#57: Colored laundery

The doctrine of money laundering knows many complex issues. Issues that can be addressedd for example are: when is there a casual link between the predicate crime and the object that has been laundered? And if money has been laundered when does it qualify as illegally obtained gains which can be confiscated? Or when can an action be qualified as an act of concealment? These issues are frequently discussed by us. However, one aspect of the money laundering problem has not yet been discussed often. It concerns the blending problem: what if ‘white’ money mixes with ‘black’ money? A recent judgment of the Supreme Court gives reason to discuss this topic.

In the underlying case the Court of Appeal established that approximately half of the turnover was not accounted for and was not involved in the levying of corporate income tax and sales tax. This means that the tax that was not paid derives from a crime and can in principle be laundered. The Court of Appeal also established that there was a mixture of legally obtained and illegally obtained funds. In any case, it was established that part of the cash that was kept off the books was brought to Switzerland. Loans were subsequently granted with this money and real estate was purchased; these were allegedly acts of concealment on the basis of money laundering. The Court of Appeal therefore considers all unjustified turnover as “deriving from crime”.

The question is whether all non-responsible turnover was obtained from crime or just the part that was not taxated? First of all, the Supreme Court finds that assets that were made available as a result of tax evasion can be regarded as derived from crime. This is therefore not the entire turnover that was kept out of the books but only the amount that should have been paid in tax. Subsequently, the blending theory comes into play. In case assets that derive from crime are mixed with assets obtained through legal activities, the mixed assets can be regarded as ‘partly’ derived from crime. The Supreme Court concludes:

“The findings of the court of appeal cannot therefore support the conclusion of the court of appeal that “all turnover that was kept outside of the book” can be regarded as “deriving from a crime”.”

It is just that the part that was made available as a result of tax evasion. However, this part was mixed with the turnover and could therefor be laundered as part of this turnover derived from a crime.

It is noteworthy, however, that the Supreme Court subsequently came to the conclusion that although the plea was rightly put forward, this could not lead to cassation. The Supreme Court ruled that, despite of the Court of Appeal’s consideration, it was proved that a considerable sum of money can be regarded as derived from crime and that, also in view of the other circumstances of the case, the accused has insufficient interest in setting aside the judgment under appeal and reopening the case.

It is difficult for us to resign ourselves to this judgment. In fraud cases, the amount laundered often plays a role in the level of punishment. It makes a big difference whether ‘all’ unjustified turnover from crime has been obtained or ‘only’ the portion that has not been paid to the Tax and Customs Administration.

However, the judgment of the Court of Appeal has not been published, so it cannot be ascertained to what extent the amount laundered played a role in the level of punishment. In our view this probably had some effect which would have made cassation obvious to us.

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

#56: House of cards

Many fraud investigations are troubled by the negative effects of the long duration of an investigation. In addition, the duration of the investigation compromises the possibility of truth finding and it can be questionable whether the investigation can still provide a sufficient basis for a fair trial. It is important to keep asking this question to the DPO. Not just or only at the hearing, but before the DPO decides whether a case should be brought before court. Only then can it be prevented that those involved are confronted with a (possibly unjustified) public procedure, with all its possible consequences. It can therefore be a huge risk to keep (all) your cards close to your chest.

In Dutch case law many examples can be found of cases in which the defense was able to expose that the investigation was suffering from flaws. Although the jurisprudence in the Netherlands concerning formal omissions in the investigation only allows under very exceptional circumstances that such defects should lead to inadmissibility of the DPO, judges seem to see more and more grounds to judge that the investigation is insufficient. Advocate General of the Supreme Court Mr. Bleichrodt in the meantime also encouraged the lower courts to act upon such defects in investigations, see his very interesting legal opinion of 30 June 2020 (paragraphs 181 – 189).

