Fiches Belges

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. -seizure is possible to secure the possibility to (in the end) collect an imposed fine of the fifth category -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).

Seizure of assets can only be done on the basis of a treaty or EU instrument that specifically provides for this possibility: EU requests: - Regulation 2018/1805 on Freezing orders and confiscation orders (has direct effect) - for Denmark and Ireland: Framework Decision 2003/577/JHA MLA: -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 - the UNTOC treaty (New York, 15 November 2000)

Within the EU: the EU Freezing order, based on Regulation 2018/1805 on Freezing and Confiscation*, 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. (*or FD 2003/577/JHA for Denmark and Ireland) In case of a MLAT request the request should be sent to the central authority: The Ministry of Justice and Security . 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.

EU freezing order based on the Regulation 2018/1805 on Freezing and Confiscation : Dutch/English Requests for legal assistance: Dutch/French/English/German

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

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. 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.