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IX. EVIDENTIARY THRESHOLDS AND BURDEN OF PROOF, DEFENCES
International instruments do not give much attention to the issue of providing evidence in the process of
confiscation of the instrumentalities used to commit and the proceeds derived from corruption and money
laundering, focusing, mainly, on the possibility to reverse the burden of proof within confiscation procedure
under specific conditions.
Paragraph 8 of Article 31 of the UN Convention against corruption envisages that States Parties may consider
the possibility of requiring that an offender demonstrate the lawful origin of such alleged proceeds of crime
or other property liable to confiscation, to the extent that such a requirement is consistent with the
fundamental principles of their domestic law and with the nature of judicial and other proceedings. The
Technical Guide to the Convention further explains that, in addition to the sui generis procedures that accept
non-criminal standards of evidence after the conviction is reached, a number of jurisdictions have also
adopted civil procedures of confiscation that operate
in rem
and are governed by a standard of the
preponderance of evidence.
In accordance with paragraph 3 of Article 3 of the Warsaw Convention, each Party shall adopt such
legislative or other measures as may be necessary to require that, in respect of a serious offence or offences
as defined by national law, an offender demonstrates the origin of alleged proceeds or other property liable
to confiscation to the extent that such a requirement is consistent with the principles of its domestic law. The
Explanatory Report to the Convention specified that this paragraph provides the possibility for the burden of
proof to be reversed regarding the lawful origin of alleged proceeds or other property liable to confiscation
in serious offences. This provision must be equally applied to the proceeds intermingled with the property
acquired from legitimate sources, or otherwise transformed or converted.
The Recommendation No.3 of the ‘Forty Recommendations’, adopted by the Financial Action Task Force
(FAFT) on 20 June 2003, contains the similar provision for the possibility for the burden of proof to be
reversed upon the offender regarding the lawful origin.
The Directive 2014/42/EU of the European Parliament and of the EU Council, dated 3 April 2014, on the
freezing and confiscation of instrumentalities and proceeds of crime in the European Union envisages, in
paragraph 21 of the Preamble, that extended confiscation should be possible where a court is satisfied that
the property in question is derived from criminal conduct. This does not mean that it must be established that
the property in question is derived from criminal conduct. Member States may provide that it could, for
example, be sufficient for the court to consider on the balance of probabilities, or to reasonably presume that
it is substantially more probable, that the property in question has been obtained from criminal conduct than
from other activities. In this context, the court has to consider the specific circumstances of the case,
including the facts and available evidence based on which a decision on extended confiscation could be
issued. The fact that the property of the person is disproportionate to his lawful income could be among those
facts giving rise to a conclusion of the court that the property derives from criminal conduct. Member States
could also determine a requirement for a certain period of time during which the property could be deemed
to have originated from criminal conduct.
In countries of the ACN, the standards and burden of proof depend, to a large extent, on the type of
confiscation applied in a particular case. If the confiscation appears as a sanction, it is applied, usually, in
addition to conviction of a person who committed the crime that entails such confiscation, whereas the
prosecution is to prove the guilt of the person in committing such crime ‘beyond the reasonable doubt’. The
special confiscation, i.e. the confiscation, in criminal procedure, of the instrumentalities used to commit and
the proceeds derived from a crime, envisages, usually, the prosecution also bears the burden of proving that
there has been a relation with the precise criminal act. Whenever the extended criminal confiscation or the
civil forfeiture is at stake, the burden of proof, predominantly in the majority of cases, is split between the
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parties, and the simplified standards of evidence are to be applied: preponderance of evidence, balance of
probabilities, high probability or alternative thereof.
In such countries of the ACN as Azerbaijan, Armenia, Kazakhstan, Kyrgyzstan, and Latvia, where the legal
frameworks apply neither extended criminal confiscation, nor civil forfeiture, it is the obligation of the
prosecution to solely bear the burden of proof in the confiscation procedure. In order to apply the confiscation
as a sanction, the guilt of a person in committing a crime must be proven ‘beyond the reasonable doubt’.
In applying the special confiscation in the aforementioned countries, the relation between the
instrumentalities and proceeds and the particular crime is subject to proof by the prosecutor. For example, in
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