This is one of the most ‘fashionable’ crimes and it's a curious day when it doesn't appear on television or social networks.
But do you know what it is really about? It is possible that you don't, and that is why we are going to explain it to you in a simple way in this post.
What is money laundering?
It refers to conduct that consists of trying to hide the illicit origin of assets. In other words, this crime is always related to another that has been committed previously.
Here is an example:
Antonio is a drug trafficker. This activity gives him a large amount of profits, but he cannot show off too much of this money, because he will end up attracting the attention of the authorities, who will soon start trying to find out the origin of his treasure.
If Antonio, who has no known job, buys a villa in one of the best urbanisations in his town, drives a top-of-the-range car and always wears designer clothes, it won't take him long to realise that something is not right.
To try not to get caught, he buys a mid-priced property and rents it out. He also invests in car wash franchises. This is not very conspicuous and implies that Antonio now has several legal sources of income. This allows him to use the ‘black’ money he has in a more relaxed way.
Money laundering in the Criminal Code
The Criminal Code regulates this offence in Articles 301 to 304, together with others that threaten wealth and the socio-economic order.
Basic type of money laundering
The conduct consists of:
- Acquiring.
- Possessing.
- Using.
- Converting.
- Transferring property.
In order to prevent their illicit origin from being discovered. Always knowing that such property has an illegal origin. Regardless of whether the offence from which they originate has been committed by the person who is also involved in money laundering, or by another person.
Imagine that my brother works in the city council and collects illegal commissions. He gives that money to me and I launder it through a business I own. If I know that this money does not have a legal origin, I am laundering it and I can end up in prison.
Aggravated types of money laundering
Here we have different situations:
Aggravation due to the origin of the property to be laundered.
The penalty will be more severe if the laundered assets come from crimes related to:
- Trafficking in toxic drugs.
- Trafficking in narcotics or psychotropic substances.
Aggravation for belonging to a criminal organisation.
Likewise, the offence of money laundering is particularly serious, which justifies the application of a higher penalty than that of the basic offence, if it is committed by persons who form part of a criminal organisation.
Aggravation due to the personal status of the active subject
There are persons who, because of their position or profession, have a special responsibility to prevent money laundering. These include public officials, financiers and businessmen.
If they commit the offence in question, in addition to a prison sentence, they will also be subject to a special disqualification that will prevent them from exercising their profession or holding a job or public office for a period of between 3 and 10 years.
If the perpetrator of the offence is an authority or an agent of the authority, the disqualification will be absolute and will be extended to between 10 and 20 years.
Penalties for money laundering in the Penal Code
The basic offence is punishable by imprisonment of six months to six years and a fine of up to three times the value of the laundered assets. Both penalties - imprisonment and a fine - always apply.
In the case of the aggravated type, which involves laundering assets derived from trafficking in drugs, narcotics or psychotropic substances, the punishment of imprisonment is imposed in the upper half of the sentence. Likewise, the upper half of the penalty is applied to perpetrators who are part of a criminal gang engaged in this type of activity.
It may happen that the perpetrator of the offence is a legal person. In that case, the penalty to be imposed will be a fine of two to five years, when the offence is punishable by a prison sentence of more than five years if committed by a natural person. In all other situations, the penalty for the legal person is a fine of six months to two years.
Can you commit this offence through recklessness?
The law is clear on this point: in order for this offence to be committed, it is essential that the perpetrator is guilty of malice aforethought. In other words, two circumstances must be present:
- He must know the illicit origin of the goods.
- He must have the will to commit a punishable act.
Do you remember the example I mentioned earlier with the person who worked at the town hall who left money in my hands that came from illegal commissions for me to launder? If I know the illicit origin of the money and I also have the will to launder it, I will be convicted of this crime that we are analysing.
Now we are going to consider that I do not know that the money he has given me comes from an illegal commission and, without being aware of it, I end up laundering it. This would be recklessness, but it is not punishable under this offence.
Serious negligence is another matter, which is punishable by imprisonment of six months to two years and a fine of up to three times the value. Serious negligence is understood to exist when the person committing the offence is in breach of the duty of care required in certain professions.
The evidence will play a very important role in demonstrating whether there really was intent, gross negligence or whether, on the contrary, the person who has ended up carrying out the money laundering conduct had no idea what he was really doing.
Call us
