The Council of Europe’s Warsaw anti-money laundering and counter-terrorism financing convention committee has called on its States Parties to effectively apply the reversal of the burden of proof regarding the lawful origin of alleged proceeds or other property liable to confiscation in serious offences.
In a report released today, the Conference of the Parties of the Council of Europe’s Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism evaluates the extent to which 34 States Parties have legislative or other measures in place for the burden of proof to be reversed, a possibility provided for in Article 3 (4) of the treaty.
Romania was assessed by the COP in 2012. With regard to Art.3(4) the report states: ‘the reviewers note with interest the new provisions on extended confiscation, introduced earlier this year, which allow for an apportionment of burden of proof in certain situations. Romania has not, as a result of this, withdrawn its declaration by which it avails itself of the right to apply “partially” article 3 paragraph 4. The new provisions introduce an important mechanism which pursues a similar objective as article 3 paragraph 4 of the Convention and gets very close to it; the article in question leaves some freedom to the countries as to how to implement the reversed burden of proof for confiscation purposes and the fact that this new Romanian confiscation mechanism is applicable only in respect of the proceeds accumulated over the last 5 years and only in respect of certain offences (which are not necessarily the same as those in the Appendix to the Convention) is not in contradiction with the Convention. The reviewers look forward to the way in which this new confiscation mechanism will be applied in future.’
“It appears that in the meantime, i.e. after the COP report was adopted, practice and case law in Romania did not actually go in the direction the rapporteurs envisaged. The legislation, as interpreted by the case law confirms that the burden of proof stands with the prosecution, and that it is their responsibility to ‘gather evidence and take measures of inquiry both in favour and to the detriment of the suspect or offender, ex officio or upon request.’“, reads the report.
With regard to the extended confiscation, the Constitutional Court (Decision no. 356/2014) has taken into account the opinions expressed in a doctrine, i.e. “relaxation” of burden of proof in the case of extended confiscation – the Constitutional Court established that “in the context of establishing that the presumption of the lawful acquisition of wealth is not an absolute presumption, the relative character of this presumption does not cause a reversal of burden of proof”.
As conclusion/recommendations, the Council of Europe says that “Romania does not have legislative or other measures in place to demonstrate the origin of alleged proceeds by the offender, which corresponds to the declaration made upon depositing the instruments of ratification with regard to Art.3(4). The burden of proof for all facts lies with the prosecutor.”
Romania should consider lifting the declaration made under Art. 53 IV. Accordingly, the authorities are invited to consider adopting legislative measures which would allow for the reversal of burden of proof, CoE concludes.
Sixteen countries have so far committed to applying Art. 3 (4): Albania, Armenia, Belgium, Bosnia and Herzegovina, Croatia, Cyprus, Denmark, France, Hungary, Latvia, Malta, Montenegro, the Netherlands, North Macedonia, Portugal and Serbia. However, the way these countries implement its provisions differs significantly. The majority apply it through extended confiscation in criminal proceedings, which allows confiscating assets that go beyond the direct proceeds of a concrete criminal offence for which the defendant is being prosecuted.
Eight countries have made a declaration not to apply – fully or partially – Art. 3 (4), and do not apply it in practice: Azerbaijan, Bulgaria, Greece, Republic of Moldova, Romania, Slovakia, Sweden and Turkey. Another seven countries have made such declarations but have in place measures to reverse the burden of proof through legislation or have jurisprudence of their courts: Georgia, Germany, Italy, Poland, Russia, Slovenia and Ukraine.
The Conference of the Parties encourages these states to reconsider their declarations that they will not apply this article of the treaty, particularly those already applying its principles in practice.