Suspected of Money Laundering: What Does It Mean and What Should You Do?

Being suspected of money laundering means that the police or the Public Prosecution Service suspect you of acquiring, holding, transferring, using or concealing money or goods that come from a crime, while you knew or should reasonably have suspected that origin. The prosecution does not have to prove which crime the money came from; the main exception to your position of simply saying nothing is that, once there is a well-founded suspicion, the court may expect a concrete and verifiable explanation from you.

What you do in the first days matters a great deal. Below we explain what the offence covers, how a suspicion arises, what you should and should not do immediately, which penalties are realistic and how a defence is built.

Money laundering (witwassen) is defined in Articles 420bis to 420quater of the Dutch Criminal Code (Wetboek van Strafrecht, Sr). It covers concealing or disguising the true nature, origin, location or ownership of an object that comes from a crime, and also acquiring, holding, transferring or using such an object while you know, or have reasonable cause to suspect, where it comes from. Two features of that definition explain why suspicions arise so often.

The first is that no predicate offence needs to be proven against you. The prosecution does not have to establish which crime the money came from. Where an unexplained amount cannot plausibly have a lawful origin, the burden shifts in practice to the person holding it to give an explanation. The second is the culpable variant: it is enough that you had reasonable cause to suspect the origin. Deliberately not asking is not a defence.

A suspicion usually becomes apparent through a bank freezing or terminating your account after a report of an unusual transaction, through an invitation for a police interview, or through a search and seizure. In each case two rights matter most and must be exercised immediately: the right to consult a lawyer before the first interview and the right to remain silent. A hasty explanation that later turns out to be incomplete does more damage in a money laundering case than silence, because the credibility of the explanation is exactly what the case turns on.

What does a money laundering suspicion mean for you?

It means you are formally a suspect in a criminal investigation, with the rights that come with that status. It can also mean immediate practical consequences, such as a blocked bank account or seized property.

A money laundering suspicion can arise suddenly and have far-reaching consequences for your private and business life. You may be confronted with a police interview, a search of your home or business premises, the seizure of money, cars or other property, or a bank that blocks or closes your account.

Money laundering is a serious offence. It is not limited to criminals who run complex schemes: people who accept cash without asking questions, lend their bank account to someone else or buy expensive goods with money of unclear origin can also become suspects.

What exactly is money laundering?

Money laundering is dealing with an object that comes from a crime, knowing or reasonably suspecting that origin. The object can be money, but also a car, a house, jewellery or cryptocurrency.

Under Article 420bis Sr, money laundering covers two groups of acts. The first group is concealing or disguising the true nature, origin, location, disposal or movement of an object, or who the owner is or holds it. The second group is acquiring, holding, transferring, converting or using an object, while knowing that it comes directly or indirectly from a crime.

In the Netherlands, any crime (misdrijf) that generates proceeds can be a predicate offence, such as drug trafficking, fraud, tax fraud or theft. The object does not need to come entirely from crime. It is sufficient if it was partly financed with criminal money.

Does the prosecution have to prove the underlying crime?

No. According to settled case law of the Supreme Court (Hoge Raad), it is sufficient if it can be concluded from the facts and circumstances that the object must have come from some crime.

In practice, the prosecution builds its case on so-called money laundering typologies: objective characteristics that are generally recognised as indicators of money laundering. Examples are large amounts of cash in small denominations, transactions without an economic reason, and spending that does not match known income.

Acts such as acquiring, holding and transferring have a sufficiently factual meaning and do not need further explanation in the indictment. For concealing or disguising, the indictment must describe more precisely what you are alleged to have done.

What if the money comes from your own crime?

If you only acquire or hold an object that comes directly from a crime you committed yourself, that is simple money laundering (eenvoudig witwassen), which carries a much lower maximum penalty. The heavier offence requires more.

In its overview judgment of 13 December 2016 (ECLI:NL:HR:2016:2842), the Supreme Court explained that for proceeds of your own crime, a conviction for ordinary money laundering requires conduct actually aimed at concealing or disguising the criminal origin. Merely holding the proceeds falls under simple money laundering in Article 420bis.1 Sr or, in the culpable form, Article 420quater.1 Sr. These provisions have applied since 1 January 2017.

Which forms of money laundering are there?

Dutch law distinguishes intentional, habitual and culpable money laundering, plus the simple forms for proceeds of your own crime. Each form has its own criminal law significance and maximum penalty.

