Money laundering defence in the Netherlands: how the case is built and answered

A money laundering defence in the Netherlands begins with the prosecution evidence, not with your explanation. Money laundering is punishable under articles 420bis to 420quater of the Dutch Criminal Code (Wetboek van Strafrecht), and in most cases the Openbaar Ministerie cannot point to the underlying crime that produced the money. It then has to build the case through a six-step framework developed in the case law, and every one of those steps is a point at which the defence can intervene.

What the prosecution actually has to prove

The core offence is deceptively simple. The prosecution must prove that an object, which in practice usually means money, a car, a house or crypto assets, derives from any criminal offence, and that the accused concealed or disguised its origin, or acquired, held, transferred or used it while knowing that origin. Article 420bis requires intent. Article 420quater covers the culpable variant, schuldwitwassen, where the accused ought reasonably to have suspected the criminal origin. Article 420ter covers habitual money laundering, and the simple forms in articles 420bis.1 and 420quater.1 apply where a person merely acquires or holds proceeds of their own crime.

Two things are commonly misunderstood. First, money laundering is a Criminal Code offence: the Wet ter voorkoming van witwassen en financieren van terrorisme (Wwft) imposes administrative duties on banks, notaries, accountants and lawyers, and breaching those duties is an economic offence, but it is not the offence of money laundering. Second, the prosecution does not have to identify the predicate offence. The Hoge Raad confirmed in its judgment of 28 September 2004 (ECLI:NL:HR:2004:AP2124) that a conviction is possible without proof of which specific crime produced the money, provided it is established that the money came from some crime.

The six-step framework when there is no predicate offence

Where no underlying crime can be pinned down, Dutch courts work through a fixed sequence, known in practice as the six-step plan. It runs as follows. First, the court establishes that there is no direct evidence of a specific predicate offence. Second, it asks whether the facts and circumstances give rise to a justified suspicion of money laundering: unexplained cash, transactions without economic logic, an income that does not match the lifestyle, structuring just under reporting thresholds, or a company whose turnover has no visible source.

Third, if that suspicion exists, the case is said to cry out for an explanation, and the accused may be expected to give one about the origin of the asset. Fourth, that explanation must meet a standard: it must be concrete, to some degree verifiable, and not highly improbable in advance. Fifth, if such an explanation is given, the prosecution must investigate it rather than dismiss it. Sixth, the court weighs the outcome and convicts only if a lawful origin can be excluded with sufficient certainty, so that the only acceptable conclusion is that the asset derives from a criminal offence.

Each step carries a burden for one side. Steps two, five and six are the prosecution burden. Steps three and four are where the accused is drawn in, and that is the part of the framework that causes the most confusion and the most damage.

The explanation you are expected to give, and the right to remain silent

There is no statutory duty to explain where your money came from. A suspect in the Netherlands has the right to remain silent, and the police must caution you accordingly before questioning. But in a six-step money laundering case that right has a price. Once the prosecution has established a justified suspicion, silence leaves nothing for the court to test, and the court may then conclude that a lawful origin has been excluded. The right to silence remains intact; its practical consequences in this particular offence are unusually heavy.

That is why the decision whether and when to speak is a tactical one that should never be taken alone in an interview room. An explanation that is vague, that shifts between interviews, or that cannot be checked against any document does more harm than saying nothing at all, because it becomes evidence of concealment in its own right. Conversely, a well-prepared account supported by records can end the case before it reaches a courtroom.

What makes an explanation concrete and verifiable

The standard is not that the explanation must be proved. It must be capable of being checked. An account that names the counterparty, the date, the reason for the payment and the route the money took gives the investigators something to verify. Loan agreements, inheritance documents, sale contracts, tax filings, foreign bank statements, gambling records and company accounts all count, and the earlier they are produced the more weight they carry. An assertion that the money came from savings abroad, from a relative, or from years of successful trading, with nothing behind it, does not meet the test.

