Introduction
A suspicion of money laundering can be sudden and drastic, with far-reaching consequences for your private and business life. You may be confronted with a police interrogation, a house search, or the blocking of your bank account. Money laundering is a serious criminal offence that involves concealing or disguising the criminal origin of money or goods. In this article, we clearly explain what it means to be suspected of money laundering, what your rights are, how the judicial authorities prove this, and, above all, what you should and should not do immediately.
What is money laundering?
Money laundering is the process by which criminals ‘launder’ illegally obtained money through complex constructions. It involves someone concealing or disguising the true nature, origin, location, disposal or movement of an object – often cash or goods – while knowing or reasonably suspecting that it originates from a criminal offence. This is a criminal offence under Article 420bis of the Criminal Code. This applies not only to money, but also to other objects obtained through criminal activities. In the Netherlands, any crime that generates proceeds of crime can be a predicate offence for money laundering. Furthermore, in the context of money laundering, the funds don’t need to originate entirely from criminal activity; partial financing with criminal funds is also sufficient.
Money laundering must be proven based on objective facts and generally known characteristics. Terms such as ‘acquire’, ‘possess’ and ‘transfer’ have a sufficiently factual meaning and are widely accepted in case law. The acquisition of an object (terms acquire, object acquires) from crime is punishable, even if the object is directly derived from a crime. The factual meaning of these acts does not require further definition unless it involves concealment or hiding.
It is important to note that the underlying crime need not be specifically identified (underlying crime specific). The Supreme Court has held in several rulings that, based on the object’s objective characteristics and general knowledge, it is sufficient to infer that the object originated from a crime. This means that the Public Prosecution Service does not have to prove from which specific offence the money or goods originate. Furthermore, statements about the origin of money or goods must be exact and verifiable to some extent; it is not sufficient if the money may have been obtained legally when the circumstances suggest otherwise.
Forms of money laundering
There are various forms of money laundering, each with its own criminal law significance:
- Intentional money laundering: the intentional form of money laundering. Intent must be proven, for example because the suspect accepted the considerable risk or knowingly exposed himself to the risk that the object originated from a crime. It is not only required that the suspect was aware of the criminal origin, but also that he acted consciously. Intentional money laundering is punished more severely than negligent money laundering. This often results in a lengthy prison sentence, especially if there is a criminal partnership or if money laundering is committed regularly.
- Negligent money laundering: In the case of negligent money laundering, the suspect must have had reasonable grounds to suspect that the object was derived from a crime. Not every instance of carelessness leads to negligent money laundering; there must be a reasonable degree of fault or significant carelessness. Only if the suspect is reasonably liable for failing to investigate the origin can negligent money laundering be presumed.
- Habitual money laundering: This concerns repeated and deliberate money laundering (committed more often) according to a specific pattern. Habitual money laundering and forming a criminal partnership can result in significantly heavier penalties, including long-term imprisonment. This carries a heavier penalty than incidental money laundering.
In addition, there is simple money laundering, whereby the mere acquisition or possession of an object that originates directly from one’s own crime is punishable. Since the amendment to the law, simple money laundering is also punishable, provided specific conditions are met.
Please note: Penalties for intentional and habitual money laundering are generally more severe than those for simple money laundering.
How does a suspicion of money laundering arise?
Suspicion often arises in the case of suspicious transactions such as:
- Large amounts of cash without a clear origin.
- Unexplained deposits or complex cash flows via multiple accounts.
- Luxury purchases that are not commensurate with visible legal income.
- Reports from financial institutions, solicitors, accountants or other service providers who are obliged to report suspicious transactions to the Financial Intelligence Unit (FIU).
- Transactions that stand out due to objective characteristics, such as unusual typologies or an unclear origin of the money, which are factual and observable and can be determined by legal authorities.
These reports are treated as strictly confidential, but may lead to further investigation by the police, the FIOD or the Public Prosecution Service. After such a report, it is important to realise that the police or FIOD often have a knowledge advantage in money laundering investigations.
