Money Laundering (§ 261 StGB) – Criminal Defence & Compliance in Frankfurt and Nationwide

Section 261 StGB is Germany’s core money-laundering offence. Since the legislative reform of 18 March 2021 (the “all-crimes approach”), any unlawful act can qualify as a predicate offence. The scope of criminal liability has therefore expanded considerably — with tangible effects for companies, professionals bound by secrecy and private individuals. Buchert Jacob Peter defends clients in investigations and trials and advises preventively on Compliance, Internal Investigations and Ombudsperson solutions. For background on procedure, see German Criminal Procedure.

Problem: Why § 261 StGB is so sensitive

• Wide reach (all-crimes): no catalogue of predicate offences — it is sufficient that an asset stems from any unlawful act (including attempts).
• Many modes of conduct: concealing, exchanging/transferring, acquiring, storing/using, or concealing relevant facts — fact-level obfuscation may already suffice.
• Mental element: (conditional) intent is enough; in addition, negligent money laundering is punishable — risk exposure grows significantly under all-crimes.
• Qualification: higher sentences for obliged entities under the AML Act (GwG).
• Particularly serious cases: commercial activity or acting as a gang — imprisonment up to ten years.

Solution: Defence & Compliance from one team

We combine robust criminal defence with practical compliance design. This lowers exposure early and strengthens defence lines in case of searches, seizures and main hearings. See also the Course of Proceedings.

Legal Overview: § 261 StGB in practice

1) Object – “Item deriving from an unlawful act”

All assets (cash, book money, crypto, goods, claims, surrogates) that causally originate from an unlawful act are covered. A prior conviction for the predicate offence is not required; in the laundering case, sufficiently concrete facts indicating a predicate event must be established. Cross-border scenarios are common.

2) Conduct – Subsections (1) & (2)

• Concealment: obscuring access or origin (physically or “on paper”).
• Exchange/transfer/movement: with intent to frustrate tracing, confiscation or origin-finding (e.g., layering, smurfing, chains of transfers, third-state parking).
• Acquisition for oneself/another: purchase despite awareness of illicit origin (note the privilege for a prior innocent acquirer).
• Storing/using: holding or deploying the property in transactions while knowing its origin at the time of acquisition.
• Concealing facts (para. 2): an information offence — disguising origin/recovery-relevant facts can already fulfil the offence.

3) Built-in limitations

• Prior innocent acquisition: protects uninvolved intermediaries who obtained the item without committing an offence.
• Defence-fee privilege: accepting fees is only intentional if origin is certainly known; negligence is excluded in specific variants.
• Self-laundering: predicate offenders are punishable only when they put the item into circulation while disguising its origin (avoids double punishment).

4) Mental element

Intent: taking into account that the item stems from a crime suffices; exact offence type or perpetrator identity is not required. Pure disbelief in a lawful origin is not enough — there must be solid red flags. Negligence: grossly overlooking the obvious illicit origin (it “virtually jumps out”).

5) Attempt, qualification, particularly serious cases

• Attempt: punishable — relevant for early defence leverage.
• Qualification: higher range for AML-obliged entities (e.g., banks, real estate, high-value traders, notaries).
• Particularly serious cases: commercial activity or gang — six months to ten years.

6) Active remorse (tätige Reue)

Possible under strict conditions: voluntary disclosure before (full) discovery and, for intentional cases, triggering seizure. Timing and scope require careful strategy.

7) Foreign predicates & confiscation

Foreign offences can qualify; confiscation rules under §§ 73 ff. StGB take precedence — with high economic stakes. See Access to Files and Dismissal of Proceedings for procedural levers.

Procedural guardrails – “double initial suspicion” & intrusions

Searches, telecoms surveillance and other covert measures require concrete indications of both (i) a laundering act and (ii) a sufficiently particularised predicate offence. Mere speculation is insufficient. We attack lack of suspicion, reasoning/necessity defects, and unlawful evidence use. Read Initial Suspicion.

Defence strategy in money-laundering proceedings

• Files & forensics: payment flows, KYC/AML files, cash-desk/ERP data, wallet analyses, communications, seizure records.
• Object & derivation: attack causality and allocation; document “clean funds” alternatives; test surrogate chains.
• Conduct: distinguish from mere possession/transport without concealment intent; carve out privileges.
• Subjective element: rebut intent; undercut negligence via compliance proof, AML processes, external opinions.
• Active remorse & resolutions: weigh timing and seizure; consider negotiated outcomes.
• Confiscation: resist/limit recovery; hardship clauses; third-party protections; segregate clean assets.

Corporate & Compliance: duties, safeguards, relief

For GwG-obliged businesses (banks, financial services, insurers, real-estate, high-value traders, art trade, notaries/lawyers in defined settings), solid AML systems both prevent violations and serve as defence anchors. We assist with:

• Risk inventory & policies: risk-based approach, KYC/CDD, sanctions/PEP screening, monitoring use-cases, crypto risks.
• Processes & tools: alert handling, investigation playbooks, four-eyes principle, thresholds, documentation.
• Organisation: MLRO role and deputies, training, controls, reporting to the FIU.
• Whistleblowing: protected channels via Ombudspersons; see Criminal Compliance.
• Internal investigations: forensic cash/payment/IT reviews, interviews, remediation — see Internal Investigations.

FAQ – Money Laundering in Germany (§ 261 StGB)

Does a “bad feeling” about origin make me liable?

No. For intent, you must at least accept the illicit origin; mere distrust is not enough. But negligence applies if the illegal origin is obvious and you proceed regardless.

When do compliance failures become criminal?

Internal policy breaches are not automatically laundering. Criminal relevance arises only if a laundering conduct is committed with an item deriving from an offence and intent/negligence is present. Solid KYC/CDD documentation markedly reduces risk.

Does filing a suspicious activity report (SAR) eliminate liability?

No. SARs are public-law duties under the AML Act; they do not replace a criminal-law risk review. For active remorse under § 261(8), stricter conditions apply (voluntariness, non-discovery, and in intentional cases, enabling seizure).

Are defence lawyers especially at risk?

Fees benefit from a privilege: intent requires certain knowledge of illicit origin; negligence is excluded in specific variants. Nevertheless: diligence, documentation and, where needed, safeguards (e.g., escrow) are essential.

Can confiscation hit uninvolved third parties?

Yes. Germany’s asset recovery regime is strict. Third parties can assert protection — the key issues are origin proof, acquisition titles and good-faith protection.

Next step

Act early. No statements without access to the file; no “voluntary returns” without a plan. Call us on +49 69 710 33 330 or email kanzlei@dr-buchert.de. We secure evidence, stabilise the situation and build a resilient defence.

Contact us – Your Specialist Criminal Lawyers in Frankfurt am Main and across Germany

• Attorney Dr. Caroline Jacob, Specialist Lawyer for Criminal Law
• Attorney Frank M. Peter, Specialist Lawyer for Criminal Law
• Of Counsel: Prof. Dr. Frank Peter Schuster
• Cooperation Partner: Tax Advisor and former Tax Investigator Frank Wehrheim

Our law firm Buchert Jacob Peter has been based in Frankfurt am Main for over 25 years with experienced criminal defence lawyers. We represent clients nationwide.

Contact: Phone +49 69 710 33 330 · Email kanzlei@dr-buchert.de · Contact page

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