The prevailing idea that a suspect may never, ever, benefit from mistakes made by the investigative authority seems to be gradually making space for the more nuanced idea that criminal investigations must be carried out carefully. The investigation must be solid enough to bear the heavy burden of using it against an individual and in a public hearing. If there are flaws in the pillars of the investigation, the investigation can tumble down like a house of cards if these pillars are not strong enough. Of course it is the challenge to find the right cards and convince the DPO of the importance of these cards for the investigation.

In practice, it often seems an impossible task to make the DPO realize that an investigation must be stopped. Usually, the figurative investigation train of the DPO and investigative authorities always thunders in the direction of the end station: the public hearing. However, case law is making it increasingly clear within which contours the investigation by the DPO must take place. As soon as it is clear that the investigation exceeds those contours, it should not be necessary to ask for a judicial opinion. The DPO should then have sufficient self-reflection not to take that step. The overburdened courts – which are still recovering from COVID-19 – will benefit from this.

That the DPO is in fact capable of self-reflection is evidently shown in a recent judgment of the Amsterdam Court of Appeal in which the DPO argued for the acquittal of the accused of corruption because of the unreliability of witness statements. The same judgment shows both the defense and the DPO that it is important that the DPO shows this self-reflection in a timely manner and that a public hearing is prevented. It can therefor be wise to not keep (all) your cards close to your chest.

For the accused in this specific investigation, the turnaround of the DPO however was too late. Despite of the requests of the DPO and the defense to acquit the accused, the Court of Appeal still came to a conviction, because of a different insight about the reliability of the statements.

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

#55: Official secrecy

The temptation to abuse power hides around many corners. Temptation can exist based on one’s own gain. But simple curiosity can also be a reason, as a recent Supreme Court judgment shows. Civil servants have a form of power over citizens, in the sense that they can gain access to confidential information while they are not allowed to see it. These civil servants are subject to a statutory duty of confidentiality. A violation of this confidentiality is punishable under certain circumstances. The Supreme Court has set some boundaries.

Article 272 of the Dutch Penal Code makes the violation of official secrecy a criminal offence. The article reads: “Anyone who intentionally violates any confidentiality of which he knows or should reasonably suspect that he is obliged to keep it by virtue of office, profession or statutory regulation or by virtue of his previous office or profession shall be liable to a term of imprisonment not exceeding one year or to a fourth category fine”.

The case that was pending before the Supreme Court revolved around a guard of the Military. He had looked up information of family and friends about criminal investigations and personal data in the system of the police and the Royal Netherlands Marechaussee. Not for the performance of his duties, but for private use. The Court judged that the accused confessed that the looked up this information for personal use and sentenced him with 20 hours of public service. The Supreme Court concluded that a breach of official secrecy is in place when a third party is informed about this information. The Supreme Court judged:

“It follows from the Parliamentary history of the law that the ‘breach’ of a secret within the meaning of section 272 of the Penal Code must be interpreted as the disclosure of secret information to another person who is not authorized to take cognizance of this information. In view of this, the opinion of the court of appeal that the accused has violated his official secrecy by disclosing secret information to himself, shows an error of law”.

The Supreme Court refers the case back to the Court of Appeal so that the case can be tried again. Based on this judgement we can conclude that criminal law cannot be used if a person who, by virtue of his position, has access to private data of citizens and cannot curb his curiosity. As long as secrecy is kept from others, the breach of official secrecy cannot be proven. As soon as this information is provided to others, a criminal intervention can take place.

Of course this does not mean that no disciplinary measures can or should be taken against this kind of curiosity. We believe that government officials should not abuse their power in any way and should respect personal data. But to breach official secrecy you should share a secret with a unauthorized third party to be penalized in criminal law.

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

#54: People can make honest mistakes

Making mistakes is human. It can happen to anyone. If you’re wrong, you don’t necessarily do something wrong intentionally. No, you make a mistake while your intentions are right. There is no criminal intent involved. A mistake should therefore not be legalized to criminal intent. A mistake is not the same as acting fraudulent. And fortunately the Amsterdam Court of Appeal shares this opinion.

