by Jean-Paul Laborde[1] and François Molins[2]
This article seeks to demonstrate the new key role of Constitutional and Supreme courts as well as the one of the Prosecutor General, Attorneys General or Directors of Public Prosecution Services and Offices in countering Money-Laundering and Terrorist Financing.
Indeed, as regard to the Courts themselves, the impact of their case law is decisive, whether in confirming or expanding new methods of investigation and proof in these complex matters. This is true for the reversal of the burden of proof, methods connected with the issue of the link between predicate offences and money-laundering and/or financing of terrorism, and new investigative methods such as parallel financial investigations.
Similarly, regarding the role of the Prosecutor General Services Attorneys General or Directors of Public Prosecutions (DPP) in Common-Law countries, it is important to demonstrate how, using the French institutional example, a Prosecutor General Service at a Supreme Court, Attorneys General or DPPs who are independent of those Courts but can still produce their opinion or final statements in front of those Constitutional or Supreme Courts, can usefully contribute to the development of case law in light of challenges that our societies have to face when they are countering this type of crime.
I. The role of Constitutional and Supreme Courts in the fight against Money -Laundering and terrorist financing
Two major developments should be noted in that area: one concerning the link between predicate offences and money-laundering, and the other one concerning the evidence principles in this specific area.
As the Foreword to the brochure on the Legal Approaches to Evidentiary Challenges on Money-Laundering Prosecution and Confiscation proceedings of the European Union Global Facility and the Siracusa International Institute for Criminal Justice and Human Rights perfectly states:[3]
- “The international community recognises that the relentless flow of illicit funds threatens the stability and integrity of societies around the world.” “In response to this challenge, many countries have adopted innovative approaches that contrast with classical theories, for example in the field of criminal confiscation.”
To perceive the magnitude of the threat and, as an example, back in 2011 UNODC Money Laundering Overview estimated the value of globally laundered money at 2-5 percent of global GDP, while 2025 UNODC World Drug Report estimates that the seized and frozen assets are below 1 percent of global financial flows[4].
In this regard, have Constitutional Courts or Supreme Courts followed this evolution in the laundering of assets from criminal activities? This is what this article will try to identify through the case law of several Constitutional and Supreme Courts, whether they belong to Common-Law or Civil-Law systems.
It can be observed at the outset that, contrary to a persistent and deeply rooted misconception, the differences between the two major legal systems, Common-Law and Civil-Law, through solutions that may differ, ultimately lead to very similar outcomes: greater severity toward these types of crimes and toward criminals who commit them, since those crimes destabilise the global economy by injecting huge sums of assets derived from illicit flows.
A. The evolution of legal concepts relating to the link between the predicate offence and the offence of money-laundering
Many authors consider that proof of the direct link between predicate offence and the laundering of dirty assets derived from that offence is, in most Common-Law countries, extremely difficult to establish. Ultimately, this issue which cannot be very easily overcome, encourages prosecutors not to bring these cases before criminal courts but rather, as they do, to open civil proceedings through asset forfeiture procedures (property civil confiscation) for which the threshold of evidence is lower than in for criminal cases. Those civil proceedings were so successful that it led to the adoption of the FATF (Financial Action Task Force) Recommendation 4 which requires States to provide measures that allow, in particular, the confiscation of property of criminal origin derived from assets laundering,[5] namely confiscation without a prior conviction, often called civil confiscation or “non-conviction-based confiscation”. In addition, the interpretative note to Recommendation 4 indicates that countries should have legislative measures allowing the confiscation of property of criminal origin without requiring a criminal conviction in cases of money-laundering, predicate offences or terrorist financing, insofar as this is compatible with the fundamental principles of domestic law. Those types of procedures have now begun to be disseminated in several Civil-Law countries, such as Colombia or Georgia.[6] These measures undoubtedly make possible to overcome the lack of confiscations where it is impossible to prove criminal fault on the part of criminals who have committed offences of a certain gravity. However, the importance of criminal sanctions in money-laundering cases should not be overlooked by the civil procedures.
Therefore, the Common-Law / Civil-Law distinction with respect to the law of criminal evidence has to be envisaged and, interestingly, it should be stressed that, through the Common-Law Case-Law, solutions to obtain criminal adjudications and confiscations have been found both, in Common-Law and Civil-Law jurisdictions.
