Dutch criminal law
Until December 14th 2001, money laundering cases were prosecuted according to the provisions of art. 416 (fencing) of the Dutch Penal Code. However, jurisprudence hindered the prosecution of criminals who laundered their own criminal profits, which therefore called for an independent money laundering offence in the Penal Code. As of December 14th 2001, the Netherlands upholds an independent money laundering offence in the Penal Code. As of 2015, some adjustments in the penal provisions were made that concern aggravation and the criminalization of money laundering in a profession or business.
The main article (420bis Sr) of the Money Laundering provisions in the Dutch Penal Code reads as follows:
- As guilty of money laundering will be punished with imprisonment with a maximum duration of six years or a fine of the fifth category
a. he who hides or conceals the real nature, the source, the location, the transfer or the moving of an object, or hides or conceals the identity of the person entitled to an object or has it in his possession, while he knows that the object derives - directly or indirectly - from any serious offence;
b. he who acquires an object, possesses it, transfers or converts it, while being aware that the object derives - directly or indirectly - from a serious offence;
- All property rights and all other immaterial matters are meant to be objects.
Apart from the intent variation as cited above in article 420bis Sr, Dutch law recognizes a habitual variation (420ter Sr eight years of imprisonment) and a culpable variation (420quarter Sr, two years of imprisonment). Habitual money laundering comes up when a person repeatedly and/or over a longer period of time commits money laundering. The culpable variation, with lighter penalties, is intended for cases in which the money laundering is less reprehensible, for instance the partner of a criminal who should have wondered where all the money came from and didn’t do anything.
Dutch law employs the so-called “catch all approach”. The highest Dutch court, has stipulated that it is not required to derive from the evidence at hand what exact predicate offence has been committed. Because of this, the evidence of money laundering can also be acquired by an indirect approach. Click here to read more about the indirect method of proof.
A person cannot be found guilty of money laundering by the mere acquisition of an object from its own crime. A thief cannot be convicted for money laundering of an object at the moment he/she has stolen it. This trend has developed in jurisprudence and is known as the exclusion ground. The exclusion ground was repaired when the articles 420bis.1 and 420quater.1 came into effect on January 1st 2017. Possessing an object that originates directly from a person's own crime is now punishable as basic money laundering with a maximum sentence of respectively 6 and 3 months of imprisonment. Click here to read more about self-laundering.