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Alternative scenario

The Netherlands Supreme Court dated 9 July 2019, alternative scenario: ECLI:NL:HR:2019:1137

The Court of Appeal based its conviction on the indirect method of proof. In short it means that an accused can be convicted of money laundering even though the predicate offence from which his illegal (and laundered) earnings originated from, is unknown: the Court only needs to exclude any legal source of origin. This can be done by following six steps.

So first of all, there is no specific predicate offence to connect to the laundered objects. Second, is there a suspicion of money laundering. If so, how does the accused respond when confronted with this suspicion. Fourth, can the accused provide a statement that is concrete and more or less verifiable – and not highly unlikely? Fifth, if that’s the case, police and the Public Prosecution Service are obliged to further investigate this statement. Sixth, based on the outcome of such an investigation the Court has to decide whether the accused statement is valid: if not and a lawful origin can be excluded, the accused can be convicted of money laundering.

In this particular case the accused had three bank accounts in which cash sums totalling more than € 300,000 were deposited over the course of about six years. During the appeal the question arose whether the accused’s statement on the origin of this amount was sufficiently concrete and verifiable and not highly unlikely. With respect to the origin of the money, the accused stated that he had acquired large sums of money from, inter alia, property sales, revenue from a snack bar, poker winnings, rent and the sale of figurines and gold. The accused kept the money at home and, on occasion, at his friends’. Money would sometimes also be deposited in bank accounts, with a view to make payments that required bank transfers. Investigation into his tax returns showed that the accused did not have any income or assets which could explain the cash deposits. Nor did the accused submit any evidence that showed a record being kept of the cash flows. The accused has not given any substantiation or explanation with regard to the cash flows that led to the cash deposits in the three bank accounts. The Court of Appeal thus concludes that the accused has not in any way provided a statement that is both concrete and verifiable in terms of the origin of the cash deposits. It therefore determines that there is no need for further investigation of the accused’s statement and convicts the accused of money laundering. The Supreme Court does not deem the Court of Appeal’s judgment to be incomprehensible since the cash flow was not made transparent, either prior to and during the period found.

The accused is sentenced to a 12-month imprisonment.

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