Seizing assets without a conviction: a new direction?

“There will be a greater focus on asset confiscation, adopting the European approach.” This is one of the cryptic announcements in the coalition agreement of the PVV, VVD, NSC, and BBB.

A closer look at recent developments around the confiscation of criminal assets may provide more clarity. With this announcement, the incoming government seems to be aligning itself with the recently altered plans of the now caretaker government.

To properly understand these plans, we need to go back a little further in time. In 2020, the government announced a draft bill on ‘non-conviction based confiscation’ (NCBC). The new law would make it possible to seize criminal assets without the need for a prior criminal conviction. For such confiscation, the Public Prosecution Service (OM) would have to turn to the civil court, rather than the criminal court.

Over the past few years, this draft bill has faced much (justified) criticism. On 10 May 2023, the Council of State published a critical opinion, concluding that the bill conflicted with certain fundamental rights and principles. The implementation of the bill could bypass criminal law safeguards. The Council of State therefore advised against submitting the bill (in its current form) to the House of Representatives.

On 15 March 2024, the Minister of Justice and Security sent a letter to the House of Representatives, announcing a revised course for the confiscation of criminal assets without a conviction. The previously proposed bill on the confiscation of criminal goods will not be submitted to the House, according to the minister. The reason, she explained, is that the Netherlands will soon have to implement a new European Confiscation Directive. This directive obliges member states to enable confiscation without a prior conviction. However, according to the directive, this confiscation procedure must take place before the criminal court.

Thus, instead of a civil procedure, the government has opted for a criminal procedure after all.

According to the minister, this new direction does not fundamentally change anything: the scope of the new criminal procedure will be similar to that of the previously proposed civil procedure, she wrote in her letter. Introducing a civil procedure would no longer have added value.

It is unclear how the minister envisions this.

It is indeed within the Dutch legislator’s discretion to designate more situations in which confiscation without a conviction can occur than those outlined in the European Confiscation Directive. The directive sets minimum standards, allowing member states to create laws that take a tougher stance against crime.

However, the minister’s assurances do not seem entirely feasible. The previously proposed civil procedure included many elements that would not be possible in a criminal procedure. For example, under the earlier proposal, it was possible to confiscate assets from someone who had previously been acquitted by a criminal court. This will not be possible in a criminal procedure, as the presumption of innocence stands in the way. Furthermore, under the earlier proposal, an interested party could be compelled to explain the origin of their assets. In a criminal procedure, this would not be allowed, as it conflicts with the principle that a person is not required to incriminate themselves (‘nemo tenetur’).

These are just examples, but it is clear that in the new criminal procedure, the Public Prosecution Service will face a more difficult burden of proof, and the rights of the interested parties will be better protected. It will no longer be possible to bypass criminal law safeguards. So far, this is good news.

We look forward to seeing the concrete plans of the new government and will closely monitor developments surrounding the new bill.