Crimes against Heritage and Socioeconomic Order

Money Laundering

The Criminal Code sanctions as money laundering those conducts that tend to incorporate to the legal traffic the goods, money and profits obtained in the realization of criminal activities, so that once the process of laundering of the assets has been overcome, they can be legally enjoyed without being sanctioned.

Money laundering usually presents evidentiary problems in relation to two aspects: the criminal origin of the money or property and the knowledge that the author must have of that criminal origin. The type requires the perpetrator to carry out certain behaviors described in Article 301 CP, knowing that the laundered goods or money “originate from a criminal activity. This requires proof that the assets originate from a serious crime and that the perpetrator knew about it. Jurisprudence has pointed out ( STS 501/2019, October 24, among others) that “money laundering is not a crime of suspicion: it requires, as any other, proof of the concurrence of each and every one of its typical elements, among which is the criminal (and not merely illicit, illegal or anti-legal) origin of the goods”.

Jurisprudence has established that it is not necessary to justify a previous conviction for the crime from which the laundered property or money originated, it being sufficient to establish the relationship with criminal activities and the absence of another possible origin of the money, based on the other available data. In other words, given the indications, the reasonable conclusion is its criminal origin ( SSTS 154/2008, of April 8; 72/2016, of July 21).

Swindle

As indicated by the jurisprudence in numerous judgments ( STS No. 499/2019, of 23 October; 665/2018, of 18 December, 590/2018, of 26 November, 832/2014, of 12 December or 121/2013 of 25 January): Ordinarily, in the crime of fraud, the deception precedes the conclusion of the contract, and the active subject of the crime knows beforehand that he will not be able to fulfill his service, and simulating the opposite, causes an error in the counterpart, who fulfills his service, which produces the patrimonial displacement that consummates the crime.

The fraudulent modality attributed is that of the so-called “criminalized legal transactions”, in which the lure used by the fraudster is the contract itself, with an appearance of regularity, through which and previously the fraudster intends to take economic advantage of the compliance of the other party and of his own non-compliance.

If the viability from the beginning is illusory because it is not built on solid foundations so that the money invested does not have the slightest support to be returned, we will find ourselves with the commission of a crime of fraud. Otherwise, we could even be facing a simple breach of contract. 

Misappropriation

The jurisprudential interpretation of the Supreme Court with respect to this crime (SSTS 513/2007, of 19 June, 228/2012, of 28 March and 664/2012, of 12 July, among many others) indicates that article 252 of the current Criminal Code sanctions two different modalities of misappropriation, The classic misappropriation of other people’s personal property by the legitimate holder who incorporates it into his patrimony for profit, or denies having received it and the distraction of money that the defendant has at his disposal, but has received with the obligation to give it a specific destination.

The crime requires as elements of objective type:

That the author receives it by virtue of deposit, commission, administration or any other title that produces the obligation to deliver or return another of the same kind and quality.
that the author performs an act of disposition on the object or money received that is illegitimate insofar as it exceeds the powers conferred by the title of receipt, giving it by virtue of it a definitive destination other than that agreed upon, imposed, or authorized
that as a consequence of that act, a damage is caused to the taxpayer, which will ordinarily make it impossible, at least temporarily, to recover it.

And, as elements of the subjective type, that the subject knows that he exceeds his faculties by acting as he does and that with it he suppresses the legitimate faculties of the holder over the money or the thing delivered.