Money Laundering by Professional Negligence in Marbella

The negligence does not concern the conduct itself, but knowledge of the origin of the assets

Article 301.3 CP does not introduce a form of typical laundering conduct distinct from the others; rather, it shifts the negligent reproach onto a very specific element: unawareness of the criminal origin of the assets. Case law has clarified this structure with precision:

"...actúa imprudentemente quien ignora el origen ilícito de los bienes por haber incumplido el deber objetivo de cuidado que impone el artículo 301.3."

(A person acts negligently when they are unaware of the unlawful origin of assets as a result of having breached the objective duty of care imposed by Article 301.3.) This means that the negligence is not predicated on the manner in which the acquisition, conversion, or transfer of the assets was carried out — which may have been perfectly correct from a technical or operational standpoint — but on the lack of diligence in investigating or suspecting their unlawful origin when the surrounding circumstances required it. It is, therefore, a form of negligence operating on the cognitive element of the offense, not on the element of the act itself.

The standard required: grave negligence, not just any negligence

The provision expressly requires that the negligence be grave — that is, that it amount to a severe, manifest infringement of the duty of care required, not a merely incidental one:

"...la imprudencia grave... requiere, frente a la leve, una mayor intensidad en la infracción del deber de cuidado propio de los delitos culposos."

(Grave negligence, as opposed to slight negligence, requires a greater intensity in the infringement of the duty of care characteristic of negligent offenses.) The most recent case law has insisted that a minor administrative irregularity or the simple formal breach of an internal protocol is not enough: it is necessary to prove the existence of objective and reasonably perceptible indications of the unlawful origin of the funds, which the professional — being able and obliged to notice them — manifestly failed to notice. A March 2024 ruling of the Supreme Court confirmed an acquittal precisely because the established facts did not include indications revealing the illegal origin of the money nor conduct classifiable as gravely negligent, underscoring that the absence of any commission or benefit received from the transaction reinforced the lack of reasonable grounds for suspicion. This requirement of a qualified intensity in the breach of the duty of care therefore constitutes the central ground of our defense in these proceedings.

The professional standard: Law 10/2010 as the benchmark for the diligence required

When the person under investigation is a party subject to money-laundering prevention regulations — a notary, lawyer, administrative agent, real estate agent, or financial institution — the specific content of the required duty of care is built upon the customer due diligence obligations imposed by Law 10/2010 and its implementing regulations: identification of the client and the beneficial owner, special examination of transactions that, owing to their amount, nature or structure, are unusual or lack an apparent lawful economic purpose, and reporting to SEPBLAC of any transactions raising indications or certainty of laundering. The systematic and manifest breach of these obligations — not a mere occasional imperfection in their application — is what case law has come to regard as suitable to satisfy the grave negligence required by Article 301.3 CP, with the additional consequence, for regulated professionals, of a penalty of special disqualification from the exercise of their profession.

A common offense, not reserved to obliged parties

It should be clarified that negligent laundering is not reserved to professionals subject to Law 10/2010: the prevailing case law of the Supreme Court has held that this is a common offense, applicable to any person who, being able and obliged to suspect the unlawful origin of certain funds, acts upon them without the minimum precautions required of any diligent citizen. Nevertheless, the level of diligence required is indeed modulated according to the position and specific knowledge of the individual: a notary, a lawyer, or a bank manager is held to a notably higher standard of diligence than an ordinary private individual unconnected to the transaction, precisely because of their training, experience, and the specific legal obligations of their profession — a distinction we actively pursue when our client lacks such professional qualification.