What is seizure?
Criminal seizure is a measure where the police or the judiciary temporarily take goods into custody as part of a criminal investigation. This is done to secure evidence, demonstrate criminally obtained benefits, or to remove prohibited goods from circulation. Examples include weapons, drugs, cash, or vehicles. There are different forms of seizure, namely criminal procedural seizure (for evidence or forfeiture) and conservatory seizure (for financial security).
When are the police allowed to seize your belongings?
The police may only seize your property if there is a criminal interest in doing so. This could be for:
- Establishing the truth: think of goods that serve as evidence, for example, a phone containing important messages.
- Demonstrating unlawfully obtained benefits: think of goods purchased with criminal money, such as an expensive car.
- Forfeiture or withdrawal from circulation: think of goods that are prohibited, such as a firearm.
- Security for a fine or confiscation measure (conservatory seizure).
What is conservatory seizure?
Conservatory seizure is a form of seizure where the state provides itself with financial security. By imposing a conservatory seizure, a suspect is prevented from siphoning off their assets before a fine or confiscation measure is imposed. Think of seizure of bank accounts, cars, or real estate. It can also affect third parties if there are indications that they deliberately cooperated in withdrawing assets.
How does a seizure work?
A seizure is a relatively simple process. It begins when an investigative officer physically seizes the object, for example, during a house search or an arrest. The goods are then stored in a secure location.
Do you receive proof of seizure?
Yes, you receive a so-called ‘proof of receipt’. This document contains information about what was seized, by whom, when, and on what grounds. This proof is important for your records and for any objection procedures. If you do not receive this, ask the police or the Public Prosecution Service for it.
Failure to issue a proof of receipt has no consequence for the seizure itself. However, it can have disadvantageous consequences for you. Without this proof, it is more difficult to demonstrate that a certain item was actually seized, which can complicate the filing of a complaint. It is therefore wise to engage a criminal law attorney who can help you request and enforce a proof of receipt.
What happens to your belongings after seizure?
The items are kept until the Public Prosecution Service decides on the return, destruction, or sale of the property. The decision depends on the course of the criminal proceedings. Sometimes goods are returned if they are no longer needed for the investigation. In other cases, they are destroyed (for goods such as drugs that must not return to society) or sold (for valuable goods that rapidly decrease in value).
What if you waive your rights to your belongings?
If you voluntarily waive your rights, the Public Prosecution Service can destroy or sell the goods without further procedure. This often happens with goods of little value or if you acknowledge they are illegal. You then sign a waiver. Please note: this is final. You can no longer claim the goods or their value afterwards. Therefore, never waive your rights to your goods without first consulting a criminal law attorney.
What can you do against a seizure?
If you do not agree with the seizure of your property, you can file a written complaint with the court. A lawyer from our firm will be happy to assist you with this. This is an official request in which you explain why you believe your belongings should be returned. In the complaint, you must demonstrate that you are the owner and that the seizure is unlawful or no longer necessary. A seizure can be unlawful when a legal basis or a criminal interest for the seizure was lacking, or when the item was discovered in an unlawful manner. A seizure is no longer necessary when the criminal interest has lapsed, for example, because the item has already been examined and further investigation is not required. The judge then assesses whether the seizure is lawful and whether the interest of the investigation still outweighs your right to property.
What can you do if your property is seized in someone else’s criminal case?
Even if your property has been seized in someone else’s criminal case, you can file a complaint. This often occurs when you are a family member or partner of the suspect. You must then prove that the object belongs to you and that you have nothing to do with the criminal offense. The judge then assesses whether the seizure of your property is justified.
Is the Public Prosecution Service allowed to sell your belongings while your criminal case is still pending?
In principle, the Public Prosecution Service may not sell your belongings as long as the criminal case is still pending. This is only allowed when the Public Prosecution Service has granted an authorization for that purpose. The Public Prosecution Service may only grant such an authorization for objects that are not suitable for storage (think of objects that perish or are dangerous), have excessively high storage costs, or are easily replaceable.
If your property is nevertheless sold before the end of your case, the proceeds must be kept until the judge has made a decision. You then retain the right to the value of the item. This amount is usually lower than the actual value of your property. It is therefore preferable to actually get the item back, rather than receiving financial compensation. A criminal law attorney can help you achieve this.
Why is it wise to engage a criminal law attorney for an objection procedure?
It is wise to engage a criminal law attorney because the attorney can file the complaint, present the correct legal arguments, and represent you before the judge. The rules surrounding seizure are complex and the chance of success is greater with legal assistance. A criminal law attorney can also assess whether the seizure was lawfully imposed and whether other legal steps are possible, such as compensation for an unjustly imposed seizure.
