While no defendant in a criminal case can be compelled to answer, it is settled case law that failure to make a plausible statement can have adverse consequences for the defendant. Some circumstances 'cry out' for an explanation from the accused. For example, if DNA is found at the crime scene. Also, in certain money laundering cases, an active trial attitude may be expected from the accused. This is what I discuss in more detail.

What is money laundering

Intentional money laundering occurs when a person hides or conceals the true nature or origin of an object (money or property) while knowing that the object comes from a crime. Lighter variants, such as debt laundering, have also been criminalised to avoid mixing the (financial) system with funds derived from crime. However, in many money laundering cases, it is not clear whether the funds or goods in question actually originate from crime. So can the accused still be prosecuted for money laundering?

The six-step judgment of the Amsterdam Court of Appeal

Even in cases where it is not certain that the objects present are of criminal origin, the public prosecutor can proceed to prosecute a suspect. Using a step-by-step plan, the Amsterdam Court of Appeal set out in a ruling what successively the public prosecutor and the accused are expected to do when there is no evidence of a predicate offence:

Step 1: Is there no direct evidence of a specific land crime?

Step 2: If no, is money laundering suspected?

Step 2: If yes, can the suspect give a statement about the origin of the items, such as money or crypto?

Step 3: If yes, is the statement about the provenance of the object concrete, more or less verifiable and not highly improbable beforehand?

Step 4: If yes, has the prosecution sufficiently investigated the defendant's statement?

Step 5: If, after investigation, it can be ruled out that the items have a legal origin, an illegal origin remains and can be referred to as money laundering.

Money laundering indicators

In money laundering cases, it is very important to know whether the third step will be reached. Only then does a suspect owe a (concrete, more or less verifiable) statement. The third step is only acceded to if there is a suspicion of money laundering. To determine whether money laundering is suspected, money laundering indicators are used that are regularly updated by the Anti Money Laundering Centre (AMLC). In particular, they look at money laundering typologies and facts of common knowledge. For example, if someone is transporting large amounts of money in small denominations, the suspect can usually be expected to give an explanation. In the AMLC's thinking, only someone who has something to hide will take such big security risks. If the circumstances are too suspicious and does not provide an explanation, which is not concrete, more or less verifiable and not highly improbable beforehand can be called, a money laundering conviction may follow.

Does the presence of a money laundering indicator always give rise to a suspicion of money laundering?

 The presence of a money laundering indicator does not necessarily mean that the circumstances are such that there are definitely there is a money laundering presumption. Several rulings show that the court is also mindful of facts and circumstances that exist alongside the money laundering indicators. The Overijssel District Court acquitted someone of money laundering because, although transporting large cash sums from Switzerland provided an indication of money laundering, it did not provide grounds for a money laundering suspicion because the money was traceable to assets in foreign bank accounts. A 2024 ruling by the Central Netherlands District Court also failed to address the third step, despite the fact that someone had hidden half a million euros in 'seal bags' in his home. The fact that someone hides large sums of money in his home does not necessarily mean that someone is trying to hide the criminal origin. For example, burglars may not find the money either. However, it is true that after such statements, the AMLC updates the list of money laundering typologies once again.

The above shows that in money laundering cases, a statement cannot always be demanded. Not even if there are suspicious circumstances. Always consult a lawyer before making a statement.

Mr. D.M. Penn