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In this case, the defendant provided his personal data to an unknown third party (the fraudster), who used this information to open a bank account. This account was used to receive a transfer of 850 euros as payment for a firearm fraudulently offered on a digital platform. The victim did not receive the product and, although the defendant was initially convicted of reckless money laundering under article 301.3 of the Criminal Code, the Supreme Court overturned this conviction. The ruling considers that the facts do not constitute money laundering and do not constitute criminal liability under the accused typology.
In this judgment our Supreme Court develops key arguments that limit the possibility of criminalizing certain conducts related to the use of bank accounts and personal data in fraudulent activities. These arguments are essential to address accusations against bank mules, especially to delimit criminal liability in cases related to bank mules.
The judgment establishes that the conducts imputed to the defendant do not fit within the typicity of money laundering due to two main factors:
1. Relationship between the conduct and the fraudulent phase:
The Court differentiates between acts aimed at consummating the predicate offense (the swindle) and the subsequent acts aimed at laundering the illicitly obtained assets. In this case, the opening of the account was not an act of concealment or legalization, but a tool to execute the fraud.
The sentence underlines that: “We are not dealing with an action to facilitate the introduction in the regular market of funds that need to be laundered due to their origin in an antecedent crime. The account is opened not to achieve legalization of the proceeds of the fraud, but to perpetrate the fraud itself.”
This is relevant for the defense of bank mules, since it allows arguing that the use of the account was not for the purpose of laundering funds, but was part of the execution of the predicate offense. This criterion excludes the application of Article 301 of the Criminal Code.
2. Principle of insignificance:
The amount involved in this case was 850 euros. Case law, including this judgment, establishes that the crime of money laundering requires a minimum economic significance, in accordance with the socioeconomic dimension of the protected legal right. The sentence indicates that: “Trifling business, of insignificant amount, are not typical”.
This reasoning reinforces the proportionality in the application of the rule and can be used to defend bank mules who have handled smaller amounts, arguing that they do not meet the threshold required to configure a laundering offense.
The Supreme Court refers to Article 12 of the Criminal Code, which establishes that imprudence is only punishable when it is expressly provided for. In the case of fraud, malice is required, whether direct or eventual. This implies that negligent or reckless conduct, such as providing personal data without intent to defraud, is atypical from a criminal point of view.
The Court reasons that, although the defendant “could and should have imagined that his data could be used for fraudulent purposes”, there is no evidence that he acted with malice aforethought. Instead, the defendant was manipulated by the fraudster under an apparently reasonable justification. For the bank mule defense, this means that it can be argued that the defendant did not have intent or sufficient knowledge of the unlawful purpose.
The judgment emphasizes that money laundering requires the existence of a consummated predicate offense and that the assets obtained are reintegrated into the legal market. In this case, the Court clarifies: “If the perpetrator of the fraud were identified, he would not be charged with fraud and, in addition, with self-laundering. That is the clear proof that we are dealing exclusively with a crime of swindling.”
For bank mules, this means that their conduct must be analyzed in the context of the main crime (swindle, fraud, etc.) and not as an autonomous act of laundering, unless there is a subsequent phase of concealment or legalization of the funds.
Supreme Court Ruling number 224/2024 provides solid arguments for the defense of bank mules in cases where their participation is limited or based on recklessness. This case law reinforces the importance of the principle of proportionality, the exclusion of negligent conduct and the need to differentiate between intentional and negligent crimes. It also underlines that money laundering cannot be applied indiscriminately in cases of low economic significance or where the defendant's conduct was not intended to conceal or legalize illicit assets.
These bases allow lawyers to structure defenses that focus on the lack of malice, the atypicality of the conduct and the absence of socioeconomic impact, thus protecting individuals whose participation was minor or manipulated.
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