#40: Dutch money laundering articles are being misused
In Lawlunch #21 we brought to the attention that we are noticing a shift in the perception of the presumption of innocence. 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. We fear that this development results in the lost of meaning of the presumption of innocence. Also, it results in a preference of the use of the Netherlands as a jurisdiction to prosecute international money laundering cases. The idea is that a suspect has to prove the legality of the source of the money. The thresholds from Dutch jurisprudence however is another one.We should bear in mind that the Dutch jurisprudence on money laundering has a lot of nuances. Dutch prosecution should therefor not think to lightly in going around and prosecute money laundering cases. In money laundering cases the public prosecution does have to prove that the goods or money “derives from any criminal offence”. However, it is not required that the evidence shows that the object in question derives from a particular specified offence. If it is not possible to establish a direct link between the object and a specific offence, the element “from any criminal offence” can be proven if, considering the facts and circumstances of the case, it is inevitable that the object derives from any criminal offence.
Case law shows the following framework that the court must assess step by step in the case of a money laundering suspicion (step 1-4):
- The first step concerns the question whether there is any direct proof of the 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
- In the absence of any direct evidence of the predicate offence, the question is whether there is any evidence of facts of 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
- If this is the case, 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.
- If the statement is considered to meet all these requirements, is it the turn of the DPO to further investigate the alternative (legal) origin of the object, as indicated in the statement.
In the case of a money laundering suspicion, the court must thus, based on the facts and circumstances that underly the evidentiary presumption, be convinced that it is inevitable that the object derives from any criminal offence. This judicial belief, together with aforementioned facts and circumstances, forms the proof of money laundering. It is up to the defense to question the money laundering typologies that are being used. Not every money laundering typology may lead to an inevitable presumption that the money derives from a crime.
Another method to fight such a presumption of money laundering is to give a statement. In that regard, the question arises to what extent the suspect is required to substantiate his statement with documents or other information in order to create a concrete and verifiable statement. The Supreme Court indicated that the fact that a suspect may be required to give a statement when there is an evidentiary presumption, does not mean that the burden of proof is shifted from the DPO to the suspect. This would be a violation of the presumption of innocence. For instance on 18 December 2018the Supreme Court in The Netherlands judged that the judgement of the Appeal Court was not correctly motivated because the statement of the suspect was concrete, testable and not beforehand utterly unlikely. The fact that the suspect did not provide any documents did not change the fact that the public prosecutor could investigate the statement.
It is thus up to the public prosecution to take further steps. This means a lot of work and resources for the Dutch Prosecution Office if they would start a criminal investigation on the sole basis of some money laundering typologies. Moreover, this ‘lazy’ attitude is not how our criminal justice system should be abused. We believe that judges should be very critical on the question whether the objective circumstances indeed show inevitable that the object derives from any criminal offence before a statement from the suspect can be asked.
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 firstname.lastname@example.org and email@example.com.