“Of the receiving stolen goods and the money laundering”, is the title of the Chapter XIV, of the Title XIII, about the crimes against the patrimony and the socioeconomic order, of the Book II, where are established the crimes and its punishments, of the Spanish Penal Code (CP).
It is a chapter formed by seven articles, although in reality are only covered two kinds of crimes, the receiving of stolen goods and the money laundering, like the own title of the chapter remember us, being the rest of them dedicated to regulate exceptional cases, aggravated subtypes and the cases of provocation, conspiration and proposal of the crimes established from the article 301 to the 303.
Let us analyze the said by the precepts.
– Article 298:
The first article that we find is the article 298, where is regulated the known as the crime of receiving stolen goods.
The article 298 says:
“Article 298.
1. Whoever, with profit motive and knowing that a crime against the patrimony or the socioeconomic order has been committed, in which he has intervened neither as author nor as accomplice, helps the persons responsible of this to take advantage of the goods coming from it, or receives, acquires or hides such goods, shall be punished with the punishment of imprisonment from six months to two years.
Shall be imposed a punishment from one to three years of imprisonment in the following cases:
a) When they are things of artistic, historic, cultural, or scientific value.
b) When they are essential items, pipes, wiring, equipment or components of electrical supply infrastructure or of telecommunications services, or of other things destined to the provision of services of general interest, farm or livestock products, or of the tools or means which are used for its obtaining.
c) When the facts have a special gravity, attending to the value of the goods received or to the damages which is likely to have caused its unlawful removal.
2. These punishments shall be imposed in their superior half to whoever receives, acquires or hides the goods coming from the crime for trafficking with them. If the traffic is carried out using a commercial or industrial establishment or premises, shall be imposed, besides, the punishment of fine from twelve to twenty-four months. In these cases, the judges or courts, attending to the gravity of the fact and the personal circumstances of the criminal, may also impose to this the punishment of special disqualification for exercising its profession or trade, for a term from two to five years and accord the measure of temporal or definitive closure of the establishment or premise. If the closure is temporal, its duration cannot exceed the five years.
3. In no case can be imposed an imprisonment which exceeds the established for the concealed crime. If this is punished with a punishment of another nature, the imprisonment shall be substituted by fine from 12 to 24 months, save when the concealed crime has attributed the same or inferior punishment than this; in such cases, shall be imposed to the culprit the punishment of that crime in its inferior half.”
Article 298.1:
Logically, let us start with the first point, indeed, it is where is described the basic type. We are going to explain its content, while we advance with its reading. The article 298 starts with a simple “Whoever…”, this is the active subject, and pay attention to the fact that this is a common crime, since the precept does not add any special quality which limits the persons who may be one, therefore, we can conclude that the crime of receiving stolen goods can be committed by any person, regardless of his job, profession, or any other condition.
We continue reading, and we find something very important, something about which the parties probably are going to talk during the trial. We are referring to two subjective elements of the type, which the legislator has added to the generic malice, the typical behavior must be carried out “with profit motive and knowing that a crime against the patrimony or the socioeconomic order has been committed”. Let us start with the profit motive, does it mean that the author of the crime has to have obtained a profit? No, it means that the author of the crime has to have committed it with the intention of obtaining this profit, in other words, this is a crime of tendency, where is not demanded a result, only to prove that it was the intention of whom carried out the facts.
The other of the elements is, “knowing that a crime against the patrimony or the socioeconomic order has been committed”. It is an element which undoubtedly entails problems proving it, for the normal is not to have direct proofs regarding this, being necessary to make use of indicative evidences, of a set of indirect proofs which as a whole, help to proof the concurrence of this subjective element, as the irregularity of the circumstances surrounding the buying or way of acquisition, its clandestine nature, the improvability of the explanations given in order to justify the possession of the goods unlawfully removed, the personality of the accused acquirer or of the sellers or the low price paid, disproportionated in relation with the real value of the goods acquired, among other indicative evidences (Spanish Supreme Court´s sentence number 8/2000 of 21 January and 1128/2001 of 8 June, among others). The Spanish Supreme Court´s sentence number 925/2013 says: “This crime demands among its requisites as subjective element of the type the knowledge of the commission of a crime against the patrimony. For this, it is not enough with a simple suspicion, doubt or wariness, it is necessary to have the certainty (mental state of certainty) that the acquired objects come from a crime against the property, in other words, that they have an illicit origin (Spanish Supreme Court´s sentence number 1581/1997 of 12 December; 447/1999 of 15 March; 610/1999 of 20 April and 1422/1999 of 6 October and 8/2000 of 21 January), without being necessary that this entails a detailed knowledge of the concrete circumstances of the crime from which the goods come from.
