Not every transfer of illicit money is laundering: the concealment-purpose requirement

STS 123/2026, of 12 February, appeal no. 3103/2023, upholds a conviction for a continued offence of documentary forgery in a medial concurrence with fraud and for money laundering, but takes the opportunity to clarify the contours of the offence under Article 301 of the Criminal Code. The ruling is of direct interest for the defence in economic crime cases because it clearly delineates which conduct falls within the offence and which does not.

What Article 301 CP requires

Money laundering is not synonymous with holding or using unlawfully obtained funds. The Supreme Court recalls that Article 301 CP is a curtailed-result offence: the wrong does not lie in mere contact with the funds, but in the orientation of the conduct. The acts must be aimed at concealing or disguising the unlawful origin of the assets, or at assisting the person who obtained them to evade the consequences of the predicate offence.

This teleological structure has an important practical consequence: not every transfer of illegally obtained money constitutes laundering. Mere consumption, passive holding or ordinary use of illicit funds does not satisfy the offence if the intent to conceal is absent. The Chamber insists that extending the concept beyond its legal limits would breach the principle of criminal legality.

The non bis in idem barrier

One of the most frequently problematic situations in practice is that of the author of the predicate offence who is also charged with laundering the funds they personally obtained — so-called self-laundering. The requirement of an autonomous concealment purpose acts in these cases as a barrier against a breach of the non bis in idem principle.

If the person merely possessed or spent the proceeds of their own crime, punishing them also for laundering would amount to sanctioning the same criminal conduct twice. Only where they carried out additional acts — covert transfers, asset conversions, use of intermediaries — specifically aimed at making the money harder to trace or at concealing its provenance, does laundering operate with its own autonomy and cumulative punishment become constitutionally admissible.

Medial concurrence with forgery and fraud

In the case resolved by STS 123/2026, laundering is found within the framework of a medial concurrence with the offences of documentary forgery under Article 390 CP and fraud under Articles 248 and 250 CP. A medial concurrence — Article 77 CP — requires that one offence be the necessary means of committing the other. The Chamber examines the overall pattern of transactions and finds that the laundering conduct bore a functional relationship with the prior activity of forgery and fraud, without that diluting the concealment-purpose requirement: both elements — means and end — must be established independently.

This concurrence framework has penological relevance: the regime of Article 77 CP may produce a sentence higher or lower than would result from punishing the offences separately, so correct classification directly affects the length of the sentence.

What indicators the courts use to find concealment

The concealment purpose is a subjective element of the wrong and is therefore normally established through circumstantial evidence. Courts take into account, among other factors: the complexity of the financial transactions relative to the accused's economic profile; the use of shell companies or nominees with no real activity; the splitting of transfers below mandatory reporting thresholds; repeated conversions of assets; and discrepancies between the declared and actually available patrimony.

The absence of a reasonable explanation for the origin of the funds does not by itself amount to a concealment purpose, but it can reinforce a body of circumstantial evidence that is already strong on other grounds. The defence must challenge each indicator individually and argue, where applicable, that the totality does not allow the accusatory conclusion to be drawn with the certainty required.

Relevance for the defence in economic crime

The doctrine of STS 123/2026 has a direct impact on the defensive strategy in any case where money laundering appears as an additional charge alongside another economic offence. Three lines of work are particularly relevant:

First: establishing that the transactions in question lacked the concealment purpose required by Article 301 CP. This requires analysing each specific act — not the accused's overall economic activity — to show that it responded to an ordinary or commercial purpose, unconnected with any intent to conceal.

Second: where the accused is also the author of the predicate offence, arguing that the laundering charge lacks autonomous substance separate from the conduct already punished. Breach of the non bis in idem principle is a primary ground of challenge that can undermine the additional accusation.

Third: in a concurrence context, verifying that the classification chosen — medial or real — reflects the factual relationship between the offences and is not being used to artificially aggravate the penological outcome. Correctly framing the concurrence can make the difference between significantly different sentences.