#71: It is gonna be an exciting new year

The last year has shown us that the Covid-19 pandemic has not stopped the practice of law. The developments in our practice at Hertoghs advocaten are enormous at the moment; from a new European Public Prosecutor’s Office to a multitude of new cases in the field of cybercrime and corruption. Cases where the laws are still unclear, and jurisprudence develops very fast. Wonderful new challenges for the year 2022 are thus on the horizon!

For now we wish everybody happy and healthy holidays! We wish to see you all in the new year.

All the best,

Mariëlle Boezelman & Judith de Boer

Hertoghs advocaten

#70: Speech is silver, writing is golden

In the pre-COVID world both suspects and witnesses were usually interviewed face to face in a Dutch criminal procedure. Over the past decade the interview via video conference has entered the toolkit, but face to face interviews were still most common. The idea behind this is that face to face interaction obviously gives more information than only words. Nevertheless, since COVID, written interviews in criminal procedures have begun to take off. Initially as a means to limit contacts and movements. But now it seems to have proven its own benefits.

One of the main arguments for face to face interviews is the believe that the interviewee will speak the truth. It is the belief that the suspect who is given the opportunity to put the answers on paper in his own time, and with or without a lawyer present, could easily adapt the facts to his own narrative. But does that belief actually make sense? By confronting a suspect with certain questions on the spot and putting him or her under a certain amount of pressure, answers might be provided more quickly. But that does not necessarily mean that such an answer also reflects the truth. As we all know, there is a long list of miscarriages of justice and false statements which indicate the lack of truthfulness in such answers.

In fraud cases there is also another risk in answering questions on the spot from the top of one’s head. Often the topic matters are complex, involving all sorts of figures and clauses in documents or records, which mostly date back many years. The chance that the interviewee can properly remember exactly what happened – on the spot from the top of his head – is small. The likelihood is that the answer is not in line with the facts just because nobody’s memory is so accurate it can remember numbers and dates from years back. This is not only problematic for the suspect, but also a risk for the investigating authorities. After all, their goal is first and foremost to find the truth.

To avoid giving an inaccurate statement, the suspect will often, whether or not on the advice of the lawyer, decide to invoke his right to remain silent during an interview. Witnesses however have an obligation to testify and cannot remain silent. They have to answer truthfully. Of course the witness can express that he or she does not remember the answer to the question, but this does not help the fact finding.

But these are not the only arguments against conducting a physical interview. The Dutch system does not work with verbatim interview reports. Usually there is not even a video or even an audio file of the interview recorded. Such records – other then in other jurisdictions – are not required by law. In practice such records are only made in exceptional situations. In the Netherlands, an ‘objective’ report of the interview is drawn up. The questions of the authorities are written down, as well as a summary of the answer of the interviewee. Of course, the interviewee and the defense are allowed to check what is stated in the report before it becomes final. However the only means the interviewee has to object against the content of an interview report, is to not sign it. This is of course tricky when it comes to the goal of finding the truth, especially since the Dutch criminal procedure grants great value to such reports drawn up by the authorities.

The worry that the interviewee can provide a wrong answer in a written interview is ill-founded. The witness always has to answer truthfully. Not doing so in writing could even be a criminal act. The same applies to a face to face interview, but only when the witness is put under oath. As far as the suspect is concerned, he is never obliged to answer or to answer the truth. Nor in a face to face interview, nor in a written interview.

An interview in writing turns out to be a proper alternative, particularly in complex fraud cases. It not only offers time to properly think of the answer to a question and to use own words to provide the answer. For a suspect, it even allows for a more proper reconstruction of the facts based upon documents. It also guarantees a truthful recording of the statement in the case file.

Do you have any questions or would you like to exchange views with us? Please contact us at boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

#69: EPPO goes shopping?

Political tensions within the EU are the order of the day. It seems that discussions about own sovereignty versus EU laws are here to stay. On the other hand the EU is working hard trying to harmonize laws and procedures. Fact is however that the EU still has a long way to go when it comes to unification on the various terrains, including criminal law. What is the effect of this for the young and blossoming European Public Prosecutor’s Office (EPPO)? Fact is that this organization has a very decentralized operation and every country has (slightly) different laws and procedures . Will this enhance the risk of EPPO going shopping in different EU countries?