On the other hand, being the knowledge of the illicit origin a subjective element of the type of psychological nature this have to be normally established by induction through logical and unequivocal inferences (Spanish Supreme Court´s sentence 1374/1997 of 12 November), by objective data or proved material circumstances, being the most important the irregularity of the buying, or the low price, in other words, the buying of the object for a price much lower than its price in the market. This knowledge -concludes the Spanish Supreme Court´s sentence number 1128/2001 of 8 June- does not imply all the details of the preceding crime, nor its “nomen iuris”, but it is not enough either the simple suspicion of its illicit origin but rather the certainty of it.”
Summing up, it must be proved that the author of the facts knew with all certainty, that the goods came from a crime against the patrimony or the socioeconomic order, not that he was suspicious, or that he would have been able to know, for this is not going to be enough to justify a conviction. But, it is not going to be necessary to prove that he knew the concrete crime from which the goods came, nor that he knew the legal term used to refer to it, since they are additional elements not mentioned in the type. Being a subjective element, difficult to prove, it is possible to make use of indicative evidences, which as a whole prove its concurrence. It is also important to emphasize, that in the type it is not mentioned as a necessary element, that the crime against the patrimony or the socioeconomic order has to be proven into a trial, thereby, it is going to be possible to convict for a crime of receiving of stolen goods, without previously existing a conviction for the crime against the patrimony or the socioeconomic order from which the goods received came from.
We have to take also into account, that the culprit of a crime of receiving stolen goods cannot have intervened either as author or accomplice, of the crime against the patrimony or the socioeconomic order from which the received goods came from. This means that, in no case there might be a concurrence of crimes between the crime of receiving stolen goods and the crime against the patrimony or the socioeconomic order from which the goods came from, to put it differently, if who carries out the typical behavior established in the type is besides the author or accomplice of the crime against the patrimony or the socioeconomic order from which the goods came from, he cannot be regarded as an author of a crime of receiving stolen goods, he can only be punished for the crime against the patrimony or the socioeconomic order. Remember, that the term author also includes the necessary cooperators and the instigators, and that the necessary cooperators distinguish themselves from the accomplices in the essentiality of their contribution, while the necessary cooperator contributes with something without which the crime could not have been committed, the accomplices contributes with something secondary, not essential, but which contributes to the realization of the facts.
Finishing with the subjective elements of the type, and although we have already said it in passing, it goes without saying that we are before a malicious crime, that is to say, in which the author of the crime knows and wants to carry out the objective and subjective elements of the type, without being possible its commission by imprudence (art. 12 CP).
We continue reading, and we find the objective elements of the type, or what can also be denominated typical behavior. It is punished who, “helps the persons responsible of this to take advantage of the goods coming from it, or receives, acquires or hides such goods.” We can distinguish, therefore, four different actions: 1) To help the persons responsible of the crime to take advantage of its commission; 2) To receive such goods; 3) To acquire such goods, or 4) To hide such goods. It seems a close list, although the first of the typical actions can be carried out in many different ways.
Within this first point of the article 298, it is established an aggravated subtype applicable when any of the circumstances mentioned in it concur, all of them are referred to the object of the crime. In these cases, the crime is punished with imprisonment from two to three years, and not, from six months to two years.
As we have already seen, these circumstances are three:
“a) When they are things of artistic, historic, cultural, or scientific value.
b) When they are essential items, pipes, wiring, equipment or components of electrical supply infrastructure or of telecommunications services, or of other things destined to the provision of services of general interest, farm or livestock products, or of the tools or means which are used for its obtaining.
c) When the facts have a special gravity, attending to the value of the goods received or to the damages which is likely to have caused its unlawful removal.”
Among them, we should stress the second, due to the frequency with which it is produced, since the copper reach high prices in the black market, probably this is the motive why the legislator has harshened its punishment.
