The brilliance of a jewel may illuminate an investigation, but it is not sufficient to found a conviction

Let us suppose that a person holds a collection of jewellery valued at more than one million euros, and that person has no documentation evidencing its origin or acquisition. Could such undocumented ownership constitute a criminal offence?

The answer, as is often the case in Criminal Law, depends.

Unexplained wealth may open an investigation, but it cannot substitute proof of the offence. In this article, we briefly analyse the three criminal offences that could potentially apply in a case of this nature: money laundering, handling stolen goods, and illicit enrichment.

1. Money laundering (Article 301 of the Criminal Code)

The first offence that typically comes to mind when faced with valuable, opaque or difficult-to-explain assets is money laundering.

Article 301 refers to “acquiring”, “possessing”, “using”, “converting” or “transferring” assets of criminal origin, and one might therefore think that the mere possession of jewellery of extraordinary value and undocumented origin could place its holder within the ambit of money laundering. However, the concurrence of one of the prescribed conducts is not sufficient.

The prerequisite for money laundering is that the assets derive from criminal activity. The Supreme Court Judgment (STS) 501/2019 of 24 October recalls that money laundering “is not an offence of suspicion” and that it requires proof of the criminal—not merely unlawful or illegal—origin of the assets.

Nevertheless, and as we explain in another publication, such criminal origin does not necessarily require a prior conviction for the predicate offence. In the words of STS 1013/2023 of 12 January, “proof of the criminal origin […] does not require identification of the specific criminal operations; it suffices […] that the criminal activity be sufficiently proven in generic terms”.

Thus, this criminal origin may be established through a reasonable inference of underlying criminal activity. Put differently, given the circumstantial evidence, the reasonable conclusion must be that of criminal origin. Among the indicators customarily assessed by the Supreme Court—see, for all, STS 456/2017 of 21 June—the most notable are disproportionate increases in wealth, the absence of lawful activity to justify them, implausible explanations, links to criminal environments, and the use of opaque structures or interposed third parties (there are other indicators not applicable to the scenario under consideration, such as the use of nominees or shell companies).

Money laundering also requires that the subject know that the assets derive from criminal activity. That said, precise, technical or detailed knowledge of the predicate offence is not required. STS 340/2026 of 13 May recalls that it suffices for the evidence to permit the conclusion, beyond reasonable doubt, that the subject handles assets proceeding from criminal activity “knowing that origin, or at least representing it to himself and displaying indifference towards it (dolus eventualis)”, without it being necessary to prove all the specific details of the prior offence.

Finally, the case law requires that the purpose of concealing or disguising the illicit origin—or of assisting the participants in the predicate offence to evade its consequences—must underpin all the conducts set out in Article 301 of the Criminal Code.

This is the core of the offence. STS 265/2015 of 29 April formulates it with precision: “The Criminal Code punishes as money laundering those conducts that tend to incorporate into lawful commerce assets, money and gains obtained from the commission of criminal activities [whether one’s own or those of others], so that, once the asset-laundering process is complete, legal enjoyment thereof becomes possible without sanction”.

This requirement enables us to formulate the key to the case: the concealment typical of money laundering does not consist of physically hiding the jewellery, but rather of concealing its origin so that it may appear, circulate, be preserved or be transformed within the economic system as though it were lawful.

The practical distinction is clear. If the jewellery is merely kept or enjoyed, it may be of evidential, tax or civil interest, but that alone does not suffice to constitute the offence. If, however, it is transferred to third parties, introduced into a company, documented through sham contracts, pledged, sold, placed in the name of interposed persons, etc., the indicators of an intention to incorporate illicit assets into economic commerce with an appearance of legality emerge.

Article 301.3 of the Criminal Code provides for the negligent form of money laundering. In this case, the negligence relates to the knowledge or discoverability of the illicit origin of the assets. STS 302/2024 of 10 April expresses this clearly, stating that in this form of the offence, it is not necessary for the subject to know the provenance of the assets, but rather that, given the circumstances of the case, he be in a position to ascertain it merely by observing the standard precautions proper to his activity.

That said, the negligence required by the statute is gross negligence. STS 830/2016 of 3 November links it to genuinely reckless conduct, to an utter and absolute disregard for the most elementary standards of foresight and care.

In conclusion, in our hypothetical scenario, for Article 301 of the Criminal Code to apply, the prosecution would have to prove beyond all reasonable doubt at least four elements: (i) that the jewellery has its origin, directly or indirectly, in criminal activity; (ii) that the holder carried out a prescribed conduct in relation to those assets: acquisition, possession, use, conversion, transfer or any other relevant act; (iii) that he knew of the criminal origin, represented it to himself as highly probable or, in the negligent form, ought to and could have known of it with minimal diligence; and (iv) that such conduct was directed at concealing or disguising its illicit origin—that is, endowing it with an appearance of legality in order to introduce it into lawful economic commerce—.

