Confiscation of proceeds of crime in the Netherlands works in two stages: during the investigation the Public Prosecution Service (Openbaar Ministerie) seizes assets to secure later payment, and after a conviction the court can order you to pay the State an amount equal to the estimated unlawfully obtained advantage (Article 36e of the Dutch Criminal Code, Sr). The key exception to the usual rules of criminal law: the court estimates that amount on a lower standard than proof of guilt, and in serious cases it may presume that six years of expenditure came from crime.
You can challenge a seizure straight away with a written complaint (klaagschrift) under Article 552a of the Code of Criminal Procedure (Sv). The confiscation order itself is decided in a separate procedure under Articles 511b to 511i Sv.
Table of contents
What is the difference between seizure and confiscation?
Seizure (beslag) freezes assets during the investigation and decides nothing about guilt or the amount owed. A confiscation order (ontnemingsmaatregel) is imposed by the court at the end and creates a debt to the State; the seizure secures payment of that debt.
| Seizure (beslag) | Confiscation order (ontnemingsmaatregel) | |
|---|---|---|
| When | During the investigation, often at the start | After a conviction, in a separate procedure |
| Basis | Articles 94 and 94a Sv | Article 36e Sr; Articles 511b-511i Sv |
| Effect | Assets frozen; ownership unchanged | Obligation to pay a sum to the State |
| Decided by | Police or prosecutor; for Article 94a Sv with authorisation of the investigating judge | The court, on the prosecutor’s application |
| Challenge | Complaint under Article 552a Sv | Defence at the hearing; appeal; cassation |
On what grounds can assets be seized?
There are two main grounds. Under Article 94 Sv objects can be seized to establish the truth, to show unlawfully obtained advantage, or because they may be forfeited or withdrawn from circulation; in practice phones, laptops, records, cash and goods.
Under Article 94a(2) Sv objects can be seized to secure a future confiscation order when there is a suspicion of, or conviction for, a serious offence (misdrijf) carrying a fine of the fifth category. “Objects” covers all goods and all property rights (Article 94a(6) Sv), so bank balances, houses, cars, shares and receivables all qualify. Under Article 103 Sv this seizure requires the written authorisation of the investigating judge (rechter-commissaris) on the prosecutor’s application; a missing or defective authorisation is a real ground for complaint.
Can assets of other people be seized?
Yes, under strict conditions. Under Article 94a(4) Sv objects belonging to someone other than the suspect can be seized if there are sufficient indications that they were transferred to that person with the evident aim of frustrating recovery, and that person knew or could reasonably suspect this.
Other objects of that person can then be seized up to the value of the transferred objects (Article 94a(5) Sv). Companies, partners and family members are therefore not automatically out of reach. A criminal financial investigation (strafrechtelijk financieel onderzoek) can run alongside the case to map the suspect’s assets.
How do you get seized assets released?
With a written complaint under Article 552a Sv, filed as soon as possible after the seizure. You file it with the registry of the court before which the case is prosecuted; if no prosecution has been started, with the district court of the place of seizure, at the latest within two years after the seizure.
Once the prosecuted case has ended, a complaint filed more than three months later is inadmissible (Article 552a(3) Sv). The court hears the complaint in chambers (raadkamer). Waiting for the criminal case to finish before acting on seized cash or bank balances is the classic mistake.
Under settled Supreme Court case law the examination is summary: the court does not anticipate the outcome of the criminal case. For a seizure under Article 94a Sv the question is essentially whether it is highly improbable that a confiscation order will be imposed; that test favours the prosecution. You rarely win by arguing innocence. You win by attacking the seizure itself: the object is no longer needed, the authorisation is defective, the value seized is disproportionate, or the property belongs to someone else.
How does the confiscation procedure work?
The prosecutor files a separate confiscation claim (ontnemingsvordering). Under Article 511b(1) Sv it must be brought as soon as possible and at the latest two years after the judgment at first instance.
The core of the file is the report calculating the unlawfully obtained advantage (rapport berekening wederrechtelijk verkregen voordeel), drawn up by financial investigators. It is a document, not a verdict, and the most important thing to attack.
Which standard of proof applies?
A lower one than for conviction. Under Article 511f Sv the court may only base its estimate on lawful means of evidence, but it estimates an amount rather than proving an offence.
The court may rely on the financial report. If you contest specific conclusions with reasons and documents, the court must explain why it nevertheless accepts them. Vague denials achieve nothing; a figure-by-figure rebuttal forces the court to engage.
How is the amount calculated?
The court estimates the advantage and has wide freedom in choosing the method (Article 36e(5) Sr). Under the same provision savings on costs also count as advantage, and objects can be valued at their market value at the time of the decision.
| Method | How it works | Where to attack |
|---|---|---|
| Transaction-based calculation | Revenue less directly attributable costs, per identified transaction | Number of transactions, price and volume assumed |
| Cash statement (kasopstelling) | Compares money received with money spent; unexplained excess spending is treated as advantage | Opening balance, loans, gifts, legitimate cash income, double counting of own transfers |
| Comparison of assets (vermogensvergelijking) | Assets at the end less assets at the start, corrected for legitimate income and spending | Valuations, the period chosen, treatment of debts |
The abstract methods need no specific criminal transaction: an unexplained gap between income and spending can carry the estimate. The answer is documentary: bank records, loan agreements, gift and inheritance papers, foreign income and proof of legitimate turnover.
Can advantage from other offences be confiscated?
Yes. Under Article 36e(2) Sr the order can also cover advantage from other offences for which there are sufficient indications that the convicted person committed them; they need not be charged or proved.
