Criminal Defense of AML Obliged Entities (Art. 301 CP and Act 10/2010)

The obliged entities defined in Article 2 of Act 10/2010, of 28 April, on the prevention of money laundering and terrorist financing, bear a singular compliance burden. Credit and financial institutions, notaries, registrars, lawyers and court agents when intervening in certain transactions, real estate agents, jewelers and dealers in precious metals and stones, casinos, auditors and tax advisors, among others, must apply customer due diligence measures, identify the beneficial owner, examine suspicious transactions and report them to SEPBLAC (the Executive Service of the Commission for the Prevention of Money Laundering and Monetary Offenses). Failure to meet these duties may lead to two very distinct sanctioning levels that should not be confused.

The dual regime: administrative and criminal

On the administrative level, Act 10/2010 itself classifies very serious, serious and minor infringements (arts. 51 to 53). Very serious infringements —such as failing to report suspicious transactions or breaching the duty to refrain— may give rise to fines whose maximum limit reaches the greater of several magnitudes: 10% of annual turnover, twice the economic value of the transaction, or ten million euros. SEPBLAC handles the investigation and the Prevention Commission issues the decision, on a proposal from its Secretariat. This regime sanctions the prevention failure regardless of whether actual laundering occurred.

On the criminal level, Article 301 of the Criminal Code punishes anyone who acquires, possesses, uses, converts or transmits assets knowing that they originate from criminal activity, or carries out any act to conceal or disguise that unlawful origin or to assist the person who took part in the offense in evading the legal consequences. The basic conduct is punished with imprisonment of six months to six years and a fine of one to three times the value of the assets. It also entails special disqualification from practicing the profession or trade for one to three years and, where applicable, the measures of art. 302.

Aggravated forms and the negligent variant

The second paragraph of art. 301.1 provides for the upper half of the penalty when the assets derive from drug trafficking offenses or corruption offenses (bribery, embezzlement, fraud, among others). Art. 302 aggravates the penalty when the offender belongs to an organization dedicated to laundering or is its leader, manager or person in charge, and also imposes the penalty in its upper half on the obliged entity that commits the conduct of art. 301 in the exercise of its professional activity. The same art. 302, in its paragraph 2, expressly provides for the criminal liability of the legal person (art. 302.2), with a fine proportional to the penalty of the offense and, potentially, those of art. 33.7 CP.

Of particular importance for obliged entities is art. 301.3 CP, which punishes negligent laundering with imprisonment of six months to two years and a fine of one to three times the value. The case law of the Supreme Court has accepted that a professional or entity who, by seriously breaching their due diligence duties, facilitates the circulation of funds of criminal origin may be liable under this form. This is the main risk zone: the boundary between a merely administrative breach of Act 10/2010 and criminally relevant gross negligence.

The position of the compliance officer and internal control body

Act 10/2010 requires the appointment of a representative before SEPBLAC and the establishment of an internal control body. This position does not turn the compliance officer into an automatic guarantor of any laundering committed through the organization. Their potential criminal liability requires proof of their own wilful or grossly negligent conduct and a genuine guarantor position with the actual capacity to prevent the result. The defense must precisely delimit the scope of their functions, the resources available to them and the internal decision-making chain.

Defense strategy

Defending an obliged entity or its compliance officer requires working on two fronts simultaneously. In the administrative file, it is advisable to establish the implementation and effectiveness of the due diligence measures, compliance with the reporting duty and the proportionality of the penalty. In the criminal proceedings, the key is to demonstrate the absence of intent and gross negligence: that the entity or professional acted in accordance with reasonable protocols and that the failure, if any, falls within the scope of administrative non-compliance and not the offense of art. 301 CP. The existence of an effective compliance program (art. 31 bis CP) is decisive for the legal person.

The firm undertakes the full defense of financial institutions, notaries, law firms, real estate agencies and jewelry businesses against SEPBLAC inspections, sanctioning files and criminal proceedings for laundering. For a case assessment, you may contact us at 91 078 65 74.