In its judgment of 3 June 2020, the Court of Appeal of Amsterdam ruled in a case in which the defendant was primarily suspected of having intentionally filed an incorrect VAT return. The inaccuracy was caused by the declared amount of turnover, which was too low. The Court of Appeal acquitted the defendant with respect to the primary charge, because there was no question of a ‘declaration provided for by the Tax Act’. After all, the tax return had not been filed within the required time period, see in that respect also the judgment of the Supreme Court of 28 June 2016. Subsequently, the suspicion was the use of a false document, i.e. a false declaration.

The Court of Appeal ruled that this was a declaration of turnover that usually amounted to a fixed, round amount each month. The turnover that was not declared in this specific declaration related to specific invoices that were not related to the recurring activities of the company. These related to the buy-out of someone from a company. They were therefore incidental invoices. The Court of Appeal ruled that it must be “considered possible” that these invoices were overlooked. There is simply not enough evidence to conclude that the employee deliberately did not include this turnover in the declaration. The Court of Appeal refers to indications in the file that show that someone, in consultation with the defendant, needed money for specific purposes, but according to the Court of Appeal “solid evidence” is lacking.

Where the Amsterdam District Court had still considered that filing the tax return had been organized in such a way “that nowhere in the chain of business operations any form of effective control of the turnover tax to be paid took place and so the considerable chance of filing wrong tax returns was knowingly accepted”, the Court of Appeal ruled otherwise. The Court of Appeal ruled that the specific employee had the task of submitting the turnover tax returns. It concerned a fixed amount per month and was therefore not complex. The situation for this specific period was incidental. According to the Court of Appeal, there was no policy or work process that caused the significant chance of an incorrect tax return and that chance was knowingly accepted. According to the Court of Appeal, it must be considered possible that the error was made by mistake.

In our opinion, this is a correct judgment. A few indications that there could be a motive for fraudulent acts is not enough to conclude that fraud was committed. This requires hard evidence. If this is not the case, then the judge should give the suspect the benefit of the doubt and “consider it possible” that the person involved did not act criminally culpable.

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

#53: Money laundering: typologies vs. indicators

In the international fight against money laundering, the Financial Action Task Force (FATF) is the international organization that indicates money laundering typologies, by studying methods or techniques of money laundering. These typologies are used in criminal investigations as facts and circumstances which can construe a suspicion of money laundering. In the Netherlands, the Financial Intelligence Unit (FIU) is the national organization where unusual transactions can be reported. The FIU also publishes money laundering typologies. However, on 16 April 2020, the Dutch Anti Money Laundering Centre (AMLC) published an updated version of money laundering indicators. The question is: what is the difference between indicators and typologies and can all indicators be used as facts and circumstances to create a suspicion of money laundering?

According to AMLC, money laundering indicators can be divided into three different subgroups: 1) money laundering typologies, 2) facts which are considered common knowledge and 3) other indicators. The AMLC also states that these categories of money laundering indicators play an important role in raising suspicions of money laundering as well as in the actual evidence of money laundering. We wonder whether each money laundering indicator can play a role in establishing a suspicion or proof of money laundering.

First of all, AMLC gives an exhaustive list of the money laundering typologies. These typologies are the same as established by the FATF and by the FIU. These are more or less objective characteristics that, as studies show, indicate laundering of the proceeds of crime.

The second subgroup concerns facts which are considered common knowledge; these are facts which everyone is expected to know. On the basis of case law, the AMLC has drawn up a list of common knowledge facts established by case law. It should be noted that this list is not exhaustive and that a large number of these facts have only been established as facts of general knowledge by lower courts. This means it is still possible to argue whether such fact is indeed a fact of common knowledge. After all, the question what can be considered as common knowledge is by no means always clear. Nevertheless, AMLC states that these facts can be used as indicators at the start of an investigation. In our opinion, this should be treated with caution, especially since the interpretation by the AMLC can only be judged in a much later stage in legal proceedings.

