Article 301 Spanish Criminal Code: Money Laundering

Article 301 of the Spanish Criminal Code punishes acquiring, possessing, using, converting or transmitting property knowing that it originates in criminal activity, whether committed by the accused or by anyone else, and any act carried out to conceal its unlawful origin or to help a participant to evade the legal consequences. Two features make the article exceptionally wide: the third paragraph punishes the conduct where it is committed with gross negligence, and the fourth applies it even where the predicate offence was committed abroad. For foreign residents who move funds into Spanish property, those two provisions are the ones that matter.

Wording of Article 301 of the Spanish Criminal Code

Elements of the offence

1. Property originating in criminal activity. The predicate activity must be established, although the case law does not require a prior conviction for it, and under the fourth paragraph it may have occurred abroad.
2. One of the forms of conduct: acquisition, possession, use, conversion, transmission, or any act of concealment.
3. Knowledge of the unlawful origin, or, under the third paragraph, gross negligence as to it, which is what brings professionals and intermediaries within the article.
4. For the aggravated brackets, that the predicate offence belongs to one of the catalogues listed, which must be pleaded specifically.

Defence strategy

The predicate activity is not established. The offence requires property originating in criminal activity, and the prosecution must establish that activity at least in its general features. Funds whose origin is unexplained are not for that reason unlawful: the burden does not shift. Where the case rests on the absence of documentation for transfers made years earlier from another jurisdiction, the defence reconstructs the origin with banking and tax records from that country, and this is frequently possible where the funds derive from the sale of a property or a business abroad.

Absence of knowledge and the limits of gross negligence. For professionals, intermediaries and family members, the question is what they knew or ought to have known. Compliance with the customer due diligence obligations, the making of a report of suspicion, the retention of the documentation and the ordinary character of the transaction all negative both knowledge and gross negligence. The defence produces the file as it stood at the time, since the standard is what was known then and not what emerged later.

Self-laundering and double punishment. The article reaches property originating in an offence committed by the accused himself, which raises the question whether the mere possession or use of the proceeds of an offence for which he is already being tried is being punished twice. The case law requires an act of concealment going beyond the enjoyment of the proceeds. Where the accused simply retained or spent the money, the defence contests the separate conviction for laundering.

The scope of the confiscation. Confiscation under article 127 extends to gains and to property of equivalent value, and in practice it is what determines the real outcome for the client and for the family. The defence identifies which assets have a lawful and documented origin, distinguishes the interests of third parties in good faith, in particular a spouse or a lender, and opposes the confiscation of property acquired before the period under investigation. This work is done during the investigation, because assets are frozen long before trial.

• Article 368: drug trafficking
• Article 250: aggravated fraud
• Civil liability and confiscation
• Spanish-language entry

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.