Common Law Case-Law
The traditional standard of proof in the Common-Law criminal justice system, with the requirement of “probable cause”, might have been viewed as an obstacle to obtaining a criminal conviction and therefore also for confiscation. Yet, through the concept of circumstantial evidences, also known as surrounding circumstances, the Common-Law system found an effective way to circumvent the issue of the link that is so difficult to prove at the outset between predicate offence and money-laundering offence. Thus, this concept allows the following factors to be properly considered:
In determining whether property is or represents benefit of criminal conduct, considerations should be given to:
- all the surrounding circumstances about the connection of the defendant and any other relevant person with the property including but not limited to the financial ability of the defendant or that other person to have possessed or possess such property
- the explanation, if any given by the defendant or that other person as to his or her connection with the property.
- the conduct of the defendant or that other person in relation to the property.
Many Common-Law decisions have moved towards this direction. In that perspective, one of the most famous being the Anwoir judgment,[7] by which “The court ruled that it is not required for prosecution to prove that the property in question is the benefit of a particular or a specific act of criminal conduct: “there are two ways in which the Crown can prove the property derives from crime, a) by showing that it derives from conduct of a specific kind or kinds and that conduct of that kind or those kinds is unlawful, or b) by evidence of the circumstances in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived from crime”.
Thus, through the concept of “irresistible inference”, the Court was able to demonstrate the links between criminal activities and the laundering of funds derived from those criminal activities, without having to connect a specific offence directly to that laundering of those funds. This is the reason why the use of parallel financial investigations should be systematised so that, on the one hand, the predicate offence can be prosecuted without that offence becoming the predicate money-laundering offence, but rather forming part of the criminal activities to which the parallel financial investigation procedure may refer as one of the criminal activities that formed the basis of the Money-Laundering criminal activities, explaining in its judgment that the funds of illicit origin “could only derive from criminal activities”, as the Anwoir judgment stated perfectly.
Civil Law
In Civil-Law countries, it might appear at first glance that recommended solutions for confiscating the proceeds of crime have been more easily implemented, both through the establishment of new legislation and through developing case law. It should be recalled that for the civil-law criminal justice system, the judge’s intime conviction principle is not absolute, since that inner conviction must be established in light of evidence provided. Supreme Courts, and also Constitutional Courts where the distinction exists, require that judgments of lower courts and courts of appeal must be based on tangible evidence, in order to establish the guilt of an accused person. That being said, in many countries, particularly in France, confiscation of property of illegal origin may be ordered under well-established criminal procedures that are in the same vein as “surrounding circumstances”. In that context, a French Cour de cassation’s judgment, “Crim. 8 Nov. 2017, No. 17-82.632”, decided “that property belonging to a company which, for the person under investigation, is merely a device interposed between his personal assets and those assets, may be seized and therefore subsequently confiscated”.
It can therefore be understood that the Civil-Law countries courts, like those of Common-Law countries, have also carried out very significant work on the confiscation or seizure of property, moving gradually away from the concept of the predicate offence mandatory link for ML offences evidence and referring increasingly to “the accused persons criminal activities” as a whole.
It could be noted in that type of judgement the influence of the Council of Europe Warsaw Convention on Money-Laundering (2005), which provides provisions in favor of autonomous prosecutions independent from the predicate offence and which, it should be recalled, is open to accession by all countries of the world that decide to do so, under Article 50 of that Convention.[8]
Hence, it has been widely demonstrated that the jurisprudence-case law, in both major legal systems has found ways to remedy this difficulty through the implementation of parallel financial investigations and by allowing reference to criminal activities for which the accused may already have been convicted, without being required, at the confiscation level, because of the independence of the parallel financial procedure, to limit itself to the amounts or property directly derived from that first offence for which the suspected person was already convicted. In France, the Cour de cassation has also held, in light of the Warsaw Convention a judgment Crim. 21 Oct. 2020 No. 19-87.076, that decides in the following way “derives from Article 324-1, interpreted in the light of the provisions of Article 3 of Directive No. 2018/1673 of the European Parliament and of the Council of 23 Oct. 2018 on combating money-laundering by criminal law, that it is not necessary for the criminal activity or conduct from which the property that is the object of the laundering derives, to be precisely established or even to constitute an offence in the country where it was committed, nor for its perpetrator to be identified or to have been the subject of prior or concomitant proceedings. ● Crim. 21 Oct. 2020, No. 19-87.076: D. 2021. 1655, obs. Mascala.”
