Step by step plan, handout

Publication date 24-04-2019

Step-by-step plan for a conviction for money laundering without an evident predicate offence

Money laundering involves objects originating from crime. It is not always clear from which offence an object originates. Even if it is not known which offence the object originates from, the court can reach a conviction  for money laundering. After all, the Supreme Court of the Netherlands made it clear that in case of objects ‘originating from crime’ it is not required to prove who actually committed the crime, when and where.[1]

The Court of Appeal in Amsterdam summed up the assessment framework for money laundering without a known predicate offence in the so-called '6-step judgment'.[2]

Step 1: No direct evidence of a specific predicate offence

The specific predicate offence is unknown or cannot be proved. The fact that (e.g.) there is a criminal record is no direct indication for the fact that the object originates from this predicate offence.

Step 2: A suspicion of money laundering

Is there a suspicion of money laundering on the basis of facts and/or circumstances? To come to this suspicion, money laundering indicators (such as general knowledge and money laundering typologies) can be used.

Step 3: Statement by the suspect

If there is a suspicion of money laundering the suspect can be expected to make a statement about the origin of the object that is suspected to originate from money laundering. The facts and/or circumstances 'call for an explanation'.[3] If a suspect refuses to make a statement this may also be taken into consideration in the conclusion that an object originates from crime.

Step 4: Requirements for a suspect's  statement

The statement about the origin of the object must be concrete, more or less verifiable and not highly unlikely in advance.[4] In addition, the court determined that, apart from the possible legal source, the flows of money must also be set out clearly.

Step 5: Investigation by the Public Prosecution Service

If the statement meets the criteria of step 4, it is up to the Public Prosecution Service to investigate (have) the mentioned alternative origin of the object (investigated).

Step 6: Drawing conclusions

If on the basis of the investigation referred to in step 5 it can be ruled out with a sufficient degree of certainty that the object the suspicion relates to has a legal origin, it can be argued that it 'originates from crime'. After all, the only acceptable explanation for the origin of the object is a criminal origin.[5]

[1] HR 28 September 2004, ECLI:NL:HR2004:AP2124

[2] Amsterdam Court of Appeal 11 January 2013, ECLI:NL:GHAMS:2013:BY8481

[3] ECtHR 8 February 1996. In this case, known under the name ‘Murray’, the ECtHR established that a refusal to make a statement, provided that the conditions mentioned in the judgment have been fulfilled, may be taken into consideration in the evidence and that this is not contrary to the right to a fair trial.

[4] The Hague Court of Appeal, 12 March 2008, LJN BC6500 and Supreme Court 13 July 2010, NJ 2010, 456 and Supreme Court 19 December 2014, ECLI:NL:HR:2014:3687

[5] EHRM Zschüschen v. België, http://hudoc.echr.coe.int/eng?i=001-174209. According to the ECtHR, in a method of proof as described here, expecting the suspect to provide a reasonable explanation about the origin of the money is not contrary to the European Convention. Also, if there is convincingly established a body of circumstantial evidence, the refusal to provide such an explanation may also be taken into consideration.