19 DECEMBER 2002. - An Act to extend the possibility of seizure and confiscation in criminal matters

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
Art. 2. Article 43bis, paragraph 1^erthe Criminal Code is replaced by the following provision:
« Article 43bis . The special confiscation applicable to the things referred to in section 42, 3°, may always be pronounced by the judge, but only to the extent that it is required in writing by the King's Prosecutor. »
Art. 3. In section 43ter of the same Code, the words "in section 42" are replaced by the words "in sections 42, 43 bis and 43quater".
Art. 4. An article 43quater, as follows, is inserted in the same Code:
"Article 43quater . § 1^er. Without prejudice to section 43 bis, paragraphs 3 and 4, the property benefits referred to in § 2, the property and the values that have been substituted therein and the income from the benefits invested in the property or in possession of a person may, at the request of the King's Prosecutor, be confiscated or that person may be sentenced to the payment of an amount that the judge considers to be consistent with the value of these things if it is guilty
(a) one or more of the offences referred to:
1° to articles 246 to 251, and 323;
2° to articles 504bis and 504quater, and to article 323;
3° to Article 2bis , § 1^er, the Act of 24 February 1921 concerning the trafficking of poisonous, soporific, narcotic, disinfectant or antiseptic substances to the extent that the facts relate to the import, export, production, sale or sale of the substances referred to in the article, or to § 3, (b) or § 4, (b) of the same law;
4° to article 77bis , § 2 or § 3, of the law of 15 December 1980 on access to territory, residence, establishment and removal of aliens;
5° to Article 10, § 1^er, 2°, of the Act of July 15, 1985 on the use of hormone-effect substances, anti-hormonal effect, beta-adrenergic effect or stimulator effect of production in animals;
6° to articles 2 to 4 of the Law of 16 June 1993 on the Suppression of the Serious Violations of the Geneva International Convention of 12 August 1949 and the Additional Protocols I and II to those Conventions, adopted on 8 June 1977.
(b) an offence under section 324ter, or one or more of the offences referred to below, when committed in a criminal organization, as defined in section 324bis:
1° articles 379 or 380;
2° articles 468, 469, 470, 471 or 472;
3° article 475;
4° articles 477, 477bis , 477ter , 47quater , 477quinquies , 477sexies or 488bis ;
5° Article 505, except for the things covered by Article 42, 1°;
6° Article 10 of the Act of 5 August 1991 on the import, export and transit of arms, ammunition and equipment to be used specifically for military use and related technology;
7° article 1^er of the Royal Decree of 12 April 1974 concerning certain operations concerning hormone, anti-hormonal, anabolic, beta-adrenergic, anti-infectious, pest control and anti-inflammatory substances, concerning offences punishable under the Act of 24 February 1921 concerning the trafficking of poisonous, soporific, narcotic, disinfectant or anti-infectant substances;
8° Articles 3 and 5 of the Royal Decree of 5 February 1990 on certain beta-adrenergic substances concerning offences punishable under the Act of 25 March 1964 on drugs.
(c) a number of offences prosecuted in a collective manner and whose seriousness, purpose and mutual relationship allow the court to decide and necessarily that these facts have been committed in the context of a serious and organized tax evasion for which mechanisms or processes have been used particularly complex at the international level.
§ 2. Forfeiture referred to in § 1^er may be pronounced against the authors, co-authors and accomplices convicted of one or more of the offences listed in this article and the conditions defined in § 1^er if the convicted person has acquired additional parental benefits for a relevant period of time while there are serious and concrete indications that they arise from the offence for which he was convicted or identical facts and that the convicted person was unable to make the contrary plausible.
This may also be made plausible by any third party claiming to be entitled to these benefits.
§ 3. The period commencing five years before the person's charge and running until the date of the pronouncement is considered relevant within the meaning of this section.
The serious and concrete evidence referred to in § 2 may be drawn from all the dignified elements that have been submitted to the court in a regular manner and which show an imbalance of any interest between, on the one hand, the temporary or constant increase of the property and expenses of the convict during the relevant period, of which the public ministry proves, and on the other hand, the identical or constant increase of the property and the expenses of the convict to the
The facts that fall within the qualifications referred to in § 1 should be understood by identical facts.^er and falling:
(a) the same qualification as the offence that is the subject of the conviction;
(b) be under a related qualification, as long as it appears under the same heading, as provided in § 1^er, a) only the offence that is the subject of the conviction.
Where the court orders special forfeiture within the meaning of this section, the court may decide not to take into account any part of the relevant period or of income, property and values that it determines whether it considers such a timely measure in order not to subject the sentenced person to unreasonably heavy punishment.
§ 4. The heritage of a criminal organization must be confiscated, subject to the rights of third parties in good faith. »
Art. 5. An article 5ter , as follows, is inserted in the Preliminary Title of the Criminal Code:
"Article 5ter . Any interested third party who may, according to the indications provided by the proceedings and under its legitimate possession, assert rights to the property benefits referred to in articles 42, 3, 43 bis and 43quater of the Criminal Code or who may claim rights to the matters referred to in section 505 of the Criminal Code, is informed of the determination of the hearing before the court that will judge on the merits of the case. »
Art. 6. In article 28bis , § 3, of the Code of Criminal Instruction, the words "at section 35" are replaced by the words "at articles 35 and 35ter".
