The fight against money laundering is another spearhead for the judiciary this year in the fight against crime. The government wants to make spending money earned from illegal activities as difficult as possible. In this approach against money laundering, the judiciary is thorough and there seems to be no question of class justice. Top executives of the ING and ABN Amro banks are not safe from justice either, having recently been named as suspects for allegedly doing too little to prevent money laundering activities.

But what exactly is money laundering?

Money laundering means concealing the illegal origin of money or a good. In other words, the outside world no longer notices that the property has an illegal origin. Unlike with theft or receiving stolen goods, with money laundering it does not matter whether the dubious property has been stolen by itself or by someone else. 

Different forms

The Penal Code criminalises four forms of money laundering, namely (intentional) money laundering, habitual money laundering, debt money laundering and, since a few years, simple money laundering. 

• (Intentional) money laundering: in this form of money laundering, the perpetrator knows that the asset comes from illegal activities. 
• Habitual laundering: In this form of money laundering, the offender does not only know that the good comes from illegal activities. In this case, the offender has made money laundering a habit. That is, the offender repeatedly launders illegally obtained property. 
• Debt laundering:in the case of debt laundering, the perpetrator may not know that the property originated from illegal activities, but could (reasonably) have suspected it. 
• Simple money laundering: This form of money laundering involves the initial phase of money laundering. Whereas for the other three forms, it is important that a certain 'money laundering act' has been committed, this is not required for simple money laundering. What matters is that the offender himself has committed a crime and through this crime has acquired or has at his disposal a certain asset. Where the offender's conduct is (apparently) also aimed at concealing or disguising the criminal origin of the good, simple money laundering is involved. 

Why does the distinction between these forms matter?

Firstly, because of the sentencing. The maximumprison sentence for (intentional) money laundering is six years. When there is habitual money laundering, the maximumprison sentence increased to eight years. In the case of debt laundering, the maximumimprisonment for two years. In simple money laundering, the maximumimprisonment six months. 

Sometimes the courts and tribunals fail to see these differences clearly and this can have far-reaching consequences. Also in favour of the accused. Indeed, on 13 April 2021, the Supreme Court overturned (in part) another judgment of a court of appeal. The court had left open whether the defendant "knew" (intentional money laundering) or reasonably should have suspected (culpable money laundering) that the objects came from any crime. Since the court had not made a choice, the case must be tried again. 

Money laundering in practice

It is not always so certain whether, for example, an object or amount of money comes from a crime. This makes a proof of money laundering more complicated. In certain cases, case law allows certain circumstances to justify a presumption 'that it cannot be otherwise than that the money came from any crime'. Well-known examples include large amounts of large or small denominations of notes hidden in strange places.   

In the case of such a presumption of evidence, the ball is in the defendant's court. He does not have to make it plausible that the money did not come from crime, but the statement about the origin of the money must be concrete, verifiable and not highly improbable beforehand. 

Sometimes courts find even this bar too high. On 22 March this year, the Rotterdam District Court acquitted a suspect of (culpable) money laundering even though the suspect's statement about the origin of the money was not verifiable. Indeed, the defendant refused to give the name of the lender. Nevertheless, the court acquitted her. Considering all the circumstances, the court was not convinced that the accused was guilty of money laundering. Even though her statement about the origin of the money could not be verified. 

This example shows that suspects in money laundering investigations do not have to prove their innocence either. In many cases, statements are simply unverifiable, for example because receipts or witnesses are missing. So, depending on the background of all the circumstances, this need not always lead to a conviction. But vigilance is still required and preparation with a lawyer before making a statement remains very important. 

Mr M.F.M. Ortner