, p. 61.
withdrawal of Criminal Law. On the contrary, they aggravate the existing criminal prescriptions
and threats to traditional areas and to other new ones ... In criminal procedural law, modern
guidelines tend to toughen and de-formalize international instruments". 4

Undoubtedly, money laundering responds to one of the most serious economic problems that
the Mexican State currently suffers and one of the most problematic crimes of contemporary
organized crime, the phenomenon of globalization in the field of crime is manifested through a
transnational dimension of certain forms of crime, the globalization of crime is identified with
the emergence and proliferation of criminal manifestations of transnational scope.

As Prof. PhD. Miguel Abel Souto 5 effectively states, taking Levy6 as a reference, money
laundering constitutes a “globalization crime”, in which the importance is currently
transcendental due to the actual economic crisis, criminal organizations are mainly funded by
drug trafficking and characterized by a growing transnational nature, with their illegal activities
they increasingly weaken the economy and infiltrate the financial system.

In the opinion of the aforementioned Spanish writer, "The internationalization of the financial
sector has not only brought the advantages of speed and security in financial transactions, but
unfortunately it has also improved the modalities and expansion of money laundering." 7

Prof. PhD. José Miguel Fernández Zacur, considers that criminal structures have been
transformed qualitatively, and are directly related to increasing crime rates, a phenomenon that
he has called “organized crime", which is accompanied by a scenario of violence and
corruption, constitutes a global problem that expands with negative consequences for society.

Organized crime operates from its structure, in a very similar way to large companies, to the
extent of being equated with various multinational companies, rather, they infiltrate and operate
in various types of legal and remunerative businesses8.

Today, especially in Mexico, organized crime is developed and projected from a well-structured
human group, usually with sufficient economic resources to finance and supply themselves, to
use corporate veils to hide their illicit activities and protect their own people. It is a highly
predatory group of criminality, with internal mechanisms of cohesion, rewards and
punishments that makes desertion difficult, where those who give orders do not execute and
those who do must ensure the production of the result.

The capitalist system in the globalized world creates a unique dynamic in organized crime,
since the main interest that rules their activities, is the search for illegally-gained proceeds,

4
Hassemer, Winfried. Prospects of the Criminal Law of the future. Criminal Law Magazine, 1998. P. 37
5
Lecture delivered in Beijing, October 27, 2014 at The sixth session of the international forum on crime and
criminal law in the global era: safety of food and drugs.
6
M. Levi, "Crimes of Globalization: some measurement issues," in M, Joutsen (ed.), New types of crime.
Proceedings of the International Seminar Held in Connection with Huone´s Thirteen Anniversary, Helsinki 20
October 2011, Huone, Helsinki, 2012, p. 107.

7
Abel Souto, Miguel, Money Laundering as an innovative instrument of economic and social control, Criminal
Law Magazine Mexico, National Institute of Criminal Sciences, no. 5. September 2013- February 2014, p. 129.
8
Fernández Zacur, José Miguel. Authorship and participation in the criminal association and its crimes-aims.
Vision from Paraguayan Criminal Law. Paper delivered at the VI International Congress on prevention and
repression of money laundering, published by Tirant Lo Blanch, Coordinators Miguel Abel Souto and Nielson
Sanchez Stewart, July 2018.
through the exploitation of the market of prohibited goods and services, with the contamination
of not only society in general but also of the business and political world. 9

This is the reason for the magnitude of the negative effects that money laundering produces at
all levels and areas of a society. Even the doctrine that criticizes the expansion of Criminal
Law, and that denies legitimacy of Economic Criminal Law, has recognized the need of
punitive intervention in the case of money laundering 10, as in the case of Prof. Silva Sánchez
who highlights the existence of a space for “reasonable expansion” of Criminal Law, making
clear that for state intervention to be reasonable, it must deal with large sums of assets that are
capable of affecting the economic order.11

II. BRIEF LEGISLATIVE REFERENCE OF MONEY LAUNDERING IN MEXICO

According to the Mutual Evaluation Report “Anti Money Laundering and Terrorism Financing”,
released on October 17, 2008 by the South American Financial Action Group (GAFISUD),
Mexico currently faces an unprecedented threat to its national security and stability due to drug
trafficking and organized crime.

