Posted the: 2003-02-14 Numac: 2003009088 SERVICE PUBLIC FÉDÉRAL JUSTICE 19 December 2002. -Act on the extension of the possibilities of seizure and confiscation in criminal matters ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Article 1. This Act regulates a matter referred to in article 77 of the Constitution.
S. 2. article 43bis, paragraph 1, penal Code is replaced by the following provision: «Article 43bis. Special confiscation applies to the things referred to in article 42, 3 °, can always be pronounced by the judge, but only to the extent that it is required in writing by the Attorney of the King. » Art.
3. in article 43ter of the same Code, "in article 42" shall be replaced by the words "in articles 42, 43bis and 43quater'.
S. 4. an article 43quater, worded as follows, shall be inserted in the same Code: 'Article 43quater. § 1. Without prejudice to article 43bis, paragraphs 3 and 4, patrimonial benefits referred to in § 2, goods and values that have been substituted and the revenues invested benefits found in heritage or in possession of a person may, at the request of the Prosecutor, be confiscated or this person may be sentenced to the payment of an amount that the judge considers match the value of these things if it was recognized guilty (: a) either one or several offences: 1 ° in articles 246 to 251, with article 323;
2 ° 504bis and 504quater articles, and article 323;
3 ° in article 2bis, § 1, of the law of 24 February 1921 regarding trafficking in substances that are poisonous, soporific, narcotic, disinfectant or antiseptics to the extent where the facts relate to the importation, exportation, production, sale, or offering for sale of the substances referred to therein, or § 3, b), or in § 4, b), of the same Act;
4 ° in article 77A, § 2 or § 3, of the Act of 15 December 1980 on access to the territory, residence, establishment and removal of foreigners.
5 ° in article 10, § 1, 2 °, of the law of July 15, 1985 relating to the use of substances having a hormonal effect, antiormonale effect, to beta-adrenergic effect or stimulatory effect of production in animals.
6 ° to articles 2 to 4 of the Act of 16 June 1993 concerning the punishment of serious violations of the International Geneva Convention of 12 August 1949 and Protocols I and II additional to those Conventions, adopted on 8 June 1977.
(b) either of the offences provided for in article 324ter, or one or more offences referred to below, when they have been committed within the framework of a criminal organisation, as defined in article 324bis: 1 ° blogs 379 or 380;
2 ° blogs 468, 469, 470, 471 and 472;
3 ° article 475;
4 ° blogs 477, 477bis, 477ter, 47quater, 477quinquies, 477sexies or 488bis;
5 ° item 505, with the exception of things covered by article 42, 1 °;
6 ° article 10 of Act of 5 August 1991 on the import, export and transit of weapons, ammunition and material especially intended for military use and technology y;
7 ° article 1 of the royal decree of 12 April 1974 on certain operations concerning substances with hormonal, antihormonal, anabolic, Beta-Adrenergic, anti-infectious, antiparasitic and anti-inflammatory action, concerning offences punishable pursuant to the law of 24 February 1921 concerning the traffic of poisonous, soporific, narcotic, disinfectant or antiseptic substances;
8 ° sections 3 and 5 of the royal decree of 5 February 1990 on beta-adrenergic substances concerning offences punishable by execution of the law of 25 March 1964 on medicines.
(c) either several offences prosecuted collectively and which the gravity, the purpose and the mutual relationship enable the Court to decide definitely and necessarily that these facts have been committed as part of a serious and organised tax fraud for which have been used mechanisms or processes particularly complex international.
2. Referred confiscation to the § 1 may be imposed against perpetrators, sponsors and accomplices sentenced for one or more of the offences listed in this section and the conditions defined in the § 1 if the condemned acquired during a relevant period heritage additional benefits while there are serious and concrete indices that they stem from the offence for which he has been convicted or identical facts and that the sentenced was unable to make plausible the contrary.
The contrary can also be made plausible by any person claiming to be entitled to these benefits.
§ 3. Is considered relevant for the purposes of this article the period beginning five years before the indictment of the person and up to the date of delivery.
Serious and concrete indices referred to in § 2 may be drawn from all the elements worthy of faith which were submitted to the Court on a regular basis and which show an imbalance of any interest between, on the one hand, the increase in temporary or constant of heritage and expenditures of the convicted person during the relevant period, which the Crown proves , and, on the other hand, the increase in temporary or constant heritage and expenditures of the convicted person during this period to make plausible that they are not of the facts for which he was sentenced or identical facts.
Is meant by identical facts the facts pertaining to the qualifications in the § 1 and that fall: has) either under the same qualification as the offence which is the subject of the sentence;
(b) under a related qualification, as long as it appears under the same heading, intended to the § 1 has), as the offence which is the subject of the sentence.
When the court orders the special confiscation within the meaning of this section, he may decide to disregard part of the relevant period or income, goods and values to determine if it considers such a timely measure do not subject the condemned to unreasonably severe punishment.
