In brief
If the Public Prosecution Service (OM), on the basis of the (criminal) financial investigation, considers it plausible that a suspect has obtained an unlawful advantage, the Public Prosecution Service can bring this case to court through confiscation proceedings.
In detail…
The confiscation order by the Public Prosecution Service
If the Public Prosecution Service (OM), on the basis of the (criminal) financial investigation, considers it plausible that a suspect has obtained an unlawful advantage, the Public Prosecution Service can bring this case to court through confiscation proceedings. A confiscation claim must be brought before the court by the Public Prosecution Service as soon as possible, but no later than two years after the decision in the criminal case in first instance. The confiscation claim is then subsequently served on the suspect.
In the confiscation claim, the suspect is informed that he can inspect the file on which the confiscation claim is based. The file often contains a confiscation report in which the Public Prosecution Service has substantiated the estimated amount of the illegally obtained advantage.
Calculation of the illegally obtained advantage
The unlawfully obtained advantage can be calculated by the Public Prosecution Service in various ways, but must always be properly verified. Primarily, the Public Prosecution Service can calculate the benefit per offense committed for which there are sufficient indications that they were committed by the suspect).
In addition, the Public Prosecution Service can make a calculation using the method of (simple) cash setup or asset comparison. In these methods it is checked whether the expenses and / or capital increase during a certain period amount to more than the legal income that the suspect has received. If this is established by the Public Prosecution Service, this will be regarded as inexplicable income and reclassified as unlawfully obtained advantage.
Remedies
The Public Prosecution Service and the suspected (or already convicted interested party) can appeal the confiscation order by the court of first instance to the court of appeal. An appeal can subsequently be lodged against the decision of the Court of Appeal with the Supreme Court of the Netherlands.
Therefore please direct contact with JAW Advocaten if you want legal assistance with the criminal confiscation procedure.
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