What is a Confiscation Order?
A confiscation order is a claim by the Public Prosecution Service to repay money obtained from a crime to the State or to a victim. The goal is to ensure that ‘crime does not pay’, or in other words: that someone does not become wealthier from committing criminal offenses. The goal is not to impose extra punishment: the starting point is that only what has been earned is confiscated, no more.
How Does a Confiscation Procedure Work?
In several respects, a confiscation procedure is very similar to a criminal case, but in other points, it is fundamentally different. Just as in a criminal case, the Public Prosecution Service prepares a file. That file contains the calculation showing how much, according to the Public Prosecution Service, was allegedly earned through criminal offenses. Just 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 those written rounds, the Public Prosecution Service and the defense are given the opportunity to state their positions and respond to each other’s positions. After all positions have been exchanged in writing, a hearing still takes place at which — as is customary — arguments are presented. Unlike in a criminal case, the verdict in a confiscation procedure usually does not follow after two weeks, but often only after six weeks. In confiscation procedures brought before the police judge, a verdict is usually rendered immediately.
Is the Confiscation Order Handled Simultaneously with the Criminal Case?
In some cases, the confiscation order is handled simultaneously with the criminal case. However, two different verdicts always follow: one in the criminal case, and one in the confiscation case. This is because a requirement for granting a confiscation order is that there is a conviction for a criminal offense. It is also possible that the confiscation order is handled later, after the criminal case. This often has to do with, among other things, the scope of the criminal case and the confiscation order.
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 through criminal offenses. 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?
No, that is not possible. 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.
Can You Appeal the Confiscation Measure?
Yes, just as with ‘ordinary’ criminal cases, you have the option to appeal the granting of a confiscation order within fourteen days after the court has rendered its verdict.
Why is it Advisable to Engage a Lawyer in a Confiscation Procedure?
It is wise to engage a lawyer if you receive a confiscation order. These types of procedures often involve large sums of money, and a thorough knowledge of the law and the possibilities within the confiscation procedure is absolutely required. Confiscation law is a separate specialty that not every lawyer is familiar with. Therefore, orient yourself well before engaging a lawyer. Weening Criminal Defense Lawyers consists of a team of criminal law specialists, also with experience in the field of (complex) confiscation procedures.
