On February 2019 the Court of Cassation issued an interesting ruling. This ruling concerns the problem of illicit proceeds which a judge has to confiscate following a conviction for money laundering regarding the facts brought before court ; in other words regarding the seisin of the criminal judge.
The seisin of the criminal judge contains the facts which were brought before court by the prosecuting party. It is the subpoena or the decision of a court of inquiry to refer ) which brings the case before the substantive jurisdiction and which defines the facts for which prosecution is at hand. The criminal judge can only statute on the facts which were regularly brought before him.
In the case which lead to the Cassation ruling, the ruling of the Court of Appeal of Ghent was annulled because of a transgression of the seisin by the judges in appeal; read : “They judged about facts which were not brought before them”.
The case brought before the judges in appeal contained three charges (CH) :
– CH A : breach of trust (i.e. embezzlement) to the detriment of company V;
– CH B: money laundering of an amount of 536.444,88 euro being the illicit proceed of CH A and CH C;
– CH C: tax fraud on the amount of 536.444,88 euro.
The judges in appeal acquitted the accused for CH A (breach of trust) and condemned him for CH B and C to a.o. a confiscation of 350.000 euro. The judges in appeal motivated that it could not be established that the money originated from company V. But at the same time they pointed out that even if the origin of the money could not with certainty be established, nothing precludes that based on the factual data the legal origin of the amounts is excluded. Without entering in too much detail, the motivation meant that the money that was laundered came from a breach of trust (the so-called predicate offence) to the detriment of various companies of the accused. According to the judges in appeal this was not limited to the misappropriation to the detriment of company V meant under CH A.
This judgment was not – and rightfully so – validated by the Court of Cassation.
When assessing the cassation appeal the Court repeated first of all its standard jurisdiction that it is in principle not required that the judge knows the precise predicate offence of which the illicit proceeds were laundered, insofar as he can exclude all legal origin or source for it.
The Court emphasizes that this principle is limited when it appears that the indictment for laundering mentions the specific predicate offenc(s) from which the laundered proceeds originated. In that case, the judge can only rule on the laundering offence within the boundaries of the specified predicate offence.
And this last aspect is precisely where the judges in appeal made a mistake. The indictment for money laundering CH B was specifically related to money embezzled to the detriment of company V, and not on breach of trust to the detriment of other companies managed by the same accused.
As a résumé, when the charge of laundering mentions the specific predicate offence, the court can only judge about money laundering insofar as this concerns the illicit proceeds from the specified crime. If not, the judge steps out of his seisin.
Cfr: Cass. Feb 5, 2019, P.181010.N
© Patrick WAETERINCKX