Proposition 50K1601

Projet de loi portant extension des possibilités de saisie et de confiscation en matière pénale.

General information ¶

Submitted by

Groen Open Vld Vooruit PS | SP Ecolo MR Verhofstadt Ⅰ

Submission date

Jan. 22, 2002

Official page

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Status

Adopted

Requirement

Simple

Subjects

seizure of goods criminal procedure criminal law confiscation of property

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Discussion ¶

June 6, 2002 | Plenary session (Chamber of representatives)

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Mr. Speaker, Mr. Minister, Mrs. Secretary of State, Dear colleagues, this report will have two major axes. I will first briefly recall the objectives of the bill under consideration and then devote myself to addressing the main points that gave rise to debate in committee.

This project is the cornerstone of the initiatives announced by the government to combat serious crime and organized crime. It begins with the obvious principle that crime should not profit. In practice, this means acting on what fuels serious crime and organized crime by depriving criminals of profits from their actions, profits that are precisely the reason for such crime. by

In fact, the reality often shows that criminals consider their eventual imprisonment only as a road accident to be able to lead, then, the great life thanks to the product of their crimes or worse yet to reinvest this product, in other criminal projects of course. by

This finding has also been made abroad. Several member states of the European Union have a legislative arsenal. It allows, through the mechanism of the deprivation of advantages, to repress serious and organized crime in a better and more correct way while having a deterrent effect. Belgium must take action if it does not want to become a free port for criminal heritage. by

Furthermore, the law of 20 May 1997 on international cooperation concerning the execution of seizures and confiscations enshrines the principle that foreign applications for seizure or execution of a confiscation judgment may only be honored if such sanctions are also provided for by Belgian law.

The bill is based on four basic pillars. First, the condition of a written request from the public prosecutor before being able to proceed with the confiscation of patrimonial advantages. Second, the distribution of the burden of proof between the public prosecutor and the defendant regarding the origin of suspicious assets. Third, the possibility of seizure by equivalent of patrimonial assets entering into account for confiscation. Fourth, the possibility to initiate a special inquiry into property benefits with the consent of the court and the possibility for the court to impose confiscation separately.

The bill under consideration will be supplemented by a second part, in this case a preliminary bill, currently in the State Council. This preliminary draft provides for the establishment of a central office for seizure and confiscation within the framework of the judicial order. This office will function as a centre of expertise in this area. It will be responsible for framing and defining the guidelines for future confiscation regulations and ensuring its correct and uniform application; providing information about this regulation and the case-law and the doctrine based on it; serving as a “helpdesk” for individual cases; managing the confiscated assets and, where appropriate, disposing of them; and finally, setting and facilitating judicial investigations in this area.

After examining the objectives of the project, we will stay on the main points that gave rise to debate. The right of third parties and the question of identical facts have attracted attention.

With regard to the rights of third parties, Van Parys asks a series of questions. In particular, it asks how the rights of third parties will be guaranteed if property belonging to them is in the confiscated patrimonial advantages. It emphasizes that third parties will need to be warned when their rights are at risk, in one way or another, of being violated. by

To these remarks, the minister specifies that it is essential that third parties of good faith are not hurt and that those who think they have a right to claim, can defend themselves. In this regard, a regulatory provision exists: the Royal Decree of 9 August 1991. It provides that a third party can react in the event of confiscation and describes how that third party can join the procedure. The exact delimitation of the right of third parties of good faith was also fixed by a judgment of the Court of Cassation of 29 May 2001.

for Mr. The current basis of protection of third-party rights of a jurisprudential and regulatory nature does not offer sufficient legal guarantee. He cites Prof. Traest in support of his remarks, in particular this: “Effects towards third parties must not be limited only to cases in which the general interest prevails over the right of ownership. Third parties threatened by confiscation should be systematically informed of their right to intervene in the proceedings. This is the responsibility of the Belgian legislator.”

This discussion gives rise to the deposit of an amendment by the Government, amendment worded as follows:

“Article 5ter.- Any interested third party who can, following the indications provided by the procedure and on the basis of his legitimate possession, claim rights on the patrimonial advantages referred to in Articles 42, 3°, 43bis and 43quater of the Criminal Code or who can claim rights on the things referred to in Article 505 of the Criminal Code, shall be informed of the fixation of the hearing before the court which will judge on the substance of the case.”