Article 298.2:
In the second point of the article 298, we find another aggravated subtype, but this time, the harsher punishment is not motivated by the object of the crime, but by an element which pertains to its stage of exhaustion, for in any case, the crime of receiving stolen goods, in its basic type of the first point, is consummated as soon as it is carried out any of the typical behaviors without being necessary that them produce a specific result. The punishments established in the first point, included that of the second paragraph, shall be imposed in their superior half when the goods coming from a crime against the patrimony or the socioeconomic order are received, acquired or hidden in order to traffic with them.
To traffic, according to the Dictionary of the Spanish Royal Academy of the Language means: “To trade, negotiate with the money and the goods.” or “To make illicit business.”, any of these definitions can help us to determine the scope to the typical behavior.
Besides, if the trafficking is carried out making use of a commercial or industrial establishment or premises, the punishment of fine from twelve to twenty-four months shall be also imposed. In these cases, the judges and courts, the judges and courts, attending to the gravity of the facts and the personal circumstances of the culprit, may be able to impose too the punishment of special disqualification for exercising his profession or industry, and even the temporal or definitive closure of the establishment or premises. Therefore, when the trafficking is carried out making use of a commercial or industrial establishment or premises, there is a punishment which always has to be imposed, the punishment of fine, and there are other two which depend on the criterion of the judge or court trying the facts, the special disqualification for the exercise of profession or industry, and the definitive or temporal closure of the establishment or premise.
Article 298.3:
Lastly, in relation with this article 298, it is imposed a limit to the punishment which can be imposed for the crime of receiving stolen goods, something which can be regarded as not usual.
According to this third point, never can be imposed a punishment of imprisonment, greater than the established for the concealed crime. Let us put an example for understanding this better, if the basic crime of receiving stolen goods is punished with the punishment of imprisonment from six months to two years, and the received goods come from a crime of theft, which is punished with a punishment of imprisonment from six months to eighteen months, in no event, can be punished the author of the crime of receiving stolen goods with more than eighteen months of imprisonment, for otherwise the punishment established for the concealed crime would be exceeded, in our example, the theft.
The other limit which imposes the article 298.3, is referred to the cases in which the concealed crime is punished not with imprisonment, but with other of another nature, in such cases, the punishment of imprisonment established for the crime of receiving stolen goods is going to be substituted for a fine from 12 to 24 months, save when the concealed crime has assigned the same or inferior punishment than this; in such cases, it is going to be imposed to the culprit the punishment assigned to this crime in its inferior half. Here, we can use again the example of the crime of theft, since, if the value of the unlawfully removed does not exceed the 400 euros, the punishment shall be of fine from one to three months. Therefore, in these cases, shall be imposed to the author of the crime of receiving stolen goods the punishment of fine from one to three months in its inferior half, in other words, from one to two months.
– Article 300:
The article 300 says:
“Article 300.
The dispositions of this chapter shall be applied even when the author or accomplice of the fact from which come the goods is incompetent or is personally exempted from punishment.”
Let us try to analyze it. The first thing relevant that we find is, “The dispositions of this chapter shall be applied…”, thereby, we must understand that, the established in this article 300 is applicable to both the crime of receiving stolen goods of the article 298, and for the crime of money laundering of the article 301. We said it, because the position of the article 300, after the 298, crime of receiving stolen goods, and before the 301, crime of money laundering, may give the impression that the established in this article 300 is only applicable to the crime of receiving stolen goods, something which would contradict its wording.
Afterwards it continues, “even when the author or accomplice of the fact from which come the goods is incompetent or is personally exempted from punishment.” In other words, even in the cases in which the author of the crime from which the received goods come from is a minor of age (art. 19 CP), or incurs in some cause of exemption of criminal liability (art. 20 CP), the facts can be punished as a crime of receiving stolen goods (art. 298 CP) or money laundry (art. 301 CP).
– Article 301:
In the article 301 we find regulated the known as crime of money laundry, a precept, therefore, which is destined to punish those behaviors which has as object to introduce in the legal economical traffic goods from criminal activities, like for example, drug trafficking.