Finally, the AMLC pays attention to other indicators. These are characteristics that according to the AMLC indicate money laundering, but are not a fact of common knowledge and have not (yet) been identified as money laundering typology. With regard to the other indicators, reference is made in particular to the OECD handbook and to various FATF reports. The status of these other indicators is unclear to us. We believe that this ‘other’ list cannot yet be used to create suspicion or be used as evidence of money laundering. After all, it is with good reason that this group of other indicators has not yet been identified as a typology. The Explanatory Memorandum to the Dutch Money Laundering Act states clearly that the Public Prosecutor’s Office and judges can use money laundering typologies for evidence of money laundering. The subgroup of other indicators has not been mentioned here and thus should not be used.

In our opinion it is important to remain critical of the money laundering indicators used to construct a suspicion of money laundering. There is a risk that the Public Prosecution Service will conduct investigations on ‘vague’ grounds. It is therefore important that the defense is alert here. But that also applies to the Public Prosecution Service itself. It must be prevented that the Public Prosecution Service only investigates money laundering indicators without actually investigating the heart of the matter: the question of whether there has been a predicate offence. Such a lenient attitude in the investigation would not benefit the finding of the truth and increasingly places the burden of proof on the accused. We also wrote about this problem in Lawlunch #40.

Moreover, it is important to always place certain money laundering indicators in the right time frame the alleged facts took place. After all, the fact that something is seen as a money laundering indicator now, does not mean that this also yielded a red flag ten years ago. On 11 December 2019, the District Court of Rotterdam also rendered an enlightening judgment on this. The Court ruled that the so-called money laundering indicators in that case can not be qualified as that a-typical in that period of time that the suspect should have known that the money derived from a crime.

In short, if the Public Prosecutor’s Office starts an investigation solely on money laundering indicators, it is important to be extremely critical. In any case, you should ask yourself the following question: is the money laundering indicator a money laundering typology or a fact of common knowledge? And, can these facts and circumstances also be qualified as money laundering indicators at the time the alleged facts took place?

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

#52: Being acquitted sometimes just isn’t enough

News is available at any time of the day and it is freely accessible. And the news, even the old, can always be found through search engines like Google. Of course, this also applies to news about suspected criminal offences. Even if those suspicions eventually turn out to be incorrect. Although an acquittal for a suspect is certainly the most newsworthy of all, in practice the media unfortunately in general do not treat it this way. As a result, the news in which the person concerned is associated with the suspicion of criminal offences often remain to appear prominent on the internet. Should the acquitted suspect accept this?

Messages in the media about an unjustified suspicion of criminal offences can get in one persons’ way of life in general. All parties you deal with in daily life can find this information with a simple internet search: social contacts, a future employer, a financial service provider. For an acquitted suspect it is frustrating and damaging to be confronted with this all the time. This may even be experienced as an unjustified punishment.

Recently, the Dutch newspaper NRC reported “good news for innocent people with a contaminated reputation”. NRC brings to the attention a decision of a Spanish court. It concerns a case in which a Spanish psychologist, acquitted of abuse, continued to be confronted with all the accusing media reports when he was searched for via an online search engine. In the first eight results, only articles about the accusations emerged. The acquittal could only be found on the second search page.

The psychologist complained to the national Personal Data Authority. This authority ordered Google in 2017 to block the search results, except for the information about the acquittal. The Spanish court does not decide so rigorously on appeal: Google is free to show all news items, but the acquittal must be shown as the first google hit.

There has been a lot to do about the ‘right to be forgotten’. In fact, the question was always whether or not the information should be removed from the internet. It also led to the possibility to use this link to make a request to Google to have information removed from the search engine. But that possibility does not yet guarantee success for all cases.

