Chapter Three. Seizure
§ 1. General Provisions
Section 94
1. All objects that may serve to reveal the truth or demonstrate unlawfully obtained gains, as referred to in section 36e of the Criminal Code, shall be liable to seizure.
2. Furthermore, all objects whose confiscation or withdrawal from circulation may be ordered shall be liable to seizure.
3. The investigating officer who seizes an object shall prepare a notice of seizure, even where the power of seizure is conferred on the examining magistrate or the public prosecutor. A receipt for the object shall be issued, as far as possible, to the person from whom it was seized. The investigating officer shall place the notice in the hands of the assistant public prosecutor as soon as possible so that he can decide whether the seizure should be maintained.
Section 94a
1. In the case of suspicion of a serious offence for which a fine of the fifth category may be imposed, objects may be seized in order to preserve the right of recovery in respect of any fine to be imposed for that serious offence.
2. In the case of suspicion of or conviction for a serious offence for which a fine of the fifth category may be imposed, objects may be seized in order to preserve the right of recovery in respect of an obligation to be imposed in response to that serious offence for payment of a sum of money to the State for the purpose of special confiscation of unlawfully obtained gains.
3. Objects which belong to a person other than the person on whom, in the case referred to in subsection (1), the fine may be imposed or the person who, in the case referred to in subsection (2), may be deprived of the unlawfully obtained gains, may be seized if there are sufficient indications that these objects have become, in whole or in part, the property of this other person with the evident aim of hindering or preventing the sale of these objects, and this person knew or could reasonably suspect this to be the case.
4. In the case referred to in subsection (3), other objects belonging to the person concerned may also be seized up to maximum the value of the objects referred to in subsection (3).
5. Objects shall mean all property of any description, whether corporeal or incorporeal.
Section 94b
In the application of sections 94 and 94a:
1°. receivables shall be seized and such seizure terminated by written notice to the debtor;
2°. order or bearer rights shall be seized by seizure of the paper;
3°. registered shares and securities shall be seized and immovable registered property shall be seized and its seizure lifted through a bailiff with due observance of the formalities applicable under the Code of Civil Procedure [Wetboek van Burgerlijke Rechtsvordering] in regard of notice or notification of the seizure, or the service of the official record of seizure, the entry, registration or cancellation thereof in registers and the service thereof on third parties;
4°. ships and aircraft shall be seized and their seizure terminated with due observance of the formalities applicable under the Code of Civil Procedure in regard of the service of the official record of seizure, and under any regulation pertaining to registered ships or aircraft in regard of the registration or cancellation thereof in registers.
Section 94c
Part Four of Book Three of the Code of Civil Procedure shall apply mutatis mutandis to the seizure referred to in section 94a, save that:
a. the power of seizure may be exercised without the leave of the District Court judge hearing applications for provisional relief or any fear of embezzlement being required;
b. a maximum amount for which the right of recovery is to be exercised must be stated in the official record of seizure or the writ of seizure;
c. provisions pertaining to the time limits within which the principal claim must be brought before the court after seizure shall not apply mutatis mutandis;
d. in the case of movable property that is not registered property and bearer or order rights, the preparation of an official record of seizure and the issuance of a receipt to the person from whom the objects have been seized by an investigating officer shall also suffice;
e. failure to comply with the time limits within which the seizure must be served, except for the cases under section 94b (3°), shall not invalidate the seizure;
f. Section 721 of the Code of Civil Procedure shall not apply mutatis mutandis; in the event that the principal claim is brought before the court after seizure, the public prosecutor shall give the third party written notice thereof as soon as possible;
g. Section 722 of the Code of Civil Procedure shall not apply mutatis mutandis;
h. Sections 117 and 118 shall apply to seized movable property which is taken into custody;
i. the seizure shall be terminated with due observance of the provisions of this Code.
Section 94d
1. For the purpose of preserving the right of recovery, the public prosecutor may exercise on behalf of the State the powers which, under the Civil Code and the Code of Civil Procedure, are conferred on a creditor whose chances of recovery are prejudiced as a consequence of a legal act gratuitously performed by the debtor. Section 94c(c) and (e) shall apply mutatis mutandis.
2. In the application of sections 3:46 and 3:47 of the Civil Code, the presumption of knowledge, referred to in these sections, shall apply in regard of legal acts performed by the suspect or the convicted offender within one year before the prosecution was instituted against him.
3. Furthermore, for the purpose of preserving the right of recovery, the public prosecutor shall be authorised to act on behalf of the State as creditor in the bankruptcy of the suspect or the convicted offender. Until the amount of the fine or the unlawfully obtained gains to be deprived has been determined, the public prosecutor shall be deemed to be asserting a conditional claim.