What should you do immediately if you suspect money laundering?
If you are suspected of money laundering, it is crucial to immediately engage a specialist criminal lawyer. You have the right to remain silent and you do not have to say anything to the police without a good lawyer at your side. Engaging criminal lawyers at an early stage is essential, as they can advise you on strategic statements and legal opportunities. Please note: simply invoking your right to remain silent is often not enough; as a suspect, you are expected to do more, such as providing a concrete and verifiable statement. A good solicitor can assess the case file, request evidence and provide you with strategic advice to increase your chances of a favourable outcome. Important advice includes:
- Exercise your right to remain silent and do not make any statements without consulting your solicitor.
- Do not make unclear or implausible statements about the origin of the money or goods.
- Collect and keep as much evidence as possible that can support a plausible explanation.
- Be aware that the Public Prosecution Service may expect you to provide a concrete, somewhat verifiable and not a priori highly improbable explanation as soon as they have substantiated a reasonable suspicion of money laundering.
Cybercrime and money laundering
Cybercrime and money laundering are closely intertwined these days. We are increasingly seeing proceeds from cybercrime, such as internet fraud, phishing or hacking, being laundered through complex digital routes. Criminal money obtained through these digital crimes is often converted into cryptocurrencies such as bitcoins, after which it enters the legal economy via various digital wallets and international transactions. The judiciary and the Public Prosecution Service therefore pay extra attention to suspicious transactions involving digital means of payment, especially if they originate from the dark web or other anonymous sources.
In court cases involving money laundering with bitcoins or other cryptocurrencies, the suspect is often expected to provide a plausible explanation of the legal origin of these digital funds. If such an explanation cannot be provided, the risk of suspicion of money laundering increases considerably. Lawyers dealing with money laundering cases must therefore not only have knowledge of criminal law, but also of cybercrime and how digital money flows can be traced and analysed.
The role of the FIOD and the Tax and Customs Administration in money laundering cases
The FIOD (Fiscal Information and Investigation Service) and the Tax and Customs Administration play a central role in combating money laundering in the Netherlands. They specialise in tracing money and goods derived from crime and work closely with the Public Prosecution Service. The FIOD conducts in-depth investigations into unusual transactions, often based on reports from financial institutions or other organisations that fall under the Money Laundering and Terrorist Financing (Prevention) Act (Wwft).
If the FIOD or Tax and Customs Administration suspects that money or goods originate from a crime, they can seize these assets and initiate a criminal investigation. This can have major consequences for both companies and individuals. It is therefore very important to seek immediate legal advice from a specialist solicitor in the event of an investigation by the FIOD or the Tax and Customs Administration, so that your rights are optimally protected and you can respond adequately to questions about the origin of your assets.
Intentional money laundering and habitual money laundering: legal qualifications
Criminal law distinguishes between intentional money laundering and habitual money laundering. Intentional money laundering involves deliberately concealing or disguising the true nature, origin, location, disposal or movement of an object, while knowing that the object is derived from a crime. This requires that the suspect actually knew about the criminal origin of the money or goods.
Habitual money laundering is a more serious form, in which a person repeatedly engages in money laundering, and thus a pattern emerges. The legislator considers the systematic concealment of criminal money or goods to be a serious offence, for which a higher penalty may be imposed. Both intentional and habitual money laundering are criminal offences that can result in long prison sentences and heavy fines. It is therefore essential to immediately engage an experienced solicitor if you are suspected of these forms of money laundering.
Prevention of money laundering: what can you do yourself?
Preventing money laundering starts with being alert to unusual transactions. Financial institutions, solicitors, estate agents and other service providers are legally obliged to report suspicious or unusual transactions to the Financial Intelligence Unit (FIU). However, private individuals and entrepreneurs can also help prevent money laundering by recognising and reporting suspicious cash flows.