Hence, whether in Common Law or Civil Law, in order to address these new challenges, but evidently only in these matters, considerable case law developments can be observed.
The sensitive issue of reversing the burden of proof
Given the enormous sums laundered and derived from illicit activities, whether from drug trafficking, other transnational organised crime activities, or one of the phenomena that affects the most our societies throughout the world, namely corruption, the international community, following the experience of certain countries, has put in place new strategies to combat money-laundering, which is the ultimate purpose of these large-scale criminal activities.
From the International Criminal Law perspective, since the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,[9] which was the first international instrument dealing with money-laundering, the international community established legal tools addressing the difficulty of proving the criminal origin of the funds. Indeed, this Convention in its Article 5 on the confiscation of funds clearly established the reversal of the burden of proof in order to reach the ultimate goal of the confiscation of property of illicit origin; that instrument was followed by the 2000 United Nations Convention against Transnational Organised Crime, known as the Palermo Convention, incorporating the same type of provisions in its article 12, as well as the United Nations Convention against Corruption, known as the Merida Convention, with its article 8.
Still, it should be stressed that there is, however, always a gap between the will of the international community expressed even in mandatory legal instruments and their implementation, whether in terms of their incorporation into national legislation or their implementation by the various judicial or administrative authorities. Moreover, the issue of reversing the burden of proof has raised many reservations on the part of legislators and even from Constitutional and Supreme Courts.
Yet, faced with the seriousness of criminal activities capable of destroying the State economies, or even their constitutional foundations, the various legislators, Constitutional Courts or Supreme Courts have found effective means of combating such dangerous criminality.
A few examples allow to highlight the different means used by Courts to confront this scourge.
In Common Law, the example of the right to silence
A well-established principle in Common Law is the right to silence, from which any person must be able to benefit vis-a-vis the investigating authority until he or she appears before a judge. However, case law has found solutions to limit this right in the legal situation there is a prima facie case containing all the elements necessary for proceedings against a person under investigation.
In the case cited below (Andoo v The Queen, 1989 SCJ 257 Mauritius), the limits of the right to silence can be observed:
“Where the evidence for the Prosecution establishes a strong and unshaken prima facie case and the accused chooses not to swear to his statement and expose himself to cross examination, the Trial Court is perfectly entitled to conclude that the Prosecution evidence remains unrebutted. It is of course true that the burden of proving the guilt of an accused squarely lies on the Prosecution and that the accused is entitled to remain silent.
His right to silence, however, is exercised at his risk and peril when, at the close of the case for the Prosecution, a prima facie case has been clearly established since the burden then shifts on him to satisfy the Court that it should not act on the evidence adduced by the Prosecution.”
Consequently, when the evidence produced by the prima facie case is very clear, the right to silence is exercised at the risk and peril of the person concerned.
The same case law can be found at the level of the European Court of Human Rights, which, in a case Zschüschen vs Belgium,[10] clearly decided that “the domestic courts convincingly established a body of corroborating evidence to support the applicant’s guilt, and his refusal to provide explanations as to the source of the assets, when the situation called for an explanation on his part, only served to reinforce that evidence”. This decision demonstrates perfectly that, although the right to silence is indeed guaranteed, it may operate, as in the preceding case, against the person concerned, his silence serving only to reinforce the evidence of his guilt.
It should be noted in that case that the same jurisprudence applied to Common-Law and Civil-Law jurisdictions.
It is therefore possible to observe how, in these cases, case law succeeds, while respecting the right to silence, in containing it within limits that make it possible to take account, objectively, of the evidence contained in the file.
In Civil Law, the issue of reversing the burden of proof
It is often addressed directly by legislation and by case law that confirms it:
As an example, under French law, for the application of Article 324-1 of the Criminal Code on the origin of property or income derived from money-laundering, “they are presumed to be the direct or indirect proceeds of that offence or crime where the material, legal or financial conditions of the placement, concealment or conversion operation can have no justification other than to conceal the origin or the beneficial owner of that property or income”.
