What is the draft bill?
The draft bill (conceptwetsvoorstel) aims to establish a new law on the confiscation of criminal property and to adapt existing legislation to strengthen the approach to subversive and organized crime. The draft bill proposes a special new (civil) form of attachment and procedure for the expropriation of goods and assets of criminal origin without being based on a criminal conviction or prosecution (non conviction based confiscation ("NCBC"). The proposed amendments relate to the Code of Criminal Procedure, the Criminal Code, the Opium Act, the General Administrative Law Act, the Money Laundering and Terrorist Financing Prevention Act and the Economic Offenses Act.
Who are the target groups affected by the scheme?
Judges, Public Prosecution Service, investigative services, lawyers, suspects, interested parties of goods originating from crimes and account holders.
What are the expected effects of the scheme for the target groups?
When the bill is accepted and comes into effect, the Public Prosecution Service and FIU-the Netherlands will have more options to act against organized subversive crime.
Comments on the draft bill
The draft bill was submitted for consultation on 23 November 2021. In his response, Kasper Krzemiński identifies a number of points that, in his opinion, require adjustment in order to better integrate the envisaged non-conviction based confiscation settlement into the system of civil attachment and enforcement law. In seven paragraphs, he discusses the following points:
- purpose and purport of the NCBC attachment (par. 1);
- in brake approach (par. 2);
- place of NCBC attachment in the legal system (par. 3);
- jurisdiction and territoriality (par. 4);
- concurrence with other herds (par. 5);
- manner of notification of the NCBC attachment (par. 6); and some procedural remarks (par. 7).
According to Krzemiński, the scheme is rather problematic from the point of view of civil attachment and enforcement law. He considers the approach of the NCBC scheme to be unworkable and not well suited to the system of Dutch attachment and enforcement law.
In addition to Krzemiński's response, responses from the Netherlands Bar Association (NOvA), Dutch Banking Association (NVB), and Royal Professional Organization of Bailiffs (KBvG) were also sent in. Apart from the commentary on the draft bill, it is also fascinating how criminal (procedural) law and civil (procedural) law meet here.