Within the ambit of the money laundry, it is also important the Law 10/2010, of 28 April, of prevention of money laundering and of the financial terrorism (Law 10/2010), which “has as object the protection of the integrity of the financial system and other sectors of the economic activity through the establishment of obligations of prevention of the money laundering and the financing of terrorism” (art. 1). The lack of fulfillment of such obligations, is considered an administrative infringement.
Let us first see the content of this article 301, in order to analyze this later.
“Article 301.
1. Whoever acquires, posses, uses, transforms, or transmits goods, knowing that these have their origin in a criminal activity, committed by him or any third person, or carries out any other act for concealing or covering up their illicit origin, or helping the person who has participated in the infringement or infringements to elude the illegal consequences of his acts, shall be punished with the punishment of imprisonment from six months to six years and fine of three times the value of the goods. In these cases, the judges or courts, attending to the gravity of the fact and the personal circumstances of the criminal, may impose also to this the punishment of special disqualification for exercising his profession or industry from one to three years, and order the temporal or definitive closure of the establishment or premise. If the closure is temporal, its duration cannot exceed the five years.
The punishment shall be imposed in its superior half when the goods have their origin in some of the crimes related with the trafficking of toxic drugs, narcotic or psychotropic substances described from the article 368 to 372 of this Code. In these cases, shall be applied the dispositions contained in the article 374 of this Code.
The punishment shall be also imposed in its superior half when the goods have their origin in some of the crimes comprehended in the title VII bis, the chapter V of the title VIII, the section 4º of the chapter XI of the title XIII, the title XV bis, the chapter I of the title XVI or the chapters V, VI, VII, VIII, IX and X of the title XIX.
2. With the same punishments shall be punished, depending on the cases, the concealment or covering up of the true nature, origin, location, use, movement or rights upon the goods or property, with knowledge that they come from some of the crimes expressed in the previous point or an act of participation in them.
3. If the facts are carried out by grave imprudence, the punishment shall be of imprisonment from six months to two years and fine of three times the value of the goods.
4. The culprit shall be punished although the crime from which the goods come from, or the punished acts in the previous points have been committed, wholly or in part, abroad.
5. If the culprit has obtained profits, they shall be confiscated according the rules of the article 127 of this Code.”
Article 301.1:
Following the order proposed by the article, let us start with the first point. At the beginning we find an “Whoever…”, referring to the possible active subject of the crime. As we are able to observe, it is a common crime, which can be committed by anyone, for the active subject is broadly described, without being added qualities which depend on, for example, his profession or job.
We continue reading, and the next that we find is the typical behavior, among which we find also a subjective element of type. It is punished whoever, “acquires, posses, uses, transforms, or transmits goods, knowing that these have their origin in a criminal activity, committed by him or any third person, or carries out any other act for concealing or covering up their illicit origin, or helping the person who has participated in the infringement or infringements to elude the illegal consequences of his acts”. Therefore, in reality this is an open list of actions, in which any action shall fulfill the objective elements of the type to the extend, that it is carried out for concealing or covering up the illicit origin of the goods, or helping the persons who have participated in the infringement or infringements to elude the legal consequences of their acts. It is here, where the essence of the type of money laundering, any behavior for understanding that fulfills the objective elements of the type must have the end of concealing or covering up the illicit origin of the goods, or helping the persons who have participated in the infringement from which they come from to elude the legal consequences of their acts.
Another important aspect which we identify, is that unlike the previous crime of receiving of stolen goods, the author of the crime of money laundry may have participated as author, in the criminal activity from which the goods come from, in other words, it is punished either the money laundry or what the doctrine has denominated “self-laundering”. Pay attention to what is said by the Spanish Supreme Court´s sentence number 4863/2023, in relation with which we have just commented: “The autonomous punishment of the self-laundering, with regard to the previous crime is justified, following the essential ideas stressed in the Spanish Supreme Court´s sentence number 809/2014 of 26 November, because:
From the legal point of view:
a) While in the receiving of stolen goods and the crime of concealment the Legislator explicitly excludes the participants in previous crime, this exclusion has never been incorporated to the description of the type of money laundering. On the contrary, since the reform of 2010, it is expressly punished the money laundering committed by the author of the previous crime.
b) Despite the proximity of the money laundering with the receiving of stolen goods, obviously the money laundering is graver than the receiving of money for the legislator due to the punishment with which they are respectively punished.
c) The greater autonomy of the money laundering from the previous crime, with regard to the receiving of stolen goods, results from any lack of limitation of the money laundering´s punishment with respect to the previous crime, as it is established for the crime of concealment and the receiving of stolen goods in the articles 452 and 298.3 CP.
