The crime of money laundering is one of the most complex and sophisticated offenses within our legal system. It is constituted through a series of actions aimed at concealing the illicit origin of money obtained through criminal activities, providing those funds with the appearance of legality.
Regulation of Money Laundering in the Spanish Penal Code
The regulation of money laundering in Spain is provided for in the Spanish Penal Code, specifically in Articles 301 and subsequent. These articles establish the penalties and sanctions for those who acquire, possess, use, convert, or transfer goods, knowing that they originate from criminal activities. Additionally, any act aimed at concealing or covering up the illicit origin of such goods or assisting those involved in evading legal consequences is punishable.
What is Money Laundering?
Money laundering is defined as conduct aimed at concealing or covering up the illicit origin of funds obtained through criminal activities. For this offense to be constituted, there must be a real facilitation, meaning concrete actions that help to disguise the illicit origin of the money or goods. These actions can be direct or indirect, but in either case, they seek to give the appearance of legality to illegally obtained assets.
Evidence of Indications and Guilt
For the crime of money laundering to be considered committed, there must be a reasonable conviction based on evidence of indications. The assessment of this evidence must be rigorous, just as in other offenses, which implies that an exhaustive process must be followed to determine the guilt of the accused. It is not necessary to prove the existence of the underlying offense to charge the money laundering crime; it is sufficient to prove that the defendant knew or should have known that the assets had an illicit origin.
Stages of Money Laundering
The money laundering process develops in several stages
1. Obtaining Illicit Money: Through criminal activities such as drug trafficking, corruption, or tax fraud.
2. Placement: The phase in which the illicit money is introduced into the financial system or moved in the name of third parties to make tracing difficult.
3. Concealment or Transformation: The goal is to give the illicit money the appearance of legality through various financial operations, such as transfers, real estate investments, or purchasing financial assets.
4. Integration: Finally, the illicit money is fully integrated into the financial system, blending with lawful money, allowing its use without raising suspicion.
Legislative Modifications and Corporate Liability
Organic Law 5/2010 introduced significant changes, including the criminalization of self-laundering and the expansion of typical conduct to include the possession and use of illicit goods. Moreover, aggravating factors were established based on the origin of the assets, especially if they stem from drug trafficking or involve public officials. The criminal liability of legal entities is also addressed, allowing companies that benefit from these illicit activities to be sanctioned.
Organic Law 6/2021 introduced further modifications, expanding the aggravated types based on the origin of the funds and establishing the obligation for financial institutions to report suspicious transactions to the authorities.
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