So what can you do if the request for information removal about a suspicion from the past is not being granted? Because, for example, it is a fact that there was a suspicion of a criminal offence at the time and therefore the information at itself is correct? For that situation the decision as was taken by the Spanish court about which information should appear first, can perhaps mitigate the outcome of a Google search.

Being acquitted sometimes just is not enough. Of course, a compensation for lawyers fees and damages after an acquittal helps to recover from such an unpleasant experience. However, media can also be part of the process which jeopardizes the recovery. This Spanish decision shows that it can certainly be worthwhile to involve media law and a media law specialist in the aftercare of criminal proceedings that have ended successfully for the former suspect.

Do you have any questions about the above or would you like to exchange views on this? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

#51: COVID-19, capacity problems and choices

In the Netherlands, courts and the Department of the Prosecutor’s Office (DPO), are facing severe capacity shortages. These capacity problems will not decrease the upcoming period. Due to the outbreak of the coronavirus, the Judiciary decided to close the courts, tribunals and special colleges as of Tuesday 17 March until at least 6 April 2020. This week it was decided that the closure will continue after 6 April 2020. Only urgent cases will continue. The DPO will postpone red-handed detentions. They are limited to urgent, serious cases. Each case will be weighed up; taking into account circumstances such as the fear of repetition and the safety of others.

This means that a lot of cases will have to be postponed until after this uncertain period will end. The courts and the DPO will then have a lot of catching up to do which will put even more pressure on the judiciary system. This situation calls for choices. But how do we make sure that those choices are equal and fair?

Article 167(1) of the Code of Criminal Procedure gives the Public Prosecution Service the power to decide independently whether or not prosecution should take place as a result of an investigation that has been initiated. The decision of the Public Prosecution Service to prosecute lends itself only to a very limited extent to a substantive judicial review. Pursuant to Article 12 of the Code of Criminal Procedure, an interested party can request the court to order the Public Prosecution Service to prosecute the facts after all. But what considerations are made in this respect and what are the grounds for prosecution or investigation? In a recent decision, the Court of Appeal of Amsterdam decided that the Public Prosecution Service does not need to proceed with a prosecution due to capacity problem. This was despite the fact that after a criminal investigation it could possibly be established that documents were forged. The Court of Appeal puts forward the following reasons:

• The Court observes that partly in connection with the increased need to deploy police officers for personal security, the police and the judiciary are struggling with considerable capacity shortages. In view of this, choices are inevitable, and this justifies a more limited capacity in criminal law;
• Furthermore, the Court finds that the alleged false document has not led to any financial disadvantage for the complainant.

In view of the above consideration the Court holds that a large-scale international investigation does not outweigh the interest of the complainant. In this respect the Court deems it necessary to place some blame on the complainant as well. After all, a quick search on the Internet would have made it clear that the defendant is associated with a large-scale fraud. The complainant had omitted this simple Internet investigation before she placed an order for millions with the defendant. Apparently, the court of appeal is holding this against the complainant.

Although we understand that capacity problems require certain choices to be made, we believe that these choices must be well substantiated. Why is one case prosecuted and why does the other ‘get away’? Policy choices should be clarified to the public so that everyone can appeal to this.

The Court of Appeal is now giving some substance to this. Apparently, forgery does not have to be prosecuted if the victim has not suffered any direct financial disadvantage as a result and if time-consuming and costly international investigations have to be carried out as well. One apparently does not outweigh the other. Whether these were actually the considerations of the Public Prosecution Service is unknown. We believe that the Public Prosecution Service should be transparent about this, so that the shortage of capacity does not lead to arbitrariness but to well-founded policy choices that are the same for everyone. Also a suspect should be given the opportunity to put forward arguments why his case should not be prosecuted given certain policies of the government.

Do you have any questions about the above or would you like to exchange views on this? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

#50: A human rights violation: from bad to worse?

