Criminal Defence for Money Laundering: Representation in Investigations under Art. 301–304 CP

Criminal defence for money laundering (blanqueo de capitales) encompasses specialised legal assistance in criminal investigations for the offences codified in Articles 301 to 304 of the Spanish Penal Code, which punish the acquisition, possession, use, conversion or transfer of assets of criminal origin, as well as acts of concealment or obscuring of their nature, provenance or location. The penalty for the basic offence under Article 301.1 CP is six months to six years' imprisonment, rising to ten years for the aggravated offence under Article 302 CP where the laundering is carried out habitually, through a criminal organisation, or where the perpetrator is a public official, authority or obliged entity acting in the exercise of their profession. We provide the best technical defence of constitutional rights at every phase of the criminal proceedings, drawing a precise distinction between criminally relevant conduct and the administrative prevention obligations regulated under Law 10/2010.

The money laundering offence: types, penalties and aggravating circumstances

Articles 301 to 304 of the Spanish Penal Code constitute the substantive criminal framework for money laundering. Understanding the typical structure of these provisions is the starting point for building any effective defence strategy.

Article 301.1 CP — Basic intentional offence of acquisition and transfer. Punishes any person who acquires, possesses, uses, converts or transfers assets, knowing that they originate from criminal activity committed by that person or any third party, or who carries out any other act to conceal or obscure their illicit origin, or to assist the person who participated in the offence to evade the legal consequences of their acts. The penalty is six months to six years’ imprisonment and a fine of one to three times the value of the assets.

Article 301.2 CP — Basic intentional offence of concealment. Expressly criminalises the concealment or obscuring of the true nature, origin, location, destination, movement or rights over the assets or their ownership. The penalty is the same as for the paragraph 1 offence.

Article 301.3 CP — Negligent offence. Governs laundering by gross negligence: the person who ought to have known of the illicit origin of the assets but acted without adopting the standard of due diligence required. The penalty is six months to two years’ imprisonment. This type of liability particularly affects obliged entities under Law 10/2010 that have not implemented adequate due diligence procedures.

Article 302 CP — Aggravated offences. Penalties are raised to four to ten years’ imprisonment where the offence is committed habitually, the perpetrator belongs to an organisation dedicated to laundering, the laundering is of especial gravity, or the perpetrator is a public official, authority or obliged entity acting in the exercise of their profession.

Articles 303–303 bis CP — Confiscation. Article 303 bis introduces extended confiscation for money laundering, permitting confiscation of convicted persons’ assets whose value is disproportionate in relation to their lawful income and economic activities, without needing to establish their direct link to the specific laundering offence for which they were convicted.

Article 304 CP — Corporate criminal liability. Legal entities are criminally liable for money laundering committed in their name or on their behalf, with fines of three to five times the value of the laundered assets and possible ancillary penalties of dissolution, suspension of activities or closure of premises.

The central element of the defence: the predicate offence and its establishment

The predicate offence — or prior offence (delito antecedente) — is the element that distinguishes money laundering from the mere management of assets whose origin may be irregular from an administrative or fiscal perspective but not constitutive of a criminal offence. Establishing the predicate offence is, in most money laundering proceedings, the axis of the evidentiary dispute.

Article 301 CP does not require the predicate offence to have been the subject of a final conviction, or even for the identities of its perpetrators to be known. It is sufficient for the Public Prosecution (Ministerio Fiscal) to establish, with adequate foundation, that the assets have a criminal origin. The Supreme Court has clarified in numerous decisions — including STS 265/2015 and STS 149/2020 — that the predicate offence can be established through circumstantial evidence, but that the circumstances must be sufficiently conclusive to reasonably exclude a lawful origin of the assets.

The defence can challenge the establishment of the predicate offence through three complementary strategies: demonstrating positively the lawful origin of the assets through banking, accounting, fiscal or notarial documentation proving their generation in lawful activities; challenging the sufficiency of the evidence of prior criminal activity adduced by the prosecution; or demonstrating the break in the causal chain between the identified assets and the alleged predicate offence.

Gross negligence under Article 301.3 CP: risks for professionals and intermediaries

Negligent laundering under Article 301.3 CP is the type of liability with the greatest practical relevance for obliged entities under Law 10/2010 — lawyers, tax advisers, notaries, estate agents, financial institutions — who act as intermediaries in client transactions and who had no direct knowledge of their criminal activity but had warning signs that should have alerted them.

