The criminal attachment and its removal
The criminal justice system and its effects
In the context of criminal investigations - both investigative investigations (led by the prosecution) and judicial investigations (led by an investigating judge) - certain property may be seized.
For example, it may include goods with which crimes were committed, such as weapons or cell phones, or items that originated from a crime, such as drugs, or were obtained as a result of a crime, such as money.
The problem in this case is that bona fide third parties can also be affected by such a seizure.
Take, for example, a father who lends his car to one of his sons who goes out and sells drugs with it, without the father knowing that his son is dealing drugs. In such a case, the car can be seized because it was used to commit a crime.
Possibility of lifting attachment AKA criminal summary judgment
To still give persons harmed by the attachment, such as the father in the example, a chance to recover their property, options were built into the law to request the lifting of the attachment.
Those possibilities were more specifically built into Articles 28sexies and 61quater of the Code of Criminal Procedure.
It is clear from those articles that the person seeking to have the attachment lifted must first of all prove that he is the owner of the relevant property that has been attached. In itself, this is not a particularly simple task.
For example, in the example of the father who sees his car attached, it will often not suffice to produce "only" a registration certificate or insurance document in the father's name. It is thus advisable to always keep proof of ownership of goods of some value or to request such proof before filing an application for relief from attachment.
In addition, it is clear from the articles that the lifting of the attachment may be refused if further investigation is required with respect to the property (such as fingerprinting); if the lifting would jeopardize the rights of others; if the lifting would constitute a danger; or if the law provides for the forfeiture (read: confiscation) or return of the property.
In practice, especially the first and last grounds for refusal are invoked to prevent the lifting of the attachment. It is therefore advisable to anticipate these grounds for refusal in the application to lift the attachment.
Lifting attachment versus forfeiture
As for the ground for refusal that the forfeiture is provided for by law, it can be cited, for example - in the father's case - that he was entirely bona fide. Indeed, the Constitutional Court has ruled - broadly - that forfeiture constitutes an individual punishment that can only be imposed with respect to the person who committed the crime and that bona fide third parties may not be affected by such a forfeiture.
For clarity, this hypothesis - in which a bona fide third party would be indirectly punished by the forfeiture - is only available in case of drug-related crimes. Indeed, in the event that other types of crimes have occurred, the forfeiture can in any case only relate to items that were used during the commission of the crime, as far as they are the property of the perpetrator himself.
However, this task (i.e., anticipating grounds for refusal) is not easy at the investigation stage, given that the person requesting the lifting of the attachment has not necessarily obtained access to the criminal file.
Stating that all the relevant research has already happened with respect to one object or another is thus more often an assumption (given that some time has already passed, for example) than a finding of a fait accompli.
Lifting the attachment after the investigation phase
Finally, if during the investigation one or more negative decisions by the public prosecutor or the investigating judge (or the indictment chamber, in the event of an appeal against such a negative decision) are encountered, one can still ask the judge on the merits to lift the attachment.
In that case, one can apply as a voluntary intervener, thus gaining access to the criminal file and thus requesting the lifting of the attachment in a substantiated manner.
If the court also refuses to lift the attachment on the merits, an appeal may be filed.
In case you have questions about the criminal attachment and its elimination, our experts will gladly inform you! Contact us at info@bannister.be or by calling 03 369 28 00.
