#21: Presumed guilty unless proven innocent?

The presumption of innocence is a basic principle in the criminal law system. It is based in article 6 (2) of the European Convention of Human Rights. It states that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’. The presumption of innocence dictates that the burden of proof lays with the prosecuting authority. This also entails that in principle the right to remain silent cannot be used against you. However, In Dutch case law we see a development – especially in relation to money laundering – that remaining silent can be held against you. Are suspects nowadays presumed guilty unless proven innocent? Does the presumption of innocence no longer exist?

The Dutch Supreme Court is quite clear on the fact that using the right to remain silent by a suspect cannot be used as evidence. The Supreme Court repeated its earlier ruling of 1997 in its decision of 16 September 2014: the circumstance that a suspect refuses to give a statement or refuses to answer a certain question cannot be used to proof the suspicion. The silence of the suspect can be used in elaborations on the evidence if the suspect did not give a reasonable explanation for a circumstance which in itself or in relation to the further evidence can be considered as a reason for the crime. The Dutch Supreme Court finds itself in good company on this matter. The European Court of Human Rights is also strict when it comes to the prohibition to use the fact that the suspect used his fundamental human right to remain silent as evidence. In this respect for instance the cases Murray against the United Kingdom and Telfner against Austria are interesting.


The possibility to use the ‘silence’ of the suspect is mostly used in money laundering cases in the Netherlands. As explained in Lawlunch #09 the money laundering jurisprudence shows who committed the crime from which the money originated or at what moment or where does not have to be proven. If ‘there is no other explanation possible that the source of an object is a crime or if it is ‘common knowledge’ it is sufficient to come to a conviction. The circumstances on which it is based that the objects derived from a crime vary greatly. As soon as money laundering typologies are at stake an explanation can be asked from the accused about the source of the money. This statement has to be concrete, verifiable and not beforehand unreliable. If the suspect does not give a verifiable explanation for the heritage of the money the ‘circumstantial’ evidence is enough to come to a conviction.If the explanation of the suspect is concrete, verifiable and not beforehand unreliable the prosecutors office has to investigate this explanation in order to further substantiate their suspicion. If the prosecutor fails to do so the suspect needs to be acquitted.

The foregoing thus means that the suspect is ‘forced’ to not use his right to remain silent in money laundering cases, if the circumstances need an explanation. The Dutch Supreme Court allows this to happen. Is this a breach of the right to remain silent? Or is this a breach of the presumption of innocence?

In this respect the case of Zschüschen versus Belgium  on which the European Court on Human Rights decided on 2 May 2017 is interesting. The suspect in this case, Mr. Zschüschen is convicted of tax fraud in the Netherlands. The European Court of Human Rights was to decide upon the question whether not giving a statement while he was suspected of money laundering was a breach of the presumption of innocence. The suspicion related to five transactions of in total € 75.000 Mr. Zschüschen made on a Belgian bankaccount. These transactions were reported by the bank as ‘unusual transactions’. These reported ‘unusual transactions’ in combination with the fact that no income was known of mr. Zschüschen created a suspicion of money laundering. In that respect Mr. Zschüschen was asked were the money came from. He stated that he earned this money but he refused to give the name(s) of his employee(s). The Belgian Court convicted Mr. Zschüchen for money laundering, the fact that he did not give a concrete clarification on the source of the money was used to support the indirect evidence. The court also takes into account that Mr. Zschüschen has a criminal record with drug related crimes and that there is no known income of him in the Netherlands, were he lives.

The question before the European Court of Human Rights is whether this burden of proof on the suspect in these circumstances breaches article 6 of the European Convention of Human Rights. The European court judges that there is sufficient indirect evidence in order to require a statement on the source of the money. If this statement is not given, this absence of a statement is allowed to be used support of other (sufficient) indirect evidence. The European Court however emphasizes that using the right to remain silent as such cannot be used as evidence. Hence, there has to be enough indirect evidence in order to trigger the requirement for the suspect to give an explanation. Not giving an explanation only supports the indirect evidence that the money has a criminal origin.