4. The public prosecutor shall retain the powers referred to in subsections (1) and (2), notwithstanding a bankruptcy, insofar as the objects to which the gratuitously performed legal acts relate are not claimed by the trustee or the receiver under sections 42 to 51 inclusive of the Bankruptcy Act [Faillissementswet].
§ 2. Seizure by Investigating Officers or Special Persons
Section 95
[1.]Any person who arrests or stops and questions a suspect may seize objects which he has with him and are liable to seizure.
2. Section 56 shall apply to a search of the body or body cavities or the clothing of the arrested suspect.
Section 96
1. In cases where the suspect is caught red-handed in the commission of a criminal offence or where he is suspected of having committed a serious offence as defined in section 67(1), the investigating officer shall have the power to seize objects liable to seizure and to enter any place for that purpose.
2. The investigating officer may, while awaiting the arrival of the judge or civil servant who is authorised to search the place for the purpose of seizure, take any measures that are reasonably necessary in order to prevent objects liable to seizure being disposed of, rendered unusable, inactivated or damaged. These measures may restrict the freedom of persons who are at the location in question.
Section 96a
1. In the case of suspicion of a serious offence as defined in section 67(1), the investigating officer may order a person, who must be reasonably believed to be the holder of an object liable to seizure, to surrender said object for the purpose of seizure.
2. The order shall not be given to the suspect.
3. The following persons shall not be obliged to comply with the order on the basis of their right of privilege:
a. the persons referred to in section 217;
b. the persons referred to in section 218, insofar as the surrender would violate their duty of secrecy;
c. the persons referred to in section 219, insofar as the surrender would expose them or one of their relations referred to in that section to the risk of criminal prosecution.
4. The order may only be given in regard of letters, if these letters are from the suspect, are intended for him or relate to him, or if they are the subject of the criminal offence or were used in its commission.
5. Subsection (1) shall not apply to postal parcels, letters, postal packets and other messages which have been entrusted to a postal carrier service as referred to in the Postal Services Act 2009 [Postwet 2009] or a registered party under section 2.1(4) of the Telecommunications Act [Telecommunicatiewet] or to another carrier service.
Section 96b
1. In cases where the suspect is caught red-handed in the commission of a criminal offence or where he is suspected of having committed a serious offence as defined in section 67(1), the investigating officer shall have the power for the purpose of seizure to search a means of transport, with the exception of the living area thereof without the consent of the occupant, and for that purpose to gain entry to this means of transport.
2. If such is necessary with a view to exercising the power conferred under subsection (1), the investigating officer may:
a. request the driver to stop the means of transport, and
b. then take the means of transport or charge the driver to take it to a location designated by him.
Section 96c
1. In cases where the suspect is caught red-handed in the commission of a criminal offence or where he is suspected of having committed a serious offence as defined in section 67(1), the public prosecutor may for the purpose of seizure search any place, with the exception of a dwelling without the consent of the occupant and an office of a person who has the right to assert privilege as referred to in section 218.
2. In the case of urgent necessity and if action on the part of the public prosecutor cannot be awaited, an assistant public prosecutor may exercise this power. He must be authorised by the public prosecutor for that purpose. If such authorisation cannot be applied for on time due to the speed required or the fact that the public prosecutor cannot be reached, the public prosecutor may grant the authorisation three days after the search. If the public prosecutor refuses to grant authorisation, then he shall ensure that the consequences of the search are reversed to the maximum extent possible.
3. The public prosecutor or, if subsection (2) applies, the assistant public prosecutor, shall be in charge of the search of places in accordance with the provisions of subsection (1).
4. Section 96(2) shall apply mutatis mutandis.
Section 97
1. In cases where the suspect is caught red-handed in the commission of a criminal offence or where he is suspected of having committed a serious offence as defined in section 67(1), the public prosecutor may, in the case of urgent necessity and if action on the part of the examining magistrate cannot be awaited, search for the purpose of seizure the following places:
a. a dwelling without the consent of the occupant, and
b. an office of a person who has the right to assert privilege as referred to in section 218.
2. The public prosecutor shall require for a search as referred to in subsection (1) the authorisation of the examining magistrate. This authorisation shall be reasoned.
3. If action on behalf of the public prosecutor cannot be awaited either, the power to conduct a search shall be conferred on the assistant public prosecutor. Subsections (1) and (2) shall apply mutatis mutandis. Authorisation from the examining magistrate shall be requested, where possible, through the public prosecutor.
