Fiches Belges
Measure Implementation
Measure possibility

Legal Framework
Applicable Framework

Competent authority
Request/decision
Execute/recognise measure

Accepted Languages
Languages

Execution Deadline
Deadlines

Legal info
Special requirements
Other information

Fiches Belges: Olanda

Sechestrul de bunuri (501)

1. MEASURE IMPLEMENTATION

Olanda

Is this measure possible in your Member State under International Judicial Cooperation?

YES, Assets can be seized A) as instrumentalities or direct proceeds from crime (object confiscation); B) to secure the possibility to execute (in the end) an imposed measure to return to the state a certain amount as illegally obtained assets (value based confiscation); C) to secure the possibility to (in the end) collect an imposed fine; D) to secure the possibility to (in the end) compensate victims. ad A) The public prosecutor can order the seizure on the basis of a foreign MLAT request or a Foreign EU freezing order; Assets that are the instrumentalities or (in)direct proceeds from any crime can be seized and (in the end) confiscated. This confiscation is only possible (in the end) if the suspect has also been convicted in the criminal procedure. The assets must have partly or as a whole been obtained from the criminal fact . If the assets don’t belong to the suspect, these can still be confiscated if the other person to whom the assets belong knew or could reasonably have known that the assets have been obtained by the criminal fact. If assets don’t belong to the suspect, these can still be confiscated if it is not possible to determine to whom these assets belong. ad B) The public prosecutor can order the seizure on the basis of a foreign MLAT request or a Foreign EU freezing order but needs a written authorization from the examining judge in the Netherlands first. Assets can be seized if there is a suspicion of a serious offence (an offence that can be punished with a fifth category fine). All assets that belong to a suspect can be seized regardless whether these assets have been obtained legally. Even assets that in fact belong to the suspect, but are transferred to another person can be seized. This seizure is only possible if the reason for putting the assets on the name of the other person is to prevent the possibility of confiscation and the other person knew this or could reasonably have known this ( f.e. if the transfer was done without an economic reason, or the other person didn’t do anything in return). If the other person has transferred the assets again to a third person. It is even possible to seize any item of the other person as replacement of the value of the item that has been transferred to the third person. These assets can be confiscated in a separate criminal procedure. This is only possible if the suspect will be convicted in the end. In general, such a confiscation procedure will be handled after the conviction in the criminal case. ad C) seizure is possible to secure the possibility to (in the end) collect an imposed fine of the fifth category ad D) seizure is possible to secure the possibility to (in the end) compensate victims if there is a suspicion of a serious offence (that can be punished with a fourth category fine).

2. LEGAL FRAMEWORK

Olanda

International legal framework applicable for this measure in your Member State

Seizure of assets can only be done on the basis of a treaty that specifically provides for this possibility: f.e. -the Convention on laundering, search, seizure and confiscation of the proceeds from crime, (8 November 1990, Strasbourg), -Convention of the Counsel of Europe on laundering, search, seizure and confiscation of the proceeds from crime and the finance of terrorism (16 May 2005, Warsaw) or -the United Nations conventions such as the UN convention on the Illicit Trafficking in Narcotic Drugs and Psychotropic Substances (10 December 1988, Vienna) or on the basis of an EU freezing order - or based on the UNTOC treaty (New York, 15 November 2000)

3. COMPETENT AUTHORITY TO:

Olanda

* receive the request/decision for judicial cooperation

Within the EU: the EU Freezing order can be sent to the Public Prosecutor at the regional IRC of the district where the assets have to be seized. The Public prosecutor is the competent authority to receive an EU Freezing order and to recognize and to execute the order. In general the police or other investigative authority will actually seize the asset. In case of a MLAT request the request should be sent to the central authority: The Ministry of Security and Justice. Within Europe, in case of urgency, the request can be sent directly to the public prosecutor (see above), but a copy must be sent as well to the central authority.

* execute/recognise the measure (if other than the receiving authority)

See section 3a

4. ACCEPTED LANGUAGES

Olanda

Accepted languages for the request/decision

EU freezing order: Dutch/English Requests for legal assistance: Dutch/French/English/German

5. EXECUTION DEADLINE

Olanda

Deadlines for the execution of the request/decision (where applicable)

There is no time limit to the seizure of assets. The assets remain seized as long as the criminal procedure takes. However, the public prosecutor or the examining judge can limit the seizure to a certain period. In practice this seldom happens. Any interested party can, however, complain against the seizure at any moment. The court will then decide whether there are still enough grounds for the continuing of the seizure.

6. CONCISE LEGAL PRACTICAL INFORMATION

Olanda

a. Special requirements

In the request or the EU freezing order, the estimated amount that the suspect has gained with the criminal activity should be mentioned in case of a requested seizure mentioned above under B: Furthermore: If, for the seizure, according to the law of the requesting member state a court order is needed. This order should be enclosed or it should be mentioned that such an order has been issued. Also it should be mentioned that there is the intention that in the end a final confiscation order will be transferred to the Netherlands for the (partially) execution.

b. Other useful information

In case of urgency or if the request for finding the assets or seizing the assets is complicated it is possible to contact the Dutch Judicial Asset Recovery Office (+31 6 57 312 412).

Last reviewed on 16 martie 2018 by Tools Correspondent

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