To prosecute or to confiscate

Confiscation of the proceeds of crime may take place in accordance with article 36e of the Dutch Criminal Code (CC). This article makes it possible to confiscate proceeds of crime in cases where there has been a conviction. In addition, in accordance with article 36e, subsection 3, CC it is possible, to confiscate proceeds and assets that are obtained by means of other criminal offences if there has been a conviction for a crime committed by the suspect. For these ‘other criminal offences’ a conviction is not necessary but the burden of proof is on the prosecutor to provide sufficient indications that these other criminal offences have been committed and that the suspect has obtained proceeds by committing these offences. In two recent cases we see that the legal protection in a confiscation procedure of proceeds by means of ‘other criminal offences’ is far less then in case of a regular situation.

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• To prosecute or to confiscate, Law Lunch