• Intentional money laundering (Article 420bis Sr). You knew that the object came from a crime, or you knowingly accepted the considerable chance that it did (conditional intent, voorwaardelijk opzet). This form is punished more severely than the culpable form and can lead to a long prison sentence, especially where there is cooperation with others or repeated laundering.
• Habitual money laundering (Article 420ter Sr). This is money laundering committed repeatedly, as a pattern. Habitual laundering carries a heavier maximum penalty than a single act.
• Culpable money laundering (Article 420quater Sr). You did not know the criminal origin, but you had reasonable cause to suspect it. Not every form of carelessness is enough: the court looks at whether, in the circumstances, you should have investigated the origin and failed to do so.
• Simple money laundering (Articles 420bis.1 and 420quater.1 Sr). Merely acquiring or holding an object that comes directly from your own crime, without any act of concealment.

The distinction matters for the defence. A case charged as intentional money laundering can sometimes, on closer examination of the evidence, only lead to a conviction for culpable or simple money laundering, with a much lower penalty.

How does a suspicion of money laundering arise?

Most suspicions start with a report of an unusual transaction by a bank or another institution, or with findings in a different investigation. The authorities then look for objective indicators that the money cannot have a lawful origin.

Typical triggers are:

• large amounts of cash without a clear origin;
• unexplained deposits, or complex money flows through several accounts;
• luxury purchases that do not match visible lawful income;
• reports from banks, civil-law notaries, accountants, tax advisers, estate agents and other service providers that must report unusual transactions to the Financial Intelligence Unit (FIU-Nederland) under the Money Laundering and Terrorist Financing (Prevention) Act (Wet ter voorkoming van witwassen en financieren van terrorisme, Wwft);
• transactions with cryptocurrency that cannot be traced to a lawful source.

The reporting institutions may not tell you that they have made a report. The FIU analyses the reports and can declare a transaction suspicious, after which it is made available to investigative services such as the police and the Fiscal Intelligence and Investigation Service (FIOD).

By the time you are invited for an interview, the police or FIOD usually know more about your finances than you realise. That is one of the reasons not to give an explanation without preparation.

What should you do, and not do, immediately?

Contact a criminal lawyer before your first interview, exercise your right to remain silent until you have had advice, and start collecting documents about the origin of your money. Do not give an improvised explanation.

If you are suspected of money laundering, engage an experienced criminal lawyer straight away. You have the right to remain silent, and you do not have to say anything to the police before you have spoken to a lawyer. Criminal lawyers involved at an early stage can advise you on whether and when to give a statement.

Note that in a money laundering case, remaining silent throughout is not always the best strategy. Once the prosecution has established facts that justify a suspicion, the court may expect an explanation from you. The choice is therefore not between silence and speaking, but about when and how you give a well-prepared explanation.

Important advice:

• use your right to remain silent and make no statement until you have consulted your lawyer;
• do not give vague or implausible explanations about the origin of money or goods;
• collect and keep all documents that can support a lawful origin, such as bank statements, loan agreements, sales contracts, tax returns, inheritance documents and payslips;
• do not move, transfer or spend money or assets that may be involved, and do not contact other people involved about the case;
• be aware that once there is a well-founded suspicion, you may be expected to give an explanation that is concrete, more or less verifiable and not highly improbable from the outset.

If your bank has blocked or terminated your account, that is usually a decision of the bank itself under its Wwft obligations, and not the same as a seizure by the police. The route to challenge it is different: against the bank you use a civil route; against a seizure by the police or prosecutor you can file a complaint (klaagschrift) with the court under Article 552a of the Code of Criminal Procedure (Wetboek van Strafvordering, Sv).

How are cybercrime and money laundering connected?

Proceeds of online fraud, phishing and hacking are often laundered through cryptocurrency and so-called money mules. People who make their bank account available, sometimes for a small fee, can themselves be prosecuted for money laundering.

Criminal money obtained through digital crime is often converted into cryptocurrency such as bitcoin. It then enters the legal economy through wallets, exchanges and international transactions. The Public Prosecution Service and the courts pay extra attention to transactions involving digital means of payment, especially where they come from anonymous sources.

In cases involving cryptocurrency, the suspect is often expected to give a plausible explanation of the lawful origin of the coins, for example by showing when and with which money they were bought. If such an explanation cannot be given, the risk of a conviction increases considerably. A defence in these cases requires knowledge of both criminal law and how digital money flows can be traced and analysed.

Money mules (geldezels) deserve a separate mention. Young people in particular are approached to “lend” their bank card or account for a payment. Courts regularly treat this as at least culpable money laundering, because the account holder should have understood that something was wrong.

What is the role of the FIOD and the Tax and Customs Administration?

The FIOD, the investigative service of the Tax and Customs Administration (Belastingdienst), investigates money laundering, particularly where it is linked to fraud and tax offences. It works closely with the Public Prosecution Service.