Art. 7. The following amendments are made to section 28 of the Code:
1° § 6 becomes § 7.
2° A new § 6, as follows, is inserted in the article:
“§ 6. As soon as a court or court is seized, an application within the meaning of § 2 may be filed at the office of the court or court. It is decided on this request within fifteen days. The court or court may reject the request on the basis of one of the grounds mentioned in § 3. If there is an appeal or the court does not rule within fifteen days of the filing of the application, the appellant may appeal to the board of indictments in accordance with § 4. If the court passes the request, the King's Prosecutor may appeal in the same manner and within the same time. »
Art. 8. An article 35ter, as follows, is inserted in the same Code:
"Article 35ter . § 1^er. If there are serious and concrete indications that the suspected person has obtained a heritage advantage within the meaning of sections 42, 3, 43 bis or 43quater, of the Criminal Code and that the things that materialize this heritage advantage cannot or can no longer be found as such in the heritage of the suspected person, the King's attorney may seize other things that are found in the property of the suspected person to compete. In his post, the King's prosecutor indicates the estimate of this amount and points out the serious and concrete evidence of seizure. These elements are included in the minutes of the seizure.
§ 2. Unseenable things in accordance with articles 1408 to 1412bis of the Judicial Code or special laws cannot be seized.
§ 3. In the event of seizure of a building property, it is carried out in accordance with the formalities of section 35bis. »
Art. 9. Section 37 of the same Code is replaced by the following provision:
« § 1^er. If there are, in the home of the suspected person, any suspicious papers or effects that may be used for conviction or discharge, the King's prosecutor will be seized of such effects or papers.
If seizure is made in accordance with sections 35 and 35ter or pursuant to paragraph 1^er, the King's Prosecutor or a judicial police officer shall prepare a record in which the matters seized and other records prescribed by other legal provisions are inventoried. To the extent possible, things are individualized in the minutes.
§ 2. In the event of seizure of receivables, except for the seizure of titles or the holder, the seizure shall be effected by written notification to the debtor.
If the notification is not made in accordance with the procedure referred to in § 3, it shall be sent to the debtor by registered letter to the post and by simple mail.
These letters contain the references of the case as well as a literal reproduction of the text of § 4 of Article 1452 of the Judicial Code and Article 28sexies or Article 61quater, under which the seizure emanates from the prosecutor of the King or the investigating judge.
§ 3. The report is submitted for signature to the applicant who may receive a copy at no cost. In the event of arrest, both the seized third party and the seized person are entitled to a free copy of the record. This copy is delivered immediately or sent within 48 hours. In the same period, a document containing the words prescribed in § 2, paragraph 3, shall be transmitted to the seized third party.
§ 4. Upon receipt of notification of the minutes, the debtor may no longer dispose of the amounts or things that are the subject of the seizure. Within fifteen days after the seizure, the debtor is required to declare, by registered letter to the post, the amounts or things being seized in accordance with Article 1452 of the Judicial Code.
The debtor is entitled to the reimbursement of return fees. These costs, subject to the approval of the King's Prosecutor or the investigating judge who ordered the seizure, are considered to be court fees.
Art. 10. The following amendments are made to section 61quater of the Code:
1° § 7 becomes § 8.
2° A new § 7, as follows, is inserted in the article:
“§ 7. As soon as a court or court is seized, an application within the meaning of § 2 may be filed at the office of the court or court. The board's room decides on the request within fifteen days. The court or court may reject the request on the basis of one of the grounds mentioned in § 3. If there is an appeal or if the court does not rule within fifteen days of the filing of the application, the appellant may appeal to the board of indictments in accordance with § 5. If the court passes the request, the King's Prosecutor may appeal in the same manner and within the same time. »
Art. 11. In section 89 of the same Code, the reference "35ter" is inserted between references "35bis", "36".
Art. 12. Section 90novies of the same Code is replaced by the following provision:
"Article 90novies . No later than fifteen days after the decision on the settlement of the proceedings has become final or after the summons referred to in section 524bis, § 6, has been filed at the court or court office, the clerk shall notify in writing, upon requisition of the Crown prosecutor or, if any, of the Attorney General, any person who has been the subject of a measure referred to in section 90ter, of the nature of the order to which it has been executed. »
Art. 13. Section 416, paragraph 2, of the same Code is replaced by the following provision:
"The preceding paragraph does not apply to judgments or judgments on jurisdiction or pursuant to sections 135 and 235bis , or to judgments or judgments relating to civil action that rule on the principle of liability, or to judgments by which in accordance with section 524bis , § 1^er, it is decided on public action and ordered a special investigation into the heritage benefits. »
Art. 14. It is inserted in Book II, Title IV, of the same Code, a Chapter VIII entitled "Special Survey of Heritage Benefits", containing articles 524bis and 524ter, as follows:
« Article 524bis . § 1^er. The judge who makes the accused guilty of the charge may, upon requisition of the Public Prosecutor ' s Office, order a special investigation into the property benefits referred to in sections 42, 3, 43 bis and 43quater of the Criminal Code with a view to determining these property benefits.
