The crime of money laundering is one of the most complex and sophisticated crimes in our legal system. It involves a series of actions aimed at concealing the illicit origin of money obtained through criminal activities, giving a appearance of legality to said funds.
The regulation of money laundering in Spain is contained in the Penal Code, in articles 301 et seq.
Article 301 of the Penal Code establishes the following:
"1. Anyone who acquires, possesses, uses, converts, or transmits property, knowing that it has its origin in a criminal activity, committed by him or any third party, or performs any other act to hide or cover up its illicit origin, or to help the person who participated in the offense or offenses to avoid the legal consequences of their acts, shall be punished with a term of imprisonment of six months to six years and a fine of up to three times the value of the property. In these cases, judges or courts, taking into account the seriousness of the offense and the personal circumstances of the offender, may also impose a penalty of special disqualification from exercising their profession or industry for a period of one to three years, and order the temporary or definitive closure of the establishment or premises. If the closure is temporary, its duration may not exceed five years. The penalty will be imposed in its upper half when the assets originate from any of the crimes related to the trafficking of toxic drugs, narcotics, or psychotropic substances described in articles 368 to 372 of this Code. In these cases, the provisions contained in article 374 of this Code shall apply. The penalty will also be imposed in its upper half when the assets originate from any of the offenses included in Chapters V, VI, VII, VIII, IX, and X of Title XIX or any of the offenses in Chapter I of Title XVI.
2. The same penalties shall be imposed, as appropriate, for concealing or covering up the true nature, origin, location, destination, movement, or rights over property or ownership thereof, knowing that they come from any of the offenses referred to in the preceding paragraph or from an act of participation in them.
3. If the acts are committed by gross negligence, the penalty shall be imprisonment for six months to two years and a fine of up to three times the value of the property.
4. The offender shall also be punished even if the offense from which the property originated or the acts punishable under the preceding paragraphs were committed, wholly or partially, abroad.5. If the offender has obtained gains, they shall be confiscated in accordance with the rules of Article 127 of this Code. "
For its part, article 302 continues: "1. In the cases provided for in the previous article, the prison sentences in their upper half shall be imposed on persons who belong to an organization dedicated to the purposes set out in the same, and the higher penalty shall be imposed on the leaders, administrators, or managers of said organizations.
2. In such cases, when, in accordance with the provisions of Article 31 bis, a legal person is responsible, the following penalties shall be imposed on it: a) A fine of two to five years, if the offense committed by the natural person is punishable by imprisonment for more than five years. b) A fine of six months to two years, in all other cases. In accordance with the rules established in Article 66 bis, the judges and courts may also impose the penalties set out in letters b) to g) of paragraph 7 of Article 33.
article 303 continues: If the acts provided for in the previous articles were committed by an entrepreneur, intermediary in the financial sector, professional, public official, social worker, teacher, or educator, in the exercise of their position, profession, or trade, they shall be imposed, in addition to the corresponding penalty, special disqualification for employment or public office, profession or trade, industry, or commerce, from three to ten years. Absolute disqualification from ten to twenty years shall be imposed when such acts are committed by an authority or agent thereof. For this purpose, doctors, psychologists, persons holding health titles, veterinarians, pharmacists, and their dependents are considered professionals."
Money laundering is defined as the act of attempting to hide or disguise the illicit origin of funds obtained through criminal activities, or providing assistance to the person who has committed such illicit activity to evade legal consequences of their actions. There must be real facilitation in the behavior, that is, hiding or covering up the illicit origin or assisting the person who has participated in the offense to evade legal consequences of the acts. In this sense, the real facilitation of the crime of money laundering implies the performance of specific actions that help to hide the illicit origin of money or goods obtained through criminal activities. These actions can be direct or indirect, but in both cases, they seek to give the appearance of legality to the goods obtained illicitly.
It is important to note that for it to be considered that a crime of money laundering has been committed, there must be reasonable conviction through the evidence of clues. The assessment of the criteria of evidence clues cannot be more lax than in the case of other crimes, which implies that a rigorous process must be followed to determine the guilt of the accused.
Furthermore, it is important to note that it is not necessary to prove the existence of the antecedent crime to be able to impute the crime of money laundering. It is sufficient to demonstrate that the accused knew or should have known that the goods had an illicit origin.
The modifications introduced by Organic Law 5/2010 of June 22 are very important in this regard, as it includes the express punishment of self-laundering, that is, the fact that a person can launder their own money obtained illegally. In addition, typical behaviors are extended to the possession and use of illicit goods, and aggravating factors are established depending on the origin of the goods, in the event that they come from drug trafficking, are committed by public officials or urban planners, among others.
The criminal responsibility of legal entities is also included in Organic Law 5/2010, which means that companies can be held responsible for this crime, provided that it is demonstrated that they have committed such conduct and that there has been an economic benefit for the company.
The last modification of Organic Law 6/2021 of April 28 has introduced two important modifications in this area. On the one hand, aggravated types have been extended depending on the origin of the funds and the obliged subject if committed in the exercise of the professional activity. On the other hand, the obligation to report suspicious transactions has been established, which means that financial entities are obliged to report to the competent authorities any transaction that is suspicious to them.
The best well well-known phases
Regarding the process of actions through which money laundering is carried out, several phases can be distinguished. The first phase is the obtaining of illicit money, which is carried out through criminal activities such as drug trafficking, corruption, tax fraud, among others.
Once illicit money has been obtained, the placement phase begins, which involves moving the money to my name or third parties in order to make its tracing difficult. This phase is very important, as if the money is effectively moved, it makes it difficult for authorities to discover its illicit origin.
The next phase is concealment or transformation, which involves giving an appearance of legality to the illicitly obtained money. In the concealment or transformation phase, the offender tries to hide the illicit origin of the money and give it a lawful appearance through various financial operations, such as international transfers, real estate investments, or purchases of financial assets.
Finally, in the integration phase, the offender introduces the illicit money into the financial system so that it is confused with legitimate money and can be used without raising suspicions. To do this, they may acquire real estate, luxury vehicles, jewelry, and other assets.