Good administration and transparency about the origin of assets are crucial. Ensure you can always demonstrate the origin of your money or goods, and be alert to transactions that do not align with your normal business operations or financial situation. Drafting a sound compliance policy, with the help of a specialist solicitor, helps minimise the risk of money laundering and ensure compliance with legal obligations. In this way, you not only protect yourself, but also contribute to the integrity of the financial system.
The role of statements and evidence in a money laundering case
The Public Prosecution Service must present facts and circumstances that indicate a serious suspicion of money laundering. Only then can you, as a suspect, be expected to provide a statement about the legal origin of the object. This statement must not be highly improbable in advance and must be verifiable to some extent; it is not sufficient to invoke the right to remain silent.
If you do not provide a statement or provide an unclear statement, the judge may take this into account in assessing the evidence. However, remaining silent is not in itself a criminal offence and may not be used as evidence of guilt. In addition, certain acts, such as concealing or hiding, must be described in more detail in the indictment. Finally, the object does not have to originate entirely from crime; partial financing with criminal money is also sufficient for a conviction of money laundering.
Possible penalties and consequences
The penalties for money laundering are severe and depend on the seriousness and nature of the offence:
- Intentional money laundering: punishable by a maximum prison sentence of six years or a fifth category fine.
- Negligent money laundering: punishable by a maximum prison sentence of two years or a fifth category fine.
- Habitual money laundering: this carries a long-term prison sentence of up to eight years or a fifth-category fine; repeated or organised money laundering carries a heavier penalty.
- Simple debt laundering: punishable by a maximum prison sentence of three months or a fourth category fine.
The consequences of a conviction for money laundering are far-reaching. Not only will you have a criminal record, but a confiscation order may also be imposed. This means that you may be obliged to repay the benefit or amount obtained. In addition, forfeiture may take place and money, vehicles, real estate and other goods may be seized. The legal and financial consequences are therefore considerable.
Why is it so important to engage a specialist solicitor?
Money laundering cases are legally complex and require knowledge of both criminal law and financial regulations. In such situations, it is essential to contact specialised criminal lawyers immediately. A good solicitor can provide you with the best possible assistance. It is very important that a good solicitor thoroughly assesses the case and lodges an appeal in good time if necessary, in order to offer the best chance of a favourable outcome.
An experienced money laundering solicitor can:
- Protect your rights throughout the criminal investigation.
- Advise you on making statements and exercising your right to remain silent.
- Provide support in drawing up a plausible statement.
- Supervise communication with the Public Prosecution Service and the Financial Intelligence Unit.
- Ensure that your case is handled carefully and with attention to detail.
Conclusion
Being suspected of money laundering means that you are accused of concealing or disguising the criminal origin of money or goods. It is a serious criminal offence with severe penalties and far-reaching consequences. The Public Prosecution Service need not prove the underlying crime, but must substantiate a profound suspicion of money laundering.
If you are suspected of money laundering, it is crucial to immediately engage a specialist criminal lawyer, respect your right to remain silent and not make any hasty statements. A plausible explanation can make all the difference, but it must be carefully prepared with legal assistance.
Are you facing suspicion of money laundering or have you received an invitation for a police interview? Then contact the criminal lawyers at Law & More as soon as possible. We will assist you with expertise, commitment and personal attention throughout the entire process.
Frequently asked questions about money laundering
What does it mean to be suspected of money laundering?
Being suspected of money laundering means that you are accused of concealing, disguising or using an object that you knew or should reasonably have suspected was derived from a criminal offence. The underlying offence does not have to be specifically established.
Do I have to make a statement?
You are not obliged to make a statement. You have the right to remain silent. However, you may be expected to provide a plausible explanation once the Public Prosecution Service has substantiated a reasonable suspicion of money laundering.
What are the possible penalties?
Criminal money laundering can lead to prison sentences of up to eight years, fines and confiscation orders. The severity of the penalty depends on the type of money laundering and the circumstances of the case.
What should I do if I am invited for a police interview?
Contact a specialist solicitor immediately. Do not make any statements without legal advice and exercise your right to remain silent.
