Introduction: Interest and Issues of Legality
The crime of money laundering is, by its very nature, a purposeful and complex offense, as it seeks to prevent assets derived from prior crimes from being “laundered,” that is, subjected to transformations to conceal their illicit origin. In our legal system, it is regulated under Article 301 of the Penal Code.
However, the reckless (or negligent) form of money laundering, established in Article 301.3 PC, has been subject to doctrinal criticism and uncertainty due to the lack of precision in the statutory definition, its apparent incompatibility with the subjective elements of the offense, and the limits of the duty of care that can be required of the active subject. In short, this constitutes a “grey area” within money laundering, in which the principle of legality and typicity is especially salient.
Legal Basis and Normative Placement
Legal Text
Article 301 of the Penal Code regulates the crime of money laundering. Section 3 provides:
"If the acts are committed through gross negligence, the penalty shall be imprisonment from six months to two years and a fine from the equivalent of the value to three times that amount."
This provision introduces a negligent or reckless form of money laundering, which coexists with the intentional forms established in Sections 1 and 2 of the same article. Unlike intentional conduct, which is expressly described (acquisition, conversion, transfer, possession, use, concealment, cover-up, aiding the perpetrator, etc.), the negligent subsection does not detail which of these behaviors may fall under the reckless form. This lack of specificity thus requires subsidiary interpretation.
Article 12 PC is also relevant, providing that actions or omissions due to negligence are only punishable when expressly foreseen by law. In this sense, the introduction of the reckless modality in Article 301.3 constitutes a numerus clausus, meaning that only this particular form of money laundering can be punished on grounds of negligence.
Legal Nature of the Reckless Offense
The inclusion of a reckless modality in a predominantly intentional offense constitutes an exception to the general rule for crimes with subjective elements. In general, crimes with a cognitive component (“knowing,” “with knowledge,” “having notice of”) appear poorly compatible with negligence, since negligence refers to a deficit of care in the face of risk, not to invincible ignorance. Some authors even argue that certain behaviors described under intentional forms cannot be committed negligently, as they require an action directed with knowledge of the illicit origin as an essential element.
Nevertheless, the law expressly provides for the reckless modality in money laundering, which obliges an interpretation of how this negligent form can be articulated in coherence with the assumptions of the general criminal type. In particular, it must clarify: the duty of care required of the active subject, the type of risk omitted, and how to assess gross negligence in relation to the protected legal interest (economic and financial order, transparency).
Elements of Reckless Money Laundering
To articulate the reckless offense, its structural elements must be analyzed:
(i) Objective typicity,
(ii) Subjective typicity (gross negligence),
(iii) Unlawfulness, and
(iv) Imputative culpability.
Objective Element: Typical Conduct
For intentional money laundering, Articles 301.1 and 301.2 provide several punishable acts: acquisition, conversion, transfer, possession, use, concealment, cover-up, aiding to circumvent legal consequences, etc.
The question arises: are all these acts susceptible to negligent commission? Three major doctrinal lines of interpretation exist:
- Unity of the Typical Act (Non-restrictive Interpretation):
It is argued that reckless and intentional laundering share the same typical act, so any conduct listed in Sections 1 and 2 (acquisition, concealment, aiding, etc.) can also be committed negligently, provided that the gross negligence requirement (inexcusable error) regarding the illicit origin of the assets is met. Under this interpretation, the reckless modality would have broad scope and the objective type is not restricted based on culpability. - Restrictive Interpretation:
Some authors accept that only certain acts listed in the intentional type admit negligent form, e.g., mere possession or use, while finalistic behaviors (concealment, cover-up, aiding to circumvent legal consequences) necessarily require intent, as they contain intentional components impossible to “culpabilize” through mere lack of diligence. - Impossibility of Negligence in Certain Behaviors:
Critics argue that it makes no sense to admit reckless laundering for behaviors with essential subjective elements (e.g., aiding the perpetrator to avoid legal consequences), since their typicity necessarily requires knowledge and will that cannot be reduced to mere lack of care. In short, the reckless path would only remain open for more passive or less finalistic conduct.
The most balanced interpretation appears intermediate: the reckless modality may cover some, but not all, behaviors of the intentional type, requiring a reasonable link between conduct, omitted duty of care, and specific risk of laundering.
Generally, it is considered that one cannot be convicted of reckless laundering when acting without objective indicators of risk or when minimal diligence would not have revealed the illicit origin. The key lies in the omitted duty of care.