4. Heritage has a criminal organization shall be forfeited, subject to the rights of bona fide third parties. » Art. 5. an article 5B as follows shall be inserted in the preliminary title of the Code of criminal procedure: "Article 5b. Any third party person who can assert rights on patrimonial benefits referred to in articles 42, 3 °, 43bis and 43quater, following the indications provided by the procedure and under the legitimate possession of the penal Code or who can assert rights on the things referred to in article 505 of the penal Code, is informed of the fixing of the hearing before the Court that will judge the merits of the case. » Art.
6. in article 28A, § 3, of the Code of criminal procedure, the words 'in article 35' are replaced by the words "in articles 35 and 35b.
S. 7A article 28sexies of the Code, the following changes are made: 1 ° § 6 becomes § 7.
2 ° a new § 6, as follows shall be inserted in article: "§ § 6 6.» As soon as a court or Tribunal is seized, an application within the meaning of § 2 may be filed in the registry of this Court or of this Court. It is held on this request within fifteen days. The tribunal or the Court may dismiss the motion on the basis of one of the grounds listed in § 3. If there is an appeal or if the Court determines not within fifteen days of the filing of the application, the applicant may appeal to the House of indictments in accordance with § 4. If the Court accesses the query, the Prosecutor may appeal in the same manner and within the same period.
» Art. 8. an article 35B, worded as follows, shall be inserted in the same Code: 'Article 35B. § 1. If there are serious and concrete evidence that the suspect got advantage heritage within the meaning of articles 42, 3 °, 43bis and 43quater of the penal Code and that the things that materialize this advantage patrimonal cannot or can more be found as such in the heritage of the suspect, the Prosecutor can enter other things that are the heritage of the person suspected in competition of amount of product of the offence. In its apostille, King's Attorney indicates the estimate of this amount and serious and concrete indices for the seizure. These elements are contained in the report drawn up on the occasion of the seizure.
§ 2. The elusive things in accordance with articles 1408 1412bis of the Judicial Code or special laws can only be seized.
3. In the event of seizure of immovable property, shall be made in accordance with the formalities of article 35A. » Art. 9. article 37 of the Code is replaced by the following provision: «§ 1.» If there is, in the home of the suspect, papers or suspected effects which can be used to conviction or discharge, the Prosecutor takes such effects or papers.
If it is carried out the seizure in accordance with articles 35 and 35b or in accordance with paragraph 1, the Prosecutor or a judicial police officer draws up a report in which are inventoried the things seized and other particulars prescribed by other legal provisions. To the extent possible, things are individualized in the minutes.
2. If the entry of debts, with the exception of seizure of securities or bearer, the seizure
is made by written notification to the debtor.
If the notification is not in accordance with the procedure referred to in § 3, it shall be sent to the debtor by registered letter to the post as well as by mail.
These letters contain references to the case as well as a literal reproduction of the text of § 4 of Section 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 minutes is presented for signature to the seized who can receive a copy free of charge. In case of garnishment, both one-third before the same seized are entitled to a copy free of charge in those minutes.
This copy was delivered immediately or sent within 48 hours. Within the same period, a document containing the particulars prescribed in § 2, paragraph 3, is passed to the garnishee.
4. From the date of receipt of the notification of the minutes, the debtor can no longer alienating money or things subject to seizure. Within a period of fifteen days after the seizure, the debtor is required to report, by registered letter to the post office, money or things subject to the seizure pursuant to Section 1452 of the Judicial Code.
The debtor is entitled to the reimbursement of expenses of declaration. These costs, with the approval of the Prosecutor of the King or of the examining magistrate who ordered the seizure, are regarded as legal costs.
S. 10 A article 61quater of the Code, the following changes are made: 1 ° § 7 becomes § 8.
2 ° a new § 7, as follows shall be inserted in article: "§ § 7 7» As soon as a court or Tribunal is seized, an application within the meaning of § 2 may be filed in the registry of this Court or of this Court. The room of the Council decides on the request within fifteen days. The tribunal or the Court may reject the request on the basis of one of the grounds listed in § 3. If there is an appeal or if the Court determines not within fifteen days of the filing of the application, the applicant may appeal to the House of indictments in accordance with § 5. If the Court accesses the query, the Prosecutor may appeal in the same manner and within the same period.
» Art. 11A article 89 of the Code, the reference "35ter", is inserted between the references "35A", and "36".
S. 12. article 90novies of the Code is replaced by the following provision: "Article 90novies. No later than fifteen days after the time the decision on the rules of the procedure became final or that the summons referred to in article 524bis, § 6, filed at the registry of the tribunal or the Court, the Clerk shall notify in writing, at the request of the Prosecutor or, where appropriate, of the Attorney general, any person subject a measure referred to in article 90b the nature of such measures and of the dates on which it was run.
