After the terrorist attacks of 11-S, the European Parliament and the Council adopted Directive EC 2005/60 on the prevention of the use of the financial system for money laundering and terrorist financing . Though this Directive is not criminal in nature, con-tains, however, mandatory rules I care measures, internal control duties and similar for the prevention and detection of money laundering operations, which was-were incorporated in our country by the LO 10/2010, of 28 April, the regulation-approved by Royal Decree 304/2014 of 5 May-just come into force with remarkable retro-so. Although this law also describes crimes has nonetheless indirect criminal repercussions, it is an important benchmark for the imputation of willful or reckless laundering offenses. The Directive also defined core concepts of laundering offenses capita-les, such as of "criminal activity" and "lithos-serious" of those who have come from the property subject to bleaching. Although the Directives will merely laundering the behaviors performed "intentionally" and are performed on well-nes from "serious crimes"-as does the Convention on Organized Crime in Palermo 2000 - Spain had already decided an- ing to go beyond and include in their legislation in Article 301 of the Penal Code offenses bleaching of goods from any crime and recklessly committed. Moreover, in its expansive effort, the legislature decided in the reform of 2010 expressly incorporate criminal behaviors or self self laundering encubrimien-to and expand the tenure criminal use of property or behaviors from a crime . This unprecedented expansion of the money laundering offense has caused technical problems difficult to solve and, consequently, a very heterogeneous case, difficult systematization. Interestingly, however, our negative impact upon peculiarities, some-times, to international judicial cooperation, which is generally based on the principle of double incri-determination, a principle that is not met in many cases they are just criminal in Spain.
Content of fraud
In countries like Spain and France, for example, in which the property subject to money can come from any crime simplifies the con-tent of fraud, since the knowledge that the property was derived from criminal activity, without more nuanced enough . But nevertheless subsist two problems: 1) the required level of precision of the knowledge that the property was derived from criminal activity; and 2) evidence that knowledge.
On the level of accuracy required jurisprudential there are two lines to be decanted slowly for the second. The first line-extend-does not require convictions in the record as pro-proved fact criminal activity originating goods-trafficking, corruption, economic crimes, etc.-but only minimal identification the existence of a criminal activity (SSTS 928/2006 of 5 October and 145/2008 of 8 April, for example). The second-line-restrictive-jurisprudence requires that the sentence was concrete, at least, the nature of the prior offenses from which the goods the subject of money-tions: will be identified in the proven facts, even so mini-mum, the origin of the property crime and then evaluating the evidence of their existence. This identification and testing are essential elements for sea after affirming that the author knew the criminal origin [of the goods] (STS 189/2010 of 9 March). In the objective, either juris-prudential lines requires that there be a prior felony conviction, nor, therefore, that knowledge of this fact is part of the criminal intent to launder.
Moreover, both lines of case law make it possible to ad both direct intent as possible and as a form of this, known in common law willful blindness or "deliberate ignorance." For possible fraud, the Spanish TS maintains that sufficient criminal suspect origin and act accordingly (SSTS 202/2007 of 20 March and 28/2010 of 28 January), or, more precisely, that the author seriously considered and accepted as highly probable that the money originated in a crime (STS 557/2012 of 9 July). As for the "willful ignorance", STS 1257/2009, of December 2, among many others, said that there is a cer-duty cone that prevents blind eye to suspicious transactions . This interpretation slashing allowed the interpretation, taking into account that there is a reckless offense that perfectly covers crime area. This line of jurisprudence is coherent, however, consistent with our TS that fraud is to know the dad abnormality of the operation and to exercise reasonable inference that the property was derived from criminal activity (STS 16/2009 of 27 January) . Yet, however much you want to extend the criminal offense detrimental to the reckless, the fact is that, according to the unanimous jurisprudence, fraud tie-ne to refer to the goods come of criminal activity, not only from unlawful administrative standpoint. Consequently, the circumstantial evidence must also include this element of intentional type: origin-not simply criminal illegal-you-of the property subject to bleaching.