The standard of diligence required of the obliged entity is not absolute: the case law has recognised that negligent laundering requires particularly serious negligence, not merely the omission of some internal control procedure. The defence can argue that the checks carried out were reasonable given the circumstances of the transaction, that the warning signs were not sufficiently evident for a diligent professional, or that non-compliance with specific procedures under Law 10/2010 does not automatically equate to the gross negligence required for criminal liability.

This distinction between non-compliance with Law 10/2010 — which generates administrative liability sanctioned by the SEPBLAC — and the criminal offence under Article 301.3 CP is fundamental and requires case-by-case assessment. BMC’s anti-money laundering compliance service addresses the administrative obligations of obliged entities; this page focuses exclusively on criminal defence before the criminal jurisdiction.

Confiscation: forms and how to challenge it

Confiscation has the greatest patrimonial impact in money laundering proceedings. The Penal Code provides for three forms of confiscation applicable to laundering:

Ordinary confiscation. Affects the assets, instruments and proceeds directly derived from the offence. In laundering cases, this includes the laundered assets and any gain derived from the laundering process. Ordinary confiscation requires a direct causal link between the assets and the specific offence.

Extended confiscation under Article 303 bis CP. Allows confiscation to be extended to the convicted person’s assets whose value is disproportionate in relation to their lawful income and economic activities, even if their direct link to the specific laundering offence for which they were convicted cannot be established. Extended confiscation is highly effective for the authorities and highly impactful for convicted persons.

Confiscation of third-party assets. Article 127 quater CP allows the confiscation of third parties’ assets where they received them knowing of their illicit origin or acting with recklessness. Bona fide third parties who acquired the assets without knowledge of their illicit provenance are protected from confiscation.

Challenges to confiscation can be based on: establishing the lawful origin of the assets; demonstrating the bona fide third-party status of the formal owner; challenging the proportionality of extended confiscation by presenting documentation of the convicted person’s lawful income; or requesting the substitution of confiscation by payment of the equivalent value where the asset is no longer available.

Precautionary measures: asset freezing and international coordination

Substantial money laundering investigations typically involve the adoption of precautionary asset-freezing measures — bank accounts, real estate, company participations, crypto-assets — that can completely paralyse the business activity of the investigated party months or years before trial.

In transnational investigations, the Spanish authorities can request the freezing of assets abroad through European Investigation Orders (within the EU) or letters rogatory for mutual legal assistance (in the rest of the world). Coordination with correspondents in the affected jurisdictions is essential to challenge these measures in the country where the assets are located.

The defence can challenge precautionary measures by demonstrating: the insufficiency of the money laundering evidence on which they are based; the sufficiency of an alternative, less harmful guarantee (bank guarantee, voluntary mortgage) to secure the potential confiscation; or the disproportionality of the scope of the measures in relation to the value of the allegedly laundered assets.

Coordination with UCO, CITCO and SEPBLAC: strategic cooperation

The UCO, the Counter-Terrorism and Organised Crime Intelligence Centre (CITCO — Centro de Inteligencia contra el Terrorismo y el Crimen Organizado) of the Ministry of the Interior, and the SEPBLAC are the main actors in the administrative and police investigation of money laundering in Spain. Their activities frequently precede the formal opening of criminal proceedings.

The decision on whether to cooperate with the investigation — and on what terms — is of enormous strategic importance. Active cooperation may lead to the application of the mitigating circumstance of confession under Article 21.4 CP or to an agreement with the Public Prosecution on the characterisation of the offence or the sentence. However, poorly managed cooperation can compromise the investigated person’s position on aspects of the proceedings that could have been effectively challenged.

All communications with the investigative units must be channelled through defence counsel, who assesses the advisability of each step in the context of the overall defence strategy.

Regulatory framework

• Articles 301–304 CP — Criminal money laundering offences. LO 5/2010 and LO 1/2015.
• Article 303 bis CP — Extended confiscation for money laundering.
• Article 304 CP — Corporate criminal liability for money laundering.
• Articles 127–127 octies CP — General confiscation regime under the Penal Code.
• STS 265/2015, of 29 April — Self-laundering: compatibility between predicate offence and laundering.
• STS 149/2020, of 12 May — Standard of proof for the predicate offence in laundering.
• STS 684/2021, of 15 September — Extended confiscation and presumption of innocence.
• Law 10/2010, of 28 April — Prevention of money laundering (administrative obligations, not a criminal offence).
• Regulation (EU) 2024/1624 — EU AML Regulation with direct application (progressive entry into force).

This service is part of our criminal and corporate compliance practice.