Money laundering

According to § 165 of the Criminal Code (StGB), money laundering occurs when assets from certain criminal predicate offenses are concealed or their origin is disguised in order to conceal the criminal origin. This includes, in particular, actions by which false information is provided about the origin, ownership, power of disposal, transfer or whereabouts of these assets. false information is provided. Likewise, anyone who knowingly acquires, holds, manages, converts, uses or transfers such assets to third parties is liable to prosecution. The injustice lies in the targeted safeguarding of the predicate offense by smuggling it into legal commerce. Even short-term actual power of disposal is sufficient, provided that the perpetrator knows the origin of the offense.

objective elements of the offence

The objective element of the offense exclusively covers the externally perceptible event. The only thing that matters is what could be determined by neutral observation, for example by a camera. This includes concrete actions, processes and actually occurring effects. Internal processes such as intent, motives or intentions are disregarded and do not belong to the objective element of the offense.

The objective element of money laundering requires that assets originate from a legally relevant predicate offense and are concealed, disguised or further processed by certain acts. Only assets that originate from an act punishable by imprisonment of more than one year or from the offenses expressly mentioned in the law are covered.

These expressly mentioned offenses include in particular:

• Forgery of documents in accordance with § 223 StGB
• Forgery of specially protected documents in accordance with § 229 StGB
• Receiving stolen goods in accordance with § 164 StGB
• Embezzlement in accordance with § 133 StGB
• Misappropriation in accordance with § 134 StGB
• Drug trafficking in accordance with § 27 of the Narcotics Act
• Drug trafficking in large quantities in accordance with § 30 of the Narcotics Act

Without a criminal origin, there is no money laundering.

Qualifying circumstances

In addition to the basic offense, § 165 StGB contains objective qualification criteria that significantly increase the injustice of the offense.

Qualified money laundering exists objectively if

• the offense is committed in relation to a value exceeding €50,000 or
• the perpetrator acts as a member of a criminal organization that has conspired to continue money laundering.

The increased injustice results either from the particularly high economic damage or from the structural integration into organized crime. In both cases, an additional element of danger is added to the act of concealment, which justifies a significantly stricter criminal assessment.

A further objective qualification exists if the perpetrator assets on behalf of or in the interest

• of a criminal organization pursuant to § 278a StGB Criminal Organization or
• of a terrorist organization pursuant to § 278b StGB Terrorist Organization

acquires, holds, invests, manages, converts, uses or transfers to third parties. The decisive factor is the functional integration into their field of activity. It is sufficient that the action objectively serves the purpose or promotion of the organization.

Steps of legal assessment

Perpetrator:

The subject of the offense can be any person who is criminally responsible. Special personal characteristics or special positions are not required.

Object of the Offense:

The object of the offense is assets with economic value that originate from a predicate offense punishable by imprisonment of more than one year or from one of the offenses specified by law. This includes money, book money, items, receivables, rights and other valuable positions.

Act:

The act consists of concealing or disguising the origin or knowingly acquiring, holding, investing, managing, converting, using or transferring to third parties. The decisive factor is that the perpetrator obtains or exercises actual power of disposal over the assets.

Result of the Offense:

The success of the offense lies in the impairment of the traceability of the origin or in the acquisition of factual power of disposal over assets obtained through criminal means. Short-term control is sufficient. Permanent possession or economic benefit is not required.

Causality:

The act must be the cause of the origin being concealed or the power of disposal being established. Without this action, the success would not have occurred.

Objective Attribution:

The success is objectively attributable if exactly that risk is realized that the offense of money laundering is intended to prevent, namely that criminally obtained assets are withdrawn from law enforcement access and smuggled into legal commerce.

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Distinction from other offences

The offense of money laundering covers cases in which assets from criminal predicate offenses are concealed, disguised or knowingly reused in order to conceal their criminal origin and introduce them into legal commerce. The focus of the injustice is not on the acquisition of the assets themselves, but on the targeted safeguarding of the predicate offense by preventing traceability. The decisive factor is not the original withdrawal of assets, but the subsequent manipulation of the assignment of origin.

