Money laundering (blanqueo de capitales) and handling stolen goods (receptación): what they are, penalties and corporate liability

Money laundering (blanqueo de capitales) and handling stolen goods (receptación) are offences relating to property derived from criminal activity. Both may affect business owners, directors, employees and companies that acquire, receive, use, transfer or introduce into the economic system property of criminal origin.

Although they share common elements, they are not the same offence:

• Handling stolen goods focuses on benefiting from the proceeds of an offence against property or the socio-economic order, without having taken part in the offence from which they derive.
• Money laundering is broader in scope and targets transactions aimed at concealing or disguising the criminal origin of property or at helping those responsible for the predicate offence evade its consequences.

What is the offence of handling stolen goods?

A person commits the offence of handling stolen goods if, with intent to profit and knowing that an offence against property or the socio-economic order has been committed, they help those responsible to benefit from its proceeds, or receive, acquire or conceal those proceeds.

The person handling the goods must not have been involved as principal or accessory in the original offence. If they took part in the theft, fraud (estafa), misappropriation (apropiación indebida) or other offence from which the property derives, they will be liable for that offence and not for handling stolen goods.

Knowledge of the criminal origin of the property is required, although it is not necessary to know in detail who committed the offence, when it took place or its precise legal classification. That knowledge may be inferred from objective circumstances, such as:

• a price clearly below market value;
• a clandestine transaction;
• the absence of documentation;
• an origin that the buyer cannot account for;
• the anomalous characteristics of the goods.

Handling stolen goods may concern merchandise, vehicles, equipment, metals, products, money or other proceeds of offences against property or the socio-economic order. Intent to profit covers obtaining any advantage or benefit, including the use and enjoyment of the item itself.

What is the penalty for handling stolen goods?

The basic offence is punishable by imprisonment of six months to two years.

The penalty is imprisonment of one to three years where:

• the goods have artistic, historical, cultural or scientific value;

• they are essential goods, cabling, equipment or components of electricity supply or telecommunications infrastructure, agricultural or livestock products, or instruments used to obtain them;

• the facts are particularly serious owing to the value of the proceeds or the harm that their theft would foreseeably have caused.

Liability is also aggravated where the offender receives, acquires or conceals the proceeds for the purpose of trafficking in them. In this case the penalty is imposed in the upper half of its range. Several sales are not required: it is sufficient that, from the moment of receipt or acquisition, there is an intention to introduce the goods into the economic system through a sale, exchange or similar transaction.

If the trafficking is carried out using commercial or industrial premises, a fine of twelve to twenty-four months (day-fine system) is added. In addition, the court may order the temporary or permanent closure of the premises and disqualification from practising the profession or trade related to the facts.

The prison sentence may not exceed the penalty laid down for the offence from which the proceeds derive. This limit must be taken into account when determining the sentence.

There is no negligent form of handling stolen goods. The conduct requires knowledge of the criminal origin and intent to profit.

What is the offence of money laundering?

Money laundering consists of carrying out certain transactions involving property while knowing that it derives from criminal activity, for the purpose of concealing or disguising its unlawful origin or of helping those responsible for the predicate offence evade the legal consequences.

The offence may consist of:

• acquiring, possessing, using, converting or transferring property of criminal origin;

• concealing or disguising its nature, origin, location, destination, movement, ownership or rights over it;

• carrying out any other act aimed at concealing its origin or at helping those who took part in the criminal activity evade liability.

The property may be money, real estate, vehicles, company shares, financial assets, merchandise, rights or digital assets. Money laundering may also exist where the offence from which the property derives was committed wholly or partly in another country.

The mere possession or use of money derived from an offence is not in itself sufficient to constitute money laundering. The transaction must be capable of concealing or disguising the criminal origin or of introducing the property into the economic system with the appearance of a legitimate origin. For this reason, the following are particularly relevant:

• shell companies;
• fictitious invoices;
• transfers between accounts without economic justification;
• the use of front men (nominees);
• purchases in the name of third parties;
• investments that do not match the company’s actual business.

A prior conviction for the offence that generated the property is not essential. It must, however, be proven that the property derives from a sufficiently identified criminal activity and that there is a link between that activity and the property involved in the transactions.