It should be noted that, since the version of this article of the Code as of 15 June 2025, a clarification has been added to include crypto-assets with anonymisation or obfuscation in the scope of prevention and therefore in the possibilities of confiscation and seizure.
Even more significantly, in a judgment Crim. 4 Dec. 2019, No. 19-82.469, the Cour de cassation held that “The court of appeal did not reverse the burden of proof and justified its decision when, in convicting the accused of money-laundering and receiving stolen property, it stated that he had assisted in a placement and concealment operation involving the proceeds of undeclared work and tax fraud, regardless of the fact that the perpetrators of those offences were not known and that the circumstances of their commission had not been fully determined. ● Crim. 4 Dec. 2019, No. 19-82.469 P: D. actu. 24 Jan. 2020, obs. Gallois; D. 2019. 2353; Gaz. Pal. 2020. 1759, obs. Dreye”.
In France, the Paris Public Prosecutor’s Office recently applied this presumption of money laundering established by Article 324-1 of the French Criminal Code by prosecuting before the Paris Criminal District Court as a money laundering offence with aggravated circumstances, two members of a Serbian organised criminal group, already convicted several times for fraud in the European area and who had acquired a house and three buildings in Seine Saint Denis for a value of 1, 8 million euros even though their declared income was non-existent and they had not been able to justify, during the money laundering investigation, the legality of the origin of the funds used for the acquisition. No investigation had been carried out by the prosecutor’s office to determine the predicate offence, which gave rise to the defendants’ real estate business. The Paris Criminal District Court adjudicated the case and pronounced a conviction for aggravated money laundering. In addition, the Court ordered the confiscation of their real estate with immediate execution.
In the booklet of the Global Facility and the Siracusa Institute, it can be found many other examples both of that Common Law and Civil Law jurisprudence evolution.
II. The specific role of prosecutor general services at supreme courts in the fight against assets laundering and terrorist financing
The contribution of Prosecutor General services at Supreme Courts makes possible to facilitate the development discussed in the first part, which was devoted to the role of the Supreme Courts themselves. The stimulation and impetus developed at the instigation of these Prosecutor General services may, indeed, be decisive in the evolution in question, as we will demonstrate using the French example.
Description of the French institutional model
Article L 432-1 of the Code of Judicial Organisation provides that the Advocate General (representative of the Prosecutor General in court sessions) delivers opinions in the interest of the law and the common good and enlightens the Court on the scope of the decision to be rendered. According to this vision, based on the prescriptions of French law, “the role of the Advocate General is to orient case law towards the satisfaction of the common good”.
In France, “the Advocate General at the Cour de cassation” is not a party to the trial. He or she has neither the status nor the prerogatives of a party; he or she has none of the attributes that constitute both the founding elements and the distinctive signs of the public prosecutor before the trial courts. The Advocate General therefore is not in charge with public prosecution and is not responsible for defending public order within the meaning of Article 423 of the Code of Civil Procedure, which gives the public prosecutor attached to the lower courts jurisdiction to act in defense of public order. In his or her mission, the Advocate General has to provide an “independent legal opinion” with respect to the merits of the recourse from the Constitution, Treaties and Law perspective. The opinion must be documented and reasoned in order to enrich the reflection and to provide a its legal opinion to the Court. The Advocate General shares his/her opinion with the parties and the chamber of the Court. He or she must be a driving force for innovation and reflection capable of leading, in time, to developments in case law.
The Advocate General delivers his or her legal opinion in complete independence; he or she is not subject to any hierarchy under the Minister of Justice. Therefore, he or she has no obligation to support appeals lodged by the prosecutors general of the courts of appeal, that he or she does not represent before the Cour de cassation.
Fundamentally, the Advocate General at the French Supreme Court is entrusted with a public-interest mission: to think through the legal issues submitted to the Cour de cassation, that is the expression of the general interest, in a landscape continually enriched by new challenges. This function is not specific to the French Cour de cassation. It is common to many supreme courts charged with stating the law at final instance, whether in countries of Continental law or Common Law.