Following what, Mr. Van Parys expresses its intention to withdraw its amendment on the same subject.

The second point that I pointed out in the discussion concerns the same facts. In this regard, Mr. Van Parys points out that the bill is doubly carrying legal uncertainty. Confiscation may be decided not only for patrimonial benefits that would result from the offence for which the perpetrator was convicted but also for those that would result from identical facts.

In order to confiscate these patrimonial advantages, it will not be necessary to provide evidence of facts but merely serious and concrete indications that the advantages in question derive from the offence for which the person has been convicted or identical facts.

The problem comes from the fact that it is also permitted that the confiscation takes place without a punishable fact having been committed but rather an identical fact. Therefore, a simple tenuous link with a fact identical to the one for which the person was convicted will be sufficient for confiscation.

for Mr. Van Parys, the Phillips judgment of the European Court of Human Rights which was cited to justify the provisions of the bill, is not relevant in the matter since it deals with a case in which confiscation was decided on the basis of the same facts, drug trafficking, as those for which the person was convicted. Recital 34 of the judgment is very clear in this regard as it specifies that the confiscation procedure was not aimed at the conviction or acquittal of the applicant for another offence related to drug trafficking.

by Mr. Erdman, chairman of the committee, draws attention to the exposition of the reasons of the bill, which provides clarifications as to what should be understood by "identical fact". The explanation of the reasons states as follows: "It is obviously considered identical the fact which falls under the same qualification as the offence which is the subject of the conviction and, in addition, the related qualifications which fall under the same numbered heading of paragraph 1a of Article 3."

For example, if a person is convicted of theft with intrusion and the means available to that person are suspected to come from similar offences with the same legal qualification, it will be possible to proceed with the confiscation of such property.

by Mr. Van Parys replies that the exposition of reasons does not only speak of facts falling under the same legal qualification, but also of "related qualifications". Therefore, it will always be possible to say that the facts are, in one way or another, related to the offence and therefore identical to it.

Also Mr. Van Parys considers that there is also a problem with respecting the presumption of innocence: confiscation is, in fact, a punishment and, in order for a punishment to be imposed, there must be a punishable fact, which is not the case in the law in question. The Phillips judgment does not provide any evidence that may suggest that the European Court of Human Rights will be able to accept this.

The Minister's Representative provides a series of answers to these various remarks, including the debate on the Phillips judgment and the English "Drug Trafficking Act". The Minister’s representative specifies that the UK drug legislation mainly concerns the proof that the accused must provide on the legal origin of the patrimonial advantages he has and which are subject to confiscation.

In the case of confiscation, there is a distribution of the burden of proof. However, this is limited to offences falling under a similar qualification. In Belgian law, the concept of identical fact, which should be introduced by the draft law, should also allow confiscation of patrimonial advantages arising from related offences and of which the convicted person cannot explain the legal origin.

The identical facts must be understood, as stated in Article 3, §3, paragraph 3 of the project, as those which fall under the qualifications listed in paragraph 1 er and which fall: - either under the cost of the same qualification as the offence which was the object of the conviction; - under a related qualification of the same law insofar as it appears in §1a of this article.

In accordance with this provision, if a person is, for example, convicted for facts referred to in Article 246 of the Criminal Code and the investigation on the property of that person shows that part of the income available to him is not of legal origin but comes from offences referred to in Article 247 of the Criminal Code, those latter acts will be considered identical to those referred to in Article 246.

by Mr. Van Parys says he appreciates these explanations, provided by the Minister and his representative, which allow to better distinguish what are the limits to the possibilities of confiscation. I wonder if the bill is so clear. Are we not at risk, with the terminology used in the project, of a misperception, by the prosecutors and legal practitioners, of the limits of the scope of the notion of identical fact?

by Mr. Erdman recalls that the purpose of the bill is not to declare the person guilty of identical facts but rather to extend the possibility of confiscation to the patrimonial benefits that would result from this identical fact. In other words, it is not a question of imposing a penalty for other facts but of increasing the penalty imposed for the facts of which the person has been found guilty.