• § 164 StGB – Receiving Stolen Goods: Receiving stolen goods concerns the acceptance or exploitation of stolen goods in order to secure advantages for the perpetrator from the crime. Money laundering goes further. It concerns not only stolen goods, but all legally relevant predicate offenses and aims at the concealment of the origin and smuggling into legal commerce.
• § 146 StGB – Fraud: Fraud exists if someone causes damage to property through deception. Money laundering starts only after the criminal offense and serves to conceal or legitimize values already obtained through criminal means.

Concurrences:

Genuine Concurrence:

Genuine concurrence exists if further independent offenses are added to money laundering, such as fraud, forgery of documents, false testimony or participation in a criminal organization. The offenses exist side by side because different legal interests are violated. Money laundering retains its independent injustice because it pursues an own protected legal interest, namely the integrity of commercial transactions and the effectiveness of law enforcement.

Spurious Concurrence:

A displacement due to specificity comes into consideration if another element of the offense completely covers the entire injustice of money laundering. This is particularly conceivable if a more specific norm already factually integrates the act of concealment. In these cases, § 165 StGB is superseded because no independent excess of injustice remains.

Multiple Offenses:

Multiple offenses exist if several independent money laundering acts are committed, for example in the case of temporally separate concealment processes or in the case of different assets. Each action forms its own criminal unit, provided that there is no natural unit of action.

Continued Action:

A single act can be assumed if several concealment or further use actions are directly related and are carried out with a uniform intent, for example in the systematic smuggling of several partial amounts within the framework of the same plan. The act ends as soon as no further actions are taken or the perpetrator abandons his intent.

Burden of proof and evaluation of evidence

Public Prosecutor’s Office:

The public prosecutor’s office must prove that the accused has committed money laundering in accordance with § 165 StGB. The decisive factor is the proof that assets originate from a legally relevant predicate offense and have been treated by concealing, disguising or knowingly further processing. The decisive factor is not the predicate offense itself, but the handling of the assets originating from it.

It must be proven, in particular, that

• the assets originate from a predicate offense punishable by imprisonment of more than one year or from one of the offenses specified by law
• the accused has concealed or disguised the origin or has knowingly acquired, held, managed, converted, used or transferred the values
• the actions were objectively suitable to impair traceability
• the accused has obtained or exercised actual power of disposal over the assets, even if only for a short time
• there is causality between the action and the concealment or power of disposal
• if applicable, a qualification characteristic exists, such as a value over €50,000 or the involvement in organized structures

The public prosecutor’s office must present whether origin, act and context are objectively ascertainable.

Court:

The court examines all evidence in the overall context and assesses whether money laundering exists according to objective standards. The focus is on the question of whether assets obtained through criminal means have been concealed or reused and whether the accused is responsible for the actions and the origin.

In doing so, the court takes into account in particular

• Origin and economic path of the assets
• Type and course of the concealment or further use actions
• Power of disposal and access options of the accused
• temporal connection between predicate offense and money laundering act
• Participation of other persons or organized structures
• Account movements, transactions, contracts or sham transactions
• Witness statements, documents and other objective evidence

The court clearly distinguishes between mere assistance to the predicate offense, neutral everyday actions and cases in which no intention to conceal or legalize is recognizable.

Accused Person:

The accused person bears no burden of proof. However, they can raise reasonable doubts, particularly regarding

• the actual origin of the assets
• whether she had knowledge of the criminal origin
• whether concealment actions were taken at all
• whether she exercised actual power of disposal
• whether the actions were typical of the profession or neutral
• whether an alleged qualification characteristic actually exists
• Contradictions or gaps in the chain of evidence
• alternative explanations for money flows or asset movements

She can present that actions have taken place customarily in business, randomly or without reference to the predicate offense or that no money laundering intention existed.