A specific mission: external consultation
In the context of his or her mission, the advocate general constitutes a “window to the world”: he or she must make it possible to enrich the chamber’s reflection, notably by carrying out external consultations [11]. The aim is to enlighten the Court on the scope of the decision to be issued and on its consequences.
Although the mission of the Cour de cassation is meant for law interpretation, case law coherence and unification, this mission cannot be carried out outside the realities of the society in which the Supreme Judicial Court operates.
The legal questions raised by complex recourses to which a Supreme Court must respond necessarily refer to this reality, whether social, economic or societal, or to a legal, scientific or international context that the Court cannot ignore.
Yet the stakes of legal reasoning do not always make it possible to grasp the context of a case in its dimensions other than legal ones. The rigor of legal demonstration and reasoning may not make it possible to measure the consequences and the direct or indirect effects of the full complexity of the decision to be rendered. Only openness to the outside can allow the Court to obtain the information needed to understand the complexity of the situation. But for that, it must have all useful information.
External consultation contributes to this: consultation is a practice that consists in requesting the opinion of a person, an authority, an administration, or any other competent legal person on a specific question raised by an appeal. Hence, several dozen external consultations are requested each year by an advocate general. They are carried out either on his or her initiative or at the request of the bench, most often of judge in charge of the case.
These consultations make possible to enlighten the Court by providing it with information that was not at its disposal.
The request for external consultation is drafted by the Advocate General in cooperation with the judge in charge of the case. It is sent, for example, to various ministries or an independent administrative authority (Defender of Fundamental Rights, Inspector General of Places of Deprivation of Liberty), or to representative bodies of certain professions (for example, the National Bar Council for a consultation request concerning the wearing of the Islamic veil by a trainee lawyer).
The use of external consultation is mainly motivated by the need for a technical analysis of a precise point, often coupled with a request for factual information (statistical data in particular) making it possible to measure the scope of the matter submitted to the Supreme Court, the stakes of the appeal, and the scope of the decision to be pronounced.
The consultation may concern neither the facts nor the legal response to be provided as such: legal analysis is the Court’s responsibility.
Except of those specific issues, every type of opinion that can help enrich the chamber’s reflection would be useful.
Some examples of external consultations
An external consultation was thus able to be addressed:
- To an English judge concerning a question of maritime law by the commercial chamber
- To the National Bar Council concerning the issue of the wearing of the Islamic veil by a trainee lawyer
- To the National Ethics Committee concerning a surrogacy case
- To the Treasury Directorate on a question relating to enforcement measures taken after a decision to freeze the assets of an Iranian bank involved in financing the Iranian nuclear program
- To the Directorate of Criminal Affairs and Pardons (DACG) concerning appeals relating to connection data (Encrochat case)
- To the Directorate of Criminal Affairs and Pardons, the National Anti-Terrorism Prosecutor’s Office and OFPRA (French Office for the Protection of Refugees and Stateless Persons) concerning an appeal relating to France’s universal jurisdiction over crimes against humanity and war crimes.
This last example deserves to be developed in view of the interest it represented for resolving the issue submitted to the Cour de cassation.
On 24 November 2021, the Criminal Chamber of the Cour de cassation, at the cost of a very restrictive (and erroneous) reading of the principle of double criminality, quashed a decision of the Investigation Chamber of Paris Court of Appeal and held that France lacked jurisdiction to try, for crimes against humanity and war crimes, an individual of Syrian nationality who had found refuge on French territory and who was involved in the massive programs of torture and assassinations of political opponents to the regime of Bashar al-Assad, President of Syria.
An objection to that judgment had been lodged by the FIDH (International Federation for Human Rights), which, although being a party, had not been called or participated in the proceedings before the Cour de cassation. As the law allows the Advocate general to do, he asked that the case be re-examined by the Cour de cassation in its most complete and solemn formation, the Plenary Assembly of the Court in which the Prosecutor General himself provides his legal opinion. The recourse indeed raised extremely sensitive and particularly important questions insofar as they concerned the repression of the most serious crimes, crimes that constitute a violation of universal values, crimes that harm humanity as a whole. These crimes, namely genocide, crimes against humanity and war crimes, constitute attacks on values so essential and so fundamental to universally recognised civilisation that all States have an obligation to punish them.