4. If the examining magistrate has granted authorisation to an assistant public prosecutor to search for the purpose of seizure a dwelling without the consent of the occupant, the assistant public prosecutor shall not be required to have authorisation as referred to in section 2 of the General Act on Entry into Dwellings in order to enter that dwelling.
5. Section 96(2) shall apply mutatis mutandis.
Section 98
1. Letters or other documents which are subject to the duty of secrecy of persons who have the right to assert privilege, as referred to in section 218, shall not be seized from them, unless with their consent.
2. Unless such persons have consented to a search, a search shall only be conducted at their premises insofar as this search can be conducted without violating clerical secrecy, professional privilege or official secrecy and it shall not include letters or documents other than those which are the subject of the criminal offence or have been used in its commission.
Section 99
1. Unless required in the interest of the investigation, seizure in a dwelling shall take place only after the occupant, or in his absence one of his housemates present at that time, has been questioned and invited, in vain, to voluntarily surrender the object for the purpose of seizure.
2. Insofar as the interest of the investigation permits, the investigating officer shall give the occupant, or in his absence one of his housemates present at that time, the opportunity to make a statement regarding the objects seized at the scene. The same applies for the suspect, if he is present.
Section 99a
The suspect may have the legal representation of his defence counsel during the search of places, provided that this does not delay the search.
Section 100
1. In cases where the suspect is caught red-handed in the commission of a criminal offence or where he is suspected of having committed a serious offence as defined in section 67(1), the public prosecutor may order for the purpose of seizure the surrender, against issuance of a receipt, of postal parcels, letters, postal packets and other messages entrusted to a postal carrier service as referred to in the Postal Services Act 2009 or a registered party under section 2.1(4) of the Telecommunications Act or to another carrier service; insofar as said postal parcels, letters, postal packets and other messages evidently originate from the suspect, are intended for him or relate to him, or if they are evidently the subject of the criminal offence or were used in its commission.
2. Any person who has or acquires the possession of such items for said carriage shall provide the public prosecutor or the assistant public prosecutor at his request with the information pertaining to these items which he requires. Sections 217-219 shall apply mutatis mutandis.
Section 101
1. The public prosecutor shall promptly return for dispatch the seized postal parcels, letters, postal packets and other messages entrusted to a postal carrier service as referred to in the Postal Services Act 2009 or a registered party under section 2.1(4) of the Telecommunications Act or to another carrier service, if the seizure is lifted.
2. The public prosecutor may only examine the contents of other items, insofar as they are sealed, following authorisation for that purpose from the examining magistrate.
3. The authorisation may be applied for and granted both verbally and in writing.
4. If the authorisation is refused, the public prosecutor shall promptly return the items to the carrier for dispatch.
Section 102
[1.]If the items, after having been opened, appear to be relevant to the investigation, the public prosecutor shall add them to the case documents or the convicting pieces of evidence. In the opposite case, the public prosecutor shall promptly send them, after sealing them, to their destination.
[2.]Insofar as the interest of the investigation permits, they shall be certified beforehand by the public prosecutor.
[3.]The public prosecutor shall maintain secrecy in regard of the contents of the items he has opened, insofar as these items have not been added to the case documents or the convicting pieces of evidence. The public prosecutor and the assistant public prosecutor shall observe similar secrecy in regard of the information referred to in section 100(2), insofar as said information is not contained in the case documents.
[4.]The public prosecutor shall prepare an official record of the seizure, the return, the opening and the dispatch, which shall be added to the case documents.
Section 102a
1. The assistant public prosecutor or the investigating officer shall promptly provide seized sealed letters to the public prosecutor.
2. The public prosecutor shall promptly return the sealed letters, whose seizure has been lifted, to the person from whom they were seized.
3. Sections 101(2), (3) and (4) and 102 shall apply mutatis mutandis, on the understanding that the letters which are not added to the case documents or the convicting pieces of evidence shall be returned to the person from whom they were seized.
§ 2a. Seizure under Section 94a
Section 103
1. Seizure under section 94a may only be carried out or maintained with written authorisation to be granted by the examining magistrate on application of the public prosecutor.
2. The warrant authorising the seizure or maintenance of the seizure shall be served, as soon as possible, on the suspect or the convicted offender, and in the case of attachment by garnishment, on this garnishee as well, by the public prosecutor in the manner prescribed by this Code or by the bailiff in accordance with the procedure for service of the leave referred to in section 702(2) of the Code of Civil Procedure.
