Money laundering defence in the Netherlands: how a case is fought

A money laundering defence in the Netherlands starts with the prosecution’s evidence, not with your explanation. Money laundering is a crime under Articles 420bis to 420quater.1 of the Dutch Criminal Code (Wetboek van Strafrecht, Sr), and the Public Prosecution Service (Openbaar Ministerie) does not have to prove which crime produced the money; but where it cannot, the courts apply a step-by-step test in which the defence can intervene at several points.

What does the prosecution have to prove?

The prosecution must prove that an object derives from any crime (enig misdrijf) and that the suspect concealed its origin, or acquired, held, transferred or used it while knowing that origin. Under Article 420bis(2) Sr, an object means all goods and property rights, so money, cars, houses and crypto assets are all covered.

The level of knowledge decides the offence. Intentional laundering under Article 420bis Sr carries up to six years in prison or a fine of the fifth category. Culpable laundering (schuldwitwassen) under Article 420quater Sr, where you ought reasonably to have suspected the criminal origin, carries up to two years.

Article 420ter Sr raises the maximum to eight years for habitual laundering and for laundering in the course of a profession or business. Merely acquiring or holding the direct proceeds of your own crime is simple laundering: up to six months under Article 420bis.1 Sr, or three months for the culpable variant under Article 420quater.1 Sr.

Is a breach of the Wwft the same as money laundering?

No. The Money Laundering and Terrorist Financing (Prevention) Act (Wwft) imposes duties on banks, notaries, accountants and lawyers, such as client due diligence and reporting unusual transactions. Breaching those duties is an economic offence, but it is not the Criminal Code offence of money laundering, which requires intent or culpable negligence about the origin of the object.

How does the court assess a case without a known predicate offence?

Where no specific underlying crime can be identified, the Supreme Court (Hoge Raad) has developed a fixed sequence of steps. The court convicts only if a lawful origin can be ruled out with sufficient certainty.

1. There is no direct evidence that the object comes from a specific crime.
2. The facts give rise to a justified suspicion of laundering, for example unexplained cash, transactions without economic logic, or a lifestyle that does not match the income.
3. If so, the situation calls for an explanation from the suspect about the origin.
4. That explanation must be concrete, to some extent verifiable and not highly improbable from the outset.
5. If it meets that test, the prosecution must investigate it.
6. Only if a lawful origin can then be excluded may the court conclude that the object derives from a crime.

Steps two, five and six place the burden on the prosecution. Steps three and four are where the suspect is drawn in, and that is where most mistakes are made.

Do you have to explain where your money came from?

No, there is no legal duty to explain. Under Article 29(2) of the Code of Criminal Procedure (Wetboek van Strafvordering, Sv), a suspect is not obliged to answer, and the police must say so before questioning starts.

In a laundering case, however, silence has a price. Once the prosecution has shown a justified suspicion, silence leaves the court nothing to test, and it may then conclude that a lawful origin is excluded. An explanation that is vague, changes between interviews or cannot be checked against documents can do more harm than silence, because it may itself be treated as concealment.

What makes an explanation concrete and verifiable?

The explanation does not have to be proven, but it must be capable of being checked. Name the counterparty, the date, the reason for the payment and the route the money took. Loan agreements, inheritance documents, sale contracts, tax returns from the Belastingdienst, foreign bank statements and company accounts all count, and the earlier they are produced, the more weight they carry.

Where can the defence attack a case?

The most effective point is usually step two. A suspicion must rest on facts, not on a list of risk indicators applied mechanically: cash is not unlawful, a transfer from a high-risk country is not proof of a crime, and a bank’s decision to close an account is not a finding of fact. If the circumstances are equally consistent with a lawful origin, the court never reaches step three and you owe no explanation.

Step five is the second pressure point. If you gave a concrete and verifiable account, the prosecution must actually check it; files in which an alternative source was mentioned but never investigated regularly fail in court. The defence can ask the examining magistrate (rechter-commissaris) for investigative steps that would confirm the lawful origin.

The ordinary defences also remain. The object may not derive from a crime at all, the required knowledge or culpable negligence may be missing, or the charge should be simple laundering under Article 420bis.1 Sr instead of Article 420bis Sr. Evidence from an unlawful search, data request or defective international request may have to be excluded.