Since these crimes are considered as offences directed against the entire international community, there was a higher international interest in ensuring that they were justly punished, and that they were punished without geographical limits and, for some, without temporal limits. In a way, this was the implementation of the principle: “where I find you, I judge you”.
The issue in the debate was the universal jurisdiction of French courts and therefore France’s position in combating impunity for perpetrators of atrocities constituting violations of International Humanitarian Law as well as International Criminal Law.
France invested heavily in the work that led to the drafting of the Rome Statute more than 20 years ago, and since then it has demonstrated its commitment to combating any form of impunity from which perpetrators of crimes against humanity and war crimes might benefit.
It demonstrated that strong will, in particular when the Parliament, sovereignly, decided through a new legislation, that French courts would have universal jurisdiction, complementary to that of the International Criminal Court, to prosecute and try on our territory the perpetrators of these international crimes.
But it was necessary to ensure that this universal jurisdiction did not become a dead letter, and that was the whole issue of the debates before the Court’ de Cassation’s Plenary Assembly, which concerned the conditions relating to the implementation of the universal jurisdiction of French courts to try perpetrators of crimes against humanity and war crimes.
To enlighten the Court on the scope of the decision, the Prosecutor General therefore organized several external consultations with the National Anti-Terrorism Prosecutor’s Office, the Directorate for Criminal Affairs and Pardons and OFPRA in order to fully grasp the situation and the issues raised by this case.
It emerged from these consultations that the continuing immigration flows meant that, increasingly, cases handled by the crimes against humanity unit of the National Anti-Terrorism Prosecutor’s Office (PNAT) concerned persons located in France. Many of them, having applied for asylum, were excluded from it because they were suspected of having participated in the commission of serious crimes and were therefore reported to the criminal justice system on the basis of Article 1(f) of the Geneva Convention. Since the reform of asylum law by the law of 29 July 2015, OFPRA had thus sent 441 reports to the PNAT prosecutor’s office in many cases.
It emerged from these consultations that the crimes against humanity and war crimes unit was working, in the context of preliminary investigations or judicial investigations, on 30 geographical areas around the world, 16 of which were directly liable to be affected by the Court’s decision because those States criminalise neither crimes against humanity, nor war crimes. These include, in particular, Syria, China, Libya, Iraq, Russia, Liberia and several other African countries.
At that time, 85 preliminary investigations and 79 judicial investigations were under way at the PNAT, and 13 persons had been placed under formal investigation for crimes against humanity and/or war crimes. Among these cases, many would have been called into question if the Court had confirmed the position taken on 24 November 2021 by the Criminal Chamber, which had held that French courts lacked jurisdiction. Among these cases was, of course, the most emblematic, the so-called “Caesar file”, containing more than 55,000 photographs of bodies tortured in Syrian prisons, a case involving very strong mutual legal assistance in Europe because it had led to the signing, in 2017, of the first joint investigation team in the history of international humanitarian law in the repression of crimes against humanity, between France and Germany.
It emerged from the external consultations that, if the Plenary Assembly of the Court were to declare the French courts lacking jurisdiction, many proceedings would therefore be called into question and that the 441 persons reported to the judicial authority by OFPRA, while they could not benefit from refugee status were still neither expellable nor extraditable, and thus would remain unpunished on our territory, which, in that situation, would become a kind of refuge for war criminals and criminals against humanity. The credibility of the International Criminal Justice system and moreover of the French justice was at stake.
These external consultations, which had not been organised by the Advocate General before the first judgement taking the position that France lacked jurisdiction, truly made possible to enlighten the Court on the context of the case and on the impact of the decision to be issued. They unquestionably constituted a key tool for sensitising the Court’s judges, enlightening them on the coverall context, and thereby obtaining the quashing of the first judgment of the Criminal Chamber and rendering a leading judgment on France’s universal jurisdiction to try perpetrators of crimes against humanity and war crimes.
The practical consequences of this innovation
That exemple relates to International Humanitarian Law and International Criminal Law, but it could be easily have applied to the field of money-laundering and terrorist financing by giving rise to a consultation with Treasury services, the Directorate of Criminal Affairs and Pardons, or Financial Intelligence (provided it is not a party to the proceedings) and especially Tracfin, the National Financial Intelligence Unit with all necessary precautions due to the confidentiality of intelligence information. Indeed, that particular aspect of financial intelligence confidentiality could also be considered in the consultations package.
