The crime of money laundering is regulated in arts. 301 to 304 of the Penal Code. Through these precepts, the following conducts are sanctioned:

301. The acquisition, possession, use, conversion or transfer of assets, knowing that they have their origin in a criminal activity, committed by him or by a third party, or the performance of any other act to conceal or cover up the illicit origin of such assets or to help the person who has participated in the offense to evade the legal consequences of his acts (art. 301.1 of the Criminal Code).

The crime of laundering does not consist of the mere enjoyment or use of illicit proceeds, but rather the return, as a procedure for the criminal wealth to be introduced into the economic cycle, is sanctioned. Therefore, it is required that the previously described acts are suitable to conceal or cover up the illicit origin of the assets, as well as that the perpetrator acts with that purpose (STS No. 265/2015 of April 29).

301. The concealment or disguise of the origin, location or destination of assets derived from a criminal activity, knowing that they are derived from the commission of a crime (art. 301.2 of the Criminal Code).

The facts described above are punishable, even if the crime from which the goods originate has been committed, in whole or in part, abroad. In addition, it should be noted that the crime of money laundering is an autonomous crime, which does not require a prior conviction for the crime in which the laundered assets and funds were generated, but rather it is sufficient that there are indications that the laundered capital comes from a crime. Let’s see it with an example. If a subject acquires certain works of art, knowing that they have been stolen, and subsequently sells them through his art gallery to third parties, his conduct may be punished as a crime of money laundering, even if there is no conviction for the crime of theft previously committed.

In addition, self-laundering, i.e. the laundering of proceeds originating from a criminal activity committed by the launderer himself, is punishable. However, the mere possession or use of illicit funds in ordinary consumption expenses (for example, the payment of the rent of the house), or in expenses destined to the trafficking activity itself (for example, the payment of tickets to the Dominican Republic for drug couriers), does not constitute self-laundering, since these are not acts carried out with the purpose or object of hiding or concealing assets, in order to integrate them into the legal economic system with the appearance of having been acquired in a lawful manner (STS No. 265/2015 of April 29).

The penalty associated with the crime of money laundering is imprisonment from 6 months to 6 years and a fine of up to three times the value of the assets. Likewise, the Judge may impose the penalty of special disqualification for the exercise of his profession or industry for a period of 1 to 3 years, and may order the temporary or definitive closure of the establishment.

Aggravated modalities

The penalty indicated above is imposed in its upper half in the following cases:

301. When the assets have their origin in certain crimes, such as the crime of drug trafficking, trafficking in human beings (art. 301.1 of the Penal Code) …

1. If the perpetrator belongs to an organization dedicated to the commission of this crime, the Judge shall impose the higher penalty to the heads, administrators or persons in charge of such organizations.
2. If the perpetrator is a regulated entity in accordance with the regulations for the prevention of money laundering and financing of terrorism, provided that he/she carries out the conduct described above in the course of his/her professional activity.

Reckless money laundering

The crime of money laundering is usually an intentional crime, i.e. a crime that requires that the behaviors described above be carried out knowingly and willingly. However, art. 301.3 of the Penal Code also allows the acts to be punished if they are carried out with gross negligence, in which case the penalty is imprisonment from 6 months to 2 years and a fine of three times the amount of the fine. This type of crime is applicable in those cases in which the perpetrator is unaware of the criminal origin of the goods, but is in a position to know them only by observing the duties of care inherent to his activity (STS No. 468/2020 of September 23).

Criminal liability of legal persons

Legal entities may be criminally liable for the commission of a money laundering offense, in which case they will be sentenced to a fine of 2 to 5 years (if the offense committed by the natural person is punishable by imprisonment for more than 5 years) or a fine of 6 months to 2 years (in all other cases). Likewise, the judge may impose penalties of dissolution, suspension of activities, closure of premises, prohibition of future activities, special disqualification from obtaining public subsidies and aid and judicial intervention (art. 302.2 of the Penal Code).

How can we distinguish between the crime of money laundering and the crime of receiving?

According to the jurisprudence of the Supreme Court, collected in STS No. 265/2015 of April 29, 2015, both the crime of laundering and receiving presuppose a preceding crime that has produced profits to its perpetrators. However, they have the following differences:

• Receiving requires that the predicate offense be a crime against property or the socioeconomic order, while laundering can have any criminal activity as a predicate offense.
• In both cases, knowledge of the illicit origin of the goods is required, but in the case of receiving, it is also required that the receiver has not participated in the previous criminal activity either as perpetrator or accomplice, while in laundering, the laundered proceeds may come from the launderer’s own criminal activity.
• Both offenses refer to a post-criminal intervention, but the activity that is sanctioned has a different purpose: in receiving, what is prohibited is that the third party benefits from the result of the previous criminal activity or helps the perpetrator to take advantage of the effects of the crime, while in laundering the aim is to prevent the criminal assets from being integrated into the legal economic system with the appearance of having been acquired in a lawful manner.