Self-laundering outside the scope of criminal liability

The money laundering offence, set out in Articles 301 to 304 of the Criminal Code, targets conduct designed to channel criminally derived assets into the lawful economy by concealing or disguising their illicit origin. The basic penalty ranges from six months’ to six years’ imprisonment, together with a fine of up to three times the value of the assets concerned. At its core, the provision seeks to penalise the process whereby tainted funds are “cleansed” and fed back into the legitimate financial system.

Not every instance of dealing with criminally derived assets, however, amounts to a criminal offence. Over time, the Supreme Court has built up a body of doctrine distinguishing punishable laundering from conduct that falls short of the offence. Within that doctrine, the notion of self-laundering has assumed particular importance.

Self-laundering: when offenders launder their own criminal proceeds

Following the reform brought about by Organic Law 5/2010 of 22 June, Article 301.1 of the Criminal Code expressly criminalises self-laundering — that is, the laundering of criminal proceeds by the very person who committed the predicate offence from which those proceeds derive.

The justification for treating self-laundering as an autonomous offence is that money laundering safeguards a distinct legal interest from that protected by the predicate offence — namely, the socio-economic order. As the Supreme Court observed in Judgments 809/2014 of 26 November or 265/2015 of 29 April, the hallmark of money laundering lies not in the mere enjoyment or use of illicit gains, but rather in the intent to conceal or disguise the illicit origin of the assets, which constitutes a necessary link enabling unlawfully generated wealth to enter the economic cycle. The predicate offence cannot, therefore, be said fully to absorb the wrongfulness inherent in subsequent laundering conduct.

Yet, as a substantial body of academic commentary has pointed out, criminalising self-laundering carries a clear risk of infringing the non bis in idem principle: imposing an additional penalty on the perpetrator of an offence for making use of the proceeds that offence has generated may lead — in the Supreme Court’s own words — to “an unsatisfactory outcome”, “a disproportionate result”, and one that is “questionable on doctrinal and criminal-policy grounds”, giving rise to “perplexity”, “strange consequences”, “absurd” ones, and “paradoxical scenarios” that take us to the very edge of what is punishable, verging on the “grotesque” and reaching “ridiculous levels” (STS 809/2014). It would, for instance, be wholly irrational to add to the sentence imposed for theft a further penalty — which may paradoxically be far more severe — simply for using the stolen property for personal consumption or to purchase other goods.

The limits of self-laundering: the de minimis principle

To guard against such disproportionate results, the Supreme Court has adopted a purposive restriction of the offence, drawing on the so-called de minimis principle.

The de minimis principle, rooted in the Roman maxim de minimis non curat praetor, holds that trifling or negligible encroachments upon legally protected interests do not amount to a relevant offence for criminal-law purposes. It operates as a restrictive, purposive interpretive tool aimed at ensuring appropriate protection of the legal interest at stake. Its rationale lies in the fragmentary nature of criminal law: the State’s power to punish (ius puniendi) ought not to extend to every conceivable form of harm, but only to the most serious, thereby excluding attacks that are minimal or insignificant.

When applied to self-laundering, this well-established line of authority allows conduct directed at assets of a trivial monetary value to be treated as falling outside the scope of the offence, on account of its negligible effect on the socio-economic order.

The landmark ruling on this point is STS 809/2014, which introduced the quantitative benchmark of EUR 15,000 as the threshold above which self-laundering becomes criminally relevant. The figure is not arbitrary: the Supreme Court derived it from the FATF Recommendations (Financial Action Task Force) — specifically Recommendation 10, which treats that amount as the trigger for enhanced vigilance obligations — and from European Directive 2015/849, whose Article 11 requires obliged entities to carry out customer due diligence whenever occasional transactions of EUR 15,000 or more are conducted.

This doctrine was subsequently endorsed and reinforced by a series of rulings. STS 491/2015 of 13 July held that:

“all material objects of a trivial amount are to be regarded as falling outside the scope of the offence by virtue of the de minimis principle, given their negligible impact on the socio-economic order, and equally by virtue of the impossibility of entirely excluding any citizen from economic life, since everyday purchases made to meet basic daily needs cannot be denied to that person, as they would otherwise be prohibited.”

