It is settled case law, including from the European Court of Human Rights (ECHR), that money allegedly earned from criminal offences may be 'plucked' from the convicted person by the authorities. A procedure for 'deprivation of illegally obtained benefit', starts with a claim by the public prosecutor (OM). The amount in the claim rarely corresponds to the actual amount of benefit gained. It is often the product of estimates, guesses and assumptions based on the findings in the case file.
The major difference with an ordinary criminal case is that the prosecution does not have to prove that a particular benefit was obtained. According to the law, the obligation to pay the State can already be imposed if there are "sufficient indications" that the offence by which an advantage was gained was committed by the convicted person.
No payment obligation for part for which person was acquitted.
In any case, there is a limit when a convicted person is acquitted for certain offences. No deprivation may then be claimed for these offences, even if there are "sufficient indications" that he committed the offences. The same applies if someone is acquitted for committing offences in a certain period. After all, if it cannot be established beyond reasonable doubt that facts other than those that have been proven were committed by the person concerned (in a certain period), the existence of 'sufficient indications' of the commission of those facts cannot be assumed.
Other method: power comparison
In practice, it appears that the public prosecutor's office can get around this principle in part by applying another permitted method of calculation, namely an asset comparison. If a convicted person's assets have increased over a certain period of time, while this increase in assets cannot be explained by legal income, this increase in assets can be classified by the court as illegally obtained benefit. This means that someone who cannot explain his increase in assets runs the risk of also having to pay for benefits supposedly gained from certain offences, even though he was acquitted for those very offences. Especially in the case of partial acquittals, caution is also required in this calculation for the public prosecutor, as the principle of innocence could be violated.
Distribution of illegally obtained benefit in case of co-perpetrators
Partial acquittals are thus one of the many concerns in calculating unlawful gains. The same applies to the presence of (unknown) co-perpetrators. If co-perpetrators are involved, it becomes more complicated for the court to determine what benefit those involved actually gained personally. Since a confiscation measure is of a reparative and not punitive nature, it is not intended that someone should have to pay more than the amount he actually had at his disposal.
Joint and several liability vs pound-for-pound distribution
If the court cannot establish the existence of a 'joint benefit', the court cannot hold the convicted person jointly and severally liable for the entire illegally obtained benefit. There is only a 'joint benefit' if the file shows that the convicted person (jointly) had access to the entire (illegally obtained) assets. The question of whether the convicted person actually had access to the (earned) money is therefore open to discussion.
If a 'joint benefit' is not proven, a pound-for-pound division is more obvious. The discussion will then focus on the question of what share the person concerned had in the acquisition of the illegally obtained benefit. The smaller the share, the smaller the payment obligation.
In short, the outcome of deprivation proceedings is by no means a hammer blow.
Mr. D.M. Penn