This particular survey of property benefits, however, is only possible if the Public Prosecutor's Office demonstrates, on the basis of serious and concrete evidence, that the convicted person has drawn from the offence or identical facts within the meaning of section 43quater of the Criminal Code, property benefits of any interest.
The requisition of the Public Prosecutor's Office to conduct a special investigation into the heritage benefits can never be introduced for the first time in the level of appeal.
§ 2. The special investigation into the heritage benefits is conducted under the direction and supervision of the competent King's Prosecutor, who assumes responsibility for it. He ensures the legality of the evidence and the loyalty with which they are gathered.
The exercise of an appeal is not suspensive of the particular investigation into property benefits.
§ 3. Subject to legal exceptions, the special investigation of heritage benefits is secret. Any person who is called to lend his or her professional assistance to the investigation particularly on heritage benefits is held incommunicado. Whoever violates this secret is punished by the penalties provided for in Article 458 of the Criminal Code.
§ 4. The acts carried out in the context of the specific investigation of heritage benefits cannot contain any measures of restraint or violation of individual rights and freedoms. These acts may, however, contain the seizure of the things referred to in articles 35 and 35ter. In the event of seizure of a building property, the formality of section 35bis shall be carried out.
In case of seizure pursuant to paragraph 1^er, section 28sexies is applicable.
§ 5. The Crown Prosecutor or, where applicable, the Attorney General may require in writing to the court or the court that ordered the particular investigation of property benefits, to appoint an expert, to order the monitoring measure referred to in section 90ter or to order a search.
It is decided on this request within fifteen days. The order is communicated to the Public Prosecutor's Office by the Clerk. The refusal to order the requested constraint measure is not subject to any appeal.
If the request is to order a monitoring measure referred to in Article 90ter, the court or court shall make an order in accordance with Article 90quater , § 1^er, and shall charge a judge of instruction of the execution of the measure in accordance with Articles 90quater , §§ 2 and 3, to 90octies .
§ 6. When the King's Attorney or, where applicable, the Attorney General considers that the particular investigation into the heritage benefits is completed, he or she carries the forfeiture before the court or court that ordered the particular investigation into the heritage benefits. This is done by a quote addressed directly to the convict and, where applicable, to the civil party.
A period of ten days, if any increased due to distances, must be provided between the summons and the appearance, barely nullity of the conviction for confiscation which may have been pronounced by default against the person cited. However, this invalidity can only be opposed to the first hearing and before any other exceptions and defences.
§ 7. The court or court shall be seized of the forfeiture action referred to in § 6 before the expiry of a two-year period that runs on the date of the day on which the particular investigation of the property benefits was ordered by the judge, provided that the pronouncement on the guilt is already cast into force of the judgment.
If, at the expiry of this period, the decision on guilt is not yet cast as a force of judgment, the time limit is extended by one month from the date of the day or the judgment establishing the evidence of the offence has acquired force of judgment.
If, in the proceedings on the merits, the appellate judge declares the facts for which the defendant was acquitted in the first instance, he may, upon requisition of the public prosecutor, extend the period referred to in paragraph 1 by a maximum of six months.^er.
Article 524ter . § 1^er. If the judge declares the confiscation action referred to in Article 524bis , § 6, admissible and founded, the confiscation of the property benefit obtained unlawfully and determined by him is pronounced.
§ 2. The decision on confiscation is subject to all ordinary and extraordinary remedies provided for in this Code. »
Art. 15. In Article 6, paragraph 2, of the Act of 29 June 1964 concerning suspension, suspension and probation, the sentence "Special confiscation is pronounced. is replaced by the phrase "Special confiscation may be pronounced on written requisition of the Public Prosecutor's Office. »
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 19 December 2002.
ALBERT
By the King:
Minister of Justice,
Mr. VERWILGHEN
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
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Notes
(1) Session 2002-2003.
House of Representatives:
Parliamentary documents. - Bill No. 50-1601/1. - Amendments No. 50-1601/2-5. - Report No. 50-1601/6. - Text adopted by Commission No. 50-1601/7. - Text adopted in plenary and transmitted to the Senate No. 50-1601/8.
Annales parliamentarians. - Discussion and adoption. Session of 20 July 2002.
Senate:
Parliamentary documents. - Project transmitted by Chamber No. 2-1197/1. Amendments No. 2-1997/2. - Report No. 2-1197/3. - Amendments No. 2-1197/4. Text adopted in plenary and subject to Royal Assent. No. 2-1197/5.
Annales parliamentarians. - Discussion and adoption. Session of December 12, 2002.