Young and blossoming

The press publications about the first ongoing investigations of EPPO are a fact. On 20 October EPPO reported about 10 arrests in Germany, Italy and Bulgaria regarding suspicion of a criminal organization and evading taxes. The operation was led by a European Delegated Prosecutor (EDP) in Germany. On 1 October EPPO published about conducted searches in Austria regarding custom fraud, also led by a German EDP. And on 4 August EPPO reported about searches that were conducted in Germany, the Netherlands, Slovakia, Bulgaria and Hungary for a investigation into cross-border VAT fraud. It seems that the first investigations are focused on VAT and Customs fraud and have a German leadership. The material competence of EPPO with regard to VAT and custom fraud seems pretty straight forward. But are there any risks of EPPO going forum hopping given the material competence and the implementation within the national laws, and if so, what are they?

Material competence harmonized?

As explained in Lawlunch #66 the material competence of EPPO covers three different aspects. First,  EPPO can investigate and prosecute the so-called PIF offences; offences that are regulated in the PIF directive EU 2017/1317. VAT fraud is one of the crimes as described in the PIF directive. Second, the Regulation focuses on participation in a criminal organization, as long as the organization is focusing on committing PIF offences. Last, the Regulation covers criminal offences that are inextricably linked to crimes affecting the financial interests of the EU. One of the questions is of course why are the PIF crimes described in a Directive and not a Regulation. As a directive gives member states more freedom in the way these crimes are implemented. This makes it possible that the meaning of a PIF crime is slightly different in different countries. Legal certainty is at stake here.

This goes even more so for the interpretation of the second pillar of the material competence of EPPO, the so-called criminal organization with a focus on PIF offences. What does ‘focus’ mean? Does it need to be the prime focus of the organization? And what is the level of intent needed in for instance The Netherlands versus Germany? The same goes for the last category of crimes that falls within the material competence of EPPO regarding criminal offences inextricably linked to PIF offences. What does this mean? For instance, everybody knows that The Netherlands has a broad possibility to prosecute money laundering. Will the Netherlands be an attractive country for EPPO to prosecute inextricably linked crimes such as money laundering?

Or does EPPO prefer to prosecute a case in a country were, for example, the protection of the rights of a suspect are much lower. A comparative analysis of criminal procedural law is available to compare notes.

Forum shopping

This is all enhanced by the fact that EPPO has a choice of forum in cross-border cases. While in principle a case must be handled by an EDP in the country where the focus of the criminal activity is. However, until a decision to prosecute has been taken the central body of EPPO may reallocate the case in the general interest of justice. The risk of forum shopping might be a given. As long as harmonization within the EU is far from sight, the right to legal certainty of an EPPO suspect is just as far away.

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

#68: An obligation to report to EPPO

On 1 June 2021, the European Public Prosecutor’s Office (EPPO) was launched. This moment was accompanied with a number of press publications, including one in which Chief Public Prosecutor Laura Kövesi announced that she would soon make public which cases would be opened first. An announcement hasn’t been made public yet. However, EPPO has notified in a press release of 16 July 2021 that it has already processed more than 1000 reports of EU fraud since 1 June 2021. These reports come from member states or other EU institutions, which are obliged to report cases that fall within the scope of EPPO’s work. Yet another reporting obligation, is this the only way how EPPO gets cases?

To answer this question, it is good to know the structure and organisation of EPPO and its material competences. We also refer for this to Lawlunch #66. The material competences are laid down in Article 22 of Regulation 2017/1939 (the Regulation) and Articles 3 and 4 of Directive (EU) 2017/1371 (the Directive). In short, EPPO has the power to investigate and prosecute offences that harm the EU’s financial interests. Briefly, these are i) procurement fraud involving EU funds; ii) VAT fraud involving at least two Member States and causing total damage of at least €10 million; iii) laundering of proceeds from the above offences and iv) passive and active bribery of (EU) officials. Article 26 of the Regulation allows the EPPO to investigate these offences if there is a reasonable suspicion under national law that an offence within the EPPO’s competence is being or has been committed.

Article 24 of the Regulation contains a reporting obligation: the authorities of the Member States must report ‘without undue delay’ any criminal conduct to the EPPO over which they might exercise jurisdiction. This obligation also applies to other bodies of the European Union, such as the European Commission and the European Parliament. In addition, the EPPO also encourages private persons to report cases to the EOM, at least according to the EPPO website.

There seems to be no sanction for not complying with the obligation to report. Nevertheless, the press release of 16 July 2021 shows that, for the time being, member states are obediently complying with the obligation to report EU fraud. The Regulation requires that reports are well-documented and contain at least a description of the facts, including an assessment of the extent of the (potential) damage, the possible legal qualification, and any available information on potential victims, suspects and other involved parties. On the basis of this information, the EPPO then decides whether to open an investigation on its own. Article 40 of the EPPO’s Rules of Procedure show that the EPPO is bound by a number of assessment criteria. Only then does the EPPO open its own investigation.

