The Bottom Line
- Expanded Liability: Employees in subordinate roles, such as drivers or couriers, can be found criminally liable for money laundering, even if they are not the “masterminds” or owners of the illicit funds.
- Context is King: Courts will look beyond a single incident to establish knowledge. An employee’s involvement in a criminal organization and a history of similar suspicious activities can be used to prove they knew, or must have known, they were handling criminal proceeds.
- “Following Orders” is Not a Shield: The argument that an employee lacked control over illicit goods because they were acting on a superior’s instruction is unlikely to succeed. Actively participating in the transport of illegal funds is enough to establish factual control for a money laundering conviction.
The Details
This advisory opinion from the Advocate General (AG) to the Dutch Supreme Court provides critical insight into how courts assess liability within criminal enterprises. The case involved a driver who was arrested along with his superior with a bag containing €230,000 in cash behind the passenger seat. The driver’s defense was two-fold: he claimed he was merely a chauffeur with no knowledge of the bag’s contents, and that due to his junior position in the organization, he had no real control or “factual say” over the money. The AG has advised the Supreme Court to reject this defense, signaling a broad interpretation of criminal liability that should put all business leaders on alert.
The core of the AG’s legal reasoning centers on the concept of “voorhanden hebben” (literally, “to have on hand”), which is central to Dutch money laundering statutes. This does not require ownership or ultimate authority over the funds. Instead, it requires knowledge of the object’s presence and the ability to exercise factual control over it. The AG concluded that the driver, by being in control of the vehicle used to transport the cash as part of a coordinated handover, demonstrated sufficient factual control. His close and conscious cooperation with his superior throughout the operation was deemed enough to establish him as a co-perpetrator, not just a passive facilitator.
Crucially, the court rejected the driver’s claim of ignorance by looking at his recent past. Just three days before the arrest, the same driver had transported another large sum of cash (€89,230) in a plastic bag as part of a similar transaction for the same criminal organization. The court found it “unbelievable” that he would be unaware of the nature of his work on the second occasion. This demonstrates that courts will not view illegal acts in isolation. A pattern of activity, combined with the suspicious circumstances of the cash handover, can and will be used to prove an individual’s knowledge and criminal intent, effectively dismantling the “I was just the driver” defense.
Source
Parket bij de Hoge Raad