In addition to the amendment on the rights of third parties, the discussion of the articles will bring a series of amendments which will be technical or terminological corrections. Most of these amendments and articles will be voted unanimously. Finally, the bill will be adopted by 9 votes and 3 abstentions. As for the rest of the details of the discussions, I would like to refer my colleagues to the reading of a very well prepared report by the Commission services.

Thank you, Madam, for your report.

Mr. Speaker, Mr. Minister, colleagues, I would like to thank Mrs. Dardenne very heartily for her very comprehensive report. That allows me to be very short. In fact, it has presented the various theses that have been discussed very accurately and very clearly. The [...]

Mr. Chairman, Mr. Minister, Mr. Ships of Public Works of the City of Gent and colleague, Mr. Chairman of the Group, Mr. the former Minister of Budget — I could address everyone individually, but that would take much more time than the comments I would like to formulate from the speaker — the CD&V group assesses, first, the present bill positively.

I am convinced that, thanks to the expansion of the possibilities of seizure and confiscation of assets derived from a crime, an important new instrument is available to tackle those who abuse more efficiently and faster. The bill was already prepared in the previous legislature and is now being completed. I think that the idea and the proposal to divide the burden of proof, so that the perpetrator must prove that the assets are not derived from the crime, is a significant improvement compared to the instruments currently available to the judicial authorities.

I would like to again point out an important problem that will arise with Article 17 of the Constitution and with the European Court of Human Rights. By law, property benefits may be declared deprived without the need to provide proof that the benefit arises from the crime for which one is convicted. Serious and concrete indications will suffice to declare confiscated the asset benefits arising from the crime for which a person is convicted. With this provision in itself we have no problems. However, a problem arises when confiscation of asset benefits from identical facts for which a person has not been convicted becomes possible.

I will concrete my statement, because I understand that it is quite abstract when I formulate it in this way. For example, if a person is convicted for trafficking 10 kilograms of cocaine, then according to the legislation, one will be able to seize and confiscate the works of art and the villa that were acquired or of which there is evidence that they were acquired through the transaction. This in itself is no problem. If, at the same time, there is evidence against the same perpetrator that he is responsible for the production of XTC, without this being proven and without he being convicted for this, it will nevertheless be possible, without conviction and without evidence of the facts, to confiscate and confiscate the asset advantages of which there is evidence that they could eventually derive from the production of the XTC.

You will have to take into account, colleagues, that if it is approved today, we will be exposed to a possible conviction by the European Court of Human Rights and that it may be found to be contrary to Article 17 of the Constitution.

I warn of this because, when at a given moment in a particular case a certain asset benefit will be declared confiscated, and when one will contest it and be able to get his right before the European Court, one will get these new legislative initiatives back as a boomerang, in the sense that at that moment one will have to return the asset benefits declared confiscated.

If this happens in an important and delicate file, it will have the opposite effect than the effect that was intended.

This is what I would like to point out again in this plenary session because the problem, in my view, does not meet this draft with the solution to the problem.

That is, by the way, the reason why our group will abstain, taking into account the gap that has arisen. Of course, we will not vote against because we have a positive assessment of the draft itself, but I warn you once again that in this regard we are facing a fundamental problem with regard to the Constitution and the regulations drawn up in the European Convention on Human Rights.

So far, Mr. Speaker, the position regarding this bill, which I defended on behalf of CD&V.

Mr. Speaker, Mr. Minister, dear colleagues, I would like to point out from the outset that the MR group fully supports the objectives pursued by the text that is presented to us today. This bill is clearly part of the government’s willingness to implement a set of measures aimed at improving the fight against serious and organized crime.

The priority, Mr. Minister, which is the intensification of the fight against organised crime, has been realised by the adoption of several government initiatives and we welcome this.

I think first of all of the bill on the anonymity of witnesses, the bill on the recording of statements through audiovisual media or the bill regulating the protection of threatened witnesses. I still think about the establishment of the Federal Prosecutor’s Office, which will have a considerable role to play in the fight against big banditism.

