Due diligence como ferramenta de prevenção ao crime de lavagem de capitais: uma análise a partir do mercado de obras de arte no Brasil

Abstract

This study aims to analyze a proposal for a tool to be implemented in Brazil as part of the policy to prevent money laundering through the art market. To this end, the study will address the analysis of criminal classification, the criminal context of Economic Criminal Law and the regulatory requirements related to the fight against illicit activity, which is a significant source of funding for criminal organizations. Subsequently, the dynamics of the works of art market will be examined through four intrinsic characteristics that make the segment vulnerable: subjectivity of value, elitism, lack of transparency and exclusivity of artistic goods. This understanding is necessary to observe the dynamics of the works of art market and how criminals use the market to hide money from a previous crime. In this scenario, with the aim of promoting prevention policies, it is proposed to strengthen the awareness of market agents through the implementation of criminal compliance, through the adoption of the due diligence tool, guided by “know your client”. The corrections should fall within the remit of the IPHAN inspectorate, which could make adjustments to its internal regulations in order to meet the demands of Law No. 9.613/98, by strengthening the prosecutorial partnership between the private and public sectors (Twin Track Fight Theory) and by expanding the scope of criminal prosecution and the expansion of the functionality of the Register of Dealers in Works of Art and Antiques (Cnart), providing protection for the suitability of the brazilian works of art market and national cultural heritage. The exploratory research used bibliographical, normative and jurisprudential reviews, as well as case studies and the reality of art dealers, to better illustrate the problem, using a qualitative approach.