The 2020 Anti-Money Laundering Act (AMLA), in Section 6308, titled "Obtaining Foreign Bank Records from Correspondent Account Banks," expands the authority of the United States. Treasury Department and the U.S. Department of Justice to seek any record relating to a correspondent account or any account at the foreign bank including records maintained outside the United States.
The AMLA restricts the ability of foreign banks to argue that compliance with these provisions is contrary to local law and regulation by releasing the data without notice to or consent of the account holders.
Subpoenas to financial entities will be sent whenever the holders are subject to the assumptions indicated in the norm, such as any investigation of a violation of the criminal law of the country, any investigation of a violation of the AMLA, a civil forfeiture action or any investigation in accordance with the USA PATRIOT.
Thus, AMLA regulations could be against the rules and regulations in force in Costa Rica, mainly in subjects of data protection and bank secrecy, which is based on the right to privacy, freedom, and secrecy of communications, in accordance with the provisions of Article 24 of the Constitution.
On the other hand, Article 615 of the Commercial Code, Law No. 3284, establishes that bank account information is private and that banks may only provide information about them upon request or with written authorization of the owner or by order of a competent judicial authority, which in addition to ordering the lifting of bank secrecy must meet three requirements: proportionality, necessity, and suitability.
Failure to comply with banking secrecy provisions in the terms indicated by AMLA entails a series of consequences mainly associated with criminal liability for whoever is considered the perpetrator of the act. Both article 133 of the Organic Law of the Central Bank and articles 203 and 346 of the Criminal Code define a series of offenses, establishing as a criminal sanction the disqualification and even prison sentences of 4 to 6 years, in relation to banking secrecy.
In this context, the United Nations Convention against Transnational Organized Crime and its Protocols were enacted, which, among other powers, grants the requested State the right to submit information that exceeds what was requested, thus creating a completely new spectrum according to which the requested State has the discretion to submit data not requested (article 18, paragraph 4 of the Convention). Notwithstanding the foregoing, this regulation, which it is suggested to review, applies between Nations and not between the Nation and individuals or private entities.
By Osvaldo Madrigal Méndez, M.A.
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