#74: Is non-conviction based confiscation desirable?

This month, the Council for the Judiciary in the Netherlands (“Raad voor de Rechtspraak”) published its advice on the draft bill to strengthen the approach to subversive crime. The most striking point in this proposal is the introduction of non-conviction based confiscation (NCBC) in the Dutch law. This would make it possible to confiscate illegally obtained benefits in situations where there has not been a conviction. The Council for the Judiciary criticizes this proposal in its advice and urges the legislator to make substantial changes. And rightly so: the proposed NCBC procedure is, in our view, unnecessary and undesirable.

At the moment, the confiscation measure is only allowed under Dutch law once a suspect has been convicted for a crime. The draft bill would change that. NCBC can be used in situations where there is no concrete criminal offence, nor a known suspect, but when it is plausible that the object was obtained by criminal means.

The procedure is not a criminal but a civil procedure, which focuses on the criminal origin of the object instead of on the criminal liability of the entitled party. In this procedure, the government has to proof it is likely (plausible) that the object is related to criminal conduct. The rightful owner of the object can only prevent confiscation by providing an explanation that the object has a legal origin. In doing so, a statement that is “not highly improbable in advance” would explicitly not suffice.

The proposal to enshrine NCBC in law is based on the wish to seize criminal assets more quickly and effectively. The current approach is considered to be inadequate in this regard, as the burden of proof currently is on the state and the procedures are usually quite lengthy. However, the question is whether the NCBC would be more effective and whether this procedure would be the right solution.

Our colleagues Luce Smithuijsen and Linda Gruijthuijsen have argued before that on the one hand the current possibilities for confiscation appear to be sufficient to overcome situations in which there is an unknown suspect or a link between the alleged criminal assets and a specific criminal offence is lacking. A 2017 study by the Justice Ministry also found that the problems for which NCBC could provide a solution are limited in scope in the Netherlands. On the other hand, there is a risk that the application of NCBC will not only be limited to cases involving an unknown suspect or offence, but will also be used in cases where the Public Prosecutor has a suspect or offence in mind, but finds himself hampered by the criminal law presumption of innocence and burden of proof in cases such as in money laundering cases (Lawlunch #65).

The Judicial Council identifies these risks as well. The Council fears that NCBC will gradually be used not in addition to criminal enforcement, but as a replacement. The NCBC procedure is a tempting alternative to criminal law enforcement because it is faster and cheaper. In addition, the proposed NCBC procedure is not limited to the situation without a concrete suspect due to which criminal prosecution is not possible. This means that the NCBC procedure can be used to circumvent penal safeguards, according to the Council. This is not only undesirable in the light of the rule of law, but also with regard to efficiently combat crime.

The Council therefore advises to apply the NCBC procedure only in cases in which criminal law does not provide possibilities, but confiscation is still necessary and proportionate. We fully agree with this recommendation. But as far as we are concerned, the added value of this draft bill is not a given and therefore first has to be assessed thoroughly. After all, no one benefits from a bill which is not only undesirable, but also unnecessary.

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.