In Lawlunch #34 we already wrote on the October 2018 decision of the European Court of Human Rights (ECtHR), in which a breach of the European Convention on Human Rights (ECHR) by the Netherlands in connection with the detention conditions on St. Maarten was established. The case concerned a suspect who was detained in a cell at the police station in Philipsburg. These cells are not suitable for pretrial detention. Nevertheless, this suspect was kept there – much – longer than the 10 days that would be acceptable according to human rights. The reason was that the suspect could not be transferred to the Pointe Blanche prison on Sint Maarten, because security could not be guaranteed there. The ECtHR held that Article 3 of the ECHR had been violated: the prohibition of torture and inhuman or degrading treatment or punishment. It appears that not much has changed since then.

Recently Mr. George asked the ECtHR for help as well. He had been remanded in custody in the same cells at the police station in Philipsburg as was the case in the October 2018 decision of the ECtHR. The reason? The Pointe Blanche prison on the island was too full. The ECtHR imposed a provisional measure on 17 December 2019 on the Netherlands, stating that measures should be taken with respect to the situation of Mr. George. The ECtHR can take such a provisional measure based on Rule 39. In the decision of 4 February 2005 in the case of Mamatkulov and Askarov vs Turkey the ECtHR decided that such a measure is legally binding.

The lawyer of Mr. George – Sjamira Roseburg – has requested Mr. George’s immediate release under these circumstances. This request was not successful. Mr. George was transferred to the Pointe Blanche prison instead. Exactly: to the prison which was too full. In view of the fact that measures were taken concerning Mr. George’s situation, the ECtHR terminated the interim measure. But does this ‘measure’ in practice serve the human rights of Mr. George – and other detainees?

The Public Prosecutor’s Office on St. Maarten is of the opinion that the cells in the police station in Philipsburg have been improved. In addition, the earlier decision and the measure of the ECtHR does not apply to the Point Blanche prison. In the media, the Public Prosecutor’s Office states:

“This is whether the suspect can be released (whether or not by suspending pretrial detention), or whether space can be created in the Pointe Blanche prison by terminating or suspending the pre-trial detention of a suspect who has been detained in the Pointe Blanche prison or by recommending a convict for early release,” said the Prosecutor’s Office. According to the Prosecutor’s Office, early release of convicted persons is an exclusive decision of the Justice Minister. “If both options are not possible, the Chief Public Prosecutor of St. Maarten will consider whether the detention in the Philipsburg cells can continue.”

Meanwhile, this issue is also on the agenda in the Netherlands and parliamentary questions are being asked to the responsible Minister. He responds: “Sint Maarten has informed me that as a result of the present case, the Public Prosecutor’s Office Sint Maarten has adapted its working method. If a detainee cannot be transferred after 10 days, the Chief Public Prosecutor will assess the seriousness of suspicion and personal circumstances in order to reach a decision in which cases pre-trial detention can be suspended”.

It appears from the answers that the Minister is seriously concerned about the situation of detention in St. Maarten. He regularly consults with the Ministry of Justice and the Prime Minister of St. Maarten on this matter. The Netherlands has also made container cells available for the capacity problem in Point Blanche and has offered St. Maarten that the State Property Company offers support with regard to building improvements and contract management in order to be able to put these cells into use as soon as possible.

But why Mr. George has been transferred to the Pointe Blanche prison instead of being released remains unclear. How and on what grounds the interests at stake are being balanced is not explained. Was the situation of Mr. George also discussed in the consultations between the Ministers? In any case, a sufficient explanation did not reach Mr. George and his attorney. It seems that Mr. George’s situation is going from bad to worse while the Netherlands and St. Maarten are watching. In our opinion the ECtHR should take measures on this situation as well.

Do you have any questions about this subject, are you confronted with a related issue and would you like to discuss this with us? Please feel free to contact us via boezelman@hertoghsadvocaten.nl and boer@hertoghsadvocaten.nl.

