A confiscation claim (ontnemingsvordering) is a request by the Public Prosecution Service (Openbaar Ministerie) to strip you of unlawfully obtained proceeds. The court determines the estimated proceeds and may impose an obligation to pay that amount to the State. That amount is not automatically equal to the turnover, the loss suffered by a victim or the money that passed through your account.
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Have you received a confiscation report or a summons? Have both the statutory basis and the calculation assessed. Assumptions about the period, revenue, costs and the division between those involved in particular can make a major difference. A substantive defence therefore requires more than simply stating that the amount claimed never reached your account.
What is the purpose of confiscation
Confiscation is aimed at removing proceeds obtained by means of or from criminal offences. The measure serves a different function from a fine, which is imposed as a punishment. Compensation for a victim is also a separate legal matter.
Article 36e of the Dutch Criminal Code contains several grounds for confiscation. Depending on the provision applied, the court may look at proceeds from the proven offence and, subject to statutory conditions, also at other criminal offences or a wider pattern of asset accumulation.
The legal ground determines which facts and rules of evidence matter. Your lawyer must therefore first establish which part of Article 36e the Public Prosecution Service is relying on. A calculation may be arithmetically correct and still start from a legally overbroad premise.
Confiscation and the criminal case are linked
Confiscation proceedings may run alongside the main case and follow their own procedural course. This means your attention must not stop after the judgment in the criminal case. A separate summons, exchange of documents or hearing on the proceeds may still follow.
At the same time, findings in the main case can be important for confiscation. Which offences have been proven, which period has been established and what was decided about your role? Your statement in the criminal case may later also become significant in the assessment of money flows and proceeds.
Coordinate the defence in both tracks from the outset. An explanation of a payment must be accurate in the main case and must not unexpectedly paint a different picture in the financial proceedings. That requires an overview of the documents and of the decisions already taken.
Proceeds are not always the same as turnover
Turnover is total revenue before relevant costs. Unlawfully obtained proceeds require a legal assessment of what can actually be attributed as a benefit. Under certain conditions, directly related and reasonable costs may be deducted.
That does not mean every expense is deductible. The law and case law set limits, and certain costs may be disregarded. It must also be clear that the costs were actually incurred and are sufficiently connected with obtaining the proceeds.
Distinguish, therefore, between revenue, costs, amounts passed on and your own spending. Spending proceeds obtained earlier does not undo those proceeds after the event. Someone who received money and then spent it cannot argue on that basis alone that there is nothing to confiscate.
Which calculation methods are used
A calculation of proceeds may be based on specific transactions. This involves looking at, for example, quantities, prices and relevant costs per activity. Depending on the legal ground and the data available, the Public Prosecution Service may also use a financial comparison, such as a cash flow statement or a comparison of assets.
In a cash flow statement, cash income and expenditure over a period are set against each other. A shortfall of explainable lawful means may form part of the reasoning. In a comparison of assets, changes in assets and debts may be examined together with income and expenditure.
Every method involves choices. Which start date applies? What was the opening balance? Which lawful income has been included? Were expenses really paid in cash? Are internal transfers counted twice? A defence becomes stronger when it indicates, choice by choice, why it is wrong and which data support an alternative.
Reading a confiscation report
Start with the summary, but then check the underlying tables and annexes. The key question is how the final amount was built up step by step. A lengthy report can look convincing while a decisive assumption rests on a single passage.
For each component, make a list of the source, the assumption and your objection. Refer to specific transactions or document numbers. This helps your lawyer connect the financial story to a legal position.
| Component | Question to check |
|---|---|
| Period | Why does the calculation start and end on these dates? |
| Quantities | Have the quantities been established or estimated? |
| Price | Does the amount used match the specific data? |
| Costs | Which directly related costs have been assessed? |
| Attribution | Why are these proceeds attributed to this person? |
| Money flows | Have the same amounts been included more than once? |
| Lawful means | Have income, loans and opening balances been processed correctly? |
A general denial cannot always adequately counter a substantive calculation. At the same time, you do not have to accept every premise simply because an investigating officer put it in a table. The source and the reasoning must be verifiable.
The investigation period can make a big difference
If the Public Prosecution Service assumes an activity over a longer period, this can substantially increase the estimated proceeds. The question is what that duration is based on. A situation found on a single date does not in itself prove that exactly the same activity had been taking place on the same scale for years.