» Art. 13. article 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 in application of articles 135 and 235A, or any judgments or judgments relating to the civil action which shall decide on the principle of liability, nor to the judgments by which in accordance with article 524bis § 1. It is held on public action and ordered a special inquiry on patrimonial benefits. » Art. 14. There shall be inserted into book II, title IV, of the same Code, a chapter VIII entitled 'Survey particular patrimonial benefits', containing articles 524bis and 524ter, as follows: 'Article 524bis. § 1. The judge declaring the accused guilty for the fact that it is charged may, at the request of the public prosecutor, order a special investigation on the patrimonial benefits referred to in articles 42, 3 °, 43bis and 43quater, of the Criminal Code to determine these patrimonial benefits.
This particular survey of patrimonial benefits is possible, however, that if the Crown demonstrates, on the basis of serious and concrete evidence, that the convicted drew of the offence or identical facts within the meaning of article 43quater of the penal Code, economic benefits of some interest.
The requisition of the Crown to conduct a special survey of patrimonial benefits can never be introduced for the first time in appeal.
§ 2. The particular patrimonial benefits survey is conducted under the direction and supervision of the competent prosecutor, who assumes responsibility. It ensures the legality of evidence as well as the loyalty with which they are assembled.
The exercise of a remedy is not suspensive particular patrimonial benefits survey.
§ 3. Subject to the legal exceptions, particular patrimonial benefits survey is secret. Any person who is called to assist professional survey particularly patrimonial benefits is bound to secrecy. One who violates this secret is punishable by the penalties provided for in article 458 of the penal Code.
§ 4. Acts in particular inquiry on patrimonial benefits cannot contain any constraint or no violation of rights and individual freedoms. However, these acts may include seizure of the items referred to in articles 35 and 35b. In case of seizure of immovable property, shall be made in accordance with article 35bis formality.
If the entry in accordance with paragraph 1, article 28sexies is application.
§ 5. The Prosecutor or where appropriate, the Attorney general, may require in writing, to the Court or the Court which ordered the Special on patrimonial benefits survey, to proceed to the appointment of an expert, to order the surveillance referred to in article 90b measure or order a search.
It is held on this request within fifteen days. The order is communicated to the public prosecutor by the clerk.
The refusal to order the requested coercive measure is likely to no remedy.
If the query is designed to order a measure of supervision referred to in article 90b, the tribunal or the Court makes an order in accordance with article 90quater, § 1, and load an investigating judge for the execution of the measure in accordance with articles 90quater, §§ 2 and 3, at 90octies.
§ 6. When the Prosecutor or, where appropriate, the Attorney general deems that particular patrimonial benefits survey is complete, he wears the confiscation action before the tribunal or the Court which ordered the special survey of patrimonial benefits. This happens with a quotation addressed directly to the offender and, where appropriate, to the civil party.
Within ten days, increased where appropriate for distances, shall be provided between the citation and the appearance, on pain of nullity of the conviction to the forfeiture which could be pronounced by default against the cited person. However, this nullity cannot be opposed to the first hearing and before all other exceptions and defences.
7. Under penalty of forfeiture of the forfeiture proceedings, the Court or the Court must be entered action for forfeiture referred to in § 6 before the expiry of a period of two years which runs from the date where the particular patrimonial benefits survey was ordered by the judge, provided that the pronouncement on the guilt is already sunk in res judicata.
If, upon expiry of this period, the decision on guilt is not yet cast in force of res judicata, the period is extended by one month from the date or judgement establishing the proof of the offence has acquired force of res judicata.
If in the proceedings on the merits, the appellate judge declares established the facts for which the accused was acquitted at trial, it may, at the request of the public prosecutor, extend for six months the deadline referred to in paragraph 1.
Article 524ter. § 1. If the judge declares the action for forfeiture referred to in article 524bis, § 6, admissible and well founded, the confiscation of the heritage advantage obtained illicitly and determined by him is pronounced.
§ 2. The decision on forfeiture action is likely all ordinary and extraordinary remedies provided for in this Code. » Art. 15 article 6, paragraph 2, of the Act 29 June 1964 on suspension, suspension and probation, the phrase "special confiscation is pronounced." is replaced by the phrase 'special confiscation may be pronounced at the request of the Crown.'
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given at Brussels, 19 December 2002.
ALBERT by the King: the Minister of Justice, M.
VERWILGHEN sealed with the seal of the State: the Minister of Justice, Mr. VERWILGHEN _ Notes (1) 2002-2003 Session.
House of representatives: parliamentary Documents. -Bill No. 50 - 1601/1. -Amendments No. 50 - 1601/2-5. -Report No. 50 - 1601/6. -Text adopted by the Committee No. 50-1601/7. -Text adopted in plenary meeting and transmitted to the Senate No. 50-1601/8.
-Discussion and adoption. Meeting of July 20, 2002.
Senate: Parliamentary Documents.
-Draft transmitted by the room no. 2-1197/1. -Amendments n ° 2 - 1997/2. -Report No. 2 - 1197/3. -Amendments No. 2 - 1197/4. Text adopted in plenary meeting and submitted to Royal assent. No. 2-1197/5.
Parliamentary Annals. -Discussion and adoption. Meeting of December 12, 2002.