The proof of fraud
The evidence of fraud is generally circumstantial . Jurisprudence our TS has established some evidence, but not closed nature: unusual capital gains, lack of legitimate business to justify the increase or operations, weak explanation of their origin, handling cash in significant amounts, use of front companies, and generally foreign to the usual practice operations. Our jurisprudence refers, then, to the reasonable inference that the goods-tions derived from criminal activity, from the abnormality of the operation , something dangerously close to a presumption of fraud, the mode contained in the CP French, which expressly refers to the presumption that the goods are the direct or indirect proceeds of a crime or offense when material, legal or financial terms of the transaction may have no justification to hide the origin or the beneficial owner of the goods . This assumption is not far from the jurisprudence of the Spanish TS, but with the advantage there, from the point of view of the principle of legality, if provided for by law. It is known that in our criminal justice system and constitutional, however, no presumption of criminal intent is supported by considered contrary to the principle of guilt. Finally - last but not least - the unanimous jurisprudence has also stated that the fraudulent laundering is not only to know the criminal origin of goods, but also intend to contribute to its hidden or processing (for all STS 1025/2009 of 22 October).
Again with the tax fraud and money laundering: the recent Supreme Court 182/2014, of 11 March
Until his judgment 974/2012, of 5 December, the Supreme Court had not ruled onto the large and prolonged doctrinal debate on whether the share defrauded the upper € 120,000 Treasury is an asset that has its origin in criminal activity and, therefore, if you can be the crime of money laundering. To their credit they played that before the 2010 reform of Article 301 of the Penal Code considers suitable any previous criminal activity, including, in certain circumstances, if you had been eating heading for the same person performing with behaviors bleach. Against him in the first place, that the fee is not a let down either necessarily stems from a crime and CP Article 301 requires that goods that are soft quean, from a crime or have their origin in the same. Second, that the imposition of a sentence for tax fraud and money-ta defrauded the quota breach incurs the principle non bis in idem . As stated-this-unless the tax fraudster repent and fraud after pay money to finance Public, something has to do with the money lets-do: either transmits or makes, or has , or use it, or hides, all behaviors under the crime of money. It seems obvious, it was said that the crime of tax fraud and includes covers and punishes desvalor have involved the fact that the active subject, instead of declaring and entering the state treasury the money you pay as to tax policy, I spend on other things. In short, it was said there appear to be punitive gaps in these cases to justify the need for recourse to the crime of money to punish actions that are already persecuted as a fiscal offense. Third, remained difficult to realize the object of the offense within the estate of a person stated. However, the TS chose this sentence considered rar 2012 for both offenses may be punished simultaneously and therefore disappointed that criminal fee to the Treasury is a pro-assignor either from criminal activity within the meaning of laundering offense: The Art fiscal offense. CP 305 actually generates cost savings (tax debt), but these savings translate into a dollar amount, that is, grants rele-vance to criminal charges saved, in this case, the defrauded tax bill, which must pass 120,000 euros. This amount is the right derivative of the offense and, therefore, is suitable for the material object of the crime of money laundering. That is already in the possession of the fraudster no tie-ne no importance for the purposes of money laundering. (...) The problem is not so much the criminal origin or source of the goods, the difficulty of making them and individualize in the taxpayer's assets, because they would not be admissible in principle the theory that all assets of the taxpayer gets - contaminated. A difficult path of moving from the latter condition. A conclusion certainly uncertain future, as evidenced by the recent STS 182/2014 of 11 March, which does not apply the crime of money laundering offenses from tax because the judgment of the High Court does not specify what particular share tri-butaria on what fiscal year has undergone bleaching. 's need to determine the specific share defrauded object bleach is very significant because this is a case where a person was convicted of money from twelve tax offenses relating to income tax and wealth tax in different fiscal years. A clear demonstration of the difficulties faced by the jurisprudence of the Supreme Court enforced including tax offenses among those who can come the property subject to bleaching. And a very important statement that delves into the case-cial line to deny the existence of laundering offense unless the offense from which the goods are sufficiently specific.