In a specific calculation, rental dates, energy data, purchases, diaries or messages may be relevant. In a wider asset-based approach, other statutory conditions and possible presumptions apply. Under certain circumstances Article 36e provides for a period of six years, but that is not a universal rule for every confiscation.
Have the method and the legal ground assessed together. An objection to the period must match the reasoning that is actually being used. Gather existing data showing when activities, income or assets began and changed.
Lawful income and opening balances
In a financial comparison, lawful means can make an important difference. Think of wages, sale proceeds, existing savings, a loan or a gift. Merely naming a possible source, however, is not the same as verifiable substantiation.
Gather bank statements, tax returns, sale documents and existing agreements. With cash amounts, your evidential position may be more difficult. In that case, describe carefully when and how the amount was obtained and which independent data support the explanation.
Do not create new documents intended to suggest a past reality. A statement drawn up after the event must be honestly recognisable as such and cannot automatically replace a missing old piece of evidence. Your lawyer can assess which information is usable and what additional investigation may be needed.
Deducting costs
A costs defence must specify which expenses are involved, how they are connected with obtaining the proceeds and why deduction is reasonable. Not every general business expense or private expenditure can be included without further explanation.
Where possible, substantiate amounts with existing invoices, payments or other data. Also state if a cost item has already been included in a standard calculation. Otherwise a request for deduction may unintentionally claim the same costs twice.
Some sectors or activities are approached in reports using standard amounts. That does not relieve the court of the duty to assess a sufficiently substantiated objection to their application in your situation. A deviation must, however, be meaningful for the specific proceeds and not merely show that a theoretically different amount is conceivable.
Division between several people involved
If several people were involved in a criminal offence, it does not automatically follow that each of them received the full proceeds. Each person’s own role, the arrangements made and the actual division must be examined. Money that someone managed on behalf of others is not necessarily the same as proceeds personally enjoyed.
At the same time, Article 36e provides, subject to conditions, for joint or joint and several payment obligations. The legal basis and the reasoning must be checked carefully. A standard division by the number of suspects may also be incorrect if the case file shows a different division.
Evidence may consist of payments, messages, records and statements about the arrangements. Describe not only how much you believe you kept, but also how the entire flow of money ran. An incomplete explanation of the rest of the amount may leave questions about actual control and proceeds.
Money laundering and money passed on
In money laundering cases, extra attention is needed for the difference between the object of the offence and the proceeds obtained. The fact that an amount was laundered does not, without further reasoning, automatically make all of it proceeds enjoyed by the convicted person from that laundering.
For example, a fee may have been received for moving money. But the actual circumstances may also point to a different kind of involvement or source of proceeds. The defence must therefore examine precisely what the Public Prosecution Service classifies as proceeds and from which offence, in its view, they were obtained.
Draw up an overview of receipts, onward payments, withdrawals and your own spending. Have the legal conclusions tested against those money flows. Where there is a broader suspicion of fraud, the explanation of fraud and forgery is also relevant to the link with the main case.
Compensation and double counting
A victim may have a compensation claim while the Public Prosecution Service seeks to confiscate proceeds. Both amounts may be related, but they are not automatically the same. The law contains rules for taking into account, when the amount is determined, certain awarded claims and compensation obligations, to the extent that these have been paid.
The difference between awarded and actually paid is therefore important. Keep proof of payment and state which claim a payment relates to. Also check earlier confiscation decisions concerning the same proceeds.
A lawyer can assess whether amounts are being counted twice and which correction is legally possible. Do not deduct amounts from a payment request on your own initiative unless it is clear that this has been processed or is permitted. Determining the obligation and enforcing it each follow their own procedure.
What if you cannot pay the amount
The estimated proceeds and your current ability to pay are separate matters. The fact that you have no money now does not prove that you did not obtain proceeds in the past. Conversely, a specific claim of inability to pay must be carefully assessed under the applicable rules.
Article 36e allows the payment obligation to be set at a lower amount in certain circumstances. The assessment may also concern your future ability to pay. A general overview of debts is therefore not always sufficient; your financial situation must be presented in full and with supporting evidence.
At the enforcement stage, payment arrangements and other procedures may be relevant. Committal for non-payment (gijzeling) is a drastic coercive measure and does not mean that the payment obligation is simply replaced by a number of days in detention. Have the options assessed in good time and respond to letters, even if you are in fact unable to pay the amount.
