Money laundering lawyer in Madrid

Short answer. Article 301 of the Criminal Code punishes with imprisonment of six months to six years and a fine of one to three times the value of the assets anyone who acquires, possesses, uses, converts or transfers assets knowing that they derive from a criminal activity, their own or another’s, or performs any act to conceal their origin. Negligent laundering is punished with imprisonment of six months to two years. In Madrid these cases are investigated before the Tribunal de Instancia or, where an organisation with effects in several provinces is involved, before the Audiencia Nacional. We defend individuals, professionals and companies under investigation and entities subject to prevention rules.

Money laundering is, together with tax fraud, the offence that has grown most in Madrid investigations over the last decade, and the one most frequently added to any economic investigation: where there is fraud, asset stripping or tax evasion, the prosecution usually adds the laundering of the proceeds. Madrid concentrates the head offices of financial institutions, the Executive Service of the Commission for the Prevention of Money Laundering and the Audiencia Nacional, and therefore also concentrates these proceedings.

What Article 301 punishes

Paragraph 1 punishes with imprisonment of six months to six years and a fine of one to three times the value of the assets anyone who acquires, possesses, uses, converts or transfers assets knowing that they originate from a criminal activity, committed by themselves or by a third party, or performs any other act to conceal or disguise their unlawful origin or to help the person responsible evade the legal consequences of their acts. The courts may also impose special disqualification from a profession or trade for one to three years and the temporary or permanent closure of the establishment. The penalty is imposed in its upper half when the assets derive from drug trafficking and when they derive from the offences listed by reference in the provision itself, including offences against the public revenue and social security, corruption in business, planning offences and offences against the public administration. Paragraph 2 punishes with the same penalties the concealment or disguise of the true nature, origin, location, disposition, movement or rights over the assets.

Negligent laundering. Paragraph 3 punishes with imprisonment of six months to two years and a fine of one to three times the value acts committed through gross negligence. This is the form that most concerns professionals, administrators, estate agencies, notaries and institutions: it does not require knowledge that the money is unlawful, but having grossly ignored what anyone in their position would have noticed. Article 302.1 adds that the penalty is imposed in its upper half on those who, being obliged entities under the anti-money-laundering rules, commit the conduct in the exercise of their professional activity.

Foreign origin and confiscation. Paragraph 4 provides that the offender is punished even if the offence from which the assets derive was committed wholly or partly abroad, which in Madrid, an international investment hub, is constantly applied. Paragraph 5 orders the confiscation of the proceeds under Article 127, and extended and autonomous confiscation reach assets that are not the direct object of the proceedings.

Where the case is investigated in Madrid: Tribunal de Instancia or Audiencia Nacional

The general rule is that laundering is investigated in the judicial district where the acts of conversion or transfer take place, that is, in the city of Madrid, before the Investigation Section of the Tribunal de Instancia, and tried by the Provincial Court when the penalty sought exceeds five years. The Audiencia Nacional intervenes, under Article 65 of the Organic Law on the Judiciary, when the laundering is connected with offences within its jurisdiction, such as drug trafficking by organisations with effects in several provincial courts, or with frauds having a serious impact on the national economy, or when the predicate offence was committed outside Spain and falls to the Spanish courts. The difference is not only one of venue: proceedings before the Audiencia Nacional are large-scale cases with dozens of suspects, letters rogatory and frequent pre-trial detention, and they require a defence designed for that scale.

How it is proven and how it is defended

Laundering is proven by circumstantial evidence, and the case law has consolidated three indications that the prosecution invokes systematically: an unjustified increase in assets or the handling of sums of money that do not correspond to the known activity; the absence of lawful business explaining those transactions; and the connection with criminal activities or with persons linked to them. To these are added the use of cash, of intermediary companies, of front men and of fragmented transactions. The defence is built on three levels: proving the lawful origin of the assets with tax, banking and commercial documentation, which is the most productive work and requires the defence’s own accounting expert report; challenging the proof of the predicate offence, because without a criminal activity of origin there is no laundering; and contesting the mental element, distinguishing knowledge of the unlawful origin from mere suspicion and delimiting the scope of gross negligence.

A practical warning: in Madrid laundering investigations, searches of the home and the registered office, the freezing of accounts and the interception of communications are common. Challenging those measures, when they were ordered without sufficient reasoning, is frequently the argument that decides the case, and it must be raised during the investigation, not at trial.

Obliged entities and companies

Lawyers, notaries, registrars, tax advisers, auditors, property developers, estate agencies, jewellers, casinos and financial institutions are obliged entities under the anti-money-laundering rules. For them the risk is twofold: the administrative sanction for breaching the due diligence and reporting obligations, and the aggravated penalty of Article 302.1 if they commit laundering in the exercise of their activity. Where a legal person is liable under Article 31 bis, Article 302.2 imposes a fine of two to five years if the offence of the natural person carries imprisonment of more than five years, in addition to the penalties of Article 33.7. The crime prevention programme and the due diligence procedures are the only effective defence of the entity, and they must exist before the facts.

Legal basis

Article 301 of the Criminal Code: intentional money laundering, imprisonment of six months to six years and a fine of one to three times the value; aggravation for origin in drug trafficking and other offences; concealment of origin; negligent laundering with imprisonment of six months to two years; punishability even if the predicate offence was committed abroad; confiscation of proceeds. Article 302 of the Criminal Code: aggravation for organisations and for obliged entities in the exercise of their activity; penalties for the legal person. Article 65 of the Organic Law on the Judiciary: jurisdiction of the Audiencia Nacional. Source: consolidated texts published by the Official State Gazette, wording of Article 301 given by Organic Law 6/2021, in force since 30 April 2021.

Frequently asked questions

What is the penalty for money laundering?

Imprisonment of six months to six years and a fine of one to three times the value of the assets (Article 301.1 of the Criminal Code), in its upper half if the assets derive from drug trafficking or from the offences listed in the provision. Laundering through gross negligence is punished with imprisonment of six months to two years (Article 301.3).

Can I be convicted of laundering the money from my own offence?

Yes. Article 301.1 punishes the laundering of assets deriving from a criminal activity committed by the offender themselves or by a third party. Case law requires, however, that the act of laundering have its own substance and not be the mere enjoyment or exhaustion of the predicate offence.

Is laundering an offence if the predicate offence was committed abroad?

Yes. Article 301.4 provides that the offender is punished even if the offence from which the assets derive was committed wholly or partly abroad.

When does a laundering case go to the Audiencia Nacional?

When it is connected with offences within its jurisdiction under Article 65 of the Organic Law on the Judiciary: drug trafficking by organisations with effects in several provincial courts, frauds with a serious impact on the national economy or offences committed abroad that fall to the Spanish courts. In other cases, before the Tribunal de Instancia and the Provincial Court of Madrid.

What risk does an adviser or an estate agency in Madrid face?

That of negligent laundering under Article 301.3 if they grossly ignore obvious indications, and that of the aggravated penalty of Article 302.1 if, being an obliged entity, they commit the conduct in the exercise of their activity. In addition, the administrative sanction for breaching prevention obligations.

Related guides

• Money laundering lawyer in Madrid: overview
• Article 301 of the Criminal Code
• Economic and corporate crime lawyer
• Criminal defence lawyer in Madrid
• Contact the firm

This article is informative in nature and does not constitute legal advice. For a specific case, consult a lawyer.