It is a main topic for the Mexican State as a result of the international commitments acquired,
specifically with the Financial Action Task Force 12, of which Mexico has been a part since
2000, in 1996 the FATF issued forty recommendations 13 aimed at reinforcing Prevention and
Combat on Money Laundering.

As expected over time, these recommendations have been modified to address the changing
circumstances around Money Laundering and Terrorism Financing 14, as a consequence, an
Initiative that reforms and adds various articles of the Federal Law for the Prevention and
Identification of Operations with Resources of Illicit Origin 15, was presented, whose explanatory
statement recognizes the existence of assets derived from crimes such as drug trafficking,
human trafficking, illegal hydrocarbons trafficking, falsification, tax evasion, extortion, etc.

Contrary to what happened in the United States of America, Mexico began its fight against the
phenomenon of money laundering with criminalization, first signing the Convention against
Illicit Traffic of Narcotic Drugs and Psychotropic Substances 16 (Vienna Convention) and, with
this expression of will, Mexico expressed its interest in taking measures against money
laundering.

The first typification of money laundering in Mexican legislation took place on December 28th
of 1989 with the publication, in the Official Journal of the Federation (DOF), of the decree that
established, amended, added and repealed various tax provisions. This took effect on the 1st

9
Zuñiga Rodriguez, Laura, Organized Crime and Economic Crime, Juridical Editions Gustavo Ibañez, Bogota
p. 22.
10
“Money Laundering” constitutes for Prof. Dr. Miguel Abel Souto, an “antithetical hybrid of imprecision and
accuracy, since it represents a contrast between the technical legal laxism that the first term entails and the
precision that is intended with the second.
11
Silva Sánchez, Jesús María, The Expansion of Criminal Law, aspects of criminal policy in postindustrial
societies, B of F, Buenos Aires - Montevideo, pp. 12 and 13.
12
https://www.gob.mx/cms/uploads/attachment/file/80948/VSPP_GAFI___13042016.pdf
13
https://www.cfatf-gafic.org/index.php/es/documentos/gafi40-recomendaciones
14
García Gibson, Ramón. 2009. Prevention of money laundering and terrorist financing. 1st. Mexico: INACIPE,
2009.
15
https://infosen.senado.gob.mx/sgsp/gaceta/64/1/2019-02-07-1/assets/documentos/Inic_MORENA_RPI.pdf
16
The Convention was signed on February 16, 1989 and ratified on February 27, 1990.
of January 1990, adding to the Federal Tax Code the corresponding article 115-BIS 17 (as an
unnamed crime) that was located within the Fourth Title, relative to Tax Offenses and
Offenses, and, specifically, in Chapter II " Of the Tax Law Crimes”.

Article 115-BIS was amended on two occasions, the first one occurred on December 3rd of
1993 and it came into force on January 1st of 1994, the amendment consisted of the addition
of the third and fourth paragraphs18, that established the imposition of sanctions on members of
the Mexican financial system and foresaw the concept of what should be understood by it.

The second amendment took place on December 28 th of 1994, it came into force on January
1st of the following year and t only consisted in adding the Limited Purpose Financial
Companies (SOFOLES) as part of the financial system, in the fourth paragraph of the article.

Despite the fact that the behaviors known as money laundering were already provided in article
115-BIS of the Mexican Federal Tax Code, the Federal Government considered that this
classification did not comply with the provisions of the Vienna Convention because it indicates
that the crimes that integrate it, should not be considered tax law related.

With the argument of adapting Mexican legislation to the new forms of criminality, in November
of 1995, the President of the Republic presented to the Congress of the Union a draft decree
that amended, added and repealed several articles of various laws (some of criminal matters),
resulting in the repeal of article 115-BIS of the Mexican Federal Tax Code and the creation of
the crime called Operations with Resources of Illicit Origin contemplated in the article 400 Bis
of the Criminal Code for the Federal District in Matters of the Common Jurisdiction and for the
entire Republic in Matters of Federal Jurisdiction, currently called the Federal Criminal Code.

