If an attachment has been made by the prosecution, this can have very unpleasant consequences. But it is not always necessary to wait until the hearing judge has made a decision on the attachment. Immediately after the seizure, the court can already be asked to order the return of the seized goods. This, depending on the conditions attached to the attachment. 

If the attachment has been made with a view to establishing the truth or proving unlawful advantage, but the investigation has been completed, the judge will consider what the sentencing judge will later decide regarding the attachment. If it is highly unlikely that the judge, judging later, will order the forfeiture, the decision will be that the complaint is upheld with the result that the attachment is lifted. 

The public prosecutor may also impose attachments for the purpose of easier and faster collection of later payment obligations imposed by the court. One example is the collection of a compensation or deprivation order. Different criteria apply to such attachments. For example, at least a fourth- or fifth-category fine should be able to be imposed for the offence for which the suspicion exists, and in the case of a complaint, the court will still assess whether it is evident that no compensation or deprivation measure will be imposed in the case. These seizures should further be tested against the requirements of proportionality and subsidiarity. This is not the case, for example, if it is clear that an attachment has been made for an excessive amount. 

Sometimes attachments are made under an owner who is not a defendant. If the owner files a complaint, the court will first determine whether it can be established beyond reasonable doubt that the complainant is the owner of the attached property. The complaint judge will then not be satisfied that the attached property is in the name of the complainant. A further explanation is required. The judge will want to make sure that the owner is acting in good faith and did not have to suspect that the property was acquired in order to frustrate creditors' means of recovery. 

It also happens that soon after the attachment, the public prosecutor proceeds to have the attached property destroyed or disposed of. According to the law, this is allowed, for example, if the costs of preservation are not in reasonable proportion to their value or in the case of fungible items whose countervalue can be easily determined. Cars are often destroyed or disposed of relatively quickly because of high storage and maintenance costs. Often for too low an amount, as it is not possible to take a look under the hood or test drive confiscated cars. Once a seized asset is destroyed or disposed of, the seizure expires and complaining is no longer possible. Needless to say, this course of action is often seen as highly unreasonable. 

This is also the case when bitcoins, for example, are seized. Because of price fluctuations, the public prosecutor proceeds to sell the crypto-currencies almost immediately after the seizure is made. But precisely because of these price fluctuations, the Public Prosecution should be more careful with this. On the contrary, the counter value cannot be easily determined. The rise in the price of bitcoin in 2019 is a good example of this. 

If there is a demand for the return of the attachment, do not get upset, but get to work immediately! The OM should be informed at the earliest possible stage that the owner wants the money and/or property back. If court proceedings do not have the desired result, negotiations with the OM may have. 

Mr. D.M. Penn