2. Handling stolen goods (Article 298 of the Criminal Code)

The second offence that may come to mind is handling stolen goods. Article 298(1) of the Criminal Code punishes anyone who, with knowledge of the commission of an offence against property or the socio-economic order in which he has not participated as either principal or accomplice, assists those responsible to profit from its proceeds, or receives, acquires or conceals such proceeds with a view to gain. STS 306/2026 of 29 April summarises its constituent elements:

The first element is that a prior offence against property or the socio-economic order must exist. The jewellery would have to derive, for example, from a robbery, a fraud, a misappropriation, a breach of fiduciary duty, or another offence falling within that category. If the hypothetical origin were different—for instance, a corrupt payment or a tax offence—the provision could not apply.

The second element is negative: the handler must not have participated in the predicate offence. If the person possessing the jewellery was the principal or accomplice in the robbery, fraud or misappropriation from which it derives, he shall not be a handler; he shall, where appropriate, be liable for that antecedent offence. Handling requires a subsequent and autonomous intervention.

The third element is the prescribed conduct. Article 298 of the Criminal Code provides for several forms: assisting those responsible for the predicate offence to profit from its proceeds, receiving them, acquiring them, or concealing them. In the case of jewellery, this could involve purchasing it, accepting it, storing it, concealing it on behalf of another, facilitating its sale, or incorporating it into one’s own estate.

The fourth element is knowledge. The subject must know that the proceeds derive from an offence against property or the socio-economic order. That said, STS 476/2012 of 12 June recalls that knowledge beyond mere suspicion or conjecture suffices, without requiring precise, thorough and complete notice of the predicate offence; dolus eventualis is present where the subject represents such origin as highly probable and, notwithstanding, receives, acquires or conceals the proceeds. Were such knowledge absent, one could speak of the figure of the bona fide beneficiary, analysed in another publication.

The fifth element is the intent to gain. A neutral or disinterested intervention does not suffice. The conduct must be directed at self-enrichment or at obtaining an economically assessable advantage.

Applied to our example, handling would be established if it were proved that the jewellery derives from an offence against property and that its possessor did not participate in that offence, but received, acquired or concealed it knowing or representing as highly probable its criminal origin. This hypothesis could also be reinforced by the existence of a derisory price, a clandestine delivery, a complete absence of documentation, material contradictions regarding origin… Moreover, it would need to be established that the subject acted motivated by an intent to gain.

3. Illicit enrichment (Article 438 bis of the Criminal Code)

The third offence only arises if we add a further datum to the scenario: that the holder of the jewellery is a public authority or official within the meaning of Article 24 of the Criminal Code. In that event, Article 438 bis of the Criminal Code could be considered, introduced by Organic Law 14/2022, in force since 12 January 2023 and as yet without judicial pronouncements in its regard.

The provision punishes a public authority who, during the exercise of office or within five years following cessation of office, obtains a patrimonial increase exceeding 250,000 euros relative to his documented income and openly refuses to justify its origin after being duly required to do so.

Accordingly, its constituent elements would be: (i) the status of public authority of the active subject; (ii) the existence of a patrimonial increase exceeding 250,000 euros; (iii) that such increase occurred during the tenure of office or within five years following cessation; (iv) that the increase is not compatible with documented income; (v) that a due requirement was made by the competent authority; and (vi) that the subject openly refused to justify the origin of the increase.

Applied to the jewellery scenario, the datum of value—millions of euros—could exceed the quantitative threshold. But that alone would not suffice. It would be necessary to prove that the jewellery constitutes a genuine patrimonial increase of its holder, that it entered his estate within the statutory period, and that it does not derive from a justifiable lawful origin—for example, inheritance, gift, historic acquisition, or pre-existing family wealth.

Furthermore, Article 438 bis of the Criminal Code cannot be applied retroactively. If the jewellery entered the estate before 12 January 2023, the application of the provision would raise a problem of unfavourable criminal retroactivity, prohibited by Article 9(3) of the Constitution.

Additionally, one must not overlook certain difficulties presented by the configuration of the offence, as it places strain upon the presumption of innocence, raises doubts regarding the privilege against self-incrimination, and leaves open questions as to which authority may issue the requirement, how such requirement must be formulated, and when an insufficient response truly amounts to an “open refusal”.

Be that as it may, for the jewellery to constitute an offence of illicit enrichment, the prosecution would have to prove something more than its high value and the initial lack of documentation: that the holder was a public authority, that there was a patrimonial increase exceeding 250,000 euros within the statutory period, that it does not correspond to his documented income, that he was duly required to justify it, and that he openly refused to do so.

4. Conclusion

The conclusion is abundantly clear: undocumented jewellery may explain an investigation; it cannot explain a conviction. Between patrimonial suspicion and criminal liability lies a space that can only be filled with evidence. Evidence that satisfies the constituent elements of the offences under consideration. Without that, the Criminal Law does not punish brilliance; it punishes crime.