17
ARTICLE 115-BIS.- Anyone who, knowing that a sum of money or goods of any nature comes from or
represents the product of any illicit activity, will be punished with a penalty of three to nine years: I.- Carry out a
financial operation, purchase, sale, guarantee, deposit, transfer, currency exchange or, in general, any transfer
or acquisition that has the aforementioned money or goods as its object, with the in purpose of: a) .- Evading in
any way the payment of tax credits; b) .- Hide or disguise the origin, nature, property, destination or location of
the money or property of concerned; c) .- Encourage any illegal activity, or d) .- Failure to provide the report
required by the operation; or II. Transport, transmit or transfer the sum of money or goods mentioned, from
somewhere to another country, from Mexico abroad or from abroad to Mexico, with the purpose of: a) .-
Evading in any way the payment of tax credits; b) .- Hide or disguise the origin, nature, property, destination or
location of the money or property of concerned; c) .- Encourage any illegal activity; or d) .- Failure to provide
the report required by the operation. The same penalties will be imposed on whoever performs any of the acts
referred to in the two sections. above that have as their object the sum of money or the goods indicated by
them with knowledge of their illicit origin, when they have been identified as the product of illegal activities by
the competent authorities or courts and such acts have the purpose of: a) .- Hide or disguise the origin, nature,
property, destination or location of the money or assets of concerned; or b) .- Encourage any illegal activity ”.
18
"ARTICLE 115-BIS. - ... I.- ... The same sanction will be imposed on the employees and officials of the
institutions that make up the financial system, who, in order to provide assistance or cooperation to avoid the
identification or location of the sums of money or goods referred to in this article, do not comply with the
obligation to collect or falsify the information on the identification of the client and the corresponding operation,
in accordance with the provisions of the provisions that regulate the financial system. For the purposes of this
article, the financial system is understood to be that comprised by credit, insurance and surety institutions,
general deposit warehouses, financial leasing companies, savings and loan companies, credit unions, financial
factoring companies, intermediaries. stock exchanges, exchange houses and any other financial or exchange
intermediary”.
Article 400 Bis19 is located in Title Twenty-third "Concealment and Operations with Resources
of Illicit Origin".
As noted, the article object of this study is commonly known as money laundering. However,
from the reading of Article 400 Bis of the Federal Criminal Code, it can be inferred that in
Mexico it is not possible to give it, that generic name because, according to the type, the
material object is not only resources (which will necessarily have to be of an economic nature)
the material object of the unjust but, also, rights or goods of any nature.

III. TAX FRAUD AS A PRIOR CRIME IN THE MEXICAN NATIONAL FRAMEWORK.

The relationship of tax crimes with money laundering begins in Mexico with the first regulation
in the Federation's Tax Code itself, as happened with article 115 BIS. Thus, by publication in
the Official Gazette of the Federation on December 28, 1989, the crime of money laundering
was considered an unnamed crime; said article underwent various modifications in 1993 and
1994.

The referred article, is the first meeting point between money laundering and tax legislation,
however and despite the fact that in 1996 the article 400 bis of the Federal Penal Code (in
force) was created, in which, The well-known crime of operations with resources of illicit origin
(money laundering) was incurred, together with said article we find the relationship for the
crime of tax fraud in terms of the third paragraph of article 108 of the Federal Tax Code. In this
sense and with said regulations, the crime against public finances is considered a prior crime
of money laundering and must be investigated simultaneously, with the corresponding penalty
in each of the cases.

International trends also seem to favor the inclusion of tax fraud as a criminal activity prior to
money laundering, as we have observed, however, here the main problem arises since
although tax fraud and its equivalents could be classified in this form, it is also a reality that it is
subject to an amount in accordance with criminal law and in accordance with the fiscal
framework to the simple activity.

To support the above, and support the link not only to tax fraud in money laundering but also to
smuggling, we must verify the provisions of the "International Standards on the Fight Against
Money Laundering, the Terrorism System and the Proliferation”, specifically in the 3rd
recommendation that states:

“Countries should criminalize money laundering based on the Vienna

Convention and the Palermo Convention. Countries must apply the crime of
money laundering to all serious crimes, in order to include the widest possible
range of predicate offenses. "

19
"ARTICLE 400-BIS.- It will be imposed from five to fifteen years in prison and from one thousand to five
thousand days a fine to anyone who, by himself or through a third party, performs any of the following
conducts: acquires, transfers, manages, custody, changes, deposits , give as a guarantee, invest, transport or
transfer within the national territory, from it to abroad or vice versa, resources, rights or goods of any nature,
with the knowledge that they come from or represent the product of an illegal activity, with any of the following
purposes: hide or pretend to hide, conceal or prevent knowing the origin, location, destination or ownership of
said resources, rights or assets, or encourage any illegal activity. The same penalty shall apply to employees
and officials of the institutions that make up the financial system, who fraudulently assist or assist another for
the commission of planned conduct.
Continuing with the analysis of what is established in this recommendation, we must observe
what is also stipulated by the "Interpretative Norms of Recommendation 3 (Money Laundering
Crime) of the International Standards on the Fight against Money Laundering, the Terrorism
System and Proliferation ”, which in its second paragraph stipulates:

“Countries should apply the crime of money laundering to all serious crimes, in
order to include the widest range of predicate offenses. Predicate offenses can
be described by reference to all offenses or to a threshold linked either to a
category of serious offenses or to the deprivation of liberty penalty applicable to
the predicate offense (threshold approach) or to a list of predicate offenses or to
a combination of these approaches ”.

As long as criminal funds can be traced back to their true origin, criminals will try to avoid
scrutiny from all kinds of authorities, including tax authorities: all of the criminal proceeds that
flow into the illegitimate economy can attract the attention of tax authorities.

The Report on Financial Shelters states that, even when criminals pay taxes on the portion of
their illegal income that they launder, collectively they will try to avoid paying taxes on as much
of their income as possible.20

On the contrary, it is also plausible to understand that the criminal businessman will try to pay
the taxes attributable to the masked goods in order to avoid fiscal control. Fraud will occur
when due to the characteristics of the laundering process it is forced to hide them from the
Treasury. Normally, they will need to evade taxes until the true criminal origin of your assets
has been camouflaged, that is, tax evasion in organized crime is more a necessity than a
purpose.

Criminals in the early stages of the laundering process, since the money is still close to its
criminal source, will be forced to hide it from the Treasury, but later, when these funds are
included or mixed with funds and legal companies, they will contribute to the Public Treasury,
even paying more taxes than what they should normally pay, in order to avoid, precisely, any
suspicion on the part of the tax authorities.

Tax fraud constitutes unwanted behavior, or at least, it is not the main purpose of the subject
who intends to launder criminal funds. Even the taxation of its profits can be an important step
in the legalization process, since it constitutes one of the public bodies with the greatest
capacity to detect a crime of money laundering. Therefore, at a certain moment, normally when
the funds have a sufficient appearance of legality, their taxation can be understood as one
more step in the laundering process.

The payment of a tax by the launderer is a commissive modality of distancing the benefits from
their criminal origin: without a doubt, once the taxes are paid without raising suspicion in the
Tax Administration, an appearance of legality is provided.

Although money laundering constitutes the link between the tax fraud-underground economy
and organized crime-criminal economy binomials, it should be noted that these are two
processes that start from different budgets.21
20
BLUM, Jack A. et al, Financial Shelters, Bank Secrecy and Money Laundering, PNFID Technical Series,
1999, p. 7.

21
The authors of the United Nations Report on Financial Shelters state that they only share certain techniques,
but throughout their Report we can reach the conclusion that they coincide with the studies carried out on tax
The laundering process resulting from tax evasion begins with legally acquired income that is
hidden to disguise its nature by passing it off as income obtained in a category not subject to
taxation or less taxation. We are facing legal income that becomes illegal.

Money laundering from organized crime does exactly the opposite: part of income acquired by
illegal means, and it gives the appearance of having been legally obtained, therefore, we can
distinguish two types of laundering depending on the origin of the money ; On the one hand,
gray money would be that which has been obtained in the development of a legal activity, but
which has been hidden from the Treasury, and which at a certain moment it is necessary to
give it an appearance of legality; and on the other hand, we would have dirty or criminal
money, which would be the one that comes from activities that in themselves constitute a
criminal activity, and that at least in part is reinvested in the legal economy. 22

In such circumstances, it is convenient to ask ourselves: Should the proceeds of crime pay
taxes? To answer this question, it is convenient to point out what is established in Article 2 of
the Palermo Convention.

To answer this question, we must understand what crime proceeds are. We find the answer in
Article 2 of the Palermo Convention23, understanding as such those that enrich the offender
and in the face of such enrichment, the corresponding Income Tax must be paid. However, this
type of enrichment is the exception, so I do not consider that the crime product should cause
the payment of any tribute, since this would be equivalent to legitimizing it.