Naturally, it may be the case that the Dutch Public Prosecution Service, in response to a suspicion, has already started its own investigation, ‘on its own soil’, into facts that also fall within the competence of the EPPO. In such a case a Member State must notify the EPPO so that it can assess whether it wishes to invoke the right of evocation. In that case, the Member State should transfer the case to the EPPO and the EPPO will continue the investigation. In assessing whether the right of evocation is invoked, the EPPO is again bound by the assessment criteria in the Rules of Procedure. Moreover, the assessment must take place within a period of five days, which may be extended by another five days. Is this period exceeded, then this will be interpreted as a consideration not to ‘evoke’ the case.

As of 16 July 2021 the EPPO has processed the first 1000 notifications, of organisations and possibly also private persons which seem to have found their way to the EPPO. But it remains to be seen whether the EPPO can actually act on the information reported and will open its own investigations or take over investigations.

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

#67: The line between lobbying and corruption

The Netherlands doesn’t score good on the compliance ladder of anti-corruption. A compliance report from the anti-corruption body GRECO states that ministers in the Netherlands are vulnerable to the influence of lobbyists and corruption. What are the risks and recommendations?

GRECO, which stands for the Group of States against Corruption, is a Council of Europe body that investigates corruption, more specifically its prevalence within (the top of) European central governments and public bodies. GRECO came up with no less than sixteen recommendations for the Netherlands at the end of 2018 in relation to the prevention of corruption within governments, including some recommendations in relation to lobbyists such as the adoption of a ‘code of conduct’.

Furthermore it was recommended to introduce rules and guidance on how persons entrusted with top executive functions engage in contacts with lobbyists and other third parties who seek to influence governmental processes and decisions, and to increase the transparency of contacts and subject matters concerning lobbying of persons who are entrusted with top executive functions. Lobby groups could in fact influence unilaterally and improperly, with the risk of conflicts of interest and corruption, or the appearance thereof. Although GRECO already recognized in 2018 that the work of lobby groups also has advantages (e.g. a good exchange of information between the public and private sector; in addition, lobbying contributes to broad public support for government policies) GRECO recommended that these practices be regulated. After all, there is plenty of policing in the Netherlands and the presence of lobby groups in the public domain is growing.

The July 6, 2021 report is critical. Only eight of the sixteen recommendations were partially adopted and implemented. According to GRECO, nothing has been done with the other half of the recommendations. This applies, among other things, to the recommendations in relation to lobby groups.

Incidentally, this is not the first time that the Netherlands takes inadequate measures in the combat against corruption. In October 2020, the non-governmental organization Transparency International concluded in a two-year evaluation that the enforcement of corruption in the Netherlands was only “limited,” particularly in relation to foreign officials. GRECO’s report now puts the spotlight on lobbying, which the reports say, at the very least, carries integrity risks and can also lead to corruption. This raises the question of where the line is drawn between lobbying and corruption. At what point does legitimate lobbying work turn into punishable conduct?

This question has not yet been answered in Dutch case law, probably because lobbying has no fixed (legal) definition. This observation was also one of GRECO’s criticisms in 2018. In the Netherlands, the criminalization of official bribery is regulated in Article 177 of the Criminal Code. A civil servant who allows himself to be bribed is punishable under article 363 of the Dutch Criminal Code. It follows from these articles that bribery can take place by (briefly put) intentionally offering or, in the case of a civil servant, accepting a gift, promise or service with the intention of inducing the civil servant to do or refrain from doing something in his ministry. Nevertheless, these penalty provisions are fairly broad and do not create a lot of clarity. The question is therefore where the boundary lies with lobbying. What is clear, is that the purpose of lobbying is precisely to exert influence on the administrative and/or political decision-making process. Whether and to what extent this leads to corruption seems to be a matter of how one tries to bring about that influence. But what is acceptable remains unclear.

The position of lobbying in relation to the enforcement of corruption is thus uncertain at this point. In our opinion, it would be a good idea for the Netherlands to clarify this by responding to the GRECO report and to substantiate how these recommendations will be implemented in practice. GRECO has given the Netherlands until 30 September 2022 to do so. We look forward to this response with interest.

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

#66: The EPPO is here

On June 1, 2021, the European Public Prosecutor’s Office (EPPO) was launched. The first Dutch European public prosecutor is Daniëlle Goudriaan. Furthermore The Netherlands has two delegated European public prosecutors. A new European institution which can carry out criminal investigations into offences mentioned in Directive 2017/1371 and offences that are inextricably linked to them. So now that the EPPO is active, what can we expect?