STS 165/2016 of 2 March endorsed the doctrine, and STS 642/2018 of 13 December consolidated it further, expressly stating that:

“in those activities where self-laundering may entail a twofold measure of wrongfulness, the real-concurrence test must be applied on the basis of criteria that avoid a cumulative outcome amounting to disproportionate punishment, thereby admitting a purposive restriction which leads to treating as non-criminal those acts directed at assets of a trivial amount, by virtue of a de minimis principle assessed by reference to the wrongfulness of the result, in circumstances where the conduct is found to have had no appreciable impact on the socio-economic order. In any event, the assessment of insignificance must rest on objective parameters delimiting the scope of the protected legal interest, this Chamber (STS 809/2014 of 26 November) having treated the quantitative benchmark of EUR 15,000 as clearly significant…”.

The most recent comprehensive restatement of the doctrine is found in STS 1088/2022 of 9 January 2023, which reaffirmed the EUR 15,000 threshold. More recently still, STS 833/2023 of 15 November reiterated that self-laundering of amounts below the threshold of significance falls outside the scope of criminal liability.

That said, STS 265/2015 itself warned that “this quantitative restriction is of limited relevance” and that what truly matters is “the application of the criterion demanding that the purpose or object of concealing or disguising assets, or of assisting the person responsible for the criminal act from which they originate, be present in every case before the conduct can be said to constitute the criminal offence”. In other words, the EUR 15,000 figure is not an absolute bar. In practice, however, it is clear that the courts frequently treat it as an objective condition of punishability.

The unresolved question: how is the EUR 15,000 threshold calculated?

Although the EUR 15,000 figure is now firmly embedded in the case law, a question of considerable practical importance remains unanswered: how should that threshold be computed? In particular, does it refer to the value of each individual transaction, to a monthly, quarterly or annual aggregate, or to the cumulative total laundered over the entire course of the criminal activity?

The case law has yet to provide a definitive answer. What is clear is that the regulatory source of the figure refers to “occasional transactions with a value equal to or exceeding EUR 15,000”, in “situations where the transaction is carried out in a single operation or in several operations that appear to be linked”, as the FATF itself notes. This would suggest, at least in principle, a per-transaction approach or one based on sets of linked operations. In practice, however, self-laundering cases typically involve multiple disposals of smaller sums which, taken together, far exceed the threshold.

Take a simple example: an individual receiving EUR 50,000 a month in illicit income who spends it on day-to-day expenses, each single outgoing always falling below EUR 15,000. Must each isolated transaction exceed the threshold, or should regard be had to the overall volume of laundered funds? The answer has decisive implications for the criminal characterisation of the conduct.

STS 642/2018 invokes the de minimis principle assessed “by reference to the wrongfulness of the result”, which points towards an overall evaluation of the conduct’s impact on the socio-economic order rather than a piecemeal analysis of each separate transaction.

In practice, then, the Supreme Court looks at the aggregate impact of the laundering activity, taking into account the total volume of illicit funds involved. The mere artificial splitting of transactions will not suffice to circumvent the threshold. On this analysis, the scenario posited above would be punishable, since the global value of the operation exceeds EUR 15,000.

Conclusion

The de minimis principle, as applied to self-laundering, is today an indispensable tool for preventing disproportionate criminal sanctions. The EUR 15,000 figure, assessed on an aggregate basis, has become a well-settled jurisprudential benchmark — underpinned by international regulatory standards — that enables the courts to draw a clear line between conduct warranting criminal prosecution and conduct that should remain outside the reach of the criminal law.

At Ayuela Jiménez we have lawyers specialising in white-collar crime and money laundering, ready to examine every case with the utmost rigour and to mount a robust defence. The technical intricacy of these proceedings — where the boundary between criminal and non-criminal conduct turns on fine quantitative and case-law distinctions — makes it essential to secure expert legal advice at the earliest opportunity.