The offense of money laundering can involve you even if you have not committed the crime from which the money originates. The problem often arises from bank transfers, withdrawals, changes of ownership or corporate transactions that the prosecution considers capable of concealing the illicit origin of the assets. It then becomes essential to understand whether a predicate offense actually exists, what role you played and what you knew when you acted.
In this guide I explain what elements are required by art. 648-bis of the criminal code, why a traceable transaction can still be challenged and what changes between money laundering, self-laundering and simple receipt of money. We will also see how the seizure of an account works, when a company can be involved and on which concrete points the defense can focus.
When the Money Laundering Offense Occurs
Several elements are needed together. Art. 648-bis c.p. punishes anyone who, without having participated in the predicate offense, replaces or transfers money, assets or other utilities of criminal origin, or carries out operations capable of obstructing the identification of that origin. Therefore, it is not enough for the money to be illicit: subsequent conduct and the awareness required by the provision are necessary.
The conduct can take many forms. It can consist of a bank transfer to an account registered in a different name, a currency exchange, the purchase of an asset, the interposition of a company or the fragmentation of the sum among multiple subjects. The legislative formula regarding other operations also allows considering acts other than replacement and transfer, provided they have concrete obstructing capacity.
Penalties change according to the origin. For money or assets coming from a crime, the penalty provided is imprisonment from four to twelve years and a fine from 5,000 to 25,000 euros. A distinct discipline concerns utilities coming from misdemeanors punished with the arrest thresholds indicated by the norm. The framework of art. 648-bis is reported in the text of the criminal code published in the Official Gazette.
Illicit Origin and Predicate Offense
The asset must come from another crime. Money laundering intervenes after a criminal act that has produced money, assets or utilities. This fact is called a predicate offense. It can be, for example, fraud, embezzlement, corruption or a tax offense, but the prosecution must still link the contested utilities to criminally relevant conduct.
A previous definitive conviction is not needed. The money laundering judge can incidentally ascertain the existence of the predicate offense through the available elements. This does not mean that the illicit origin can only be stated: facts and sufficient logical connections must emerge, even when not all authors or every detail of the original crime have been identified.
Economic traceability is decisive. Dates, reasons, contracts, invoices, relations between the parties and correspondence between performance and payment can confirm or disprove the accusatory reconstruction. Income lacking documentary justification may fuel suspicion, but administrative irregularity, disordered accounting or an imprecise reason do not prove money laundering on their own.
Obstruction to Identification and Awareness
The transaction must make reconstruction more difficult. It is not essential that the origin of the money becomes impossible to discover. It is sufficient that the act is concretely capable of complicating the identification of the origin, for example through passages between different accounts, subjects or asset instruments.
A bank transfer remains traceable, but can obstruct. Bank registration does not automatically exclude the offense. The Supreme Court of Cassation has considered subsequent transfers between differently registered accounts relevant when they make it more difficult to follow the path of the sums. The principle and related references are illustrated in the criminal review of the Court of Cassation of March 2024.
Intent is also required. The person must know the criminal origin of the assets and want the transaction that obstructs their identification. This element is often reconstructed from clues: relations with the author of the predicate offense, implausible explanations, anomalous compensation, plurality of passages, fictitious registrations or the absence of a credible economic reason.
Simple suspicion does not automatically equate to proof. The fact that a transaction is unusual or has triggered bank controls does not establish, by itself, that the person who executed it knew the illicit origin. The defense must compare the clues with the information actually available to the person at the time of the transaction, avoiding evaluations constructed only after having known the entire story.
Money Laundering, Self-Laundering and Related Offenses
The role in the first crime changes the qualification. Money laundering provided by art. 648-bis presupposes that the author did not participate in the crime from which the utilities originate. If they committed or participated in committing that fact, self-laundering under art. 648-ter.1 may come into play instead, provided the further requirements set by that norm are present.
Receiving money is not always money laundering. Receiving stolen goods, governed by art. 648 c.p., generally concerns the purchase, receipt or concealment of things of criminal origin to procure a profit. In money laundering, instead, the operation directed at obstructing the identification of the origin takes on relevance. The same delivery can therefore receive different qualifications according to the purpose, modalities and subsequent acts.
Employment is also a distinct figure. Art. 648-ter punishes, outside the cases regulated by the preceding norms, the employment of illicit money, assets or utilities in economic or financial activities. It is not enough to choose the label closest to the bank movement: it is necessary to reconstruct who produced the money, who received it, what activity they performed and what concrete effect resulted from it.
Current Account Seizure and Confiscation
Judicial blocking often anticipates confiscation. During investigations, the judge can order a preventive seizure on assets connected to the crime or destined for future confiscation. On a practical level, the measure can prevent withdrawals and payments, bind a specific sum or involve other assets indicated in the decree.
Direct and equivalent confiscation do not coincide. Art. 648-quater c.p. provides, in case of conviction or plea bargaining, for the confiscation of the product or profit of money laundering, except for ownership by third parties. When this direct acquisition is not possible, the confiscation of other assets available to the convicted person can be ordered, for a corresponding value. The distinction emerges from the text of art. 648-quater c.p. on Normattiva.
