#72: National “booster” to release seizures

Since the start of this legal blog, we have written about the uphill battle of challenging the seizures of assets and objects by the Dutch prosecutor in court more than once. Such a seizure can be challenged based on article 552a of the Dutch Criminal Procedural Code in an open court. The court can only apply a marginal check on the grounds of the seizure. The court will have to decide whether there is an interest for the investigation to maintain the seizure and whether it is highly unlikely that the court deciding upon the merits of the case will come to a conviction. Also, the court can be requested to decide whether the seizure is reasonable taking the value of the seized assets and the estimated damages of the criminal acts in consideration.

Of course, the law provides in article 116 of the Dutch Criminal Procedural Code that if there is no interest for the investigation to maintain the seizure, the Dutch prosecutor will have to lift the seizure. However in practice, the prosecutor hardly ever lifts a seizure based on this provision on its own initiative. It’s the rule rather than the exception that the defense has to actively file a motivated request for the release of assets. And it is also rather rule than exception that this discussion will have to be brought to court.

This practice results in an uphill battle against seizures by the Dutch Prosecutor’s Office. And it cannot be denied: the Dutch Prosecutor’s Office has an impressive track record of seizing assets and objects.

To our pleasant surprise, at the end of last year an article was published by a member of the Dutch Prosecutor’s Office acknowledging the lack of active checks whether there are reasons to justify the continuation of a specific seizure of assets. The article has the promising title: “Down with nonsense seizures”. It hits the nail on the head. It argues that no one benefits if objects or livestock are put under seizure and deposited without a second thought. Also since objects – such as “rusting cars” – are standing there losing their value.

The national seizure coordinator at the Prosecutor’s Office, Ms. Festen, writes what we are all thinking. Almost none of the officers, according to Festen, feel like digging into seizures which are in place and making decisions on whether or not to continue the seizure. It is perceived as a “hassle”. But unfortunately, this “hassle” does have significant consequences for defendants.

According to the publication, the Public Prosecutor’s Office has now recognized that it is expensive to store seized objects for a long time. This has triggered the desire to put things in order. It is unfortunate, incidentally, that the motives of the Public Prosecutor’s Office are not inspired by article 116 of the Code of Criminal Procedure, but apparently by economic considerations. There is now a guideline called ‘national booster of new working methods for seizures’. The title says it all. In addition, a directive has been issued to ensure that public prosecutors give better reasons for seizing assets. Furthermore, so-called periodic filter moments should be built in, in which a further interim assessment of the criminal interest in the seizure takes place.

This should not have been necessary, as article 116 of the Code of Criminal Procedure is clear enough. Nevertheless, these signals sound like sweet music. We have not yet noticed this new way of working in our practice, but we will wholeheartedly support these good intentions and – if needed – actively remember the prosecutors about them.

Do you have any questions or would you like to exchange views with us? Please contact us at boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.