Alleged money launderer becomes prosecutor (apparently)
On Feb. 20, 2021 wrote The Time that the Liège court is investigating hundreds of millions of euros in suspicious money from a Walloon family that worked for and with the arms manufacturer FN Herstal for decades.
More specifically, following a report through the anti-money laundering cell, the prosecutor's office would investigate the possible illegal origin of those same euros, since just such an illegal origin is necessary before money laundering can occur.
Illegal origin
The article in our Penal Code dealing with money laundering consistently refers to - among other things - the conversion, transfer or retention of "the items referred to in article 42, 3°".
That article, in turn, refers to "wealth benefits obtained directly from the crime, the goods and values substituted for them and the income from the invested benefits".
It is thus established that the asset benefits - such as monies, as well as tax benefits - must come from a crime before there can be a money laundering offense.
Reversal of burden of proof
It is noteworthy, admittedly, that the base crime - from which those monies allegedly originated - should not be prosecuted at the same time. In fact, the base crime should not even be identified.
More than that, the prosecution does not even have to concretely prove that those same asset gains were obtained illegally, despite the presumption of innocence and the fact that the burden of proof should actually be on the prosecution.
On the contrary, under current case law, the prosecutor must only demonstrate that the benefits do not have a legal origin can have had.
In other words, the prosecution no longer has to demonstrate concretely that the benefits in question were obtained illegally. It must only be able to substantiate a presumption that the benefits were probably not obtained legally.
Not surprisingly, in practice this standard of proof has resulted in the fact that it is currently up to the defendant to prove the legal origin of the benefits. At a minimum, the defendant must prove that there is doubt about that allegedly illegal origin.
Therefore, because of this - softly put - unfavorable position, it is advisable to always keep documentary evidence of where and why you obtained larger sums, to avoid unfounded accusations.
Although, of course, the question still remains as to why a situation such as this would not lead to a violation of the presumption of innocence or an impermissible reversal of the burden of proof....
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Feb. 21, 2021