…
The essence of the type is, therefore, the expression “with the end of concealing or covering up the illicit origin”. End or object of the behavior which should be present in all the behaviors described by the type.
They are not, consequently, two groups of different behaviors, those of mere acquisition, possession, utilization, or transformation of goods coming from a criminal activity, knowing whence they came from, and the realization of any other act upon such goods with the object of concealing or covering up their illicit origin, what would entail an excessively broad interpretation of the typical behavior, and the impossibility of eluding the infringement of the principle “non bis in idem” in the cases of self-laundering. On the contrary, the art. 301 CP only typifies a modality of behavior which consists in carrying out acts aimed in any case to conceal or cover up goods coming from a crime, or to help the author of this activity to elude the corresponding punishment.
With this interpretation, more restrictive, we avoid excesses, like punishing for self-laundering the person liable of the preceding criminal activity, for the mere fact of acquiring the goods which are necessary and immediate consequence of the commission of his crime. Or to consider laundering the mere use of the money corresponding to an unpaid quote in a tax crime, for ordinary expenses, without concurring any aim of concealment nor the obtention of a seemingly legal title on goods coming from a previous criminal activity, which is what constitutes the essence of the behavior punished with the crime of money laundering.”
The broadness with which is described the typical behavior of the crime of money laundering, has more consequences, the criminal continuity cannot be appreciated save in exceptional cases. The Spanish Provincial Court of Barcelona´s sentence number 1179/2023 says: “With this, we have that:
1.- In the crime of money laundering we are before what a doctrinal sector denominates “types which include global concepts”, in other words, plural facts included in only one criminal figure, what obliges to consider that a variety of punishable actions of similar content do not constitute a continuous crime bur rather only one penal infringement.
2.- The fact that the article 301 CP does not contain a plural wording of the acts which integrate the criminal behavior, like in the penal type of the article 368 (drugs trafficking), does not exclude the fact that we are before a penal type which includes global concepts.
3.- The crime of laundering is executed in the practice through reiterated acts, thereby the capital coming from a crime are generally incorporated into the licit market little by little with the end of avoiding suspicions.
4. The type of the article 301 has to be contemplated as only one crime and not as a continuous crime.
5.- Before the description of various acts executed during a period of time is opted to consider them as a typical unity of action conceived as only one crime.”
Before we said that, among the objective elements of the type there was one subjective, “knowing that these have their origin in a criminal activity, committed by him or any third person”. Undoubtedly, to prove the concurrence of this subjective element is going to be always difficult, regardless of whether the active subject has participated or not in the criminal activity whence the goods come from, for the article 301 does not demands a previous conviction of the criminal activity, therefore, in these cases, we are going to need to make use of indicative evidences in order to consider that the author of the laundering knew this circumstance. The Spanish Provincial Court of Valencia´s sentence number 2513/2023 says: “The Spanish Supreme Court´s sentence number 801/2010, of 23 September points out that “for the prosecution of crimes of “laundering” of goods of illegal origin, like the present, this class of indicative proof, departing from the initial affirmation that it is not necessary the previous conviction of the base crime from which comes the capital object of the laundering (Spanish Supreme Court´s sentences of 27 January 2006 and 4 June 2007, among others), appears as the more suitable means and, in the major part of occasions, the only possible for having accredited its commission (thus the Spanish Supreme Court´s sentences of 4 July 2006 and 1 February 2007, for example), being designates as more usual indicative evidences in this class of infringements:
a) The importance of the amount of money which has been launder.
b) The link between the authors with criminal activities or groups or persons related with them.
c) The unusual or disproportionated of the patrimonial increase of the subject.
d) The nature and characteristics of the economic transactions carried out, for example, with the use of abundant money in cash.
e) The inexistence of licit justification of the incomes which allow the realization of these transactions.
f) The feebleness of the explications about the licit origins of these capitals.
g) The existence of “dummy” corporations or financial arrangements which are not supported by proven licit economic transactions.”
Continuing with subjective elements of the type, it is evident that this is a malicious crime.
