#62: The burden of proof in money laundering cases

In several Lawlunches we addressed the topic of money laundering. While the jurisprudence in the Netherlands seems clear and in some instances is accompanied with a step-by-step plan of the Supreme Court, it keeps causing problems. In practice, it seems difficult for the prosecution not to shift the burden of proof in money laundering cases. No matter how magisterial, apparently the Supreme Court’s jurisprudence offers (too) much temptation to shift the burden of proof to the suspect when there is a suspicion of money laundering with an unknown predicate offence. Unfortunately, this also counts for some courts. The Supreme Court holds on to the fact that the burden of proof remains with the prosecution and cannot shift to the suspect.

Case law shows the following step-by-step plan that a court must follow in case of a money laundering suspicion (step 1-4):

1. The first step concerns the question whether there is any direct proof of a predicate offence. If there is, the element “derives from any criminal offence” can be proven on that ground and the following step plan is no longer relevant.
2. In the absence of any direct evidence of the predicate offence, the question is whether there is any evidence of facts or circumstances that justify an evidentiary presumption of money laundering. These facts and circumstances often consist of so-called money laundering typologies: objective circumstances that, according to experience, indicate money laundering. The prosecution should provide these facts and circumstances.
3. If an evidentiary presumption of money laundering exists, the suspect may be required to give a statement for the (legal) origin of the object. This statement must be concrete, more or less verifiable and not highly unlikely in advance.
4. If the statement is considered to meet all these requirements, it is the task of the prosecutor to further investigate the alternative (legal) origin of the object, as indicated in the statement.

It often goes wrong after step 3. Because, the fact that such an explanation may be required of the suspect does not mean that it is up to the suspect to make a plausible case that the object did not originate from crime. If the suspect provides an explanation that is concrete, verifiable and not highly improbable in advance, it is up to the prosecutor to further investigate this explanation. It is then up to the judge to assess whether, based on this statement and the additional investigation, there is sufficient evidence to conclude that the object originated from any crime.

The above also means that the suspect cannot be required to provide underlying documents, such as bank documents, with his statement. This was already ruled by the Supreme Court in the 18 December 2018 ruling. The Supreme Court ruled that it also does not matter in that case whether or not the suspect would have made the commitment to provide the documents. It simply cannot be expected of the defendant and, more importantly, the failure to comply with that undertaking cannot contribute to any evidence of money laundering.

On 2 February 2021 the Supreme Court reiterated that line. In this case the defendant gave an explanation of the origin of the suspected deposits. He explained that there were redemptions of amounts of money he had withdrawn in cash and lent out. In addition, he explained that part of it concerned funds from an inheritance on a foreign account, which he withdrew from there and subsequently deposited. He also stated that the bank statements in the file are incomplete because they do not show the cash withdrawals and that the bank statements from the foreign account are missing.

The court ruled that the defendant did not provide a concrete, verifiable and not at all highly improbable explanation about the origin of the amounts, because he did not submit the bank statements and receipts. The Supreme Court finds that the court did not give sufficient reasons for its judgment, because the defendant’s statement was concrete and it was possible to investigate it further. The Supreme Court concludes that the court’s judgment was not adequately reasoned and remands the case back to the court.

Unfortunately, this state of affairs is not an isolated case. In practice, the prosecution goes to great lengths in demanding proof from the suspect instead of investigating the statement itself. In practice this leads to unnecessary procedures, which unfortunately sometimes go all the way to the Supreme Court (and back again) to get justice.

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.