Typical Assessment

In practice, the following evidence is of particular importance in the case of § 165 StGB:

• Account movements, transfers and cash flows
• Contracts, invoices and sham invoices
• Communication records such as chats, e-mails or telephone connections
• Witness statements on the origin and use of the assets
• Documents on company structures or straw men
• temporal sequences between predicate offense and further use
• Seizures of money, data carriers or documents

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Practical example

• Concealment by forwarding via a third-party account: A perpetrator obtains money from fraud in accordance with § 146 StGB and transfers the amounts to the account of a friend. From there, they are forwarded and used for private expenses. The decisive factor is that the perpetrator knowingly transfers assets from a predicate offense to a third party in order to conceal the origin and allocation. This fulfills the element of money laundering.
• Conversion into tangible assets to conceal the origin: A perpetrator generates income from drug trafficking in accordance with § 27 of the Narcotics Act and uses it to buy high-quality electronic devices, which he then resells. The proceeds are declared as private sales. The decisive factor is that money obtained through criminal means is converted into other assets and thereby the criminal origin is concealed. Money laundering also exists here.

These examples show that money laundering is typically not spectacular, but is realized through actions that appear to be everyday. The focus of the injustice is not in the possession of the money, but in the targeted concealment of its origin and the smuggling into legal structures.

subjective elements of the offence

The subjective element of money laundering requires that the perpetrator acts intentionally and recognizes or at least seriously considers it possible that the assets originate from a criminal act and that their behavior conceals, disguises their origin or enables their further use.

In the case of active concealment or concealment of the origin, conditional intent is sufficient. It is enough if the perpetrator thinks: “This could come from a criminal offense, but I’m still going to continue.” He must at least take into account that his behavior creates a false impression about origin, ownership, power of disposal, transfer or whereabouts.

Stricter requirements apply to the further use or transfer of assets. Anyone who acquires, holds, manages, converts, uses or transfers values must positively know that these originate from a criminal offense of another. Mere assumptions or negligence are not sufficient.

If the perpetrator acts for a criminal organization or terrorist association, he must know that he is acting on behalf of or in the interest of this structure and that he supports or promotes it.

An own enrichment intention is not required. The only decisive factor is that the perpetrator consciously participates in the concealment or further use of the illegal assets.

Lack of intent exists if the perpetrator genuinely assumes a legal origin, has no knowledge of a criminal offense, and also does not accept any corresponding suspicion. Likewise, the subjective element is missing in the case of mere neutral everyday actions without reference to the delictual origin.

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Culpability and mistakes

Mistake of prohibition:

A mistake of prohibition only excuses if it was unavoidable. Anyone who deals with assets whose origin is doubtful or obviously problematic cannot claim that they did not recognize the illegality. Especially in the area of money laundering, there is an increased duty of care. Anyone who ignores warning signals or deliberately does not ask questions does not act excusably. Mere ignorance or looking away does not absolve one of responsibility.

Principle of culpability:

Only those who act culpably are punishable. Money laundering is an intentional offense. The perpetrator must recognize that the assets could originate from a criminal offense and at least tacitly accept that they are involved in concealing or further using them. If this intent is missing, for example, because the perpetrator genuinely assumes a legal origin, there is no money laundering. Negligence is not sufficient.

Incapacity to be held accountable:

No guilt is attributed to someone who, at the time of the act, was not able to recognize the injustice of his actions or to act according to this insight due to a severe mental disorder, a morbid mental impairment, or a significant inability to control. In case of corresponding doubts, a psychiatric report is obtained.

Excusable state of necessity:

An excusable emergency situation may exist if the perpetrator acts in an extreme duress to avert an acute danger to their own life or the life of persons close to them. Even in the area of money laundering, the behavior remains illegal, but can have a mitigating or excusing effect if no other reasonable way out existed.

Putative self-defense:

Anyone who mistakenly believes to be entitled to a certain action acts without intent if the error was serious and comprehensible. In the area of money laundering, this primarily concerns cases in which the perpetrator erroneously assumes a legal origin of the assets. Such an error can mitigate or exclude guilt. However, if a breach of duty remains, a mitigating assessment may be considered, but not a justification.

Extinction of punishment and diversion

Diversion:

A diversion in money laundering cases is not generally excluded, but is only considered in narrowly limited exceptional cases. Decisive factors are the severity of the crime, amount of the assets involved, manner of the crime, and personal guilt. Money laundering is not a minor offense. The basic offense already aims at deliberate concealment of criminal origin and therefore has an increased potential for injustice.

