Article 302 Spanish Criminal Code: Aggravated money laundering and liability of legal persons

Article 302 aggravates the money laundering of Article 301 where the offender belongs to an organisation devoted to those purposes, or where the offender is a person subject to obligations under the anti money laundering framework acting in the exercise of a professional activity, and it sets the penalties for legal persons.

Wording of Article 302 of the Spanish Criminal Code

Elements of the offence

1. A money laundering offence under Article 301, which is the presupposition of the aggravation.
2. Membership of an organisation devoted to those purposes, or the position of leader, administrator or person in charge of it.
3. Alternatively, the status of a person subject to obligations under the anti money laundering framework, acting in the exercise of a professional activity.
4. For the liability of the legal person, the requirements of Article 31 bis, including the absence of an effective prevention model.

Defence strategy

Existence of an organisation. The aggravation requires a structure with a degree of stability and a distribution of roles, and not merely a plurality of participants. A single joint operation, however complex, does not satisfy the requirement, which is the point most frequently contested.

Position within the structure. The distinction between membership and the position of leader or person in charge entails a full degree of difference. The documentary, financial and telephone evidence on the actual role played must therefore be examined operation by operation.

Scope of the professional obligations. The second aggravation applies only to persons subject to obligations under the anti money laundering rules acting in the exercise of their professional activity. Establishing that the conduct fell outside that professional sphere excludes the aggravation.

Defence of the legal person. Paragraph 2 makes the fine dependent upon the frame of the offence of the natural person. Documenting the prevention model under Article 31 bis, and the internal reporting of the operations, addresses the liability of the entity independently of the outcome for the individuals.

• Article 301 CP: money laundering
• Article 31 bis CP: criminal liability of legal persons
• Money laundering defence in Spain
• Criminal compliance in Spain

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.