Where a six-step case can be attacked

The most productive line of defence is usually step two. A suspicion of money laundering must rest on facts, not on a checklist of typologies applied mechanically. Cash is not unlawful. A transfer to or from a country on a risk list is not evidence of a crime. A bank that closed an account did so on its own regulatory calculation, not on a finding of fact, and its file is not proof of anything. If the circumstances relied on are equally consistent with a lawful explanation, the framework never gets to step three, and the accused owes no explanation at all.

Step five is the second pressure point. Where a concrete and verifiable account has been given, the prosecution must actually investigate it. Files in which an alternative source was mentioned in an interview and then never checked, or checked only by asking whether it could be disproved, regularly do not survive scrutiny. The defence should put the alternative origin on the record clearly and in writing, and, where the investigating judge is involved, ask for the investigative steps that would confirm it.

Beyond the framework there are the ordinary defences. The asset may not derive from a crime at all. The knowledge or the culpable negligence required by the article charged may be missing, and the difference between article 420bis and article 420quater matters here. Where the accused is alleged to have laundered the proceeds of their own offence by merely holding them, the charge should be the simple variant rather than the full offence. And evidence obtained through an unlawful search, an unlawful data request or a defective international request may have to be excluded.

Seizure and confiscation run alongside the criminal case

In money laundering files the financial track often hurts more than the criminal one. Assets can be seized at an early stage, both to secure evidence and to secure a future confiscation order, and a seizure can freeze bank accounts, vehicles and property long before any court has ruled on guilt. A complaint against the seizure can be lodged with the court, and pressing that complaint early is frequently the most useful thing a defence lawyer does in the first months.

Confiscation of criminal gains (ontneming) is a separate procedure that follows a conviction. Its standard of proof is lower than that of the criminal case: the court works with what is plausible rather than with what is proved beyond doubt, and it may use calculation methods that compare income with expenditure over a period of years. A defence that concentrates only on the criminal charge and ignores the confiscation calculation tends to win the battle and lose the money. Our separate article on money laundering penalties, fines and confiscation sets out the sentencing side in detail.

The role of your raadsman, from the first police interview

A suspect has the right to consult a lawyer before questioning and to have a lawyer present during police questioning. In a money laundering case that right is not a formality. The first interview is where the account of origin is fixed, and an unprepared answer given to keep an interview short can shape the entire file. Ask for a lawyer, and say nothing about the origin of assets until you have spoken to one.

After that, the work of the raadsman is largely about the file and the timing. Reading the file as it grows, identifying which typologies the investigation actually relies on, requesting further investigation through the investigating judge, arranging for documents from abroad to be obtained and translated properly, and deciding at which moment the explanation is best put on the record. In corporate files there is a parallel track as well, because the company, its directors and its compliance function may all need separate advice, and an internal investigation carried out without legal privilege in mind can end up as prosecution evidence.

How these cases end

Not every file goes to trial. The Openbaar Ministerie can dismiss a case, impose a penalty order (strafbeschikking) for lighter matters, or agree an out-of-court settlement (transactie), which in larger corporate cases is accompanied by a published statement of facts. Each route has consequences beyond the immediate sanction: a settlement is public, it can affect licences and banking relationships, and it may be relied on by counterparties. Whether accepting one is wise is a question of the whole picture, not just of the amount.

If the case does go to trial, the sentence depends on the amount involved, the duration, the role of the accused and whether the habitual variant is charged. The maximum for the basic offence under article 420bis is six years imprisonment or a fine of the fifth category, with higher maxima for habitual money laundering and lower ones for the culpable and simple variants.

What to do if you are a suspect

Do not attempt to explain your way out of a first interview. Do not move assets, close accounts or ask a bank to reverse anything once you know an investigation is running, because that behaviour is itself a money laundering indicator. Preserve documents rather than tidy them. Gather everything that shows where the money came from, including material held abroad, and give it to your lawyer rather than to the investigators directly. Our article on what it means to be suspected of money laundering sets out the first steps in more detail.

Law and More defends individuals and companies against money laundering allegations in the Netherlands, from the first police interview through seizure complaints and the confiscation procedure to trial. We read the file for what the prosecution can actually prove and build the explanation on documents rather than assertions. See our criminal law guides or contact Law & More to discuss your position.

Frequently asked questions about money laundering