#65: Preaching to the converted

The money laundering provisions in Dutch law are quite an effective weapon for prosecutors. In many fraud cases there is a suspicion of money laundering, preferably a suspicion of money laundering with an unidentified predicate offence. In that case, based on the emerging case law, the suspect may be required to provide a statement about the origin of the funds. Although the prosecution sometimes seems to forget, this does not mean that the suspect has to provide evidence for his innocence. And it also does not mean that the Public Prosecution Service can sit back and relax and not conduct any investigation themselves. No, the Public Prosecution Service must investigate independently.

That is also the opinion of the Rotterdam District Court. In its judgment of March 22, 2021, the District Court dwelled on the test framework developed in case law for money laundering with an unidentified predicate offence. The prosecution took the position that the suspect’s statement about the origin of the funds was not sufficiently verifiable. This sounds familiar to many lawyer in the fraud practice. After all, the Public Prosecution Service often makes this claim. The idea arises that the Public Prosecution Service takes this position in order to prevent it from having to investigate the statement – in accordance with the step-by-step plan of the Supreme Court (as explained in Lawlunch #62), or even from having to conduct more far-reaching investigations.

In this particular case the court finds that part of the provided statement by the suspect on the source of the funds can be investigated, however a concrete name of the person from whom the money was received is missing. Nevertheless, the court rules that this partial non-verifiability of the statement does not lead to the conclusion “that it cannot be otherwise than that the money derived from any crime” as money laundering can be proven. In doing so, the court emphasizes that it is not up to the suspect to prove that the money did not come from crime.

The court further deals with five points that are involved in the assessment of the suspect’s statement:

• The failure to provide a sufficient explanation of the origin of the money, in conjunction with the presumption of proof, may lead to the conclusion that it cannot be otherwise than that the money derived from crime.
• The presumption of proof in this case consists for a large part of facts and circumstances the suspect has no knowledge of. Therefore, no statement about these can be required either.
• According to the court, the requirements for the verifiability of the statement are related to its concreteness and probability.
• In the assessment of the statement, it also plays a role whether the statement made by the suspect is possibly influenced by information that the police have disclosed.
• According to the court “further investigation into the origin of the money should not depend solely on the statement of the suspect.”

It is very welcome that the court expresses itself in such detail on the assessment of the verifiability of the statement. This is the only way to stimulate the Public Prosecution Service to not just always randomly state that the statement of the suspect is not sufficiently concrete and verifiable. After all, that is partially dependent on other available material and on the facts and circumstances that emerge from the investigation. The Public Prosecution Service – also in the Netherlands – therefore cannot just “sit back and relax” in such an investigation, but has an obligation to investigate the origin of the funds independently of the suspect’s statement.

This consideration of the court is welcomed by the criminal defense lawyers in the Netherlands. They don’t need to be convinced of this consideration, that would be preaching to the converted. Well, that leaves the Public Prosecution Service.

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