Once a thief, always a thief? Not according to us!
The Dutch Code of Criminal Procedure confiscation measure aims to fight – especially organized – crime more effectively, by depriving convicted perpetrators of their illegally obtained assets, including all the acquired business, such as houses and cars, and possibly again this business advantage obtained from such as rent or interest. The basic principle is: crime does not pay.
After a conviction, the court therefore can, once it is established that unfair advantage has been enjoyed from his or her ‘criminal activities’, order a convict to pay a sum of money to the State. One only has to think of the proceeds of a marijuana plantation, the related bank balances and the car or the house that was purchased. In (relatively) simple cases, this confiscation will be treated simultaneously with the criminal proceedings. In complicated cases will, in need be after completion of a ‘Criminal Financial Research (SFO), separate confiscation proceedings be started.
The number of cases in which the prosecutor demands confiscation of the wrongly obtained advantage is increasing exponentially. Futhermore, more and more prejudgment attachment of assets like homes, bank accounts, cars and other valuable goods is realised during the police investigation, long before a suspect has been prosecuted, let alone convicted. According to case law of the European Court of Human Rights (ECHR) is confication of illegally obtained advantage however is contrary to the presumption of innocence under the European Convention on Human Rights (ECHR) if it cannot be established beyond all reasonable doubt the (indicted) person in question has actually committed the offense for which the confiscation is sought, nor that the origin of the assets cannot be explained. Incidentally, these requirements are not cumulative but alternative, in other words, even if one or is convicted of the charged offense, but sufficient evidence that an asset has not been through criminal activity, confiscation is not possible. In March 2007, the European Court ruled that the confiscation measure of Article 36e paragraph 2 of the Code of Criminal Procedure is inconsistent with Article 6 paragraph 2 ECHR.
Precisely because in the context of the unlawful deprivation it is quite quickly assumed that (part of ones) wealth is obtained though criminal activities, it is always advisable to contact an attorney when police or justice prejudgmently or otherwise (threaten to) seize allegedly illegally obtained assets.