The FIOD often starts investigations based on transactions that the FIU has declared suspicious, following reports from institutions that fall under the Wwft. If the FIOD or the police suspect that money or goods come from a crime, the prosecutor can have them seized and a criminal investigation can follow.

This can have major consequences for businesses and individuals, for example when business accounts or company cars are seized. In an FIOD investigation, seek legal advice immediately, so that your rights are protected and you can respond properly to questions about the origin of your assets.

Tax and criminal law often run side by side in these cases. Information you give to the tax authorities can end up in the criminal file, and the other way round. Coordinate your position with your lawyer before you respond to either.

What is the difference between intentional and habitual money laundering?

Intentional money laundering requires that you knew, or knowingly accepted the considerable chance, that the object came from a crime. Habitual money laundering is intentional money laundering committed repeatedly, as a pattern.

In intentional money laundering the prosecution must prove your knowledge or conditional intent. That proof is usually derived from the circumstances: the amounts involved, the way the transactions were structured and your explanations.

Habitual money laundering is a more serious form. The legislator considers systematic dealing with criminal money a serious offence and has set a higher maximum penalty for it. Both forms can lead to long prison sentences and high fines.

What role do your statements and the evidence play?

The prosecution must first present facts and circumstances that justify a suspicion of money laundering. Only then can you be expected to explain the lawful origin of the object.

According to the case law of the Supreme Court, that explanation must be concrete, more or less verifiable and not highly improbable from the outset. If you give such an explanation, the prosecution must investigate it. If the investigation does not rule out the lawful origin, a conviction is not possible.

If you give no explanation or an unclear one, the court may take that into account when it weighs the evidence. Remaining silent is not a criminal offence in itself and is not proof of guilt, but in a money laundering case the absence of an explanation can make the prosecution’s case stronger.

That is why the timing and content of your explanation must be carefully prepared. An explanation that you later have to change because a document contradicts it seriously damages your credibility.

Which penalties can you expect?

The maximum penalties range from three months’ imprisonment for simple culpable money laundering to eight years for habitual money laundering. The actual sentence depends on the amounts, your role and the circumstances.

• Intentional money laundering (Article 420bis Sr): a maximum of six years’ imprisonment or a fifth-category fine.
• Habitual money laundering (Article 420ter Sr): a maximum of eight years’ imprisonment or a fifth-category fine.
• Culpable money laundering (Article 420quater Sr): a maximum of two years’ imprisonment or a fifth-category fine.
• Simple money laundering (Article 420bis.1 Sr): a maximum of six months’ imprisonment or a fine.
• Simple culpable money laundering (Article 420quater.1 Sr): a maximum of three months’ imprisonment or a fine.

The consequences of a conviction go beyond the sentence. You will have a criminal record, which can affect a Certificate of Conduct (Verklaring Omtrent het Gedrag, VOG). In addition, a confiscation order can be imposed, requiring you to pay the state the benefit you obtained. The court can also declare money, vehicles, real estate and other seized property forfeited.

For some people, a money laundering case also has administrative consequences, such as the refusal of a permit after a Bibob screening or, for professionals, disciplinary measures. Those consequences deserve attention from the start.

Why is a specialised lawyer so important?

Money laundering cases are legally and financially complex. A lawyer can assess the file, help prepare a verifiable explanation and challenge the prosecution’s typologies and calculations.

An experienced criminal lawyer can:

• protect your rights throughout the investigation, including during interviews and searches;
• advise you on whether and when to make a statement;
• help you gather documents and prepare a concrete, verifiable explanation;
• deal with the Public Prosecution Service, and challenge seizures through a complaint to the court;
• check whether the evidence supports intentional, culpable or only simple money laundering;
• defend you in confiscation proceedings, where the calculation of the benefit is often open to challenge.

Deadlines apply at several stages, for example for filing an appeal against a judgment (within 14 days). Acting early gives you the most room to influence the outcome.

In summary

• Money laundering covers concealing, acquiring, holding, transferring or using objects from a crime, knowing or reasonably suspecting their origin (Articles 420bis to 420quater Sr).
• The prosecution does not have to prove the specific predicate offence; indirect indicators can be enough.
• Once there is a well-founded suspicion, you may be expected to give a concrete, more or less verifiable explanation, so prepare it with a lawyer.
• Maximum penalties range from three months (simple culpable money laundering) to eight years (habitual money laundering), plus confiscation and forfeiture.
• Contact a lawyer before your first interview, keep all documents and do not move assets.

Frequently asked questions about being suspected of money laundering

Are you suspected of money laundering, or have you been invited for a police interview? The criminal lawyers at Law & More assist suspects in money laundering and FIOD investigations, from the first interview through to confiscation proceedings. Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.