If we agree with these words, there must necessarily be a distinction between a defaulted
taxpayer and criminals who launder money, the first of which must face the crime of tax fraud;
the second, that of operations with resources of illicit origin.

The truth is that for some reason these crimes can be prosecuted simultaneously according to
article 108 of the Federal Tax Code 24, which is absurd and contrary to the postulates of Non
Bis In idem, in such circumstances it is necessary to point out the following arguments:

• To say that criminals can commit the crime of tax fraud is to maintain that criminals
are obliged to pay taxes. This leads us to foolish consequences such as the deduction
of their work instruments such as weapons. I reiterate: that idea cannot be sustained
because allowing to pay taxes is to legitimize the profit obtained from a crime.

• Treating non-compliant taxpayers as likely responsible for the crime of money

laundering is treating them with the harshest laws that Mexican criminal law can offer,
which some could well identify with the criminal law of the enemy. If this continues, it

fraud. BLUM, Financial Shelters, cit. note n ° 5, p. 7.

22
As a consequence of the attack on September 11, 2001, a new form of money laundering appears to have
been included together with that derived from organized crime and tax fraud. The financing of terrorism
includes a laundering process that is the reverse of the other two modalities: legal funds are set aside so that
criminal activities are financed through masking behaviors. SERAFINI, Justin, "Money Laundering", American
Criminal Law Review. Nineteenth Survey of White-Collar Crime, vol. 41- num. 2 (2004), p. 887. However, we
have to remember that when the funds come from criminal activities - for example kidnappings committed by
terrorist groups - we will be faced with a classic process of money laundering from organized crime.
23
Article 2. Definitions. For the purposes of this Convention: ... e) "Proceeds of crime" shall mean property of
any kind derived or obtained directly or indirectly from the commission of a crime ...
24
... The crime of tax fraud and the crime provided for in Article 400 Bis of the Federal Criminal Code, may be
prosecuted simultaneously. The crime of tax fraud is presumed to have been committed when there is income
or resources that come from operations with resources of illicit origin ...
 would only be necessary for the Federal Law Against Organized Crime to be applied to
taxpayers who, in collusion with the lawyer and the accountant, did not pay their taxes
properly.

• It seems especially serious to me that the crime of tax fraud is presumed when there
is income or resources involved that come from the crime of operations with resources
of illicit origin. The legislator is wrong: the proceeds of crime are not taxed, simply
confiscation must be applied.

The foregoing reflects a criminal collection policy of the Mexican State, ignoring the limiting
principles of the Ius Puniendi, reaching the extreme that any taxpayer obligated to the federal
treasury by not covering the corresponding payment of their taxes, is considered by that simple
fact author of the crime of money laundering, it would only be legitimate to use the crime of tax
fraud as a crime prior to money laundering, when the economic benefits come from organized
crime.

The proposal that the Mexican government has taken in relation to the issue is to grant the
quality to the shell companies and to those taxpayers that issue, sell, buy or acquire tax
receipts that protect non-existent, false operations or simulated legal acts the status of
organized criminals, with the exception regime that this entails, that is to say that these crimes
are contemplated within the constitutional catalog of informal preventive detention, which leads
to the restriction of procedural benefits such as freedom during the corresponding criminal
process, thereby causing true terrorism prosecutor violating the principle of presumption of
innocence and in complete detachment from the limiting principles of the ius puniendi of the
State.

De facto organizations or legal persons enter into operation in the economic system of the
country, they do so through legal channels, they cannot be considered organized criminals
since companies are not organized to commit crimes and much less is there the connotation of
doing it in such a way permanent and the legal origin that occurs in the crime of tax fraud
makes it impossible to give it the connotation of organized crime, what is born legal becomes
illegal for the amounts established in the law, what has been done is to create certain cartels
(not of drugs) but cartels of companies, cartels of banks, a very serious situation that we are
experiencing in Mexico.

