Fiches Belges

Assets can be confiscated: 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); 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).

For the transfer of a foreign confiscation order to the Netherlands, there must always be a relevant treaty or EU instrument. EU requests: - Confiscation orders can be transferred to the Netherlands on the basis of Regulation (EU) 2018/1805. (Or for Denmark and Ireland on the basis of FD 2006/783/JHA). The competent authority in the Netherlands will recognize the confiscation order. After recognition the convicted person will be informed and has a right to appeal the decision to recognize and enforce the confiscation order. MLA: The treaties that provide for the possibility of asset recovery can be used as a basis for the transfer of a foreign confiscation order to the Netherlands. (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 Traffick in Narcotic Drugs and Psychotropic Substances (10 December 1988, Vienna), the UNTOC treaty (New York, 15 November 2000). In general the foreign confiscation order will be converted into a Dutch confiscation order. The convicted person will be summonsed to appear before a regional court for this conversion procedure.

EU requests: The central authority for Regulation (EU) 2018/1805 and FD 2006/783/JHA is the Central Fine Collection Agency (CJIB). MLA: The central authority for the Treaty based transfers is the ministry for Justice and Security. EU requests: The competent authority to recognize EU confiscation orders under Regulation (EU) 2018/1805 (or FD 2006/783/JHA) is the public prosecutor of the public prosecutor’s office of Noord-Nederland. The competent authority for the execution of the EU confiscation orders is the Minister of Justice and Security, and on his behalf the Central Fine Collection Agency (CJIB). MLA: In general, on the basis of a treaty, the foreign confiscation order will be converted into a Dutch confiscation order. The convicted person will be summonsed to appear before a regional Court for this conversion procedure. After this conversion there is a possibility to appeal against this decision. The competent authority for the execution of a foreign confiscation order, after it has been converted into a Dutch confiscation order, is the Minister of Justice and Security, and on his behalf the Central Fine Collection Agency (CJIB).

Treaty based transfer of confiscation order: Dutch/French/German/English EU framework decision regarding the mutual recognition of confiscation orders: Dutch/English. Only the certificate has to be translated.

N.A.

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