In a Dutch financial or fraud investigation, the sentence is often not the heaviest part. The heaviest part is money. The Public Prosecution Service (Openbaar Ministerie) normally seizes assets early, and later asks the court to order payment of a sum equal to the profit said to have been made. This article explains how seizure and confiscation work, what the tests are, and where the realistic openings lie.
Two different things that are routinely confused
Seizure (beslag) is an investigative and precautionary step during the investigation, often on day one. It freezes assets and decides nothing about guilt or about how much you owe. Confiscation (the ontnemingsmaatregel) is a measure imposed by the court at the end, under art. 36e Sr, creating a debt to the State equal to the estimated unlawfully obtained advantage. Seizure secures eventual payment of that debt.
| Seizure (beslag) | Confiscation order (ontnemingsmaatregel) | |
|---|---|---|
| When | During the investigation, often at the outset | After the criminal case, in a separate procedure |
| Basis | art. 94 Sv and art. 94a Sv | art. 36e Sr; procedure under artt. 511b to 511i Sv |
| Effect | Assets frozen; ownership unchanged | An obligation to pay a sum to the State |
| Decided by | Prosecutor or investigating judge | The trial court, on the prosecutor’s application |
| Challenged by | Complaint under art. 552a Sv | Defence at the hearing; appeal; cassation |
| Standard | Summary, marginal test | Estimation on lawful evidence |
Seizure during the investigation
Seizure for evidential purposes and related grounds
Art. 94 Sv covers seizure of objects that can serve to establish the truth, objects that can serve to demonstrate the derivation of unlawfully obtained advantage, and objects liable to forfeiture (verbeurdverklaring, art. 33 Sr) or withdrawal from circulation (onttrekking aan het verkeer, art. 36b Sr) — in practice laptops, phones, administration, cash and goods.
The second ground matters more than people expect: an object can be held purely because it helps show where profit came from.
Seizure with a view to confiscation
Art. 94a Sv is the precautionary seizure (conservatoir beslag). Where there is a suspicion of an offence carrying a fifth-category fine, objects may be seized to preserve recovery of a fine and — the point that bites in fraud and money laundering cases — to secure an obligation to pay in respect of unlawfully obtained advantage. This is the seizure that reaches bank accounts, houses, cars, shares and receivables: “objects” covers all goods and all property rights.
Seizure on the basis of a claim in respect of property held by another
Art. 94a Sv also allows seizure of objects held by someone other than the suspect. The conditions are cumulative: the objects derive from the offence, there are indications that they were transferred to frustrate recovery, and that person knew or could suspect their criminal origin. Other objects belonging to that person may then be seized up to the value of the transferred ones. Companies, partners and family members are not automatically out of reach.
Who may seize, and with whose authorisation
- Investigating officers may seize objects under art. 94 Sv in the situations set out in artt. 95 and 96 Sv — essentially on discovery in the act or on suspicion of a serious offence.
- The investigating judge (rechter-commissaris) has separate seizure powers under artt. 104 and following Sv.
- Precautionary seizure under art. 94a Sv requires the authorisation of the investigating judge, on the prosecutor’s application, under art. 103 Sv. A defective or absent authorisation is a genuine ground of complaint.
- Return, storage, sale and destruction of seized property afterwards run through artt. 116 to 119 Sv, largely in the prosecutor’s hands.
- A financial investigation may run alongside: the strafrechtelijk financieel onderzoek (SFO) under artt. 126 and following Sv, opened by the investigating judge on the prosecutor’s application to map the suspect’s assets.
Getting assets released: the complaint under art. 552a Sv
The fastest route to release is not the trial but a written complaint (klaagschrift) under art. 552a Sv. An interested party may complain about the seizure itself and about the failure to order return. It is lodged with the registry of the court in the fact-finding instance before which the case is prosecuted; where no prosecution is pending, with the district court of the district concerned, within two years of the seizure, and is heard in chambers (raadkamer).
The Supreme Court set out the framework in HR 28 September 2010, ECLI:NL:HR:2010:BL2823. Three points decide most cases:
- The examination is summary — it “draagt een summier karakter”. The judge is neither required nor permitted to anticipate the outcome of a criminal case or confiscation procedure still to be heard.
- Under art. 94 Sv, the question is whether the interest of criminal procedure still requires the seizure to continue; if not, return is ordered. That interest exists where the objects can still serve to establish the truth or to show unlawfully obtained advantage, or where it is not highly improbable that forfeiture or withdrawal from circulation will be ordered.
- Under art. 94a Sv, the court asks whether there is a suspicion or conviction of an offence carrying a fifth-category fine, and whether it is not highly improbable that a fine or confiscation obligation will be imposed. That formula is deliberately generous to the prosecution.
The practical consequence is blunt: you will rarely win by arguing innocence. You win by attacking the seizure on its own terms — the object is no longer needed, the authorisation was defective, the value seized is disproportionate, or the property is not the suspect’s. A complaint is heard quickly, and is often the only thing that gets a business trading again.