§ 3. Seizure by the Examining Magistrate
Section 104
[1.]The examining magistrate shall be authorised to seize all objects liable to seizure. Except in the case that he conducts investigative acts under sections 181 to 183 inclusive, the examining magistrate shall seize objects only on application of the public prosecutor.
[2.]Section 98(1) shall apply.
Section 105
1. The examining magistrate may, on application of the public prosecutor and if he conducts investigative acts under sections 181 to 183 inclusive, also order ex officio that any person, who may be reasonably believed to be the holder of an item liable to seizure, shall surrender this object to him or shall bring it to the District Court Registry for the purpose of seizure within the period of time and in the manner to be determined in the order. The application shall state the criminal offence and if known, the name or otherwise the most precise description possible of the suspect, as well as the facts or circumstances which show that the statutory conditions for the exercise of the power have been met.
2. The order shall be given either verbally or in writing. In the latter case the order shall be served. 3. Section 96a(2), (3) and (4) shall apply mutatis mutandis.
Section 106 [Repealed as of 01-02-2000]
Section 107 [Repealed as of 01-02-2000]
Section 108
[1.]On application of an interested party, the examining magistrate may order the clerk to the court to issue to him free of charge a certified copy of the letters or documents which have been surrendered or brought.
[2.]In the case of an original document in the custody of a public custodian, the copy may be used instead of the original document until it is returned.
Section 109
If the document to be brought is part of a register from which it cannot be separated, the examining magistrate may order that the register be brought for inspection or to be copied for the period of time to be set in the warrant.
Section 110
1. The examining magistrate may, on application of the public prosecutor and if he conducts investigative acts under sections 181 to 183 inclusive, also search ex officio any place for the purpose of seizure. In doing so, he may be accompanied by persons specifically designated by him. The application shall state the criminal offence and if known, the name or otherwise the most precise description possible of the suspect, as well as the facts or circumstances which show that the statutory conditions for the exercise of the power have been met.
2. The examining magistrate, in the presence of the public prosecutor or, in his absence, of an assistant public prosecutor, shall be in charge of the search of places conducted in accordance with the provisions of subsection (1).
3. Sections 98, 99 and 99a shall apply mutatis mutandis.
Section 111 [Repealed as of 01-02-2000]
Section 112 [Repealed as of 01-02-2000]
Section 113 [Repealed as of 01-02-2000]
Section 114
1. Sections 100 to 102 inclusive shall apply mutatis mutandis to the examining magistrate who conducts investigative acts under sections 181 to 183 inclusive.
2. The examining magistrate shall be authorised to determine that the contents of seized sealed postal parcels, letters, postal packets and other messages entrusted to a postal carrier service as referred to in the Postal Services Act 2009 or a registered party under section 2.1(1) of the Telecommunications Act or to another carrier service shall be examined, insofar as said postal parcels, letters, postal packets and other messages evidently originate from the suspect, are intended for him or relate to him, or if they are evidently the subject of the criminal offence or were used in its commission.
Section 115 [Repealed as of 01-02-1959]
§ 4. Return and Custody of Seized Objects
Section 116
1. The assistant public prosecutor or the public prosecutor, who has been informed of the notice of seizure under section 94(3), shall decide on the continuation of the seizure in the interest of the criminal proceedings. If this interest is not, or no longer, present, he shall terminate the seizure and return the object to the person from whom it was seized. If advisable, the assistant public prosecutor shall consult with the public prosecutor before he takes the decision.
2. If the person from whom the object was seized declares in writing before the examining magistrate, the public prosecutor or an investigating officer that he waives his right to the object, the assistant public prosecutor or the Public Prosecution Service may:
a. instruct the return of the object to the person who may be reasonably regarded as the person entitled thereto;
b. order that the object remain in custody for the benefit of the person entitled thereto, if it is not yet possible to return it to the person who may be reasonably regarded as the person entitled thereto;
c. if the person from whom the object has been seized states that it belongs to him, order that it be treated as though it had been confiscated or withdrawn from circulation.
3. If a declaration, as referred to in subsection (2), is not made, then the Public Prosecution Service may nevertheless take the decision referred to in (a) or (b) if, within fourteen days after the Public Prosecution Service has given notice of its intention to take such decision to the person from whom the object has been seized, he has not filed a complaint against such decision or the complaint filed by him has been declared ill-founded. Part IX of Book Four shall apply mutatis mutandis to the complaint.
4. If a declaration, as referred to in subsection (2), is not made and the Public Prosecution Service intends to return the object to the person who may be regarded as the person entitled thereto, it shall be authorised to immediately place it in the custody of this person, pending the possibility of return, if the person from whom the object was seized evidently removed or withheld it from the person entitled thereto by means of a criminal offence. In that case, the person to whom the object has been released shall be entitled to use it.
