The offence of money laundering

In recent times, unfortunately, it has become increasingly common to hear the term 'money laundering'. In fact, it is in vogue in view of the corruption crimes that have been plaguing our country lately. However, do you know exactly what action it refers to? As lawyers specialising in criminal law, we would like to explain it to you in detail so that you know all the details.

Definition of the offence of money laundering

Money laundering is a crime that is also known in many places as money laundering, an expression that is probably also quite familiar to you. Specifically, it is a covert and illegal procedure by which an attempt is made to conceal the origin and provenance of certain funds, which are generally the result of criminal activities such as drug trafficking, arms smuggling, tax fraud, public embezzlement, etc.

Those who commit this offence do not legally declare the money they hold in current accounts in banks located in countries that are considered tax havens. The purpose of this is not to make the corresponding tax declaration on the earnings of an individual or a company in order to make them opaque to the tax authorities.

What does the Criminal Code say about the offence of money laundering?

The basic definition of the offence of money laundering is set out in Article 301 of the Criminal Code. It lists the conducts that lead to the consideration of the commission of this offence. They are as follows:

• Carrying out acts for the purpose of concealing or disguising the origin of the money.
• Acquisition, transfer or conversion of property knowing that it is derived from the commission of a serious offence.
• Provision of assistance to those who have committed the predicate offence for the purpose of enabling them to evade the consequences of their actions.
• Concealment or disguise of the true origin, destination, movement or nature of the property of illicit origin.

What penalties does the Penal Code provide for money laundering?

Therefore, it must be said that the Penal Code equally punishes both the person who commits the crime of money laundering and the person who helps or covers up the crime. In this regard, this legal text specifies prison sentences ranging from 6 months to 6 years, as well as fines of three times the value of the laundered assets.

For their part, depending on the seriousness of the offence and the personal circumstances surrounding the perpetrator of the money laundering, judges and competent courts will be able to impose penalties of special disqualification. This will mean that the person will be incapacitated from continuing to carry out his or her profession for a specific period of time, ranging from 12 to 36 months. In addition, he will also be ordered to close, either permanently or temporarily, the business of which he is a part. In the event that the closure is temporary, it may not be for a period of more than 5 years.

It should also be noted that the Penal Code foresees circumstances that may aggravate the penalty. Specifically, this will be in the upper half when the assets that have been laundered have their origin in particularly fraudulent base offences such as, for example, trafficking in drugs, psychotropic substances or narcotics, as set out in Articles 368 and 372. This will also be the case when this origin comes from offences set out in Chapters V, VI, VII, VIII, IX, X and XIX of the Criminal Code.

What is being done to prevent the commission of money laundering?

Obviously, public administrations are not standing idly by in the face of this crime. Specifically, Spain has created SEPBLAC, i.e. the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offences, which is the body responsible for the control and surveillance of the crime of money laundering. It is regulated by Law 10/2010 of 28 April 2010 and Royal Decree 925/1995 of 9 June 1995.

The aforementioned legal texts provide for the obligation to submit to audits for the prevention of money laundering offences by various parties. Specifically, they are as follows:

• All firms offering investment services.
• Credit institutions.
• Insurance companies authorised to operate in the life insurance business. It also covers insurance brokers.
• Investment institution management companies.
• companies managing pension funds
• Mutual guarantee companies.
• electronic money institutions
• Postal services dealing with money orders and transfers.
• Companies managing venture capital.
• Individuals and firms engaged in currency exchange.
• Intermediaries in the granting of credit and loans.
• Auditors, as well as tax advisors and external accountants.
• Property developers or those who charge brokerage fees for the sale and purchase of property.
• Land registrars and notaries.
• Solicitors and lawyers involved in the preparation of client accounts for the purchase and sale of real estate.
• Casinos.
• Dealers in antiques and art.
• Dealers in jewellery and precious stones.
• Professionals who carry out deposit activities.
• Persons responsible for the sale and management of lotteries and games of chance.

To all of them must be added, in addition, entities and persons not resident in Spain who, through their agents or branches, provide their services without a permanent establishment and who carry out activities of the same nature as those mentioned above. All the provisions of the Criminal Code on money laundering may also be applied to them.

On the other hand, it should be noted at this point that if a natural person provides permanent or sporadic services or is employed by a specific legal person, the effects of the law will fall on the latter, not on him. In any case, this is a complex question that is usually settled by the competent judges.

This is extremely important because, contrary to what some people believe, the work of your intermediaries and their employees can result in criminal liability for your business or company and, consequently, for themselves, for the commission of the money laundering offence.

In short, the crime of money laundering is one of the most widely covered in depth in the Criminal Code, mainly because it is considered to be the last link in a criminal chain whose aim is to introduce black money obtained from illicit activities such as drug trafficking into the legal economic flow. It is therefore not surprising that it generates so much controversy.

We hope you have found us useful in clarifying all your doubts about the crime of money laundering and the subjects that are obliged to undergo audits for its prevention, and if you need any further information, please do not hesitate to contact us.