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The legislation to combat this financial crime also applies to digital currency intermediaries, who must register clients and report suspicious actions. But what if the intermediary is negligent? To indict them, intent would need to be proved

For years now, financial institutions have been denouncing the danger posed by the use of cryptocurrencies for criminal purposes, such as the laundering of dirty money. Due to their intrinsic characteristics and their peer-to-peer functioning, cryptocurrencies are difficult to control for criminal law enforcement agencies. Therefore, in order for the state to adequately prosecute criminal activities, there must be collaboration from those who carry out intermediation activities in this sector. These entities mainly go under the name of exchangers and wallet providers.

Since the 1990s, with the introduction of the first anti-money laundering regulations, the Italian legislator has sought the help of intermediaries to deal with the reintroduction of assets of illicit origin onto the market.

Today, so-called AML (Anti-Money Laundering) legislation has been updated and applies also to operators in the crypto industry: they must register their clients, keep the documentation relating to them and report to the authorities – namely the Bank of Italy – “suspicious transactions”, i.e. all those operations that could be traced back to money laundering practices.

But what to do if the financial intermediary, i.e. a private individual, does not contribute to combating this phenomenon? From a political and criminal law point of view, there are two ways to solicit the active collaboration of intermediaries: a simpler one, which consists in sanctioning them every time they do not collaborate with the public authorities, regardless of the consequences of their behavior; and another, much less straightforward, which instead aims to arraign the very intermediaries for the criminal charge of money laundering (which is punished very severely) along with the money-laundering client.

On a technical legal level, this last solution uses a hermeneutic expedient: it is the interpreter who, by observing and qualifying the operator's attitude in a certain way, finds in them the will to commit a crime and, in particular, to commit an act of money laundering. This is a necessary step, since in the absence of intent the crime in question could not be prosecuted (in the Italian legal system, money laundering cannot be committed solely through negligence, i.e. for not having been sufficiently diligent).

In this as in other areas of criminal law, it sometimes happens that the law’s interpreter, faced with conduct that differs from that specifically prescribed by the legislator, sees in it bad faith on the part of the acting subject. With respect to the topic in question, then, such a reading leads to the conclusion that failure to have fulfilled the various obligations can only denote the operator's will to commit an act of money laundering.

Upon closer inspection, however, such a reconstruction is in open conflict not only with the prescriptions of law, but also with common sense: for example, not having registered one's clients and/or retained the relevant documentation, tells us nothing about the awareness (logical prerequisite of active will) on the part of exchangers and wallet providers about "cleaning" assets of criminal origin. The mere violation of dutiful conduct, in fact, leaves the request for ascertainment of intent completely unanswered: it is one thing to behave in a manner that is different from the one required, but it is another to know that one's behavior is a consequence of laundering conceived by others. Equally insufficient is mere silence of the intermediary in the face of a suspicious transaction, since, as also supported by the Italian Court of Cassation, "suspecting" is not equivalent to "knowing". But, to be honest, even for those who do notice a dissimulation maneuver implemented by a client, not having reported the transaction to the Bank of Italy could be explained differently (for example, such a failure to comply could depend on poor corporate organization). In short, it seems quite clear that ascertaining the violation of an AML obligation is not at all sufficient for the purposes of proving the intent to commit money laundering: it is always necessary to seek additional external elements in light of which the same violation can be verified.

In consideration of what has been said, therefore it is legally preferable to focus on the lack of collaboration on the part of the intermediary, in order to avoid forced legal interpretations. And this even at the cost of being unable to obtain the mainly political objective of enlisting exchangers and wallet providers in the fight against the distortions of the crypto world.

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