Article 36e(3) Sr goes further for a conviction for a serious offence carrying a fifth-category fine. The court may then presume that expenditure in the six years before the offence, and objects acquired in that period, represent unlawful advantage, unless a lawful source is made plausible. Under Article 36e(4) Sr the court may apply a shorter period. In practice you must account for six years of finances.
Which costs, deductions and reductions apply?
Under Article 36e(8) Sr the court may deduct costs that are directly related to committing the offences and reasonably qualify for deduction, such as the purchase price of goods later resold. Living expenses, lifestyle spending, general overheads and defence costs do not qualify.
- Victims. Claims awarded to injured parties and payments to the State for the victim (Article 36f Sr) are deducted, to the extent that they have been paid (Article 36e(9) Sr).
- Earlier orders. The court takes earlier confiscation orders into account (Article 36e(10) Sr).
- Several offenders. The court can make them jointly and severally liable or apportion the amount (Article 36e(7) Sr). In an extended confiscation under Article 36e(3) Sr joint liability also requires that the offenders formed an economic unit that enjoyed the advantage.
- Capacity to pay. The court can set a lower amount, on a reasoned request, if your present and reasonably expected future means are insufficient (Article 36e(5) Sr). Raise this at the hearing itself.
- Length of proceedings. If the reasonable-time requirement of Article 6 of the European Convention on Human Rights is breached, the amount is reduced.
After the order becomes final, the court can still reduce or cancel the amount at the request of the convicted person, a victim or the prosecutor (Article 6:6:26 Sv), for example where the amount set proves higher than the advantage actually obtained.
What happens if you do not pay?
The prosecutor can ask the court for coercive detention (gijzeling) if recovery fails (Article 6:6:25 Sv). When imposing the order the court sets the maximum duration: no more than one day for each full €25, with a maximum of three years (Article 36e(11) Sr).
Gijzeling is pressure, not punishment, and it does not extinguish the debt (Article 6:6:25(8) Sv). The court rejects the request if you make it plausible that you are unable to pay. Confiscation debts can follow people for many years, which is why the estimate must be fought at the hearing, not during collection.
What about tax and the coming Code of Criminal Procedure?
Unlawful income is taxable, and the Tax and Customs Administration (Belastingdienst) can assess it independently of the criminal case. Under Article 3.14(3) of the Income Tax Act 2001 (Wet IB 2001), a payment under a confiscation order does not fall under the exclusion for costs related to crimes, unlike other such costs; discuss the tax position with a tax adviser.
The new Code of Criminal Procedure has been adopted; entry into force is planned for 2029. Until then the current Sv applies, and the article numbers in this guide will change. Our criminal law guides set out the wider procedure.
What should you check as a suspect?
- Establish whether each seizure is based on Article 94 or 94a Sv.
- Ask for the investigating judge’s authorisation for any Article 94a Sv seizure and check it.
- File a complaint under Article 552a Sv now, not after the trial.
- Reconstruct six years of finances: lawful income, loans, gifts, foreign assets.
- Contest the financial report figure by figure, with documents.
- Document your capacity to pay before the confiscation hearing.
What should you check as a third party whose assets are seized?
- File a complaint under Article 552a Sv as an interested party.
- As a company: document that the assets belong to the company, not to the suspect, and the harm the seizure causes.
- As a spouse or partner: check your matrimonial property regime; in a community of property, separate ownership is harder to show.
- As a lender or secured creditor: produce the loan and security documents immediately.
- Challenge the conditions of Article 94a(4) Sv: no transfer aimed at frustrating recovery, no knowledge.
What can we do for you with confiscation of proceeds of crime?
Our criminal lawyers act in seizure complaints and confiscation proceedings from the first day of the investigation.
- We review the seizure records and the investigating judge’s authorisation.
- We draft and file the complaint under Article 552a Sv and argue it in chambers.
- We analyse the financial report with you and prepare a documented counter-calculation.
- We argue deductions, capacity to pay and reasonable-time reductions at the confiscation hearing.
- We request reduction or cancellation under Article 6:6:26 Sv and defend you against gijzeling.
Summary
- Seizure freezes assets during the investigation; a confiscation order creates a debt to the State after conviction.
- Challenge a seizure early with a complaint under Article 552a Sv; time limits are three months after the case ends, or two years if there is no prosecution.
- The prosecutor must file the confiscation claim within two years of the first-instance judgment.
- The court estimates the advantage on lawful evidence and, in serious cases, may presume six years of spending to be unlawful.
- Gijzeling for non-payment lasts up to three years and does not cancel the debt.
Frequently asked questions
Can the police seize my bank account before I am charged?
Yes. A seizure under Article 94a Sv requires only a suspicion of a serious offence carrying a fifth-category fine and the written authorisation of the investigating judge (Article 103 Sv). You can file a complaint under Article 552a Sv straight away.
Is the standard of proof the same as for a conviction?
No. The court estimates the advantage on lawful means of evidence (Article 511f Sv), which is a lower threshold than proof of guilt. In extended confiscation the court may presume that six years of spending came from crime.
Does serving gijzeling end the confiscation debt?
No. Article 6:6:25 Sv states that coercive detention does not cancel the debt. Only payment, a reduction or a cancellation by the court ends it.
My company assets were frozen because of my business partner. What can I do?
File a complaint under Article 552a Sv as an interested party. Assets of a third party may only be seized under the conditions of Article 94a(4) Sv, so document ownership and the absence of any transfer aimed at frustrating recovery.