The Bill on Special Research Methods also reflects our government’s willingness to equip our police and magistrates with instruments to finally enable them to fight against organised crime with equal weapons. All of these projects are part of a government policy that favours a comprehensive approach to organized crime and aims to establish a modern and effective mechanism for combating organized crime.

Mr. Minister, dear colleagues, the bills on the anonymity of witnesses, the protection of threatened witnesses or the recording of statements through audiovisual media aimed to ensure greater security for those who wish to collaborate with justice as witnesses.

Furthermore, the project that is presented to us today constitutes an additional component and participates in a rather loot-focused approach.

Criminal organizations mainly focus their activities on profit. Therefore, we all know that deprivation of criminal income is logically an effective means of deterrence and repression.

This bill pursues two fundamental objectives. It is not only a matter of better detection of the patrimonial benefits derived from offences within the framework of serious organised crime but also – and it is important – of significantly enhancing the possibility of confiscating those patrimonial benefits.

In my opinion, this bill contains four essential elements that will effectively address the two fundamental objectives I have just mentioned. by

1 of 1. The possibility of proceeding to a conservative seizure by equivalent. by

Current legislation does not allow seizure by equivalent before confiscation by the judge. From now on, it will be possible to seize value when things that materialize the advantage obtained illegally, can no longer be found as such in the property of the accused. The Prosecutor of the King may therefore seize other things which are in the property of the accused, in excess of the amount of the alleged proceeds of the offence.

2 of 2. The dissociation between the judgment concerning the basic infringement and the judgment concerning the confiscation.

At the request of the public prosecutor, the judge who declares the defendant guilty may therefore order a special patrimonial investigation.

Dividing between the time of the ruling on the basic infringement and the time of the ruling on the confiscation will prevent the delay of the infringement proceedings, as is often the case today, by the length of the investigation on asset advantages and the detection of illegal cash flows.

3 of 3. The distribution of the burden of proof regarding the lawful or unlawful origin of patrimonial advantages. I would really like to emphasize here that the bill provides for a distribution and not a reversal of the burden of proof. Furthermore, this distribution of the burden of proof concerns only the lawful or unlawful origin of the patrimonial advantages derived from the infringement and does not concern the infringement itself. It will therefore always be on the basis of conventional judgments of the burden of proof that the court will have to establish whether the defendant is guilty of the fact for which he is prosecuted. The public prosecutor will always bear the burden of proof. Therefore, the principles are not changed in this regard. It is only if the defendant is declared guilty that the burden of proof may be reduced in the head of the public prosecution in relation to the origin of the things in the possession of the defendant. It will then be up to the public prosecutor to provide serious and concrete indications that the patrimonial benefits arise from the offence for which the accused was convicted. On its part, of course, the convicted will have the opportunity to make plausible the opposite. He will not have to prove the legal nature of his estate; it will be up to the convicted person to provide evidence that may influence the court so that he is not convinced of the criminal origin of the discovered heritage. It is only on these points that the principles are changed.

A total reversal of the burden of proof would clearly be contrary to the fundamental principles of criminal law and would not stand the test of the European Court of Human Rights. As the minister explained, a complete reversal of the burden of proof would imply that a single assertion, the simple inculpation, would suffice to force the defense to provide the evidence. As I said above, the distribution of the burden of proof implies that the prosecuting party must provide serious and concrete indications that the unlawful origin of certain goods or values is likely. The defense may then be compelled to refute these indications and make plausible the lawful origin of those goods or values.

The judge remains free to decide whether or not the confiscation is timely and what things will make or not the object of the confiscation. The draft text in no way obliges the judge to pronounce the confiscation; it ⁇ retains its power of discretion.

The proof burden distribution regime can only be applied to the financial benefits derived from certain offences listed in a restrictive manner. More generally, these are a number of offences committed within the framework of a criminal organization, serious and organized tax fraud. These are crimes that are ⁇ disturbing on the social level, such as drug trafficking, public and private corruption, trafficking in human beings or serious violations of humanitarian law.

The scope of the bill is therefore strictly limited.