The confiscation procedure is a separate case
Confiscation does not follow automatically from the sentence. The prosecutor lodges a separate application (ontnemingsvordering), which the court deals with in a distinct procedure under artt. 511b to 511i Sv after the criminal case. The application is subject to a statutory time limit: under art. 511b Sv the prosecutor must bring it within two years of the judgment at first instance.
The engine of the procedure is the report calculating the unlawfully obtained advantage (rapport berekening wederrechtelijk verkregen voordeel), produced by the financial investigators. It is a document, not a verdict, and the single most important thing to attack.
Burden and standard of proof: lower than in the criminal case
This surprises internationals most. Conviction requires lawful and convincing evidence; confiscation does not. Under art. 511f Sv the estimate must be derived from lawful means of evidence, but the court is estimating a figure, not proving an offence beyond doubt.
In HR 26 March 2013, ECLI:NL:HR:2013:BV9087, the Supreme Court confirmed that in principle nothing prevents the court from basing the estimate solely on the content of such a financial report. But it added the defence’s best lever: if the defendant contests a conclusion in the report in a sufficiently reasoned way, further requirements apply to the reasoning of the estimate, and the court must explain why it nevertheless accepts that conclusion.
The translation: vague denials achieve nothing, while a documented, figure-by-figure rebuttal forces the court to engage. Confiscation defence is accountancy as much as advocacy.
How the amount is calculated
The court estimates the advantage and has latitude in choosing the method. The methods fall into two families: concrete calculation tied to identified transactions, and abstract methods reasoning from the finances as a whole.
| Method | How it works | Typical use and weak points |
|---|---|---|
| Transaction-based (transactieberekening) | Revenue less directly attributable costs, per identified transaction | Attack the number of transactions, the price and the volume assumed |
| Cash statement (kasopstelling), simple or extended | Compares money received with money spent, in cash alone or across all accounts; unexplained excess expenditure is treated as advantage | Attack the opening balance, loans, gifts, legitimate cash income, and double counting of transfers between own accounts |
| Comparison of assets (vermogensvergelijking) | Assets at end of period, less assets at start, less legitimate income, plus expenditure | Attack valuations, the period chosen and the treatment of debts |
The abstract methods share one dangerous feature: they require no specific criminal transaction to be identified. An unexplained gap between income and expenditure can itself carry the estimate, so the answer is documentary — bank records, loan agreements, gift and inheritance documentation, foreign income, evidence of legitimate turnover. Which method is used is for the trial court: settled case law confirms the wide freedom of estimation that art. 36e Sr gives it (ECLI:NL:HR:2013:BY5229), so the realistic attack is on the inputs rather than on the choice of model.
Extended confiscation: offences other than those proved
Art. 36e Sr does not stop at the offence of conviction. Where that offence carries a fifth-category fine, the court may also confiscate advantage from other offences, provided there are sufficient indications that the person committed them. They need not be charged or proved to the criminal standard.
The statute goes further. In those cases the court may presume that expenditure in the six years before the offence, and property acquired in that period, represent unlawfully obtained advantage unless a lawful source appears. The court may apply a shorter period. The effect is a burden that in practice sits on the defendant to account for six years of finances.
Costs, several offenders, and reduction of the amount
What may be deducted
Art. 36e Sr allows deduction only of costs standing in direct relation to the completion of the offences and reasonably qualifying for deduction:
- Generally deductible: expenditure without which the specific offence could not have been committed — the purchase price of goods later resold, direct transport or production costs.
- Generally not deductible: living expenses, lifestyle costs, fines, and the costs of the defence. General business costs and overheads, and investments in illegal structures, fall outside the deduction as well: only costs standing in direct relation to the commission of the offence may be set off.
- Where the goods themselves were seized and forfeited in the criminal case, the issue is not deduction of costs but double recovery. Because confiscation is restorative and not punitive, the value of an object seized from the defendant and forfeited in his criminal case must be set off against the payment obligation (HR 31 May 2022, ECLI:NL:HR:2022:808). The court may make that set-off even where the forfeiture is not yet final, but it is not obliged to; if it does not, the convicted person may ask for the obligation to be reduced once the forfeiture becomes irrevocable (art. 6:6:26 Sv).
Several people involved
Where several persons obtained the advantage, art. 36e Sr allows the court either to impose joint and several liability or to apportion the advantage between them. Joint and several liability means each can be pursued for the whole — a serious exposure in group cases, worth contesting early with evidence of what each participant actually received. It is not the default: the prosecution must show that those involved operated as an economic unit. Where that unit, or a common pool of assets, is missing, the court attributes the advantage pro rata or according to where it actually ended up.
Reduction
The court may set the amount lower than the estimated advantage, on the defendant’s reasoned request or of its own motion, having regard to present and foreseeable capacity to pay. Inability to pay is a live argument at the hearing itself, not only later.
Excessive length of proceedings is a second route: where the reasonable-time guarantee of art. 6 ECHR is breached, the amount is reduced. The framework is HR 17 June 2008, ECLI:NL:HR:2008:BD2578, which sets out how the reduction operates in confiscation cases.
Reduction or remission can also be sought from the court during enforcement, under art. 6:6:26 Sv.