Subjective Element: Gross Negligence
The prescribed modality is gross negligence. Slight negligence or carelessness is insufficient; the severity of negligence is essential to sustain criminal liability.
Factors to assess severity include:
- Risk forecast in context: The omitted diligence must relate to a risk that the subject could reasonably foresee given circumstances, sector, or client.
- Inexcusable error regarding illicit origin: Based on position and knowledge, the subject should have presumed the probability of illicit origin if diligence had been exercised. Lack of reasonable presumption constitutes the core reproach.
- Relationship between guarantor position and duty of care: Professionals subject to preventive duties (obliged entities under Law 10/2010) may have a higher diligence standard. Failure to follow internal protocols or to notice “red flags” is more reproachable.
- Repetition or systematicity: Repeated negligent conduct with the same client or similar operations may reinforce the assessment of gravity.
An excusable error (could not have perceived illicit signs) negates liability, while an inexcusable error (failure of care) may give rise to reckless liability.
Unlawfulness and Justification
Reckless money laundering raises no special issues regarding unlawfulness. If the conduct does not fall under a justification (e.g., legal duty compliance), it is unlawful. Preventive legal duties may, however, act as internal mitigators or modulating circumstances.
Culpability and Limits to Criminal Reproach
Criminal reproach requires culpability, which in negligence demands attention to whether the diligence failure is morally imputable. For obliged entities (e.g., financial institutions), violation of administrative duties may aggravate reproach.
Proportionality requires that minor omissions or insufficiently foreseeable risk not attract liability. The penalty (6 months–2 years imprisonment and a fine of 1–3 times the value) aligns with the minimum of the intentional range, reinforcing the need for restrictive and differentiated application.
Interpretative and Doctrinal Issues
Uncertainty or Indeterminacy of the Type
Lack of explicit description in Section 3 creates a gap, demanding judicial interpretation, which collides with strict typicity principles. Doctrine generally limits recklessness to acts that reasonably fall under a duty of care.
Compatibility of Subjective Elements with Negligence
Critics note that some intentional acts involve essential subjective elements (e.g., knowingly aiding the perpetrator) incompatible with negligence. An intermediate solution distinguishes more passive conduct (possession, use, transfer without clear suspicion) from active/finalistic conduct (aiding, proactive concealment), reserving the latter for intent.
Differentiation Between Common and Obliged Subjects
While the reckless crime applies to individuals and legal entities generally, diligence standards vary. Obliged entities under Law 10/2010 face reinforced prevention duties. Failure to comply increases imputability, though impossible strict diligence should be avoided; assessment is case-specific.
Excessive Criminal Risk vs. Modulated Liability
Some warn of overgeneralized criminal reproach. Liability must remain reasonable, only applying when clear indications, suspicious nature of funds, or objective risk signals exist.
Sentencing Criteria Between Intentional and Reckless Forms
Since penalties for reckless laundering align with the minimum for intentional laundering, differentiation in sentencing may consider intensity of duty breach, risk magnitude, omitted diligence, and quantitative relevance of capital involved.
Relevant Jurisprudence
Spanish courts have addressed cases clarifying limits of reckless laundering:
- Supreme Court Judgment 238/2016, 29 March: Convicted for reckless laundering where the subject failed to verify the source of money, relying on third parties. Property ownership in the spouse’s name constituted risk indicators requiring greater diligence.
- STS 412/2014, 20 May: Omission of basic duties of care in such operations harms the protected legal interest even absent intent.
These rulings reinforce that criminal reproach should only apply when there is a gross failure of diligence given the reasonable risk of laundering.
Conclusions
The criminal type of reckless money laundering constitutes a sensitive part of the money laundering regime. Though legislation lacks precision, doctrine and jurisprudence provide interpretative guidance.
To impute reckless laundering, the following must concur:
- Typical conduct compatible with the negligent modality (not necessarily all of the intentional type),
- Gross negligence, omitting a reasonable duty of care leading to a foreseeable risk,
- Inexcusable error regarding illicit origin under circumstances,
- Absence of justification or sufficient mitigating factors.
As a rule of prudence, courts should apply this modality restrictively, reserving conviction for manifestly negligent omissions in the presence of objective risk indicators. Legislative clarification regarding diligence obligations in money laundering would further enhance legal certainty.
