(June 23, 2009) To crack down on financial and economic crime, the Netherlands has recently formulated measures that will make it easier to seize criminal assets. Hirsch Ballin, the Dutch Minister of Justice, has proposed that similar steps be taken as part of an arrangement within the European Union and as part of the new European judicial cooperation program to be established in Stockholm at the end of 2009. (Press Release, Government of the Netherlands, Measures to Intensify the Hunt for Criminal Money in Europe (June 8, 2009), available athttp://english.justitie.nl/currenttopics/pressreleases/archives-2009/mea
amp;cs=1578.) The proposed measures include:
1) Amendment of the Regulation Against Bogus Construction, to enable the Dutch Public Prosecution Service to levy pre-judgment attachments in more cases than heretofore, making it no longer necessary in such cases “to establish that the property acquired by another party proceeds directly from the crime of which the criminal is suspected or for which he has been convicted.” (Id.) This would facilitate, for example, attaching a house that had been registered in the name of a life partner before a criminal's commission of the crime. The other party would not be permitted, under an amended Regulation, to take over certain assets of a criminal by registering the property in his or her own name, with the intention of misleading the authorities. Ballin would like other EU member states to acknowledge this measure so as to enable the speedy enforcement in those countries of decisions made in the Netherlands. (Id.)
2) Legislation to broaden the scope of financial investigations; to reverse the burden of proof so that criminals will have to prove that the source of their income is legitimate; to facilitate confiscation of illegally obtained property; and to institute a travel ban that would further restrict the movements of criminals.
- The measure on reversal of the burden of proof, deemed an “essential part of the new legislation,” has as its starting point “that all expenditures made by the criminal in the six years prior to his crime are considered proceeds from crime,” which the convict must prove he acquired legally. (Id.)
- For the confiscation measure to be effective, judicial authorities must be able to actually collect the court-imposed amount, e.g., by the timely levying of prejudgment attachments to “prevent criminals from incorporating their assets elsewhere by tricks and devices.” (Id.) A new aspect of the confiscation process is that public prosecutors may now carry out a financial investigation in retrospect, to collect outstanding amounts of criminal proceeds, when criminals try to avoid payment obligations imposed under the 'Pluck-em' measure (Plukze-maatregel) (on deprivation of illegal earnings, dating back to 1993). (Pluk-ze-maatregel werkt nauwelijks [in Dutch], De Nederlandse Organisatie voor Wetenschappelijk [NWO] [The Netherlands Organization for Scientific Research] website, Dec. 1, 2000, available at http://www.nwo.nl/NWOhome.nsf/pages/NWOA_7G8TQZ.) In Ballin's view, this would “prevent criminals from using their money to commit crimes once again or investing it in the legal economy.” (Press Release, supra.) The authorities may also confiscate property purchased from criminal proceeds, such as jewelry or luxury cars, not just property acquired directly through the crime or that figured in the commission of the crime.
- The proposed travel ban would apply to those convicted of cross-border crimes, e.g., human trafficking or drug smuggling, that results in large criminal gains, often invested abroad. The ban, imposed as an additional punishment, would “prevent criminals from travelling after their conviction and from being able to enjoy the foreign possessions they acquired with criminal money.” (Id.)
In addition, to remedy Dutch authorities' overemphasis on “simply prosecuting and punishing the offenders,” there is a plan to expand the capacity of the police and the Public Prosecution Service and to equip an information desk at the Prosecution Service Criminal Assets Confiscation Bureau “to enhance the expertise in important and complicated cases,” work closely with police units and the special investigative services, and serve “as the Dutch contact point for a European network of authorities charged with confiscation.” (Id.)