Enforcement, and detention that does not clear the debt
Once the order is final, collection is administrative and persistent. Payment arrangements are possible, recovery follows civil enforcement logic, and assets under precautionary seizure are applied to the debt.
If payment is not made, the prosecutor can apply to the court for gijzeling — coercive detention — under art. 6:6:25 Sv. Under art. 36e Sr the court sets a maximum term when imposing the order, calculated by reference to the amount, subject to a statutory maximum of three years. Two features matter:
- It is coercive, not punitive: a means of pressure on someone who can pay but will not.
- It does not extinguish the debt. Unlike a default sentence substituting for a fine, serving the term of gijzeling leaves the payment obligation intact. Someone who serves the maximum still owes the full sum.
That is why confiscation debts follow people for decades, and why they must be fought at the estimation stage rather than the collection stage.
Third parties: companies, spouses and lenders
If your property has been caught by a seizure aimed at someone else, the route is the same complaint under art. 552a Sv, lodged as an interested party. The court must consider, before deciding, whether anyone other than the complainant should be regarded as an interested party.
The test for a third party asserting ownership of an object seized under art. 94a Sv is demanding: in ECLI:NL:HR:2010:BL2823 the Supreme Court framed it as whether it is beyond reasonable doubt that the complainant is the owner.
- A company whose accounts or stock are frozen because a director is a suspect should document the separateness of the corporate assets and the commercial harm.
- A spouse or partner must address the matrimonial property position: under a community of property regime, the argument that an asset is exclusively “theirs” is much harder.
- A lender or secured party should produce loan and security documentation immediately; a documented, pre-existing, arm’s-length security position is the strongest third-party case there is.
Tax and the victim’s claim
Tax. Income does not escape taxation because it was unlawfully obtained; the tax authorities may assess it independently of the criminal case, and information exchange between the two is normal. A confiscation order and a tax assessment on the same income can arrive together, so the criminal, confiscation and tax positions must be coordinated from the start: concessions in one forum are read in the others. Paying the order brings no relief on the tax side either: art. 3.14 of the Income Tax Act 2001 (Wet IB 2001) expressly excludes fines and payments made under a confiscation order from deduction as business expenses.
The victim. Confiscation is reparatory, not a second punishment, and the State does not collect twice over the same money. Art. 36e Sr provides that sums awarded to injured parties, and obligations to pay the State for their benefit, are deducted from the confiscation amount. Where an injured party has joined the criminal proceedings, that award should be brought into the calculation deliberately.
A note on the coming Code of Criminal Procedure
The recodified Wetboek van Strafvordering was passed by the Senate on 24 February 2026 and published in the Staatsblad on 13 March 2026. It enters into force on a date, or dates, fixed by royal decree, possibly in stages. The date currently foreseen is 1 April 2029. Everything above is written on the Code that applies today. Article numbering will change; the substance is expected to carry over.
If assets have been seized, establish at once whether the ground is art. 94 Sv or art. 94a Sv, obtain and check the authorisation and seizure records, and reconstruct the financial picture — lawful income, loans, gifts, foreign assets — before the report is written rather than after.
Can the police seize my bank account before I am charged?
Yes. Precautionary seizure under art. 94a Sv rests on suspicion, not on charge or conviction, and requires the authorisation of the investigating judge under art. 103 Sv. Bank balances are property rights and fall within the definition of objects. You do not have to wait for a trial to challenge it: a complaint under art. 552a Sv can be lodged straight away and is heard in chambers.
How is the confiscation amount worked out?
The court estimates the advantage on lawful means of evidence, usually starting from an investigators’ report. It may calculate transaction by transaction, or use abstract methods — a cash statement comparing money in and money out, or a comparison of assets at the start and end of a period. Costs directly related to committing the offence may be deducted; general living costs and fines may not.
Is the standard of proof the same as for conviction?
No, and this is the crucial difference. A conviction requires lawful and convincing evidence. A confiscation order requires the court to estimate the advantage on lawful means of evidence, which is a materially lower threshold. In extended confiscation cases the court may also work from presumptions about six years of expenditure and acquisitions, leaving you to account for your finances.
What happens if I simply cannot pay?
Raise inability to pay at the confiscation hearing itself: the court may set a lower amount having regard to your present and foreseeable capacity to pay. During enforcement, reduction or remission can also be sought from the court. Doing nothing is the worst option, because the prosecutor can seek coercive detention, and serving it does not clear the debt.
My company’s assets were frozen because of my business partner. What can I do?
Lodge a complaint under art. 552a Sv as an interested party. Art. 94a Sv allows seizure of a third party’s property only on strict cumulative conditions concerning the origin of the objects, an intention to frustrate recovery, and the third party’s knowledge. The ownership test for third parties is demanding, so produce contemporaneous documentation — accounts, contracts, security — immediately.
Does going to prison for the offence end the money claim?
No. The sentence and the confiscation order are separate. Confiscation is a reparatory measure imposed in its own procedure under artt. 511b to 511i Sv and creates a debt to the State that survives the sentence. Coercive detention for non-payment does not extinguish it either. The only durable answers are a lower estimate, a reduction, a settlement, or payment.
