Seizure is taking custody of objects for the purposes of criminal proceedings: to establish the truth, to demonstrate unlawfully obtained gains, or with a view to forfeiture or withdrawal from circulation.
Legal basis
Article 94 of the Dutch Code of Criminal Procedure provides the basis for classic seizure, and Article 94a for conservatory seizure with a view to a confiscation claim or a fine. The power to search rests with the investigating judge or, in more limited form and on conditions, with the public prosecutor and the assistant prosecutor. Additional safeguards apply to homes. Article 552a entitles an interested party to file a complaint with the chambers seeking return; the court then examines whether the interests of the prosecution still oppose it. For digital data Article 125i and following are relevant, and material covered by legal professional privilege enjoys special protection.
How it works in practice
In fraud investigations entire administrations and digital files are frequently taken. That is drastic for a business, because operations come to a halt. In practice there is negotiation about copies of the data and return of the originals. Where that stalls, a complaint is the appropriate remedy; the chambers usually deal with it within a few weeks.
Where it goes wrong
Businesses wait months, whereas a complaint can be filed immediately. A second error is not raising at once that the material includes correspondence with a lawyer, which must be separated out. Third, the distinction between evidential and conservatory seizure is overlooked, though different rules apply.
Related terms
Seizure connects to confiscation of criminal proceeds, to procedural defects where the seizure was unlawful, and to money laundering.
Has your administration been seized? Our criminal law specialists file the complaint.
