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New rights for the persons concerned by seizure and confiscation in criminal proceedings

01/02/2023

You have assets seized in criminal proceedings and want to obtain access to the criminal file and/or challenge the seizure decision issued by the judge?

Law n°1535 dated December 9, 2022 relating to the seizure and confiscation of instruments and proceeds of crime reformed the existing legislative framework regarding seizure and confiscation and introduced new procedural guarantees and rights of appeal for the persons concerned in the context of criminal proceedings.

The purpose of this law is to bring Monegasque law in line with the latest recommendations of the Financial Action Task Force (FATF) mainly based on Article 8 of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instruments and the proceeds of crime in the EU.

Our team has identified the new guarantees and rights granted to persons affected by seizures and confiscations in criminal matters.

New rights in case of preventive seizure

The provisions of article 596-1 of the criminal procedure code, which were previously applicable only to seizures concerning money laundering, corruption and influence pedding now apply to all offences for which the penalty of confiscation is incurred.

In return, the modified article 596-1 provides for new rights and obligations for persons concerned by a protective seizure, i.e. when the purpose of the seizure is to freeze assets with a view to compensating the victim or paying the fine:

  • Obligation to serve (by bailiff) the seizure decision on the owners as well as on third parties having or claiming to have rights on the property if they are known, with the mention of the right of any person concerned by a seizure to the assistance of a lawyer (avocat-défenseur ou avocat), (NB: this obligation of service was introduced for consideration to persons not residing in Monaco),
  • Obligation to notify the seizure decision to the concerned parties and to the General Prosecutor with the mention of the right of any person concerned by a seizure to the assistance of a lawyer (avocat-défenseur ou avocat),
  • Possibility for the third party concerned to appeal the seizure decision,
  • Right of access for the third parties to the exhibits of the seizure proceedings which is challenged,
  • Even in the absence of an appeal, the owner of the property seized and third parties to the proceedings may be heard by the Council Chamber (« Chambre du Conseil ») at the request of the parties, but without access to the file,
  • Extension of the time period to appeal against the seizure decision (now ten days),
  • The duration of the seizure decision is limited to the time necessary to preserve the goods for possible future confiscation,
  • Immediate return of seized property that is not subject to subsequent confiscation,
  • The right to be assisted by a lawyer (« avocat-défenseur ou avocat ») for persons concerned by a confiscation decision when they are known and obligation to inform these persons of this right to assistance. 

New rights in the context of the management of seized property by the investigating judge and the seized or confiscated assets management service

Before the entry into force of law n°1.535 of December 9, 2022, the management of seized or confiscated assets was the responsibility of either the General Prosecutor or the investigating judge depending on the circumstances of the proceedings.

In order to overcome the difficulties of management and to facilitate the proceedings, the law created a new legal entity, the « Service de gestion des avoir saisis ou confisqués » to manage these assets.

This service, which is headed by a magistrate of the judiciary under the authority of the Director of Judicial Services, is in charge of:

  • the management of all assets, whatever its nature, seized, confiscated or subject to a protective measure in the context of criminal proceedings for its preservation and all administrative acts (article 95-6 1° of the criminal procedure code),
  • the centralized management of all sums seized during criminal proceedings (article 95-6 2° of the criminal procedure code),
  •  the sale or, the destruction only for movable assets only, of the seized assets that the service has been charged with managing (article 95-6 3° of the criminal procedure code) 

Provisions of Article 268-11 and following of the criminal procedure code introduce a new legal framework regarding the management by the aforementioned Service of seized assets.

Among the procedural guarantees and new rights for the persons concerned, it must be noted:

  • the possibility of handing over seized assets to the Service for management purposes, only upon decision from the investigating judge and subject to the rights of third parties, so that the Service can carry out all the necessary administrative acts for the preservation and value of the related assets (article 268-11 of the criminal procedure code),
  • the restitution of the sale proceeds of seized assets by the Service at the request of the owner « when a decision to dismiss the case, acquittal decision, or a sentence that does not impose a confiscation penalty has become final » (paragraph 4 of article 268-12 of the criminal procedure code),
  • the consecration of the suspensive effect of any appeal against decisions of the investigating judge ordering the disposal or destruction of seized assets before judgment (useful to preserve the assets pending a final decision) (article 268-13 of the criminal procedure code),
  • the information to the owner of a seized asset on his right to request the restitution of the so-called asset or the proceeds of its sale only in case of a final decision of dismissal, acquittal, or in the absence of a sentence of confiscation. If the asset is not claimed within twelve months, it is also provided that the non-returned asset becomes the property of the State, subject to the rights of third parties (article 268-15 of the criminal procedure code).

A reduced right of action in the context of a claim for compensation on confiscated property

Article 621-1 of the criminal procedure code now provides that any person who was constituted as civil party and benefited from a final decision awarding damages as compensation for the damage suffered as a result of a criminal offence may obtain from the Service the compensation paid by deduction from the funds or the liquidated value of the assets of their debtor whose confiscation was decided by a final decision and whose the Service is depository pursuant to article 95-6 of Act no. 398 of June 24, 2013, as amended.

Under penalty of foreclosure, the request for payment must be sent by registered letter to the Service within a period of six months from the day on which the aforementioned decision has become final.

In case of multiple claimants and insufficient assets to fully compensate them, the payment is made at the price of the race and, in case of claims received on the same date, at the euro mark (« marc l’euro »).

These rights and procedural guarantees can be raised in the ongoing proceedings as the provisions of Law no. 1.535 came into force on December 17, 2022.

Authors

Portrait ofGéraldine Gazo
Géraldine Gazo
Partner
Monaco
Sacha Nantas