What is the penalty for money laundering?

Intentional money laundering is punishable by imprisonment of six months to six years and a fine of one to three times the value of the property.

In addition, the court may impose special disqualification from practising a profession or trade for one to three years and order the temporary or permanent closure of the establishment or premises used. Temporary closure may not exceed five years.

The penalty is imposed in the upper half of its range where the property derives from offences related to drug trafficking. The upper half also applies where it derives from certain particularly serious offences, including human trafficking, sexual exploitation, private-sector corruption and offences committed by public officials in certain circumstances.

Money laundering through gross negligence

Money laundering committed through gross negligence is punishable by imprisonment of six months to two years and a fine of one to three times the value of the property. This form does not require the person to have actual knowledge of the criminal origin, but it does require that, given the circumstances of the transaction, they could and should have known of it by observing the basic precautions required.

Gross negligence may arise, for example, where someone agrees to receive money into their account and forward it to third parties in return for a commission, without checking its origin, even though the transaction is clearly anomalous, disproportionate or lacking any commercial explanation.

Is a company criminally liable for money laundering or handling stolen goods?

A legal person (company) may be criminally liable for money laundering where the offence is committed in its name or on its behalf and for its direct or indirect benefit by its legal representatives, directors or persons with powers of organisation and control.

The company may also be liable where the offence is committed by an employee or subordinate in the course of the company’s activities and the conduct was made possible by a serious failure to fulfil the duties of supervision, monitoring and control.

For the legal person, the law provides for:

• a fine of two to five years where the offence committed by the natural person carries a prison sentence of more than five years;
• a fine of six months to two years in all other cases.

Measures such as dissolution, suspension of activities, closure of premises, prohibition from carrying out certain activities, disqualification from contracting with the public sector or judicial administration may also be imposed, depending on the circumstances of the case.

An effective compliance programme (organisation and management model), implemented before the facts, with adequate controls, a supervisory body, reporting channels, a disciplinary regime and periodic reviews, may exclude or mitigate the legal person’s liability where the legal conditions are met. In small companies, the supervisory functions may be assumed by the management body.

Handling stolen goods is not among the offences that give rise to corporate criminal liability. Notwithstanding this, the company may have to return property or sums received and incur civil liability if it has benefited from the proceeds of the offence.

Civil liability, restitution and confiscation

A conviction for money laundering or handling stolen goods may entail the obligation to make good the loss and damage caused. Civil liability may include restitution of the property, repayment of sums and compensation for proven damage.

The criminal liability of the legal person entails its civil liability, on a joint and several basis with the natural persons convicted for the same facts.

Furthermore, anyone who has obtained, free of charge, property derived from an offence, even without having taken part in it and without knowing its criminal origin, may be required to return it or to make good the damage up to the amount received. This is known as the civil liability of a gratuitous beneficiary (partícipe a título lucrativo).

Confiscation of the property, proceeds and gains related to money laundering and, in certain cases, to aggravated handling of stolen goods may also be ordered. Confiscation may extend to property acquired, transformed or used to conceal the profits of the offence and, where the legal requirements are met, to other property whose lawful origin has not been shown.

Practical examples

A company buys vehicles at a price far below market value, without reliable documentation, with tampered chassis numbers and with the intention of reselling them. If those in charge know that they derive from offences against property, the conduct may constitute handling stolen goods aggravated by trafficking.

Money laundering may also arise if a company receives funds derived from a fraud and distributes them among several accounts, issues invoices for non-existent services, uses companies with no real business or acquires real estate in the name of third parties in order to conceal their origin and give an appearance of ownership.

By contrast, a legitimate commercial transaction does not automatically become an offence because it is later discovered that the money used by a customer had a criminal origin. It will be necessary to examine what the company knew, what controls it should have applied and whether it carried out acts aimed at concealing or disguising the origin of the funds.

Where a transaction is unusual, there is no reasonable economic justification or the company is asked to use accounts, companies or invoices to channel third-party money, it must step up its checks and consider whether to refrain from executing the transaction until the origin and purpose of the funds have been sufficiently clarified.

Frequently asked questions