24 mei 2011

Bart Jan MeganckJudge in the Court of Appeal of Ghent (B)

Confiscation of assets and seizure

24 mei 2011

I.1 Historical

Abuse ancient regime: all means of a person could be confiscated

Belgian Constitution: confiscation (of all means) not possible

Only “special confiscation”: specific goods, with legal defined relation to crimes (or counter-value from these goods)

I. Confiscation

24 mei 2011

Special confiscation is applied:

1° on the things object of the crime, and those who have served or were ment to commit the crime, when they are properte of the convict

2° on the things that got on the crime

3° on the assets that are obtained directly ou of the crime, on the goods and values that substitute these assets and on the profits of the invested assets

I.2 Actual legal artice: article 42 (Belgian) Penal Code

24 mei 2011

I.3 Definition and nature special confiscation

Confiscation is to define as a sanction imposed by the judge to a person in consequence of a crime, aiming to deprive, in general this person, from things or to oblige him to pay with his means a sum of money that the judge fixes as the equivalent of this things, and makes it due to the State, to instances assigned by the State or to specific persons.

24 mei 2011

I.3 Definition and nature special confiscation

Main objective: deprivation, as addition of affliction (rather than transfer of assets)

Only by a judge (↔ seizure: prosecutor or investigating judge, as temporary measure)

No preceding seizure required; but is than more effective

Is a punishment

24 mei 2011

I.3 Definition and nature special confiscation

Punishment:

• Additional punishment, only to impose as additional

• Total amount can be divided between several convicts

• Personal character: not per capita to several persons

24 mei 2011

I.4 Objectconfiscation vs. valueconfiscation

Objectconfiscation:a person is deprived from the property of specific

goods; property goes over to the State

Confiscation by equivalent:a debt is added to the means of a convict

24 mei 2011

I.4 Objectconfiscation vs. valueconfiscation

Objectconfiscation

• Which thing? Every movable or immovable, material or immaterial good identifiable in means of accused

• “Autonomy of criminal law”: judge must not follow civil notion of law to conclude wich things belong to means accused

• “Thing”: stands in relation to the crime in a way determined by the law

24 mei 2011

I.4 Objectconfiscation vs. valueconfiscation

Confiscation by equivalent

• Subsidiary possibility of “confiscation” of “illegal assets” that can't be found in means of convict

• Conviction to pay a certain ammount• Estimated counter-value of assets that couldn't be found in

means convict

24 mei 2011

I.5 Confiscation object and instrument of the crime

• Obliged when it is property of the convict

• Object of the crime: on which the crime is executed

• Not: the stolen, obtained or received thing

24 mei 2011

I.6 Confiscation product of the crime

• According to Belgian law: the things produced by the crime (e.g. the falsification)

• Not: the assets obtained by committing the crime

24 mei 2011

I.7 Confiscation illegal asset and equivalent

• Art. 42, 3° (Belgian) Penal code: 3 kinds of assets:

Primary Replacing Profits out of the assets

24 mei 2011

I.7 Confiscation illegal asset and equivalent

Primary assets: things directly proceding from the crime (e.g. turnover illegal exploitation not permitted activity)

Replacing assets: primary assets converted into other things (e.g. car bought with stolen money)

Profits out the assets: e.g.: intrests illegal assets

24 mei 2011

I.7 Confiscation illegal asset and equivalent

No obligation of property

• Co-author for the assets obtained by another co-author

E.g.: person that puts to disposal a parcel to set up an illegal advertissement-board → assets collected by person that placed the boards

• Assets legal person → confiscated towards natural person liable for legal person

24 mei 2011

I.7 Confiscation illegal asset and equivalent

Written demand from prosecutor required → Right to a fair trial: right of defence (art. 6.3.a ECHR)

• Weakness of procedure? Specialisation prosecutors/judges in environmental (penal) law

• Goods/values/any economical profit obtained committing the crime → no enrichment required

• Gross calculation, without deduction of expenses: judge can limit the confiscation to net amount, though without saying it's necessary

24 mei 2011

II. Seizure

II.1 Definition according Court of Cassation (B): Seizure in criminal affairs is a temporary coercive measure by

which the competent authority, by the law and in consequence of a crime, withdraws a thing to the free disposal of the owner or possesor and, in the search of the truth, the confiscation, the restitution or for reasons of preservation of civil interests, and keeps this thing under her

24 mei 2011

II. Seizure

II.2 Direct seizure

Link between seized things and confiscation: finality seizure

Preserve pieces of convince in search of truth or things that can be confiscated

Indications conditions art. 42 and 43 Penal Code are sufficient

24 mei 2011

II. Seizure

II.3 Seizure of value

No link between seized things and confiscation required Serves to prevent fraudulent impecuniosity Paying an amount fixed by the judge In proportion to investigated crime Subsidiary: only when assets no longer found in means

accused

24 mei 2011

II. Seizure

II.4 Seizure-restrictions

Professional secret (lawyers, advocates, doctors,...)

Criminal immunity (diplomates, royals,...)