Zschüschen, ECHR indirect method of proof
24 April 2019 10:55
This is an article from our newsletter 2017-1
The ‘step-by-step plan’ is ECHR proof
In previous newsletters we discussed the step-by-step plan the Netherlands can use to prove money laundering without predicate offence. The past few years the AMLC has been asked regularly if the application of the step-by-step plan in money laundering cases is not contrary to the various principles of law. For instance, can a suspect in certain circumstances be expected to explain the origin of the money? Is this not contrary to his right to remain silent? Our reply has always been that we did not see any obstacles, but we did not have a specific ruling of the European Court of Human Rights (ECHR) in a money laundering case. Last week, a ruling by the ECHR was published as a result of a Belgian money laundering case: Zschüschen v. Belgium, ruling only available in French, press release of 1-6-2017 in English.
The Dutchman Zschüschen opens a bank account in Belgium in March 2003 and deposits a total amount of € 75.000 in 5 transactions within 2 months. Zschüschen has a history of drug trafficking and no income (in the Netherlands). A money laundering case is started against him in Belgium. Initially, he states that the money was earned with untaxed (undeclared) work during a 4-year period. He does not want to give the names of employers. During the entire proceedings he claims the right to remain silent. In 2006, Zschüschen is sentenced in Belgium (10 months’ suspended sentence, a € 5.000 penalty and confiscation of the € 75.000).
The legal questions:
Zschüschen first of all relies on article 6, par. 1 and 2 of the ECHR. More specifically on the breach of the right to a “fair trial”, the presumption of innocence and the right to remain silent. The fact that the predicate offence is not specified during the proceedings, allegedly is a breach of his defence rights as well as a breach of the right to be informed promptly about the charges. In addition, article 6, par. 3 sub a ECHR is also relied on.
The summary vision of the ECHR:
In summary, the conclusion of the ECHR is that Zschüschen loses the case on all counts.
Article 6, par. 1 and 2 (fair trial and presumption of innocence)
According to the ECHR, Zschüschen has given a vague and non-convincing explanation (déclarations vagues et peu convaincantes2) for the origin of the money and did not want to answer any further questions about this. The Belgian court took this refusal to provide an explanation about the origin of the money into consideration in the conclusion that the money originated from crime. According to the ECHR this is not contrary to the ECHR (right to remain silent and right not to incriminate oneself) now that there was also other proof in this case.
This would only be different if the final assessment would be entirely or largely (‘exclusivement ou essentiellement’ ) based on Zschüschen remaining silent.
In this case the facts and circumstances were such that his silence only confirmed the evidence that was already there. It was also taken into consideration that it should not be difficult for Zschüschen to substantiate his statement about the origin of the money. The conclusions drawn from his refusal to provide a statement are not unfair or unreasonable, but prompted by common sense (étaient dictées par le bon sens et ne sauraient passer pour iniques ou déraisonnables).
Article 6, par. 3 letter a (prompt information about the charges)
The ECHR states that in line with Belgian legislation the suspect was informed adequately about the accusations against him, considering the clear and detailed description of the suspect transactions and the legal explanation regarding money laundering. As a result of this Zschüschen knew what he had to defend himself against. The ECHR also states, and this is also relevant for the Dutch situation (and maybe also for other countries), that article 6, par, 3 letter a ECHR does not include the obligation to describe the specific predicate offence in the charges. After all, the predicate offence by means of which the money was obtained, is not the core of the accusations in the case of money laundering. In short, this ruling confirms that the Dutch tackling of money laundering cases, applying the step-by-step plan, is not contrary to the ECHR.