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Analysis of case law on the indirect method of proof

10 November 2021 13:01

Money laundering involves objects originating from crime. The offence an object originates from is not always clear. Money laundering cases in the Netherlands have shown that it is not necessary for a predicate offence to be proven. It is sufficient to prove that the object ‘originates from any crime’. This means that if an object does not derive from a legal source, it has to derive from an illegal source. This indirect method of proof can be used in cases where there are no direct leads of a predicate offence in relation to the object. Even in such cases, the court can reach a conviction  for money laundering, as no requirements exist to prove the time, place and perpetrator of the offence. This is the so called step-by-step plan approach, which works as follows. When a suspicion of money laundering exists on the basis of facts or circumstances (based on money laundering indicators and typologies) the suspect can be required to make a statement about the origin of the object that is suspected to originate from money laundering. The facts or circumstances 'call for an explanation'.  The statement about the origin of the object must be concrete, be verifiable to a certain degree, and not be highly unlikely. The fact that the suspect may be required to make a statement does not imply that it is up to him to prove that the object does not originate from crime. The suspect does not, therefore, has to prove that the money was obtained legally or that possession is lawful. The burden of proof is not reversed, as is sometimes wrongly believed. However, if a suspect refuses to make a statement or does not provide a sufficiently concrete and verifiable statement about the origin of the object, this may be taken into consideration in coming to a conclusion whether an object originates from crime.

In the Dutch investigation practice, it is often unclear whether a statement is sufficiently concrete and verifiable. Yet this is important to establish, because if the statement is concrete and verifiable, it is up to the Public Prosecution Service to investigate the alternative origin of the object so mentioned. For this reason, the AMLC has analysed case law about this subject. We reviewed all court rulings on concrete and verifiable statements produced in the period from January 2017 to the present day to see if clear conclusions could be drawn. We focused on seven different categories of statements that are most commonly provided, such as the statement that the money derived from gambling, that it was borrowed, or was a gift. We found that we could draw conclusions for each category of statements and therefore decided to compile these conclusions into a an overview. This collection and compilation of different statements given in courts cases can be useful and helpful in money laundering cases where no predicate offence is present, because it can help determine which statements must be investigated. Whenever the suspect makes a certain statement, the overview provides the prosecutor with guidance on whether this statement should be investigated or not. Ultimately, what matters in step-by-step cases is whether the investigation and the statement concerning the possible origin of the assets can rule out the legality of those assets. For it is only at that point that a criminal origin can be deemed to form the only acceptable explanation.