The amount must have a recognizable basis. The decree must allow understanding which sum is considered product or profit, whether the constraint is direct or equivalent and why the assets are available to the recipient. In jurisprudence, the value of the sums subjected to money laundering operations can be considered the product of the crime; however, it remains necessary to avoid duplications and seizures exceeding the identified value.
The corporate account requires autonomous distinction. Sums deposited in a company account are not automatically exempt from seizure, especially if they directly represent the contested product or profit. On the other hand, the mere position of director of the suspect does not allow confusing personal assets with those of the company without explanation, particularly when proceeding by equivalent.
A bank block may have another origin. A suspension decided by the intermediary for internal or anti-money laundering controls does not necessarily coincide with a seizure ordered by the judicial authority. To understand the remedy, it is necessary to identify who imposed the constraint and obtain the provision: bank complaint and criminal review respond to different presuppositions.
Risks for Companies and Entities
The legal entity can have its own liability. Money laundering falls among the offenses indicated by art. 25-octies of legislative decree 231/2001. The entity can be involved when the fact is committed in its interest or advantage by subjects placed in the positions considered by the decree and the other presuppositions of organizational liability are met.
The consequences are not only economic. Art. 25-octies provides a sanction from 200 to 800 shares, increased from 400 to 1,000 shares when the money or assets come from a crime with a maximum penalty exceeding five years. Interdictory sanctions for a duration not exceeding two years can also be applied, as shown in the text of art. 25-octies of legislative decree 231/2001.
The company is not automatically liable. The fact of the manager, director or employee and the illicit act of the entity must be analyzed separately. What counts is the pursued interest or advantage, the existing organization, the distribution of functions and the effective application of controls. A merely formal organizational model is not an absolute guarantee, while documented and concretely implemented procedures can take on relevance in the evaluation.
How I Set Up Defense Points
The first check concerns the complete accusation. It is necessary to identify the predicate offense, the sums that would have derived from it, the path attributed to the assets and the operation deemed obstructing. If one of these steps is missing, the contestation risks superimposing an economically anomalous movement onto the different and more serious money laundering offense.
The personal role is an autonomous knot. Materially authorizing a bank transfer does not always prove who decided the operation or that the executor knew the origin of the funds. Delegations, account accesses, previous communications, corporate powers and the reason for the payment can show whether the person acted consciously, executed a neutral task or participated in a common project.
The economic justification must be concrete. A contract produced after the start of investigations does not solve the problem if it finds no backing in coherent services, deliveries, correspondence or records. Conversely, documents formed before the operation, compatible prices and real commercial relations can counter the hypothesis of a merely apparent passage.
Seizure has a specific defense. The review can concern the basis of the crime, the connection of the assets, availability, amount and the direct or equivalent nature of the constraint. The Court of Cassation has clarified that even the suspected person lacking an immediate right to restitution can propose a review if they indicate a concrete and current interest in removing the seizure: the principle is reported in the decision of the United Sections on the review of real measures.
Procedural times are short. After notification or execution of the provision, it is prudent to keep a copy of it, not alter the economic relations involved and immediately reconstruct the origin of the sums. The choice between review, request for revocation or partial contestation depends on the type of seizure and the procedural moment; it must not be confused with the defense on the merits of the charge.
Frequently Asked Questions
Is receiving illicit money enough to be charged with money laundering?
No, receipt is not enough. Criminal origin, an operation capable of obstructing identification, and the agent's awareness must be proven. Receiving or custodying the asset can integrate other provisions when requirements are met, but it does not automatically become money laundering.
If I also committed the predicate offense, does art. 648-bis apply?
As a rule, the provision changes. Art. 648-bis operates outside cases of concurrence in the predicate offense. For those who committed or shared that crime, self-laundering may be relevant, but only if the subsequent conduct presents the specific requirements of art. 648-ter.1 c.p.
Can a traceable bank transfer be considered money laundering?
Yes, under certain conditions. Traceability does not exclude that the passage makes following the origin of funds more difficult, especially when it involves differently registered accounts or a sequence of transfers. Criminal origin and intent remain necessary: bank registration does not prove them automatically.
Can the entire account balance be seized?
The constraint must be justified. It is necessary to distinguish direct and equivalent seizure, identify the amount connected to the crime and verify availability and registration. The fungibility of money can affect direct confiscation, but does not eliminate value limits or allow duplications between different assets.
Is the company always liable for the director's offense?
No, liabilities are separate. To apply legislative decree 231/2001, the presuppositions relating to the author subject, the entity's interest or advantage and its organization must be met. The corporate position is not enough, just as the entity's acquittal does not automatically derive from the formal existence of internal procedures.
What should I do after account seizure?
It is necessary to immediately identify the provision. Keep the decree and received acts, reconstruct the origin of sums and do not carry out operations aimed at bypassing the constraint. Review and other remedies follow specific terms and presuppositions: the decision depends on the nature of the seizure, its amount and the recipient's position.