Facts:

The “European Kings Club” (EKC) was founded by three people who set up a ponzi-scheme, whereby investors unknowingly were paid a 50 percent return on their investment by subsequent investors, rather than from profit earned by the individual or organization running the operation. In order for the system to continue, the investors had to steadily find new investors. When the scheme collapsed, authorities arrested the three founders. The later accused defendants were chosen as their legal representative. In order to pay for their fee, the employees of the EKC paid the counsel € 100.000 from the firms’ account. While the amount was deemed an appropriate sum by the court, the case centered on the defendants being informed of the scheme and knowingly accepting the payment of their services with money that could have only been collected by illicit means.

Main issue:

The application of the money laundering provision under the Criminal Code to defense counsel. The extensive range of the statute addresses those who procured objects deriving from any prior crime enumerated in the money laundering provision. The threat of being prosecuted is intensified by a further section of the money laundering provision which contains a rule on the mens rea requirement, which does not necessarily require the accused to know about or act with contingent intent as to the incriminated origin of the object. In order to facilitate defense, the legal representatives obtain facts about their clients which may lead to the allegation that the counsel should have realized the illicit means and origin of the money they received as a fee.

Moreover, it was questionable whether there was an infringement of the constitutionally guaranteed occupational freedom. In light of the extensive scope of the money laundering offence, the defendants pointed out that particularly the right to choose counsel and the counsel’s right of occupation were incompatible with the application of  said provision of the Criminal Code.