Criminal activities must not yield financial benefits. Through a deprivation measure, the court can recover illegally obtained profits. This is separate from the penalty and aims at restoring justice.
What does deprivation entail?
Deprivation of unlawfully obtained advantage (art. 36e Sr) is a legal measure whereby the court orders a convicted person to pay an amount corresponding to the profit obtained from criminal offences.
Objective
- Prevent crime from paying off financially
- Recover illegal income
- Deter criminal behaviour
- Restore the original, lawful situation
When is deprivation applied?
Deprivation can be imposed by the court under specific circumstances.
Conditions for application
- There must be a conviction for a criminal offence
- Advantage must be demonstrably obtained from this offence or similar offences
- Or: there are sufficient indications of advantage from other offences
How is the advantage calculated?
The illegally obtained advantage is estimated by the court based on available data.
Calculation methods
| Method | Description |
|---|---|
| Transaction analysis | Calculation per specific criminal offence |
| Financial cash flow | Comparison of income and expenses |
| Asset analysis | Assessment of asset growth over a period |
Legal Procedure
The procedure for deprivation runs separately from the criminal case.
Steps in the process
- Financial investigation by the prosecution (SFO)
- Filing of a deprivation claim by the Public Prosecutor's Office
- Assessment and hearing before the court
- Judgment in the form of a deprivation judgment
- Possibility of appeal
Conservatory Seizure
To prevent assets from disappearing, the court may order conservatory seizure on property.
Possible seizure objects
- Bank funds
- Real estate
- Cars and other vehicles
- Valuable possessions
- Digital currencies such as Bitcoin
Execution of the Measure
After the judgment, the established amount must be paid.
Consequences of non-payment
- Imposition of a coercive fine or bodily constraint (detention)
- Execution of seizure on property
- Possibility of a payment arrangement
Possibility of Mitigation
The court may decide to reduce the deprivation amount under certain circumstances.
Reasons for mitigation
- Financial capacity of the convicted person
- Statute of limitations or age of the facts
- Other relevant factors
Deprivation versus Forfeiture
| Characteristic | Deprivation | Forfeiture |
|---|---|---|
| What is taken | Financial amount | Physical goods |
| Basis | Estimated criminal profit | Specific objects |
| Process | Separate from criminal case | Within the criminal case |
Frequently Asked Questions about Deprivation in Westland
How does the court determine the deprivation amount?
The court estimates the amount based on the unlawfully obtained advantage. Methods such as transaction analysis (per offence), cash flow overview (income versus expenses) and asset comparison (growth of assets) are used. The Public Prosecutor's Office conducts an investigation and files a claim, after which the court decides, possibly with mitigation.
Can I appeal against a deprivation decision?
Yes, you have the possibility to appeal a deprivation judgment through your lawyer. This can be done at the court of appeal and often focuses on the amount or the calculation method used. Note the usual 14-day period to file an appeal.
What if I cannot pay the deprivation amount?
In case of non-payment, the Public Prosecutor's Office may seize your assets, such as bank accounts or real estate. In addition, bodily constraint (imprisonment) may be imposed or a coercive fine demanded. A payment arrangement is sometimes possible.