#46: To prosecute or to confiscate

Confiscation of the proceeds of crime may take place in accordance with article 36e of the Dutch Criminal Code (CC). This article makes it possible to confiscate proceeds of crime in cases where there has been a conviction. In addition, in accordance with article 36e, subsection 3, CC it is possible, to confiscate proceeds and assets that are obtained by means of other criminal offences if there has been a conviction for a crime committed by the suspect. For these ‘other criminal offences’ a conviction is not necessary but the burden of proof is on the prosecutor to provide sufficient indications that these other criminal offences have been committed and that the suspect has obtained proceeds by committing these offences. In two recent cases we see that the legal protection in a confiscation procedure of proceeds by means of ‘other criminal offences’ is far less then in case of a regular situation.

In a judgment of the Court of Appeal of 10 October 2019 on the confiscation measure, the following situation was at hand. The suspect was convicted of money laundering for having an amount of € 216,904.28 cash at hand while she knew that the money derived entirely or partially from a crime. The Court of Appeal ruled that the mere possession of money does not necessarily qualify as an actually unlawfully obtained advantage. In this case, the Court of Appeal therefor investigated to what extent the money was beneficial to the convict. The Court concluded from the case file that invoices were paid with this money and cash deposits were made. On this basis, the Court of Appeal ruled that the money is an unlawfully obtained benefit because the convict had spent the money and the money was thus beneficial to the convict. On these grounds the court rules that the confiscation measure should be set at € 216,904.28.

In another judgment of the Court of Appeal, also dated 10 October 2019, the Court used a different approach. In this case, the suspect was convicted of money laundering on the basis of having a Rolex and a sum of € 3.615 in cash, knowing that these items originated from a crime. However, the confiscation case relates to an ‘other criminal offence’. The convict was also arrested at the airport with € 180.000 in cash. The convict was not prosecuted for this fact, it only played a role in the confiscation case. The public prosecutor considered this fact to be “another offence” as referred to in Article 36e, paragraph 3, CC. The Court of Appeal stated that in case of “another offence” there need to be sufficient indications that the offence has been committed. However, the Court does not have to determine whether the person is co-perpetrator or perpetrator. Furthermore, it is not necessary to assess whether the convicted person has obtained an advantage through or from the benefits of the money laundering committed by him, but only whether criminal offenses have led to the acquiring of an advantage by the convicted person. The Court rules that the convicted person has not argued nor has it become plausible that he fully or partially held the cash amounts for someone else. For that reason it must be assumed that the convicted person kept the amount of money (exclusively) for himself. The Court rules that the amount of € 180.000 shall be confiscated.

From these examples it derives that it matters whether you are convicted for money laundering or money laundering is qualified as ‘another offence’. In the first situation the Court has to examine whether the convict has benefited from the money. While in the other situation the Court merely examines whether the money derives from a crime. It is then up to the convict to state and motivate that the money was not his. In our opinion these examples show that a confiscation measure based on article 36e, subsection 3, CC does not provide enough legal protection as the public prosecutor has a much lower burden of proof. It therefor creates a wrong incentive for the public prosecutor as it might be more successful to not prosecute someone for some criminal offences but merely start a confiscation claim.

Do you have any questions about this subject, are you confronted with a related issue and would you like to discuss this with us? Please feel free to contact us via boezelman@hertoghsadvocaten.nl and boer@hertoghsadvocaten.nl.

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