Defence against money-laundering charges — frequently joined to evasion — on the predicate offence, on the subjective element and on the reality of the allegedly concealed operations.
A money-laundering charge impresses through the scale of the figures and flows described. But, legally, it rests on a point often more fragile than it seems: proof that the assets come from a specific unlawful act — the predicate offence.
In economic files, laundering most frequently appears alongside tax evasion: it is alleged that the money evaded through evasion was then concealed through transfers, purchases or intermediaries. The whole construction, however, depends on one premise — that there is, proven, an act from which the money comes. Without a proven predicate offence, the laundering charge remains suspended in mid-air.
The text requires two things that are hard to prove: a specific criminal origin and knowledge of that origin. Both must be proven, not presumed from the mere complexity of certain transactions.
If the offence from which the money is alleged to come is not itself proven — but merely invoked generically — the entire laundering construction becomes vulnerable. A weakness in the predicate offence reflects directly on the laundering charge.
The law requires knowledge of the unlawful origin. A person who enters a normal commercial relationship, without knowing the provenance of the funds, does not meet the subjective side of the offence.
What the prosecution presents as concealment frequently proves to be a documented commercial operation, tendentiously interpreted. Reconstructing the financial flow demonstrates its reality.
Laundering presupposes a concealment of the origin — a transformation of the assets. Sums simply spent, without being transformed into assets with the appearance of lawful provenance, may not meet the requirements of the offence.
When the same person is accused both of the offence generating the funds and of laundering them, it is decisive which form of Article 49 of Law 129/2019 the prosecution relies on. For the form of acquiring, possessing or using assets, the law expressly requires that the act be committed by someone other than the author of the predicate offence — so self-laundering cannot be retained. For the other forms, case law requires the laundering act to be distinct and sufficiently individualised from the predicate offence, on pain of breaching the ne bis in idem principle. These are technical distinctions that can reduce or remove one of the charges.
Even where the offence generating the funds is proven, simply using or spending the proceeds does not in itself amount to money laundering. Laundering requires an act of concealing or disguising the illicit origin — absent such an act, the conduct may remain merely the natural aftermath of the principal offence, not a separate crime. This distinction becomes decisive where the proven predicate offence carries a far lighter penalty than laundering (3–10 years) or is already time-barred: a laundering charge layered on top, without genuine concealment, can be challenged on the very absence of the material element.
The tax and financial component of these files is frequently the ground on which the case is won or lost — and its technical reading is exactly what makes it possible to dismantle the charge.
In laundering files, precautionary measures — seizure of accounts, property, other assets — are frequently ordered from the outset, both for repairing the loss and with a view to confiscation. They can practically block the entire activity of a person or company.
These measures are not, however, beyond challenge. They must be proportionate and justified by a probable loss. When the loss is not yet established by an expert report, when the assets do not fall into the category subject to confiscation, or when the measure is disproportionate to its aim, the seizure can be challenged — including from the perspective of the right of property protected by European standards.
It is a frequent combination. The prosecution generally argues that the money evaded through evasion (the predicate offence) was then concealed through transfers or purchases (the laundering). The two charges are, however, linked: if the predicate offence — evasion — does not hold, the laundering charge built on it wavers.
The defence must be thought through as a whole, because a breach in one charge directly affects the other.
Self-laundering refers to a situation where the same person is accused both of the offence said to have generated the funds and of laundering them. Not every such situation is punished as a separate laundering offence: it depends on the specific statutory form relied on.
For the form of acquiring, possessing or using assets, the law requires the act to be committed by someone other than the author of the predicate offence — so the author of the predicate cannot also be held liable for this form. For the other forms, courts examine whether the laundering act is genuinely distinct from the original offence, so as not to punish the same conduct twice. These distinctions can make the difference between one charge and two.
By reconstructing the flow and the economic substance of the operations. Where the prosecution sees concealment, an analysis of substance frequently shows a legitimate commercial reality — transactions with economic rationale, documented, even if imperfectly. The burden of proving the unlawful origin rests on the prosecution, not on you to prove your innocence.
No. Precautionary measures are provisional and contestable. They must be proportionate and justified by a probable loss. When the loss is not yet established, when the assets do not fall within the scope of confiscation, or when the measure is disproportionate, the seizure can be challenged.
It is one of the first steps of the defence, because blocking assets immediately affects the ability to defend yourself and to operate.
Laundering presupposes that the person knew the unlawful origin of the assets. This is the subjective side of the offence and must be proven by the prosecution. Anyone who took part in a commercial operation without knowing — and without reasonable grounds to know — that the funds had an unlawful origin does not meet this requirement.
Reconstructing what the person could reasonably have known at the time of the act is a key line of defence.
An early assessment establishes whether the predicate offence is proven, whether the subjective element the law requires exists and how the precautionary measures affecting your assets can be challenged.