A diversion can at best be examined if

• it is a first-time, isolated incident
• no organized structure is discernible
• no high asset value is affected
• the crime does not exhibit a complex or systematic concealment strategy
• the accused is confessing, remorseful, and willing to make amends

Even in these cases, a diversionary settlement is by no means a matter of course and is regularly critically examined by the public prosecutor’s office.

Exclusion of Diversion:

A diversion is legally excluded if the crime is threatened with a prison sentence of more than five years. This is particularly the case with money laundering if

• the crime was committed in relation to a value exceeding € 50,000 or
• the perpetrator acts as a member of a criminal organization connected for continued money laundering

In these constellations, there is no minor injustice. The crime is of considerable economic importance or structurally designed. A diversionary settlement is out of the question. A formal criminal procedure is mandatory.

Measures such as monetary payments, community service, supervision orders, or victim-offender mediation are not permitted in these cases.

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Sentencing and consequences

The court assesses the penalty for money laundering according to the nature, scope, and duration of the concealment actions as well as the amount and origin of the assets involved. Decisive is how targeted, planned, or structured the perpetrator proceeded, whether organized processes were present, and to what extent the traceability of the delictual origin was impaired. The focus is on securing the underlying offense and impairing economic transactions, not on the underlying offense itself.

It is particularly important whether the perpetrator acted in a targeted, systematic, or collaborative manner, whether the money laundering was spontaneous or prepared, and whether there was involvement in organized structures. In qualified cases with high asset value or organizational reference, the penalty increases significantly.

Aggravating Factors Exist in Particular If

• high asset values are affected, especially exceeding € 50,000
• the perpetrator proceeds in a planned or collaborative manner
• there is involvement in organized structures
• the money laundering is operated over a longer period of time
• several people knowingly cooperate
• the perpetrator is involved professionally or commercially
• relevant prior convictions exist

Mitigating Factors Include

• Integrity
• an early, comprehensive confession
• recognizable remorse and insight
• active participation in the investigation
• repayment or compensation, as far as possible
• a subordinate participation in the crime
• an excessively long duration of the proceedings

Due to the increased statutory penalty threat in qualified cases, the scope for mitigations is significantly limited. A conditional remission of sentence is only considered if the imposed penalty framework allows it and a positive social prognosis exists. In money laundering with high value or organizational reference, a conditional remission is regularly excluded.

Penalty Range

In the case of money laundering, the law provides for graduated prison sentences, depending on the amount of the sums and organizational involvement.

In simple cases in which assets are hidden, concealed, or knowingly reused, a prison sentence of up to three years is threatened. This also applies if someone takes over, keeps, converts, or passes on money from a criminal offense.

The punishment is significantly stricter if the money laundering concerns high amounts or is carried out in an organized manner. If the value is over € 50,000 or the perpetrator acts as part of a criminal organization focused on money laundering, the penalty framework increases to one to ten years imprisonment.

The legislator assesses these cases as particularly serious because organized money laundering secures criminal structures and deliberately undermines economic transactions.

Monetary Penalty – Day-fine System

Austrian criminal law calculates monetary penalties according to the day-fine system. The number of day-fines depends on the guilt, the amount per day depends on the financial capacity. In this way, the penalty is adapted to the personal circumstances and yet remains noticeable.

• Range: up to 720 daily rates – at least €4, maximum €5,000 per day.
• Practical formula: Approximately 6 months imprisonment corresponds to around 360 day-fines. This conversion serves only as orientation and is not a rigid scheme.
• In case of non-payment: The court can impose a substitute custodial sentence. As a rule, the following applies: 1 day of substitute custodial sentence corresponds to 2 day-fines.

Note:

In the case of money laundering, in addition to a prison sentence, a fine can also be imposed, provided that the penalty framework allows this and there are no qualified circumstances with a mandatory minimum prison sentence. In simply structured cases, the day-fine system is generally applicable.

Imprisonment and (partially) suspended sentence

§ 37 StGB: If the statutory penalty threat ranges up to five years, the court may impose a monetary penalty instead of a short prison sentence of at most one year.

This possibility exists in money laundering in its basic forms. In simply structured cases without high asset value and without organized structure, the court can therefore replace a prison sentence with a fine.

