{"id":6427,"date":"2022-09-16T14:48:35","date_gmt":"2022-09-16T14:48:35","guid":{"rendered":"https:\/\/www.pennadvocaten.nl\/?p=6427"},"modified":"2022-09-16T14:48:35","modified_gmt":"2022-09-16T14:48:35","slug":"remission-or-reduction-of-a-deprivation-claim","status":"publish","type":"post","link":"https:\/\/penn.nl\/en\/2022\/09\/16\/kwijtschelding-of-vermindering-van-een-ontnemingsvordering\/","title":{"rendered":"Remission or reduction of a deprivation order?\u00a0"},"content":{"rendered":"

The confiscation claim stems from the Plukze legislation. At the request of the public prosecutor, the court can impose an obligation on a convicted person to pay a sum of money to the State in order to deprive it of illegally (read: illegally) obtained benefit. Although the state here seems to benefit from criminal proceeds, the intention of the article is that crime should not pay.\u00a0<\/p>\n\n\n\n

The prosecution often starts deprivation proceedings very early<\/em><\/p>\n\n\n\n

In practice, the public prosecutor's office (further: the OM) rarely waits until someone has been irrevocably convicted. The public prosecutor often starts a confiscation procedure when a conviction is not yet final. Sometimes the claim is heard simultaneously with the main case in court. In other cases, the confiscation proceedings are started when someone is still appealing against the court's conviction in the main case.\u00a0<\/p>\n\n\n\n

How do you defend against a deprivation claim when the main case is still pending?<\/em><\/p>\n\n\n\n

This creates a complication for the defendant. After all, it is not obvious that a suspect who denies or remains silent in the main case will make a detailed statement in the deprivation proceedings about the proceeds, costs and distribution of the loot. It can often be seen that if a denial attitude is adopted in the main case, this is also the case in the ongoing deprivation proceedings. This often also applies to co-defendants to be heard. Even if their criminal case is still pending, they can invoke their right to silence or privilege. As a result, defences regarding the proceeds, costs and distribution often remain unused. The confiscation claim can then only be contested in a general sense. For example, by arguing that calculation methods are incorrect.\u00a0<\/p>\n\n\n\n

A disadvantage of a denial\/concealment in court is thus that a reasoned defence on proceeds, costs and distribution is difficult to provide. This leads to convicted persons regularly being required to pay a higher amount of illegally obtained benefit than they actually enjoyed.\u00a0<\/p>\n\n\n\n

Is there any hope after an irrevocable decision to pay the State?<\/em><\/p>\n\n\n\n

Yes, there is still hope. This is because the law offers the possibility for the court, upon written and reasoned request by the convicted person, to reduce or remit the obligation imposed to pay a sum of money (the deprivation order). However, this request must be made within three years after the amount, or the last part thereof, has been paid or recovered.<\/p>\n\n\n\n

What are the criteria for remission or reduction of the assigned confiscation claim?<\/em><\/p>\n\n\n\n

    \n
  1. New facts and circumstances must be put forward. Thus, no facts or circumstances that were already known to the deprivation judge at the time of the decision. Moreover, they should be of sufficient weight to assume that these facts and circumstances would have led to a different decision. This criterion is somewhat similar to the criteria in a grievance or review procedure.\u00a0<\/li>\n\n\n\n
  2. However, reduction or remission may also be requested if the amount determined is not challenged. In particular, this refers to cases where the ability to pay will prove to be insufficient. It does not matter here if limited capacity has also been invoked in the deprivation proceedings. Unless an appeal is made solely on facts and circumstances that the deprivation court has already taken into account in its judgement.\u00a0<\/li>\n\n\n\n
  3. A chambers procedure requesting remission or reduction is not tailored to a comprehensive and in-depth fact-finding exercise. It is therefore incumbent on the applicant to make his written and reasoned request plausible, on the basis of verifiable data, that there are facts and circumstances that should lead to a reduction or remission of the payment obligation.\u00a0<\/li>\n<\/ol>\n\n\n\n

    The above shows that a final decision on deprivation of illegally obtained benefit can be reversed in certain cases. Nevertheless, the bar is a lot higher than in normal deprivation proceedings.\u00a0<\/p>\n\n\n\n

    Can't the deprivation claim wait until someone is irrevocably convicted?<\/em><\/p>\n\n\n\n

    It would do the prosecution credit if it waited to file a deprivation claim until a defendant was\u00a0irrevocable\u00a0<\/em>has been convicted. Only then can a convicted person adequately defend himself against the prosecution's calculations without fearing that his communications will be used against him in the main case. While fairer, this will take a lot of extra time. It is expected that the prosecution will continue to try to file the deprivation claim as early as possible. With all the procedural disadvantages for the accused.\u00a0<\/p>\n\n\n\n

    Mr. D.M. Penn<\/p>","protected":false},"excerpt":{"rendered":"

    De ontnemingsvordering vloeit voort uit de Plukze-wetgeving. Op vordering van het openbaar ministerie kan de rechter aan een veroordeelde een verplichting opleggen om een geldbedrag te betalen aan de Staat, ter ontneming van het wederrechtelijk (lees: illegaal) verkregen voordeel. Alhoewel de staat hier lijkt te profiteren van criminele opbrengsten, is de bedoeling van het artikel […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,12],"tags":[],"class_list":["post-6427","post","type-post","status-publish","format-standard","hentry","category-strafrecht","category-homepage"],"_links":{"self":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts\/6427","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/comments?post=6427"}],"version-history":[{"count":0,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts\/6427\/revisions"}],"wp:attachment":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/media?parent=6427"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/categories?post=6427"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/tags?post=6427"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}