First it is interesting to know what the material scope of competence is of the EPPO. Article 22 of the Council Regulation (EU) 2017/1939 (The EPPO Regulation), states that the EPPO shall cover three different aspects of criminal conduct. First, EPPO focuses on offences affecting the financial interests of the European Union that are provided in the PIF Directive, Directive EU 2017/1371, which are implemented in the 22 participating Member States. Second, the Regulation focuses on participation in a criminal organisation, as long as the organisation is focusing on committing PIF offences. Last, the Regulation covers criminal offences that are inextricably linked to crimes affecting the financial interests of the European Union.   

The Directive has two provisions that define the PIF offences. In each case, the offence covers fraudulent conduct that damages the financial interests of the European Union (EU). The PIF crimes are focused on procurement funds, VAT and corruption. For VAT related crimes the crime should have been taken place in at least two participating Member States and have a tax damage of at least € 10.000.000,-.

The Directive requires these offences to be transposed into the legislation of the Member States as early as 2019. The Netherlands did not make any substantive changes to the criminal law provisions because this was not necessary. Only the penalty for embezzlement has been increased, as a result of which this has also become an offence for which pre-trial detention is possible.

For a good understanding of the EPPO powers and division of tasks, it is important to have an overall picture of the organisation. The EPPO has a central and a decentralised level. At the central level, there are permanent chambers consisting of a number of European prosecutors, who, among other things, supervise and control the cases. The decentralised level consists of delegated European Prosecutors (EDP’s) from the Member States. The delegated prosecutors investigate and prosecute offences in their home Member State as they are familiar with the local law over there. The delegated prosecutors thus play an important role in the investigation and prosecution. Incidentally, these delegated prosecutors are also members of the public prosecutor’s office in the Member State in question.

The competence of the EPPO is stated in Article 23 of the Regulation. The EPPO is competent when the offences, stated above, are committed in whole or in part in the territory of a Member States or by a national of the Member State, provided that that Member State has jurisdiction over the offence or in specific cases also outside the territory of the Union.

In principle, a case is brought and tried by a delegated European Prosecutor from the Member State where the centre of gravity of the criminal activity is located or, if several related offences have been committed, the Member State where most of those have been committed. In principle, therefore, the territoriality principle is adhered to. However, whether this can always be properly determined at the start of an investigation is questionable. An investigation can also develop in the course of time, or apply a certain focus; will the place of prosecution and the EDP then change?

It Is possible to deviate from this criteria for the location of prosecution. The following criteria can be used to deviate from this:

(a) the habitual residence of the suspect or accused;

(b) the nationality of the suspected or accused person;

(c) the place where the greatest financial loss was suffered.

It is unclear whether a defendant himself can request that the case is transferred to another delegated prosecutor from another Member State. Moreover, it seems that the EPPO will often be charged with cross-border cases involving defendants from different Member States. In our view, this could lead to discussions about where the prosecution should take place. The permanent chamber has the power to refer, merge or split a case. We believe that a defendant should also be able to turn directly to the permanent chamber for the referral, joining or splitting of a case. But what criteria are to decide on this is not clear.

Delegated prosecutors act partly on the basis of the powers of national law. The Dutch EDPs are thus bound by the Code of Criminal Law and the Code of Criminal Procedure. However, this does not apply to policy rules and instructions. In this respect, the EPPO is a completely independent and autonomous body. This means for instance that the EPPO is not bound by the Dutch policies on transactions of a criminal case. The EPPO is autonomous in this.

The advantage of the EPPO is mainly that it does not have to make requests for judicial assistance to other Member States – which in practice is still time-consuming – but that a delegated prosecutor can informally seek the assistance of a delegated prosecutor in another Member State who can exercise the investigative powers on the basis of national rules. This is not the case for arrest warrants and surrender warrants but only for investigation warrants.

This intensive cooperation between delegated European officers of the EPPO also requires the necessary efforts of lawyers, because now that the prosecutors are united at a European level and thus have specialist knowledge of the law within each Member State, a good European network within the legal profession is just as important. Cooperation is therefore necessary to defend the rights of defendants at the European level.

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

#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.

#64: An exciting read

A case file usually consists of documents, statements, reports of wiretaps and other pieces of evidence. These items of evidence are often summarized in official acts and accompanied by conclusions of the reporting officers. In practice, we often see official acts that read like an exciting boys’ book. This as a result from far-reaching assumptions and presumptions that are not supported by the evidence. Assumptions and conclusions are not evidence in itself. Nothing new thus far. But it remains an important point of attention, as a recent Supreme Court decision also shows.