In the case of money laundering with high asset value or organized commission of the offense, § 37 StGB is not applicable. In these cases, a replacement of the prison sentence is legally not considered.

§ 43 StGB: A prison sentence can be conditionally suspended if it does not exceed two years and a positive social prognosis exists.

In the case of money laundering, this is generally possible, but is applied cautiously in practice, as the crime regularly presupposes a conscious and targeted concealment. In the case of organized action or high asset value, a conditional remission is regularly excluded.

§ 43a StGB: The partially conditional remission allows a combination of unconditional and conditionally suspended parts of the sentence for penalties over six months and up to two years.

In the case of money laundering, it is considered only in rare exceptional cases if the crime is not organized, the asset value is not high, and the circumstances of the perpetrator are exceptionally favorable.

§§ 50 to 52 of the Criminal Code: The court may issue instructions and order probation assistance. These concern, for example

• restitution,
• Order of economic circumstances,
• Relapse prevention.

In the case of money laundering, such measures are only supplementary and exclusively within the framework of a (partially) conditional remission of sentence. They cannot replace a prison sentence, but only accompany it.

Jurisdiction of the courts

Subject-matter Jurisdiction

In the case of money laundering, the district court is generally not competent because the crime is not only threatened with a fine or a maximum of one year imprisonment. The main proceedings are therefore before the regional court.

Regional court as a single judge

This jurisdiction exists if money laundering is prosecuted in the basic case and the penalty framework extends up to three years imprisonment. This particularly concerns cases in which assets are hidden, concealed, or knowingly reused without triggering an increased penalty framework.

Regional Court as a court of lay assessors

This jurisdiction exists if money laundering is prosecuted with an increased penalty framework, especially if

• the crime was committed in relation to a value exceeding € 50,000 or
• the perpetrator acts as a member of a criminal organization connected for continued money laundering

In these cases, money laundering is no longer to be assessed as an isolated case, but as economically or structurally particularly serious.

Local Jurisdiction

The court at the place of the offense is generally locally competent. Decisive is where the money laundering actions were set or should have been set, i.e., where assets were taken over, kept, converted, or transferred.

If the place of the offense cannot be clearly determined, the jurisdiction is based on

• the place where the success occurred or should have occurred
• the residence or stay of the accused person
• the place where the accused person was found
• as a fallback solution, the seat of the public prosecutor’s office that brings the indictment

Hierarchy of Courts

Different legal remedies are available against judgments in the main proceedings, depending on the form of the court.

• Decisions of the regional court as a single judge are usually reviewed by appeal at the higher regional court.
• Decisions of the regional court as a jury court can be challenged with appeal and in certain cases with appeal on points of nullity. The higher regional court and the supreme court are responsible for this, in accordance with the statutory requirements.

Civil claims in criminal proceedings

In the case of money laundering, the injured person can assert civil claims as a private party directly in the criminal proceedings. The focus is on claims for damages, in particular for the financial disadvantage that arose from the underlying offense and was secured, concealed, or withdrawn from recovery by money laundering actions. Typical are claims for repayment, surrender, or compensation for value, insofar as assets are no longer tangible.

The private party connection inhibits the statute of limitations of the asserted claims as long as the criminal proceedings are pending. After a legally binding conclusion, the statute of limitations only continues to run to the extent that the claims have not been awarded.

A voluntary compensation, such as repayment, surrender, or participation in the securing, can have a mitigating effect, provided that it is done promptly and seriously. In the case of money laundering, however, the mitigating effect is limited if the crime was committed planned, over a longer period of time, or in structural involvement. In such cases, a subsequent compensation for damages regularly loses a significant part of its importance.

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Overview of criminal proceedings

Commencement of Investigation

Criminal proceedings require a concrete suspicion, from which a person is considered an accused and can claim all rights of the accused. Since it is an official offense, the police and public prosecutor’s office initiate the proceedings ex officio as soon as a corresponding suspicion exists. A special declaration of the injured party is not required for this.

