Confiscation of assets and
seizure
Bart Jan Meganck
Judge in the Court of Appeal of Ghent (B)
24 mei 2011
I. Confiscation
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 countervalue from these goods)
24 mei 2011
I.2 Actual legal artice: article 42 (Belgian) Penal Code
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
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,...)
24 mei 2011