Accusation of money laundering: what it is and how to face the process

Money laundering is one of the most prosecuted offences in Spain and, at the same time, one of those that generates the most confusion, because its broad contours can reach people who do not consider themselves criminals: the businessperson who received cash payments of unknown origin, the intermediary who moved funds without asking where they came from, or the person who accepted a financial management job that turned out to be a money-mule network. The consequences of a conviction are serious: prison sentences, high fines and the confiscation of assets.

Money laundering is the process by which the unlawful origin of assets or money derived from criminal activities is concealed in order to make them appear lawful. The classic cycle has three phases: placement, layering and integration. It is defined in Article 301 of the Criminal Code, with a very broad definition that punishes acquiring, possessing, using, converting or transmitting assets knowing that they derive from criminal activity, or carrying out any act to conceal their unlawful origin.

A fundamental feature is that money laundering presupposes a prior offence, the predicate offence, from which the funds derive; the most frequent are drug trafficking, tax fraud, corruption and scams. The perpetrator of the laundering does not have to be the same one who committed that prior offence: it may be the financial intermediary, the lawyer who structures the operations or the businessperson who accepts unlawful payments. In addition, case law admits self-laundering: the very perpetrator of the prior offence may also be convicted of laundering its proceeds.

The most frequent forms are laundering through high-cash-turnover businesses, money mules, who are people often recruited with fake job offers, real-estate laundering and laundering through cryptocurrencies. The penalties of Article 301 are six months to six years’ imprisonment and a fine for the basic offence, aggravated when there is a criminal organisation or when the funds derive from the most serious offences, potentially reaching twelve years. In addition, the court may order the confiscation of the laundered assets.

The person under investigation retains all their procedural rights, but their exercise is especially important. The right to silence is paramount: money-laundering investigations are usually preceded by months of monitoring, and whoever speaks before knowing what the authorities know may complete the prosecution’s evidentiary picture. Specialised legal assistance is also essential, because these investigations are technically complex, international and long-lasting.

The most frequent lines of defence are establishing the lawful origin of the funds through documentation; attacking the subjective element, demonstrating that the accused did not know and could not know the unlawful origin; and challenging evidence obtained in breach of fundamental rights. It is worth knowing that case law has broadened the knowledge requirement to include wilful blindness: whoever closes their eyes to circumstances that should have made them suspicious can be convicted.

It is also worth remembering that the Spanish system imposes money-laundering prevention obligations on certain professionals and entities, such as banks, notaries, lawyers, advisers and estate agents, whose non-compliance can carry high administrative penalties and even criminal liability.