If someone has earned money by committing illegal activities, there may be 'illegally obtained benefit'. At the request of the Public Prosecution Service (OM), the court can impose a confiscation measure obliging the convicted person to pay this benefit to the state. But how is this benefit determined?

Unlawfully obtained benefit means the value by which the assets of the person concerned have increased as a result of the offence. This also includes the fruits obtained from the increase in assets (subsequent gains, such as capital gains). Furthermore, the illegally obtained benefit may also include the value of savings, if, as a result of those savings, certain activities can no longer be carried out legally. One might think of the amounts saved by certain banks by not carrying out enough money laundering checks.

Someone facing a deprivation claim often soon notices that the Public Prosecution Service (OM) does not shy away from wet-finger work.

Unlike a criminal offence, the prosecution does not have to prove the amount of the illegally obtained benefit. The burden of proof in a deprivation case is described by the Court of Appeal (Amsterdam) as follows: 'It is up to the convicted person to make a concrete and reasoned case, supported by documents if necessary, against the calculations presented by the prosecution and based on legal evidence, that the calculation made by the prosecution is not correct. A mere assertion to that effect is not sufficient. The fact that the convicted person moves in circles where keeping financial records is not common is the responsibility of the convicted person and not of the public prosecutor.'

Thus, if it must be made plausible that the prosecution's calculation is incorrect, it does not help to remain silent. However, this does not mean that the calculation can only be challenged if the fact is confessed. It can also be argued that the prosecution has not made the amount of the illegally obtained benefit plausible. For such a defence, it is important to know which calculation method is used by the public prosecutor. Depending on the available data, the public prosecutor may use different calculation methods.

Concrete and abstract calculation methods.

If the public prosecutor opts for the concrete calculation method, the starting point is to claim the amount that the person concerned actually earned in the concrete circumstances of the case, minus the costs incurred. If this information is not available, the public prosecutor chooses an abstract calculation method, namely the simple or extended cash statement or an asset comparison.

The cash setup

If the simple cash setup is used as the calculation method, total cash income is set against legal cash income during the study period. With the extended cash setup, cashless cash flows are also included in the calculation. If, at the end of the investigation period, the individual has more money than he received in tangible legal income during this period, it is cash income of unknown origin. Those unexplained monies can in principle be assumed to be equal to the illegally obtained benefit. Counter evidence, but other defences are also possible. For example, that the opening or closing balance in the investigation period is incorrect, making the so-called unexplained difference much smaller than suggested by the public prosecutor.

The power equation

Whereas in the cash equation the focus is on the increase in the amount of money, in an asset equation the focus is precisely on whether a person has spent more than he could have earned from the known legal source. This may be the case if someone with a modal income has all sorts of luxury goods. If no proper explanation is given, this difference can also be taken away. Again, all sorts of defences are conceivable. For example, double counting and valuation problems are more common in the wealth equation. Appraised values of assets may differ from purchase values.

A good defence to the calculation is therefore of great importance. Otherwise, chances are that more will have to be paid than was earned. Then repayment becomes difficult. Could that be why the government managed to take 290 million euros less from convicts last year than expected?

Mr. D.M. Penn