Prejudgment attachment before the decision
Subject to statutory conditions, the Public Prosecution Service may levy a prejudgment attachment (conservatoir beslag) to secure recovery of a possible financial obligation. This can happen before the court has made a final decision on the confiscation amount. A frozen account is therefore not yet a final decision on the proceeds to be paid.
The attachment must have an appropriate statutory basis and can be reviewed. Ownership, the size of the possible claim and the interests of third parties may be relevant. A partner or company claiming to be the owner must be able to substantiate this with more than just an oral statement.
Distinguish between a defence against the attachment and a defence against the confiscation claim. Success in one track does not automatically decide the other. Both procedures require their own documents and time limits. Do not move assets to frustrate attachment or recovery.
A fictitious worked example
Suppose a report assumes 100 transactions with average revenue of 200 euros. Gross revenue is then put at 20,000 euros. The report deducts 2,000 euros in costs, leaving 18,000 euros. That figure is only usable if the quantities, amounts, costs and attribution are sufficiently substantiated.
If existing data support only 60 relevant transactions, the starting point changes. It may also turn out that part of the revenue went to another person involved or that certain costs were processed incorrectly. The court must assess such specific objections within the applicable legal ground.
This example is purely illustrative. It is not a standard method for every case. It shows that a relatively small change in a premise can have a large effect on the final amount. Checking the source data is therefore at least as important as recalculating the final sum.
Preparing for the confiscation hearing
Gather the summons, the report, annexes, relevant decisions from the main case and your financial substantiation. Together with your lawyer, draw up a list of disputed premises and the investigative requests you need. In an extensive case file, financial expertise alongside legal assistance may be worthwhile.
Check the time limits for submitting documents and any written rounds. An overview submitted late may be harder to verify and may hamper preparation. Make sure amounts can be traced back to specific sources and that changes from earlier positions are explained.
If you disagree with a decision, have it assessed immediately which legal remedy is available and which time limit applies. The general information on appeals in criminal cases provides background, but the specific confiscation decision and procedural position must be examined separately.
Working with a verifiable alternative
If you dispute an amount, it helps to present an alternative calculation in which only the premises you have challenged with reasons are adjusted. Show which items stay the same and why others change. This makes it clear whether the dispute concerns the method, the source data or the legal attribution.
Keep formulas and references to annexes so that your lawyer and, where appropriate, a financial expert can follow the calculation. Do not round off each intermediate step in such a way that the final amount shifts inexplicably. State when an amount is still uncertain and which data are needed to resolve that.
An alternative is not an admission that every other premise is correct if it is clearly presented as an alternative (subsidiary) position. The procedural position and wording must, however, be carefully coordinated. In this way the defence can both dispute the legal ground and show what a correct calculation would produce under a different assessment.
Frequently asked questions about confiscation
Is confiscation the same as a fine?
No. A fine is a punishment; confiscation targets unlawfully obtained proceeds. Both may apply side by side. Compensation for a victim also has its own legal basis.
Can more be confiscated than I currently own?
Yes, that is possible. The calculation concerns the proceeds obtained and not only your current bank balance. Ability to pay is a separate matter that must be substantiated with specific data.
May the Public Prosecution Service treat all turnover as proceeds?
Not without proper substantiation. The legal ground used, relevant costs and attribution must be assessed. A turnover figure is not automatically the same as proceeds that can be established in law.
Does money I passed on count as my proceeds?
That depends on the facts and the legal ground. The mere fact that an amount passed through your account does not answer the question of proceeds. Your role, your control over the money and any revenue of your own must be examined.
Does it help if I have already paid the victim?
That may be relevant within the statutory rules. Keep proof of the payment and state which claim it relates to. The award of a claim and actual payment are not the same.
Can I wait until the Public Prosecution Service comes to collect the amount?
That is unwise if you dispute the calculation. The substantive assessment and legal remedies have their own stages and time limits. Have the claim and the report assessed as soon as you receive them.
Having the calculation checked
Arslan Advocaten can assess the legal ground, financial assumptions and procedural position in a confiscation claim. See our assistance with criminal law and fraud or contact us. Send the report with its annexes and state the next hearing or response date.
Sources
Editorial team and responsible lawyer
Editorial team: Arslan Advocaten. Responsible lawyer for criminal law: Melanie Schulpen.
Last editorially updated: 22 September 2026. This general information does not replace an assessment of your own case.