#49: A FIOD tradition

At the start of a new year people have the urge to look back at the past year and look out to the upcoming year. At the  Dutch Tax Intelligence and Investigative Service (FIOD) this urge for reflection is almost becoming a tradition. In Lawlunch #37 we wrote about the first published annual report looking back on the accomplishments of the last year and their goals for 2019. 12 months later the FIOD published a new annual report with the title ‘Financial investigation, an increasingly important tool in the fight against crime’. What has the FIOD accomplished and what can we expect?

In 2019 the FIOD has completed 800 investigations of which 305 were on request of foreign countries. This is a lot less then in 2018 in which 900 investigations were completed.

On the one hand the FIOD writes that it is gaining more and more insight in understanding how financial fraud works. On the other hand creating this insight in understanding how fraud works remains an important goal for this year. One of the initiatives that has been started is an intense cooperation with banks. The FIOD is of the opinion that such cooperation with private parties, including banks, helps in the fight against financial crime.

Moreover, the FIOD lists some conducted investigation in the year 2019.  The FIOD conducted an investigation into money laundering and large-scale drug trafficking in a Joint Investigation Team (JIT) with Germany. It was an important cooperation between police, customs and defense provided assistance.

Another example in which the FIOD conducted a joint investigation, but this time with the Dutch police, is the investigation into four car companies which are suspected of cross-border VAT fraud and the facilitation of money laundering in the export of second-hand lease cars. This is a form of Trade Based Money Laundering (TBML) in which goods (in this case cars) are used for the laundering of criminal money. TBML has apparently an important target for the FIOD in 2019 as the FIOD mentions also other investigations into the export of potatoes and onions. The TBML approach will be the first project in which the government and banks collaborate in detecting money laundering schemes. This collaboration started in January 2020. It is thus expected that more TBML cases will be investigated this year.

Another important target for the FIOD in 2019 was corruption and cyberfraud. Some examples from 2019 are named in the report. The FIOD conducted an investigation into Dutch companies who facilitated the payments of bribes into the Brasilian company Odebrecht SA. Allegedly a 100 million euro’s have been paid through Dutch companies. Another accomplishment in the eyes of the FIOD is the fact that the FIOD has put down the Bestmixer.io on 22 May 2019, one of the largest online mixers for crypto currency. According to the FIOD this was a huge success in the fight against money laundering. Again the FIOD stipulated the importance of their international cooperation with the Digital Intrusion Team (DIGIT) of the police, Europol, Luxembourg, France and Lithuania.

For 2020 the fight against money laundering will remain a main target. Their goal is to bring down money laundering in the Netherlands with 5 percent per year. How the FIOD is going to measure this is unclear. What is clear is that the FIOD will intensify their relations with private parties such as banks, but also internationally. As an example the FIOD names their J5 partners from Australia, Canada, the UK and the US. Furthermore the FIOD hopes to intensify their relations with financial centra such as the Arabic Emirates, Dubai, Singapore and Hong Kong.

We just hope that during this fight against money laundering no fishing expeditions will occur and eye remains for the rights of the defendants. Because sometimes this battle against money laundering results in tunnel vision and the investigation is merely focused on money laundering indicators without conducting any investigation to the business reality of a case.

Do you have any questions about this subject, are you confronted with a related issue and would you like to discuss this with us? Please feel free to contact us via boezelman@hertoghsadvocaten.nl and boer@hertoghsadvocaten.nl.

#48: Bring on 2020!

This year is almost coming to an end and what a year it has been! The developments in our practice area have been both interesting and exciting as well as frustrating at times. The developments however all have one thing in common; they bring a lot of opportunities and inspiration. A taste for more, so we are curious of what 2020 has in store for all of us!

For now we hope you enjoy the holidays and that you have time to reflect and relax in order to start the new year with renewed energy and enthusiasm. Happy holidays everyone!