We continue reading, and the next thing that we find is the punishment, which will have a fixed part, and other which will depend on the judge´s or court´s criterion, taking into account the gravity of the fact and the personal circumstances of the delinquent. On the one hand, the fixed is the punishment of imprisonment from six months to six years and the fine of three times the value of the goods, and on the other hand, the one which depends on the judge or court´s criterion are the punishment of special disqualification for exercising a profession or industry from one to three years, and the temporal or definitive closure of the establishment or premise, we understand that latter can only be imposed when the money laundering has taken place in a establishment or premise.
This first point of the article 301 is formed by more paragraphs, the second is an aggravated subtype, since it establishes the imposition of the punishment of the basic type of the first paragraph in its superior half, when the goods has its origin in some of the crimes related with the drug trafficking, described in the articles 368 and 372 of this Code. The mention which is made in the article 374, is referred to the confiscation of the goods coming from the crime.
The last paragraph of this article 301, is another aggravated subtype which also requires the imposition of the punishment in its superior half, in this case when the goods have their origin in some of the crimes comprehended in the title VII bis, the chapter V of the title VIII, the section 4ª of the chapter XI of the title XIII, the title XV bis, the chapter I of the title XVI or the chapters V, VI, VII, IX and X of the title XIX.
Article 301.2:
In the second point of the article 301, we find another crime which seems completely independent to the established in the first point, although it is also true, that they share the punishments.
In this case, the typical behavior consists in “the concealment or covering up of the true nature, origin, location, use, movement or rights upon the goods or property”. As we can observe, this is a close list. And, in spite of saying that it seems a completely different behavior to the established in the first point, though sharing their punishments, it is clear, that what is described in this second point is an appendix of the above, a variant of the main crime of money laundry.
It is also a malicious crime, with the particularity that the legislator has added an element to the generic of the malice, the author of the typical behavior should carry it out “with knowledge that they come from some of the crimes expressed in the previous point or an act of participation in them.” Like before, when we talked about the crime of money laundry of the first point, the judges and courts will have to make use of indicative evidences in order to determine the concurrence of this subjective element of the type.
Article 301.3:
In the third point of the article 301, is fulfilled the established by the article 12 CP, the imprudent actions and omissions shall only be punished when the law expressly states it.
In order to punish the behaviors typified in the first and second point of this article 301, is necessary a grave imprudence, what is translated in an infringement of the duties of care more basic, though the standard of diligence is stricter when who commits the crime is one of the subjects subjected to the Law 10/2010. The Spanish Supreme Court´s sentence number 158/2023 of 8 March says: “There is no doubt, however, that the grave imprudence, when they are obliged subjects according to the non-penal normative, must be formed, as elements of particular relevance in the assessment, by the strictest normative standards, which are applicable to them; while when, like here, the tried behaviors are attributed to those who do not maintain with respect the financial transactions carried out a special relation of vigilance and/or control, only can be identified the existence of grave imprudence in those cases in which is noticed a complete and rude omission of any class of the elemental precautions in relation with the origin of the mentioned funds.”
Article 301.4:
In this fourth point of the article 301, is evidenced the preoccupation of the legislator with the transnational crime, since it could be thought that if the crime whence the goods come from and the acts of laundry were committed outside Spanish territory, the Spanish courts would not be competent to try the facts, what in principle, without knowing the content of the extradition agreements applicable, would allow the enjoyment of the goods with total impunity.
But this is not the case, this fourth point is clear, “The culprit shall be punished although the crime from which the goods come from, or the punished acts in the previous points have been committed, wholly or in part, abroad.”
Article 301.5:
This fifth point is above all aimed to the cases in which the money laundry has been carried out by imprudence, since when a crime is committed by imprudence, the article 127 CP gives to the court and judges the option of ordering the confiscation of the profits coming from this crime. An option which is not given by the article 127 to the malicious crimes, in which the confiscation of the profits must always be ordered. Therefore, the fifth point changes the general rules of the article 127 for the imprudent crimes, obliging to the judge and courts to order the confiscation of the profits in all cases.
– Article 302:
Firstly, let us read this article 302:
“Article 302:
1. In the cases established in the previous article the punishments of imprisonment shall be imposed in their superior half to the persons which pertain to an organization dedicated to the ends pointed out by them, and the punishment superior in degree to the bosses, administrators or persons in charge of the referred organizations.
