As of 1 January 2017, simple (culpable) money laundering has been made an offence. What has changed compared to the existing money laundering legislation and what are the consequences?
Basically, money laundering means concealing or disguising the proceeds of criminal activities. Before the criminalisation of simple (culpable) money laundering, there was discussion about the situation in which the Prosecution Service (OM) prosecuted a suspect for the mere possession of an item (for example cash) derived from a crime he had committed himself. The case law states that possessing an item derived from a crime one has committed oneself can only be regarded as money laundering if the suspect has attempted to disguise the criminal origin of the item.
The criminalisation of simple (culpable) money laundering now therefore means that acquiring or possessing an item that is directly derived from an offence committed by the accused himself can be punishable as a form of money laundering even without conduct being proved that was (manifestly) aimed at concealing the item. Simple money laundering is subject to a maximum prison sentence of six months; simple culpable money laundering to a maximum of three months. In both cases, a fine may be imposed, namely up to EUR 20,500 for natural persons and EUR 82,000 for legal entities. The criminalisation of simple culpable money laundering means that an accused can be sentenced for both the offence he committed (“the basic offence”) and for simple money laundering. And because two offences are involved, it is highly likely that the penalty will be higher than if only the basic offence were to be penalised.
In practice, it is expected that there will not automatically be any routine double punishment. Both the legislature and the Supreme Court have emphasised that the rationale behind the criminalisation of simple (culpable) money laundering lies in preventing impunity if conviction for the basic offence is impossible or inappropriate. The Prosecution Service’s penalisation policy will be designed to take account of this.
One can say, however, that the threshold for a conviction of money laundering in the case of an offence directly committed by the accused has been lowered. The Prosecution Service, in turn, is more often likely to have a reason for confiscating illegally obtained money. After all, if no conviction is possible for the basic offence, there will always be the offence of money laundering. If you want to know what you can do to avoid being accused of money laundering, then don’t hesitate to ask us to advise.
Authors: Annechien Daalderop and Melissa Slaghekke.