What happens to your assets during the case?

Assets can be seized early, both as evidence and to secure a future confiscation order. Under Article 94 Sv, objects that can prove unlawfully obtained gains may be seized, which can freeze bank accounts, vehicles and property long before a court rules on guilt.

Under Article 552a Sv, any interested party can file a written complaint (klaagschrift) against the seizure with the court. Pressing that complaint early is often one of the most useful steps in the first months of a case.

How does confiscation of criminal gains work?

Confiscation of criminal gains (ontneming) under Article 36e Sr is a separate procedure after a conviction. The prosecution must start it within two years after the first-instance judgment (Article 511b Sv). The standard is lower than in the criminal case: the court works with what is plausible (aannemelijk), and for crimes carrying a fifth-category fine it may presume that expenses and assets acquired in the six years before the offence come from crime, unless a legal source is plausible.

Money laundering under Article 420bis Sr carries a fifth-category fine, so that presumption can apply. A defence that ignores the confiscation calculation can win on the charge and still lose the money. Our article on money laundering penalties, fines and confiscation covers the sentencing side.

What is the role of your lawyer from the first police interview?

Under Article 28c Sv, an arrested suspect may consult a lawyer (raadsman) for up to half an hour before the first interview, and under Article 28d Sv the lawyer may attend and take part in the interview. In a laundering case this right is far from a formality, because the first interview often fixes your account of where the money came from.

After that, the lawyer’s work is about the file and the timing: reading the file as it grows, identifying the risk indicators the investigation relies on, asking the examining magistrate for further investigation, having foreign documents obtained and translated, and choosing the right moment to put the explanation on record. In corporate cases, the company, its directors and its compliance staff may each need separate advice, and an internal investigation without legal privilege in mind can end up as prosecution evidence.

How can a money laundering case end?

Not every case goes to trial. The prosecution can drop the case, impose a penalty order (strafbeschikking) under Article 257a Sv, or offer an out-of-court settlement (transactie) under Article 74 Sr. Both routes are only available for crimes carrying no more than six years in prison, so they are possible for Article 420bis Sr but not for habitual laundering under Article 420ter Sr.

Each route has consequences beyond the sanction itself. In larger corporate cases the Public Prosecution Service usually publishes a statement of facts with a settlement, which can affect licences, banking relationships and claims by counterparties. If the case goes to trial, the sentence depends on the amount, the duration, the suspect’s role and the variant charged.

What should you check as an individual suspect?

• Ask for a lawyer before the first interview and say nothing about the origin of assets until you have consulted one.
• Do not move assets, close accounts or ask a bank to reverse transactions, as that can itself be seen as concealment.
• Collect documents that show the origin of the money, including records held abroad, and give them to your lawyer.
• Check which assets have been seized and whether a complaint under Article 552a Sv makes sense.
• Keep an eye on a possible confiscation claim, which the prosecution can file up to two years after the first-instance judgment.

What should you check as a company or director?

• Check whether the investigation targets the company, its directors or both, and whether their interests conflict.
• Review your Wwft procedures: client due diligence, unusual-transaction reports and record keeping.
• Secure documents and communications rather than tidying them up.
• Set up any internal investigation with legal privilege in mind.
• Assess the effect of a settlement or penalty order on licences and banking relationships before you agree to it.

What can we do for you with a money laundering investigation?

Our criminal lawyers defend individuals and companies from the first police interview to trial.

• We prepare you for the police interview and attend it under Article 28d Sv.
• We analyse the file and test whether the suspicion at step two holds.
• We build your explanation on documents and ask the examining magistrate for investigative steps.
• We file a complaint against seizure under Article 552a Sv.
• We contest the confiscation calculation under Article 36e Sr.
• We assess a proposed penalty order or settlement before you accept it.

See also our article on what to do when you are suspected of money laundering.

Summary

• Money laundering is a crime under Articles 420bis to 420quater.1 Sr, with maximum sentences from three months to eight years.
• The prosecution does not need to prove a specific predicate crime, but must then pass a step-by-step test.
• You have the right to remain silent, but in a laundering case a concrete, verifiable explanation can be decisive.
• Seizure and confiscation run alongside the criminal case and need their own defence.

Frequently asked questions