The punishment shall be also imposed in its superior half to who, being obliged subjects according to the normative of prevention of money laundry and of the terrorism financing, carry out any of the behaviors described in the article 301 exercising his professional activity.
2. In such cases, when according to the established in the article 31 bis it is responsible a legal person, the following punishments shall be imposed:
a) Fine from two to five years, if the crime committed by the physical person has a punishment of imprisonment of more than five years.
b) Fine from six to two years, in the rest of the cases.
Attending to the rules established in the article 66 bis, the judges and courts may impose the punishments from the letters b) to g) of the point 7 of the article 33.”
Article 302.1:
Let us now interpret its content. The first that we find is, “In the cases established in the previous article…”, hence, we should understand that the established in this article 302, is only applicable to the cases of money laundry regulated in the article 301.
We continue reading, and it says that, “the punishments of imprisonment shall be imposed in their superior half…”, thus, this is an aggravated subtype of the basic crimes of money laundry (art. 301.1 and 301.2) of the article 301.
Later, it adds “to the persons which pertain to an organization dedicated to the ends pointed out by them, and the punishment superior in degree to the bosses, administrators or persons in charge of the referred organizations.” Therefore, what justifies the application of the aggravated subtype is the fact that the active subject pertains to an organization dedicated to the money laundry, in other words, to a criminal organization, whose definition we find in the article 570 bis, “For the purposes of this Code it is understood by criminal organization the group formed by more than two persons with stable character or for undefined time, which in a concerted and coordinated way divide among themselves different tasks or functions with the aim of committing crimes.”
Besides, we find a superaggravated subtype, for the punishment imposed is going to be the superior in degree, when the punished are the bosses, administrators or persons in charge of the referred organizations.
Here, we have a problem, since the membership to a criminal organization is already punished in an independently by the types of the article 570 bis and art. 570 ter. We cannot use two types for punishing the same behavior, since it would be an infringement of the principle non bis in idem, according to which, it is not possible to punish more than once the same person for the same facts. How can we solve this problem? We find the solution in the second paragraph of the second point of the article 570 quarter, which establishes that, in any case, when the behaviors established in such articles is included in another precept of the CP, it is going to be applicable the fourth rule of the article 8, which establishes the criterion of alternativeness.
The legislator has wanted that, within the ambit of the criminal groups and organizations, the membership to them justifies the application of the gravest punishment.
In the second paragraph of this first point of the article 302, we find another aggravated subtype, which like the previous, also depends on the personal qualities of the active subject, it imposes the punishment in its superior half when the author of the facts are obliged subjects according to the normative of prevention of money laundering and the financing of terrorism. The obliged subjects are those included in the article 2 of the Law 10/2010.
Article 302.2:
In the article 302.2 bis, is expressly punished the legal persons when they are liable according to the article 31 bis, and besides, this establishes their punishments.
– Article 303:
The article 303 says:
“Article 303.
If the facts established in the previous articles are committed by businessman, financial intermediary, physician, public servant, social worker, teacher or educator, exercising his job, profession or trade, shall be imposed, besides the corresponding punishment, the special disqualification for public employment or job, profession or trade, industry or commerce, from three to ten years. The punishment of absolute disqualification shall be imposed from ten to twenty years when the referred facts are committed by authority or agent.
To that effect, it is understood that are physicians the doctors, psychologists, the persons in possession of healthcare degrees, the veterinarian, the pharmacist and their shop assistants.”
Remember that, the articles referring to the receiving of stolen goods (art. 298) and money laundry (art. 301), already establish the possibility that the judges or court attending to the gravity of the facts and the personal circumstances of the author, may impose the punishment of special disqualification. But the article 303, is different, since its application is always mandatory when the active subject has any of the qualities which it mentions.
– Article 304:
The article 304 says:
“Article 304.
The provocation, the conspiracy and the proposal to commit the crimes established from the article 301 to 303 shall be punished, respectively, with the punishment inferior in one or two degrees.”
According to the articles 17 and 18 CP, the provocation, conspiracy or proposal are only punishable when the CP expressly states it.
Víctor López Camacho.
Twitter: @victorsuperlope.
More in my website: www.victorlopezcamacho.com