IV. MONEY LAUNDERING: THE BATTLE THAT MEXICO HAS LOST AGAINST
ORGANIZED CRIME

According to data from the Non-Governmental Organization Global Financial Integrity, Mexico
is the third largest exporter of illegal assets on the planet and a good part of the amount
generated in these crimes is subjected to money laundering, derived from the improper use of
shell companies (offshore) fictitious for the commission of predicate crimes or those companies
that invoice simulated operations known as EFOS, organized crime and the phenomenon of
corruption.
The Mexican authorities themselves, taking the FATF recommendations as their starting point,
point out that both the crime of corruption, tax fraud and money laundering are behaviors that
have the same genetic code, the relationship in terms of crimes seems to be necessarily linked
Moreover, one cannot be conceived without the other and this idea resides in the appreciation
that the proceeds of criminal actions such as organized crime are normally not taxed, so that
by generating this binomial the benefits obtained mainly Due to the economic resources not
delivered to the treasury, they translate into an increase in the purchasing power of illegal
activities, generating greater danger from organized crime.
What is stated in the previous paragraph is a faithful reflection of the criminal policy that the
Mexican government has adopted regarding money laundering, which constitutes an obvious
expansive manifestation of Criminal Law, breaking the postulates of a guaranteeing Criminal
Law, of a nature subsidiary and minimal intervention, turning Criminal Law into a mere political
instrument of repression, thereby confusing the corresponding object of the crime, in order to
protect the criminal law, no criminal reform can be accepted if it is not perfectly aimed at the
true protection of a legal asset, so that said legal asset has to go through the corresponding
value of the action.

It must be taken into consideration that all crime, including the one that concerns us in this
article, has a social and intersubjective component that leads to an aspect of social harm, that
is, that the criminal conflict does not only concern the victim and the author, but to society as a
whole.25

As the crime of money laundering is a multi-offensive crime, since in the development of the
actions that give rise to the crime, various legal rights are violated, from my point of view
specifically what is violated is the correct administration of justice, given the concealing nature
and the corresponding socioeconomic order that in a strict sense refers to the economic
leadership of the State and in a broad sense corresponding to the necessary legality of the
goods circul It is precisely in the objective determination of the legal right, the determining
factor that has led Mexico to lose the battle against organized crime, as I have previously
stated, the crime of money laundering emerged into legal life to be able to confront organized
crime in the drug trafficking modality, however, this indeterminacy regarding the legal right that
the money laundering rule seeks to protect, its multi-offensive nature, given the lack of clarity of
the laws and contrary to the dogmatic postulates of a criminal law guarantor, is what has led
the Mexican legislator to a maximum expansion of money laundering by criminalizing
behaviors and equating them to tax crimes, forgetting their own autonomy, their own
harmfulness, that is why I consider it appropriate to carry out a delinking of money laundering
of money to a prior or predicate offense and therefore the non-requirement of accreditation of
the prior offense product of the goods that are intended to be laundered and not as the
Mexican regulations intend to dotating in the market, the stability and solidity of the financial
system and free competition.

The function of criminal policy transcends the systematization of the type, since the legal good
serves as a criterion to group the different criminal types in the special part, likewise, it is the
basis for the hierarchization of crimes, taking into account the importance of interest that they
intend to protect. Undoubtedly, the articulation of the special part is exclusively, the result of
the adopted system, around the legal right following a specific criminal policy. 26
The criminal legal good, therefore, is a limit to the ius puniendi of the State, that serves as a
programmatic proposal of a criminal political nature whose observance requires the legislator
to limit his activity to the creation of criminal norms that exclusively protect legal assets. Which
translates into an element of guarantee since in itself it constitutes a limit to the material
dimension of the criminal law, which translates from lege lata into the constant review of the

25
Alcacer Guirao, Rafael Injury to legal property or injury to duty? Notes on the material concept of crime ...,
op. cit., p. 123. The author, with this argument, explains the usefulness of functionalism with respect to the
validity of the norm, since he considers that it corrects the points of view of positive general prevention, and
argues that: “[...] that specifically social harm is This is due to the fact that with the violation of the norm by the
author, the factual validity and normative validity of the ordinance is questioned, generating distrust in the
evaluative authority and coercive power of the Law and, with it, decreasing the confidence in the respect of the
rules by third parties ”.
26
Quoting Rodríguez Devesa. Vid, Pérez Álvarez, Fernando. Criminal consumer protection. Public Health and
Food, Praxis. S.A. Spain, 1991, p. 32.
legal system and de lege ferenda into a barrier regarding the content of the law ius puniendi
state.27

