For a long time “loot”-aimed research and punishment is a priority in the fight against financial and economic crime. One counts on a dissuasive effect by punishing such crimes through hitting where it hurts most, i.e. in one’s wallet. Often other people (third parties) “share” in these ‘attacks’ when their goods are confiscated. In some cases the law defines a protection mechanism allowing third parties to defend themselves by law. In other cases this is not organized by law.
Recently the constitutional court answered in two judgments, one on a preliminary question of the judge (99/2018) and one after appeal for abolishment (124/2018) that the absence of a protection mechanism for the third party is unconstitutional in certain circumstances.
The underlying facts of judgment nr. 99/2018 of 19 July, 2018 concerned the conviction of a person because of threatening of people or inflicting injuries to a person by means of a car. According to the Belgian Arms Act the car can in this case be considered as a weapon, which can be confiscated irrespective of the fact if the car is property of the perpetrator or not. However the Arms Act does not provide any protection nor claim right for the third-owner. This is in contrast to what applies for illicit proceeds which are confiscated. In that case the penal code provides a regulation for the bona fide third party to enforce his rights when these goods are his.
As an answer to the preliminary question the Constitutional Court compared both situations and judged as follows :
- the abovementioned difference between the Arms Act and the regulation in the Penal Code about illicit proceeds is built on an objective criterium of difference, i.e. the nature of the offences.
- the fight against arms trade, which is precisely aimed by the Arms Act, makes the criterium valid.
On the other hand, the Court stated that the Arms Act by confiscating a car – which is by nature no weapon (very important in the judgment) – which does not belong to the perpetrator but to a bona fide third party, strikes this party in a disproportionate way, even more so if the law does not provide a serious claim right.
Also in judgment nr. 124/2018 of October 4, 2018 the Constitutional Court concludes in a similar way. The underlying problem in this case concerned the possibility for civil servants of the General Administration of Customs and Excise Duties to confiscate all cars of whom the license owners still had unpaid penal fines and/or customs or excise duty debts. In this respect it was irrelevant if the license owner-debtor of the amounts also was the owner of the vehicle. Such a situation is a problem for leasing companies, mainly when the cars are registered under a lessee (who of course is not the owner). They run the risk that the General Administration of Customs and Excise Duties confiscate their cars and sell them while there is no claims right with an impartial and independent judge. Such a lack of access to a judge for the third party did not pass the test of the Constitutional Court.
Both judgements show that according to the Constitutional Court the common interest that is served by the confiscation, should be limited in certain cases when the punishment strikes third parties in their patrimonial rights without them having a legally defined claims right.