In the case at hand, the defendant was convicted by the court for money laundering because, according to the court, the defendant knew that sums of money derived from a crime. The court justified this judgment by referring to an official report of a police officer. This report contained a summary of tapped telephone conversations but also conclusions of the officer about what the contents of the conversations would show with respect to the knowledge of the suspect about the criminal origin of the money. In cassation this manner of using ‘evidence’ is objected. This is confirmed by the Supreme Court. According to the Supreme Court, this method of reasoning is inadmissible. Furthermore, a lesson on the use of evidence is provided.

Pursuant to Article 359, paragraph 3, of the Dutch Code of Criminal Procedure, a conviction must be based on evidence which contains the facts and circumstances. These means of evidence must be stated in the judgement or in the supplement to it. Another option is for the court to indicate the facts and circumstances in the judgement in sufficient detail, indicating the means of evidence from which these facts and circumstances are derived. The pieces of evidence that are used to substantiate the judgement must have been discussed during the court hearing.

The Supreme Court ruled that in this case the court used a statement of an official that contains conclusions that are inadmissible for the evidence. A judge must independently reach certain conclusions based on the underlying facts. It is not sufficient for the court to only consider that it agrees with the interpretations and conclusions of the reporting officer. The court has an independent task in drawing certain conclusions based on the facts instead of conforming unreasonably to conclusions of an official.

This judgement not only clearly indicates once again how a verdict or judgement must be substantiated with respect to the use of evidence. It is also an important point of attention for the defense: do not be misled by the interpretations and conclusions of the reporting officers and always assess independently whether the facts can support the conclusions. Also encourage the prosecution and the judge to do so. Always form your own opinion about the facts and circumstances, because a exciting boys’ book might as well be fiction.

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

#63: Factory of lies

The fallibility of memory. It is a theme that comes up a lot in criminal cases. Especially if a witness has made an incriminating statement against a suspect. How reliable is that statement based on the memory of that witness? In practice, it turns out that the memory simply is not so accurate. A memory can become distorted in the course of time under the influence of many factors. During a recent TV program someone stated: “There is no bigger lie factory than the memory”. That is spot on. And if that is the starting point, it seems no more than logical to let the defense interview witnesses who have made an incriminating statement, without setting specific further requirements to the request to cross-examine such a witness. The ECtHR thinks so too, by the way.

On 4 July 2017, the Dutch Supreme Court rendered a judgment with an overview regarding the requirements to be imposed on witness requests in light of ECtHR case-law. The Supreme Court ruled that in the Dutch criminal procedure a request to summon and hear witnesses should be motivated by the defense in order to enable the court to assess the relevance of that request. This obligation applies to both defenses witnesses and witnesses of the prosecution. No distinction is made between the two. The Dutch Supreme Court does note that the court must always make sure that the procedure as a whole complies with the right to a fair trial guaranteed by Article 6 ECHR. The Supreme Court has ruled that the judge (after an earlier rejection of a request) will – if necessary ex officio – still proceed to summon and interview witnesses at a later stage.

In practice, however, requests to cross-examine a prosecution witness are rejected if the judge does not consider the grounds for the request adequate. This was the case in the recent judgment Keskin v. the Netherlands. The ECtHR ruled that this situation constitutes a violation of Article 6 of the ECHR. The ECtHR held: “The Court takes this opportunity to reaffirm the general principles relating to the right of an accused to examine or have examined witnesses against him or her, as set out in paragraphs 44‑45 above, from which it follows that the interest of the defence in being able to have those witnesses examined in its presence must in principle be presumed (see also paragraph 60 above).” In other words, the right to cross-examine a prosecution witness is paramount. Thus, the defense should in principle be given the opportunity to interview such a witness, while the Dutch Supreme Court interpretation is that the defense will not be granted that opportunity unless the conditions are met.

It seems that this judgment of the ECtHR will have to be answered by an adjustment of Dutch threshold. In any case, the defense will certainly have to make use of this specific decision. In which way the Dutch jurisprudence will adapt based on this “slap on the wrist” and how it will implement the new criteria will become apparent. Advocate General to the Supreme Court Spronken wrote quite strikingly: “A national legal system reacts to supranational case law like a body to an organ transplant: the first reflex is that of rejection and thereafter the foreign organ is assimilated into the body as well as it can be done.” Indeed, the Dutch Supreme Court has shown quite a tendency to hold a lower standard than the minimum defense rights guarded by the ECtHR. In our view, this judgment does not allow that to be a serious option. The addition in the July 4, 2017 judgment that ex officio decisions can be made to prevent a violation of Article 6 ECHR could already provide a good opening for this in everyday practice. Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

#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.