What is a Confiscation Order?
In some aspects, a confiscation procedure is similar to a criminal case, but in many other ways, it is fundamentally different. As in a criminal case, the Public Prosecution Service prepares a file. This file contains the calculation showing how much has been earned according to the Public Prosecution Service. As in a normal criminal procedure, the defense has the opportunity to conduct (or have conducted) further investigation. This can be done, for example, by submitting new documents or by hearing witnesses. Because a confiscation procedure often involves complex calculations, the court often determines that the hearing is preceded by so-called written rounds. In these written rounds, the Public Prosecution Service and the defense are given the opportunity to state their position and respond to each other’s position. After all positions have been exchanged in writing, a hearing still takes place, where – as usual – pleadings are made. Unlike in a criminal case, the verdict in a confiscation procedure does not follow after two weeks, but often only after six weeks. In confiscation procedures brought before the police judge, a verdict is usually given immediately.
How Does a Confiscation Procedure Work?
In some aspects, a confiscation procedure is similar to a criminal case, but in many other ways, it is fundamentally different. As in a criminal case, the Public Prosecution Service prepares a file. This file contains the calculation showing how much has been earned according to the Public Prosecution Service. As in a normal criminal procedure, the defense has the opportunity to conduct (or have conducted) further investigation. This can be done, for example, by submitting new documents or by hearing witnesses. Because a confiscation procedure often involves complex calculations, the court often determines that the hearing is preceded by so-called written rounds. In these written rounds, the Public Prosecution Service and the defense are given the opportunity to state their position and respond to each other’s position. After all positions have been exchanged in writing, a hearing still takes place, where – as usual – pleadings are made. Unlike in a criminal case, the verdict in a confiscation procedure does not follow after two weeks, but often only after six weeks. In confiscation procedures brought before the police judge, a verdict is usually given immediately.
What Does the Public Prosecution Service Need to Prove in a Confiscation Procedure?
In a criminal case, the public prosecutor must prove that someone has done something. In a confiscation procedure, the Public Prosecution Service doesn’t really need to prove anything. The prosecutor only needs to make it plausible what amount has been earned by the suspect. Logically, it is much easier for the prosecutor to make something plausible than to prove it. The Public Prosecution Service may also use assumptions, provided they are based on evidence in the file. This sometimes leads to the Public Prosecution Service “guessing” what has been earned. It is therefore particularly important in confiscation cases to take an active stance at the right moments to refute the assumptions of the Public Prosecution Service.
Is Confiscation Possible for Offenses of which You Have been Acquitted in the Associated Criminal Case?
The European Court of Human Rights ruled some time ago that it is not permitted to confiscate for offenses of which the suspect has been explicitly acquitted.
What if You Don’t Pay?
If you have been irrevocably sentenced to pay a confiscation amount, the CJIB will try to collect that amount. Initially, you will be given the opportunity to pay the amount yourself (with or without a payment arrangement). If that doesn’t work, they will look into whether additional seizure can be placed on your belongings. If that is also not possible, the Public Prosecution Service has the option to detain you. This means that permission will be asked from the court or the court of appeal to imprison you for a maximum of three years. This measure is intended to persuade convicted persons who can pay, but are unwilling to do so, to pay anyway. Even if you were to serve the full detention period, you would still have to pay the confiscation amount: the obligation does not expire. If you can sufficiently demonstrate that you are willing but unable to pay, the request for detention will be rejected.
Why is it Advisable to Engage a Lawyer in a Confiscation Procedure?
It is advisable to hire a lawyer if you receive a confiscation order. Often these procedures involve large sums of money, and a thorough knowledge of the law and the possibilities in the confiscation procedure is absolutely required. Confiscation law is a separate specialty in which certainly not every lawyer is well-versed. So, orient yourself well before hiring a lawyer. At Weening Criminal Defense Lawyers, Mr. J. de Bruin specializes in confiscation procedures.