4 of 4. The easing of the requirement of the link between the established infringement and the patrimonial advantages. by

By analogy with the legislation of the Netherlands, our government has chosen not to limit, under certain conditions, the items and/or values entering into account for confiscation to those that have a direct connection with the infringement. The objective is very clear. The Minister of Justice, in my opinion, has used convincing examples and arguments. The notion of identical facts is indispensable if one wishes to deprive criminal organizations of their primary goal, profit, loot. This concept will allow our judicial instances to pronounce the confiscation of the patrimonial advantages derived not only from the offence for which the interested party was convicted but also of the patrimonial advantages derived from identical facts. In short, my dear colleagues, the judicial instances will be able to pronounce the confiscation of the patrimonial advantages of which it has been demonstrated that it is plausible that they come from identical facts and whose defense has not been able to make credible the lawful origin. Imagine the following hypothesis: an individual is convicted for cannabis trafficking. As a result of a property investigation, it is realized that this person obtained part of his unreported wealth through the sale of ecstasy pills. The sale of ecstasy in the strict sense is another fact than cannabis trafficking.

However, there is no doubt that these two crimes are related and that they must be treated in the same category as falling within the drug-related crime. In this hypothesis, if the convicted person cannot make plausible that his undeclared estate does not originate from identical facts, i.e. other drug-related facts, the court will have the possibility to take that part of the estate into account for confiscation.

In our opinion, this example taken from the justification of the government amendment is revealing the necessity for our judicial instances to have this notion of identical facts in order to determine the amount of the amount to be confiscated or even the extent of the property to be confiscated.

It is not in my intention to repeat the debates that took place in the Justice Committee, but I found it important to mention this example because it demonstrates that this possibility of confiscation must exist if one wants to establish an effective fight against organized crime, focused primarily on the loot.

In conclusion, I would like to communicate to you, Mr. Minister, Mr. President, my dear colleagues, my satisfaction of seeing the government persist in its willingness to establish a comprehensive legal arrangement, aimed at optimizing the fight against big banditism and organized crime.

A first series of bills defended by our Minister of Justice and adopted by the current majority were essentially aimed at establishing a mechanism to ensure greater security for those who wish to collaborate with justice as witnesses.

The present bill aims, on the other hand, to settle another fundamental aspect of the struggle against big banditism, namely the search and repression focused on the loot. There is no doubt that this text will strike criminal organizations in what they have most sensitive: their financial means and the profits they draw from their criminal acts. For these various reasons, Mr. Minister, my colleagues, the MR group will support your bill.

My intervention will be brief.

The draft law presented today, concerning the fight against organised crime, is based on a different principle, in the sense that it is no longer the perpetrator who is at the centre, but that it is the out-of-the-counter way of tracking that is defended.

This draft law was drawn up in implementation of the safety plan, in particular the projects no. 40, “Deprivation of Advantage”, no. 41 "external research" and no. 95 "freezing of assets and law on confiscation".

This consists in applying the new principle that crime must not pay, and that the prison sentence, which the organized crime often covers as an “accident de parcours”, is also deprived of its substance because it is primarily aimed at the prey. In this way, we do nothing other than what other European Member States have already offered us. Their

We also implement the recommendations of the Committee of Ministers of the Council of Europe of 19 September 2001 and we remain fully in line with the judgment in the Phillips case of 5 July 2001 by the European Court of Human Rights.

In those circumstances, I consider that it is sufficient to refer to the following four principles.

These four principles are: - the condition of a written request from the public prosecutor before it can proceed with the confiscation of patrimonial advantages; - the distribution of the burden of proof between the public prosecutor and the accused in relation to the origin of the suspicious patrimonial assets; - the possibility of seizure by equivalence of patrimonial assets which enter into the line of account for confiscation; - the possibility of initiating a special investigation on the patrimonial advantages, with the consent of the court and the possibility for the court, for the latter, to impose separately the confiscation.

I think the work has also shown that the refinements made by those who should be considered as third parties in good faith are of nature to save us some difficulties. On the other hand, I take note of the comments made, among other things, by colleague Van Parys. I think that the judgment in the Phillips case has provided sufficient guarantees.

With this bill, we are not at the end of the ride. You should know that a preliminary draft law for advice has been submitted to the State Council, on the basis of which a central body for seizure and confiscation will be put in place within the judicial system. Once we have achieved that, we have a full capacity to investigate outwardly and that was the intention.