5. If the Public Prosecution Service in accordance with subsections (2) or (4) or the District Court in accordance with section 353(2) has ordered that the object be taken into custody, the Public Prosecution Service shall, after the person entitled to the object has been established, return it to him.
6. The decisions referred to in this section shall be without prejudice to any person’s right to the object.
Section 117
1. The seized objects may be sold, destroyed, relinquished or used for a purpose other than the investigation only with authorisation.
2. The Public Prosecution Service may grant the authorisation referred to in subsection (1) in regard of objects
a. which are not suitable for storage;
b. whose custody costs are not in reasonable proportion to their value;
c. which are replaceable and whose equivalent value can be easily determined.
Seized objects, which are of such nature that their uncontrolled possession is in violation of the law or contrary to the public interest, shall only be granted authorisation for destruction.
3. The authorisation referred to in subsection (1) shall be directed to the custodian or to the civil servant who has possession of the objects pending their transportation to the custodian. The person to whom the authorisation is directed shall ensure that the value of the object is set at the price it would have reasonably fetched if sold at that time.
4. If the seized objects are sold for a profit with the authorisation of the Public Prosecution Service, the proceeds obtained shall continue to be subject to seizure, without prejudice to the provisions of section 116.
5. If within six weeks the Public Prosecution Service fails to take a decision on the custodian’s written request to grant him the authorisation referred to in subsection (1), the custodian shall be authorised to take action in accordance with subsection (1).
Section 117a
If the Public Prosecution Service takes one of the decisions referred to in sections 116 and 117 while the examining magistrate is conducting investigative acts under sections 181 to 183 inclusive, it shall notify the examining magistrate thereof.
Section 118
1. In the application of section 116(2)(b) or, if return is not permitted in the interest of the criminal proceedings and authorisation as referred to in section 117(1) is not granted, the seized objects shall be placed by order of the Public Prosecution Service in the custody of a custodian designated by Governmental Decree as soon as the interest of the investigation permits. Sections 116 and 117 shall apply.
2. Seized objects may also be placed in the custody of the law with another custodian designated by the Public Prosecution Service, if such is reasonably necessary for the preservation, the use or the safety of these objects.
3. The custodian shall have the power to terminate the custody of seized objects, insofar as these objects are movable properties other than money, after a period of time of two years, to be calculated as from the date of seizure. In that case he shall deal with the object in accordance with section 117(1).
4. If the seized object is kept in custody on the basis of the order as referred to in section 353(2)(c), the custodian may not exercise the power to terminate the custody conferred on him under subsection (3) until three months have expired after the final judgment became irrevocable.
5. The custodian shall not exercise the power referred to in subsection (3) or subsection (4), if within fourteen days after the custodian has given written notice of the existence of the power, the Public Prosecution Service informs him of its objections to the exercise of this power.
Section 118a
1. The Public Prosecution Service may, ex officio or on application of the person subject to seizure or of another interested party, return an object that was seized under section 94a against provision of security.
2. The security shall consist of the payment of cash equivalents by the person subject to seizure or a third party, or of the undertaking of a third party as surety, for an amount and in a manner that is acceptable to the Public Prosecution Service.
Section 118b [Repealed as of 01-01-1996]
Section 119
1. An order to return a seized object that has been given in custody shall be directed to the custodian.
2. If the custodian is unable to comply with the order to return a seized object because the custody of the object has been terminated in accordance with the authorisation referred to in section 117(2), or in the manner prescribed in section 118(3), the custodian shall pay out the price which the object fetched or would have reasonably fetched when sold by him.
3. If the custodian, except for the cases referred to in subsection (2), is unable to comply with the order to return a seized object, the custodian shall keep the object available for the party entitled thereto until the power to terminate the custody is conferred on him under section 118(3). In the case referred to in section 353(2)(b) or (c), the custodian shall nevertheless, even where he would have the aforementioned power, keep the object available for the party entitled thereto for at least three months after the final judgment has become irrevocable.
4. The custodian shall not return the object while it is still subject to a garnishee order under Book II, Parts 2, 3 and 4, and Book III, Part 4, of the Code of Civil Procedure, unless the person who ordered the return of the object explicitly stipulates otherwise.
Section 119a
Rules pertaining to the application of sections 117(1) to (3) inclusive, 118(2) and 118a concerning the manner in which seized objects are given to the custodian, the manner in which said objects are held in custody and kept available for the investigation, shall be set by or pursuant to Governmental Decree.