Finally, it should be underlined that the concept of external consultation is not intrinsically linked to the very particular status of the French Advocate General, and it could also be used in other countries even if the Prosecutor General services of the Supreme Court or Attorneys General and DPP Services have a very different status and, in particular, belongs to the overall Public Prosecutor’s or Attorney General Office.
Given its value, that practice could be very usefully disseminated to the Prosecutor General services of various countries benefiting from the “Global Facility Project” assistance in order to improve the efficiency of anti-money-laundering and counter-terrorist-financing framework, by providing Supreme Courts with all useful and necessary information on the major issues related to this so dangerous type criminality. Experience indeed demonstrates the full usefulness of enlightening Supreme Courts, which are responsible for interpreting the law and unifying case law, on the contextual elements of the fight against money-laundering, not only with regard to the real current state of the phenomenon in their country but also to their level of efficiency within the framework of the FATF standards.
Conclusion
Often, the opinion is spread out in the public that Constitutional or Supreme Courts and Attorney General or Prosecution General Services are lagging behind the evolution of Transnational Organised Crime, Corruption or Drug Trafficking and in particular in facing challenges of seizing, freezing and confiscating products of crime.
The review of the new role of those Courts provide evidence that both Authorities have found sufficient legal resources either in the law or through their own actions and jurisprudence-case law to properly face the new challenge of Money-Laundering and Financing of Terrorism. Obviously, those new actions are extremely welcome not only for law enforcement agencies but also and mainly for victims of those offences as well as to support the worldwide economy for which the fight against that criminal phenomenon is critical to protect legal economy and fair competition as an essential for the future of the world.
This article is a clear evidence that the Constitutional and Supreme Courts, as well as the Attorney General or Prosecutor General Services, which are essential pillars of our societies, are not sufficiently understood for the relevant actions they undertake in the most suitable way, protecting at the same time the future of our societies and fundamental human rights.
Notes
[1] Jean-Paul Laborde is a former Executive Director of Counter-Terrorism at the United Nations Security Council and United Nations Assistant Secretary-General. He is also Honorary Judge at the French Cour de cassation, Roving Ambassador of the Parliamentary Assembly of the Mediterranean, and Executive Secretary of the SAG Group of the European Union Global Facility against Money-Laundering and Financing of Terrorism. He is also Adjunct Professor and Director of the Specialised Master on New Diplomatic Methods at ICES
[2] François Molins is an Honorary Prosecutor General of the French Cour de cassation and Adjunct Professor at ICES.
[3] LEGAL APPROACHES TO EVIDENTIARY CHALLENGES IN MONEY LAUNDERING PROSECUTIONS AND CONFISCATION PROCEEDINGS https://www.global-amlcft.eu/wp-content/uploads/2024/03/Report-SII_updateNovember2023_compressed.pdf (English version).
[4] https://www.unodc.org/documents/data-and-analysis/Studies/Illicit-financial-flows_31Aug11.pdf; https://www.unodc.org/documents/data-and-analysis/WDR_2025/WDR25_B1_Key_findings.pdf
[5] Point 2 of Recommendation 4.
[6] Georgia: Article 37 § 1 of the Code of Criminal Procedure (CCP) and Articles 21 §§ 4 to 11 of the Code of Administrative Procedure (CAP), and Colombia Law 1708 of 2014 on “Extinción de dominio”.
[7] R v Anwoir [2008] EWCA Crim 1354), case UK.
[8] Article 50, § 1: “After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may, after consulting the Parties to the Convention, invite any State that is not a member of the Council to accede to this Convention.”
[9] https://www.unodc.org/pdf/convention_1988_fr.pdf
[10] Zschüschen vs Belgium, App. n. 23572/07, 2 May 2017.
[11] The Public Prosecutor of the Court of Cassation at the service of the common good. Guy Canivet, Honorary President of the Court of Cassation, in “Mélanges en l’honneur de François Molins: une vie au service de la justice”, Dalloz, 2024
This project is funded by the European Union.