Recently, the National Court has issued its Judgment No. 36/2018, dated October 18, 2018, by which it acquits several defendants (individuals) for the crimes of unlawful association of art. 515.1 of the Criminal Code and the crime of money laundering of articles 301.1 and 302.1 in relation to art. 74 of the Criminal Code for which they had been accused and also acquitted several companies that had also been accused, the Court also agreed that the dissolution of another series of companies as had been requested by the Public Prosecutor’s Office in its indictment was not appropriate.
The facts that gave rise to the proceedings and that serve as the basis for the prosecution’s accusation derive from a series of operations in which several individuals, mostly of Russian origin and some Spanish, were involved between 1996 and 2008, as a result of other Russian citizens (who are not being tried in these proceedings) settling in the 1990s in the town of Marbella (Malaga) and carrying out business activities both in Spain and abroad, creating commercial companies and receiving capital that they invested in Spain – from bank accounts opened in different countries. For all this, they counted on the services of legal, accounting and tax professionals and the assistance of Russian translators and secretaries.
The defendants in the present proceedings allegedly provided cooperation or professional assistance to receive in Spain, manage or reinvest in Spain, funds originally coming from bank accounts abroad and resulting from criminal activities of the criminal organizations Tambovskaya and Malyshevskaya (among others), allegedly, murder, arms trafficking, extortion, swindling, document forgery, influence peddling, bribery, prohibited negotiations, smuggling, drug trafficking, crimes against the Public Treasury, fraudulent decapitalization of companies, beatings for hire (injuries) and conditional threats).
The Judgment in question states in its Proved Facts that the participation of the aforementioned persons in the aforementioned events has not been proven, and likewise, it points out that it has not been proven that the persons tried in this Judgment have participated in the management and effective control of the companies indicated, as stated by the public accusation.
The main arguments put forward by the National High Court in the Judgment under comment in order to support the acquittal of the aforementioned individuals and legal entities for the crime of money laundering are, firstly, that although the criminal organizations Tambovskaya and Malyshevskaya existed, it does not consider it proven that the defendants belonged to them, nor to another criminal association dedicated to laundering assets obtained from the criminal activity of those two.
Likewise, the National Court affirms that “neither has it been proven that the defendants participated in the business and legal acts of which they are accused, knowing that they were acquiring, possessing, using, converting or transferring assets that had their origin in a crime or criminal activity or that they were concealing or covering up the illicit origin of any asset, or helping the person who had participated in the infraction or infractions, to evade the legal consequences of their acts, not even in a reckless manner or by placing themselves in a situation of deliberate ignorance. ”
The Audiencia Nacional makes an interesting assessment in relation to the criminal continuity of the crime of money laundering as stated by the prosecution and, supported by the doctrine of the Supreme Court in its STS 974/2012, of December 5, 2012, indicates that the facts described by the prosecution, although not considered proven, are not continuous crimes but a single crime, since the objective pursued by the organization, money laundering, could not be achieved with a single act, but required multiple acts to achieve it, would not be continuous crimes of money laundering but a single crime, since the objective pursued by the organization, money laundering, could not be achieved with a single act, but required multiple acts to achieve the integration of the funds of criminal origin into the lawful legal traffic.
Continuing with the arguments presented by the Audiencia Nacional to support the acquittal, the Court recalls in the first place, in relation to the subjective element of the crime of money laundering 301.1 C.P., which supposes the knowledge of the origin of the assets, -that they come from a crime-, and recalls that the malice required from the author and that must be proven derives from the existence of sufficient data or indications to be able to affirm the knowledge of the origin of the assets of a crime, having admitted the eventual malice as a form of guilt.
The court also recalls that the objective element of the offense is the existence of the predicate offense. The laundering offense is based on the predicate offense. However, the Court understands that it is not proven that the funds and assets that the defendants invested and surfaced in Spain had their origin in a criminal activity or that they were related to any criminal activity, which is an essential element of the money laundering crime.
Thus, the Audiencia Nacional states that in the present case, “neither in the broad sense that the term ‘criminal activity’ has, we can conclude from the evidence that the assets that the defendants acquired, converted, transferred or, in short, with which they carried out or collaborated in carrying out commercial or mercantile activities in the manner described by the prosecution, had their origin in any criminal activity, neither perpetrated by them nor by third parties, nor by the connected criminal associations called Tambovskaya-Malyshevskaya, nor therefore, that they could represent that there was a relation of these goods with criminal activities or the existence of another origin of the money that was not licit. ”
The Court justifies its statement by saying that these were professional actions carried out by the defendants within the framework of their activity and that “No matter how rare, uneconomic or unconventional the commercial or mercantile operations in which the defendants were involved may be, if the origin of the assets acquired, converted, transmitted, hidden or concealed is not proven, there is no crime of money laundering”.
The Court also affirms that, although the illicit origin of the assets has not been proven and therefore there is no crime of money laundering, the prohibition of “non bis in idem” would prevent the application of the aggravated subtype of article 302 and the illicit association, as requested by the Public Prosecutor’s Office.
All this, in spite of the fact that police intelligence reports, which were ratified in the oral trial by the National Police and Civil Guard agents of the UDYCO who elaborated them, affirmed that the defendants had links with each other and with the criminal organizations Tambovskaya and Malyshevskaya. However, the Court concludes that “this evidence, when evaluated together with the rest of the evidence, does not allow to reach an unequivocal conviction of guilt with respect to the defendants”.
Since the Audiencia Nacional does not appreciate one of the necessary and essential elements in the criminal type of money laundering, which is that the goods or funds must come from a previous criminal activity (objective element), it leads the Court to acquit all the defendants.
