Information Note on the Court’s case-law 207

May 2017

Zschüschen v. Belgium (dec.) - 23572/07

Decision 2.5.2017 [Section II]

Article 6

Article 6-2

Presumption of innocence

Conviction for money laundering following accused’s failure to explain origin of unusually high payments into personal bank account: inadmissible

Article 6-3-a

Information in detail

Information on nature and cause of accusation

Conviction for money laundering despite absence of decision regarding underlying substantive offence: inadmissible

Facts – The applicant was summoned to stand trial and convicted of money laundering as he had failed to give a convincing explanation about the origin of so me significant payments into his bank account.

According to settled domestic case-law, the offence of money laundering was made out where any legal origin of the funds could be excluded, and without there being any need to prove the predicate offence(s).

Law – Article 6 §§ 1 and 2: The Court saw no reason to disagree with that domestic case-law, which seemed compatible with the Council of Europe’s Convention on laundering. Under that Convention it was sufficient that the money-launderer suspected – or must have been aware – that the assets in question were proceeds of crime (Article 9 § 3); moreover, a money-laundering conviction was possible without having to prove the predicate offence (Article 9 § 6).

The case concerned inferences drawn from the applican t’s silence by the trial court in its assessment of the evidence.

(i) Degree of coercion – The applicant merely made summary statements initially and had then been able to remain silent, as was his choice. No direct coercion was applied to make him answer questions. His refusal to reply had not constituted a criminal offence in itself.

(ii) Role played by inferences in conviction – The applicant’s guilt had been based on a body of circumstantial evidence and his refusal to give explanations had merely corroborated that.

The fact that the applicant’s refusal to prove his initial vague and unconvincing statements as to the origin of the money in question had been used, among other evidence, by the trial courts to find that any legal origin of the money could be excluded, did not constitute in itself a breach of his right to remain silent and not to incriminate himself.

Moreover, if t he applicant’s account about his financial transactions had corresponded to the truth, it would not have been difficult for him to prove the origin of the money.

Having regard to the evidence against him, the conclusions drawn from his refusal to give a co nvincing explanation about the origin of the money deposited in his bank account had been dictated by common sense and could not be regarded as unfair or unreasonable, or as shifting the burden of proof to the defence.

Conclusion : inadmissible (manifestly ill-founded).

Article 6 § 3 (a): Since the applicant had been charged with money-laundering, the fact that the summons merely described the transactions which served to establish the existence of this offence sufficed to enable the accused to exercise his defence rights. No obligation to additionally explain the unlawful activities from which the proceeds had subsequently been laundered could be derived from Article 6 § 3 (a) of the Convention, as those activities did not constitute the object of the accusa tion.

In a second decision of the same day, Timmermans v. Belgium ( 12162/07 ), the Court added, also under this head, the same reference to the Council of Europe’s Convention on money-laundering as that mentioned above.

Conclusion : inadmissible (manifestly ill-founded).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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