The role that criminal policy plays in the face of the expansion of criminal law is of the utmost
importance, a reality that roughly affects the legitimacy of Criminal Law, which is why I consider
that a replanting of the principle of criminal injury should be carried out, that is, In other words,
when the intervention of Criminal Law is necessary? A response that, from my point of view,
must be answered in the light of the concept of legal good, given its limiting function towards
the system, but nevertheless we can say that not every legal good must be protected by
Criminal Law, but only those that have the category of criminal, for which the analysis of a
dogmatic concept of legal good is of utmost importance, whose focus is on the concept of a
criminal policy, that is, it is affirmed that for a criminal legal good to have political-criminal
relevance, it must satisfy two conditions: on the one hand social society and, on the other
hand, its need for protection by Criminal Law.28

V. ASSETS RECOVERY IN MEXICO

One of the main objectives of the Mexican authorities is the recovery of assets of illicit
origin, as can be seen in the United Nations Convention Against Corruption 29, in its Chapter V,
that contains the articles related to the recovery of assets, establishing that states parties are
obliged to provide the broadest cooperation and assistance, in addition to forcing states parties
to establish the necessary measures to be able to require financial institutions operating in
their territory to verify the identity of their clients , take steps to determine the identity of the
ultimate beneficiaries of funds deposited in large accounts.

In addition, the Mexican State has recovered assets through the Extinction of Domain,
understood as the loss of rights over property, whether movable or immovable, and all real or
personal rights, its objects, fruits and products, susceptible of appropriation, without
compensation for its owner or to who displays or behaves as such.

Those assets must be linked to the realization of illicit activities 30, so the finances of the
subjects involved in money laundering are attacked.

Although there are some authors who consider that the expansion of the regulatory framework
around money laundering and terrorist financing creates a certain weakness in taxpayers 31,
since they are submitted to strict surveillance, in many cases a judicial warrant is not required
for the Tax Administration Service and the Financial Intelligence Unit, organization that has
access to the reports generated by the obligated subjects, under pretext in the fight against
money laundering, because of this they obtain information that is also useful for their collection
function.

In the explanatory memorandum of the National Domain Extinction Law Initiative 32, it is
mentioned that during the six-year term of former President Enrique Peña Nieto, only forty
27
Muñoz Conde, Francisco / García Arán, Mercedes: Criminal law. General part, Tirant lo Blanch, Valencia,
1993, pp. 66 and 73.
28
Mir Puig, Santiago: Legal good and legal-criminal good as limits of the Ius puniendi, in EPC, University of
Santiago de Compostela, no XIV, year 1991, p. 205.
29
https://www.unodc.org/documents/mexicoandcentralamerica/publications/Corrupcion/
Convencion_de_las_NU_contra_la_Corrupcion.pdf
30
Article 8 of the Federal Domain Extinction Law.
31
Ixtlapale, C. (March, 2015). The weakness of taxpayers in the fight against money laundering. Journal of the
Faculty of Law and Social Sciences, Benemérita Universidad Autónoma de Puebla, 16, pp. 51-70.
32
http://sil.gobernacion.gob.mx/Archivos/Documentos/2019/03/asun_3838022_20190328_1553181480.pdf
million pesos were recovered, with 20 million corresponding to the figure of domain extinction
and the remainder to the abandonment, taking into account the approximate amount of one
trillion pesos laundered in the period from 2012 to 2018, mentioned in the 2020 National Risk
Assessment33, it is evident that in terms of asset recovery, Mexico has had a zero
performance.

Therefore, in the short term, new reforms are expected regarding the prevention and combat of
money laundering and terrorist financing in the Mexican legal framework, which has already
been recognized as sufficient, but from the analysis of the objective data shown by the the
same Mexican authorities, it can be concluded that Mexico's main pending is to strengthen the
actions it carries out around the proactive prevention of money laundering and the actions
related to the recovery of assets, this will allow Mexico to approach better ratings in the
assessments published by the Financial Action Task Force. 34

In conclusion, we can arrive at the exclusion of the tax crime as a prior crime by not meeting
the political criminal characteristics to belong to the category of prior crimes, except in cases
where the benefits come from organized crime, for which it must be a determining factor and
taking as a parameter the principle of correspondence with reality, the legal good protected by
the norm and the autonomy that the crimes prior to money laundering are limited to the crimes
of illicit trade committed within a criminal organization. Undoubtedly Mexico has a long way to
go in money laundering prosecution, an objective that can only be achieved by respecting
human rights, the limiting principles of ius puniendi and the dogmatic postulates of criminal law
typical of a social state and democratic of law.