Police and Public Prosecutor’s Office

The public prosecutor conducts the preliminary investigation and determines the further course of action. The criminal police carry out the necessary investigations, secure evidence, take witness statements, and document the damage. Ultimately, the public prosecutor decides on discontinuation, diversion, or indictment, depending on the degree of culpability, the amount of damage, and the evidence.

Interrogation of the Accused

Before each interrogation, the accused person receives full instruction on their rights, particularly the right to remain silent and the right to legal counsel. If the accused requests legal counsel, the interrogation must be postponed. The formal interrogation of the accused serves to confront them with the accusation and to provide an opportunity for a statement.

Access to files

Access to files can be obtained from the police, public prosecutor, or court. It also includes items of evidence, provided that the purpose of the investigation is not thereby jeopardized. The private claimant’s joinder is governed by the general rules of the Code of Criminal Procedure and allows the injured party to assert claims for damages directly in criminal proceedings.

Main Hearing

The main hearing serves for oral evidence taking, legal assessment, and decision-making on any civil law claims. The court particularly examines the course of events, intent, amount of damage, and the credibility of statements. The proceedings conclude with a conviction, acquittal, or diversionary resolution.

Rights of the accused

• Information & defense: right to notification, legal aid, free choice of defense counsel, translation assistance, and submission of evidence motions.
• Silence & counsel: right to remain silent at any time; if a defense attorney is requested, the interrogation must be postponed.
• Duty to inform: prompt notification of suspicion and rights; exceptions only permitted to safeguard the purpose of the investigation.
• Practical access to files: investigation and trial records; access by third parties is restricted to protect the accused.

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Practical guidance and behavioural advice

1. Maintain silence.
   A brief statement is sufficient: “I am exercising my right to remain silent and will first speak with my defense counsel.”
   This right applies from the very first interrogation by the police or the public prosecutor.
2. Contact defense counsel immediately.
   No statement should be made without access to the investigation files. Only after reviewing the files can the defense assess which strategy and evidence preservation measures are appropriate.
3. Secure evidence immediately.
   You should secure all available documents, messages, photos, videos, and other records as early as possible and keep copies. Digital data must be regularly backed up and protected from subsequent changes. Note down important individuals as potential witnesses and promptly record the sequence of events in a memorandum.
4. Do not contact the opposing party.
   Your own messages, calls, or posts may be used as evidence against you. All communication should take place exclusively through your defense counsel.
5. Secure video and data recordings in time.
   Surveillance videos from public transport, venues, or property management systems are often automatically deleted after only a few days. Requests for data preservation must therefore be submitted immediately to the operators, the police, or the public prosecutor’s office.
6. Document searches and seizures.
   In cases of house searches or seizures, you should request a copy of the warrant or record. Note the date, time, persons involved, and all items taken.
7. In case of arrest: make no statements about the matter.
   Insist on immediate notification of your defense counsel. Pre-trial detention may only be imposed if there is strong suspicion of guilt and an additional ground for detention. Less severe measures (e.g., pledge, reporting duty, contact ban) must take precedence.
8. Prepare reparation strategically.
   Payments, symbolic gestures, apologies, or other compensatory offers should be handled and documented exclusively through the defense. Structured reparation can positively influence diversion and sentencing.

Your Benefits with Legal Assistance

Money laundering is a complex offense that strongly depends on underlying offense, state of knowledge, structure of the crime, and economic context. The legal assessment stands and falls with the question of whether there is actually a delictual origin, what degree of knowledge is provable, and whether a qualified structure or high asset value is given. Even small deviations in the facts can decide whether money laundering exists at all or merely a harmless everyday transaction.

Early legal support ensures that underlying offense, proof of origin, element of knowledge, and contribution to the crime are precisely examined and exculpating circumstances are legally processed in a usable manner.

Our law firm

• examines whether the prerequisites for money laundering are actually met or whether a non-punishable alternative is considered,
• analyzes the evidence regarding origin, knowledge, organizational reference, and flow of assets,
• develops a clear and realistic defense strategy, tailored to the facts and evidence situation.

As a representation specialized in criminal law, we ensure that the accusation of money laundering is examined carefully, critically, and structurally in order to keep the legal and personal consequences for the person concerned as low as possible.

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FAQ – Frequently Asked Questions

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