Returning to the questions raised in the introduction of this Lawlunch; yes, the presumption of innocence still exists. The defence however has to be very critical towards the indirect evidence presented in order to avoid that the presumption of innocence would be breached. Only if there is enough indirect evidence when it comes to a suspicion of money laundering that the money origins from a crime it is not a breach of article 6 of the European Convention if the absence of an explanation on the origin of the money is used as a circumstance which supports the indirect evidence.

In our opinion the defence has to be very critical on the indirect evidence the prosecutors service presents. Is this evidence sufficient to require an explanation of the suspect? It is up to the defence to assist the judge in assessing the indirect evidence in these kind of cases.

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.


#17: White lies or swindle?

Various classic criminal offences are getting more common in the area of fraud cases. Examples are charges of forgery or money laundering in a case which is in principle a tax fraud case. The wide coverage of those penal provisions make them a beloved weapon for the authorities to prosecute alleged fraud. If tax or another kind of financial fraud cannot be proven, these kind of provisions are a good back-up. In practice they are some sort of safety net. The new kid in town seems to be the charge of swindle. Jurisprudence shows that article 326 of the Dutch Penal Code is getting more and more popular. But when does an act qualify as swindle? The Supreme Court of the Netherlands has set some records straight by the end of last year by giving an overview judgement .READ MORE

#10: Fired by the Criminal Court

As discussed in lawlunch #06 the Dutch authorities try to fight fraud by prosecuting the professionals – the facilitators of the crime – involved. Practice shows that (tax) advisors, accountants and notaries are increasingly put in the spotlight of a criminal investigation. As explained in lawlunch #06 professionals can be faced with administrative penalties, criminal prosecution or disciplinary proceedings. Although all of these possibilities are devastating for one’s career there is one accessory penalties which simply puts an end to a career. This is the accessory penalty of the prohibition to exercise your profession.READ MORE

#08: Truth is stranger than fiction

Does the truth exist? In criminal cases the answer to this is questionable. Since the criminal procedure takes place after the alleged crime, the truth is always a reconstruction of what might have happened. Therefore it seems fair to say that the truth does not exist. In a criminal procedure the next best thing can be achieved; finding facts that are closest to the truth. The law provides us with tools to do so. The rules regarding lawful evidence are incorporated in the Dutch Criminal Procedural Code. In this article it will be questioned whether the legal provision giving more evidential value to reports from police officers is in accordance with the aim of finding the (next best) truth.READ MORE

#07: Accessory penalties and measures

The Dutch sanctions system distinguishes between penalties and measures. Penalties are mainly aimed at punishment and general deterrence. Measures, on the other hand, aim for the improvement of the security and safety of persons or property. Another element is the restoration of the situation as it was before the criminal conduct occurred. Practice shows that besides the possibility to punish someone who is convicted of a crime with imprisonment, community service or a (severe) fine, the possibility of imposing accessory penalties and measures is becoming more common. Therefore an overview of such penalties and measures as stated in the Dutch national law might be helpful.READ MORE

#05: Impunity for procedural errors

Every criminal defence lawyer will recognize the frequently asked question; how can you argue that a suspect should be set free based on procedural errors while you know he is guilty? A plea on the importance of the rule of law can be the logical response. However, the easy answer in the Netherlands is: “Well my friend, those days are gone.” We will first explain why this is and second what the risks are of this development.READ MORE

#02: ‘You have to learn the rules of the game…’

…and then you have to play better than anyone else.’

These famous words of Albert Einstein seem to be key in many legal disputes and procedures. The criminal procedural code of a country provides the rules for conducting a criminal investigation and the – potential – criminal case afterwards. These rules do not only have to be obeyed in the courtroom, obeying the rules during the criminal investigation is just as important. If the investigation authorities in the Netherlands do not play by the rules, this could (or should) lead to (serious) consequences. Not only should the party involved be compensated for disadvantages in the investigation against him, in our opinion this is also an effective way to control and improve the system. If errors can be made by the authorities without any consequences, there is no reason for them to try to avoid such errors in the future.READ MORE