Today in Mexico, everything is money laundering, there is always money laundering in the face
of the discrediting of some crime of a fiscal nature, we must understand that illegal activities
cannot be taxed, but the product of them and it is not possible to prosecute simultaneously the
crimes of money laundering and tax fraud.

References
Books

 Alcacer Guirao, Rafael, Injury to legal good or Injury to duty? Notes on the material concept
of crimen, Atelier, Barcelona, Spain, 2003.
 Berdugo Gómez de la Torre, Ignacio: “Prologue”, in Berdugo Gómez de la Torre, Ignacio /
Sanz Mulas, Nieves (coords.): Criminal Law of the Democracy vs Public Security, Comares,
Granada, 2005, p. IX.
 Blim, Jack A. et al, Financial Shelters, Bank Secrecy and Money Laundering, PNFID
Technical Series, 1999, p. 7.
 Fernández Zacur, José Miguel. Authorship and participation in the criminal association and
its crimes-aims. Vision from Paraguayan Criminal Law. Paper delivered at the VI
International Congress on prevention and repression of money laundering, published by
Tirant Lo Blanch, Coordinators Miguel Abel Souto and Nielson Sanchez Stewart, July 2018 .
 García Gibson, Ramón. 2009. Prevention of money laundering and terrorist financing. 1st
ed. Mexico: INACIPE, 2009.

 Hassemer, Winfried. Prospects of the Criminal Law of the future. Penal Magazine, 1998.

33
https://www.pld.hacienda.gob.mx/work/models/PLD/documentos/enr2020.pdf p.29.
34
Financial Action Group. 2012. International Standards on the Fight against Money Laundering and the
Financing of Terrorism and Proliferation. 2012.
  Ixtlapale, C. (March, 2015). The weakness of taxpayers in the fight against money
laundering. Journal of the Faculty of Law and Social Sciences, Benemérita Universidad
Autónoma de Puebla, 16, pp. 51-70.
 M. Levi, "Crimes of Globalization: some measurement issues," in M, Joutsen (ed.), New
types of crime. Proceedings of the International Seminar Held in Connection with Huone´s
Thirteen Anniversary, Helsinki 20 October 2011, Huone, Helsinki, 2012, p. 107.
 Muñoz Conde, Francisco / García Arán, Mercedes: Criminal law. General part, Tirant lo
Blanch, Valencia, 1993.

 Silva Sánchez, Jesús María, The Expansion of Criminal Law, aspects of criminal policy in
postindustrial societies, B of F, Buenos Aires - Montevideo, pp. 12 and 13.
 Zuñiga Rodriguez, Laura, Organized Crime and Economic Crime, Juridical Editions
Gustavo Ibañez, Bogota p. 22.

Conferences
 Lecture delivered in Beijing, October 27, 2014 at The sixth session of the international
forum on crime and criminal law in the global era: safety of food and drugs.

Electronic media

 http://sil.gobernacion.gob.mx/Archivos/Documentos/2019/03/
asun_3838022_20190328_1553181480.pdf 
 https://infosen.senado.gob.mx/sgsp/gaceta/64/1/2019-02-07-1/assets/
documentos/Inic_MORENA_RPI.pdf
 https://www.cfatf-gafic.org/index.php/es/documentos/gafi40-recomendaciones
 https://www.gob.mx/cms/uploads/attachment/file/80948/VSPP_GAFI___13042016.pdf  
 https://www.pld.hacienda.gob.mx/work/models/PLD/documentos/
enr2020.pdf

Laws
 Federal Criminal Code
 Federal Tax Code
 National Code of Criminal Procedures
 Palermo Convention
 Political Constitution of the Mexican United States
 Vienna Convention

Magazines
 Abel Souto, Miguel, Money Laundering as an innovative instrument of economic and social
control, Criminal Law Magazine Mexico, National Institute of Criminal Sciences, no. 5.
September 2013- February 2014, p. 129.
 Serafini, Justin, "Money Laundering", American Criminal Law Review. Nineteenth Survey of
White-Collar Crime, vol. 41- num. 2 (2004), p. 887. 
 Mir Puig, Santiago: Legal good and legal-criminal good as limits of the Ius puniendi, in EPC,
University of Santiago de Compostela, no XIV, year 1991.