Fiches Belges

One can doubt whether there is at this moment a treaty, EU framework or EU directive that provides for the possibility to seize any good that belongs to the suspect to secure the possibility to (in the end) compensate victims as described under section 501, 1 under D. However, the Dutch criminal procedure code provides for the possibility to return the seized good, after the seizure to another person which can reasonably be considered as being the rightful owner of the good (f.e. a stolen good) . The public prosecutor can decide this if the person under whom the good has been seized no longer claims the good. He has to state this in writings. Without such a written declaration, the public prosecutor can still decide this, if the intention to return the good to the rightful owner has been made known to the person under which the item has been seized and this person did not file a complaint against this decision within 14 days. If this person, however, complains against this decision within 14 days. The court will decide whether the good can be returned to the person that can reasonably be considered as being the rightful owner. The basis for returning the good to the person that can reasonably be considered as being the rightful owner can be found f.e. in article 8 of the EU Agreement on mutual legal assistance in criminal matters (Brussel, 29-05-2000) or f.e. article 14 of the UNTOC (New York, 15 November 2000) and article 29 of Regulation (EU) 2018/1805. With regard to seized assets in general, restitution is possible after these have been confiscated by the court within the framework of the asset sharing. The confiscated assets can be transferred to the requesting member state in this phase for the purpose of the compensation of victims. The competent authority for asset sharing is the Minister of Justice and Security in the Netherlands. See for this f.e. article 30 of Regulation (EU) 2018/1805.

Seizure of assets can only be done on the basis of a treaty or EU instrument that specifically provides for this possibility: f.e. 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 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. 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 (just.aro.fp@om.nl , +31 6 57 312 412).