Application for confiscation order (confiscation cases)
Dutch criminal law allows the authorities to confiscate illegally acquired assets from persons accused of a criminal offence. To do so, the Public Prosecution Service is required to submit an application for a confiscation order (Section 36e, Dutch Criminal Code) to the criminal court.
If the assets (i.e. losses) are being/have been recovered in a civil action (link to page in Dutch), the Public Prosecution Service’s application for a confiscation order is to be denied as this cancels out the need for such an application. Assets cannot be confiscated either if they were acquired through tax offences (Section 74, Dutch State Taxes Act). In the Netherlands, tax offences and the recovery of assets acquired through tax offences are the domain of the Dutch Tax and Customs Administration, which has its own set of legal instruments.
To secure an application for a confiscation order, the authorities have the option to confiscate assets from a person who is accused of a criminal offence even before a judgment is delivered. This is referred to as prejudgment attachment. While the attachment can be partially or fully lifted at the Public Prosecution Service’s initiative or the defence’s request if it is no longer considered expedient, this is a rare occurrence in our experience. A prejudgment attachment can remain in effect for years, with all the problematic consequences that will ensue.
Illegally acquired assets
The burden of proof is on the Public Prosecution Service in principle. The PPS will need to argue convincingly that the assets were acquired from criminal activity. To prevent confiscation, the accused will have to challenge the prosecution’s claim, stating their reasons.These reasons are expressly not to be highly improbable to begin with (link to page in Dutch).The court should ultimately be able to establish beyond a reasonable doubt that the person in question has committed a criminal offence.
The application for a confiscation order does not have to relate to the illegally acquired assets for which the accused was convicted only. It can also pertain to other criminal offences, i.e. offences for which the accused was not convicted. If that is to be the case, there should be sufficient evidence to show that the accused committed those offences. The Public Prosecution Service is expected to present sufficient evidence and specify exactly which other criminal offences were committed. No such specification is required if the accused has been convicted of a major offence that is punishable by a fine of the fifth category (€90,000). There are no requirements in terms of the nature or severity of these other offences. In other words, the Public Prosecution Service may decide to prosecute for a relatively minor and non-profitable offence and then go on to demand confiscation of assets that were acquired from more serious criminal offences that are subject to a much lower threshold of proof. That is why it pays off to be alert.
Value of illegally acquired assets
In our experience, the value of the illegally acquired assets is often the subject of dispute, mainly because application is not limited to the period to which the illegally acquired assets can be attributed.
The value of the assets to be confiscated is estimated by the confiscation court in separate proceedings after the conviction. These proceedings may run parallel to the actual criminal proceedings. The rule in confiscation cases is that the only assets qualifying for confiscation are those that were acquired from the criminal offence. In other words, it must be established that the person who was convicted actually gained from committing a criminal offence. Any tax paid on the illegally acquired assets is not to be deducted from this gain (link to page in Dutch)..
It is crucial, in our opinion, to monitor closely how the value of the assets is calculated. The prosecution sometimes tends to attribute gains to a convicted person all too easily without having exercised due care in reviewing whether they actually acquired the assets. This holds true in particular for instances involving unspecified other criminal offences.
Please do not hesitate to contact us if an application for a confiscation order has been made against you. We are here to help.
Contact our specialists
A.A. (Anke) Feenstra
R.J. (Reinder) de Jong
M. (Maaike) Coenen
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