FAQ

Criminal seizure involves placing an asset under judicial control by temporarily prohibiting its transfer, destruction, conversion, disposal or removal. It prevents the owner or holder of the seized asset from temporarily taking custody of or exercising control over it. Article 66(7) of the Code of Criminal Procedure (hereinafter "CCP") provides that "No person may validly dispose of an asset seized in the course of criminal proceedings".

Special confiscation involves depriving the convicted person of an asset, the ownership of which is transferred to the State. The object, proceeds and benefits of an offence may be confiscated, as may any assets substituted for them. Instruments that were used or intended to be used to commit an offence may also be confiscated, subject to the rights of bona fide owners. Confiscation is ordered by the court of first instance or the appeal court hearing the merits of the case.

Criminal seizure differs from confiscation in that it does not result in the transfer of ownership of the seized asset to the State. Furthermore, seizure is a temporary measure taken prior to a judgment, whereas confiscation is a definitive measure that can only be ordered by a court of first instance (police court, or the felony division of a district court or court of appeal).

No. The court hearing the merits of the case decides what is to be done with the seized assets. Seized assets may either be returned to the defendant or the civil claimant, or forfeited to the State. The proceeds from the sale of forfeited assets may also be awarded to the civil claimant.

An asset may be seized if it constitutes:

• an instrument that was used or intended to be used to commit an offence;
• the object of an offence;
• the proceeds of an offence;
• any financial gain derived from an offence.

Furthermore, the following may be seized:

• anything that appears useful for the establishment of the truth or the use of which would be likely to prejudice the proper conduct of the investigation;
• anything that is liable to confiscation or restitution.

This last category includes assets:

• which have been substituted for the object, the proceeds or the financial gain;
• whose monetary value corresponds to that of the object, the proceeds or the financial gain, if these cannot be found for the purposes of confiscation;
• whose origin the convicted person or the owner, having been given the opportunity to explain themselves, has been unable to justify.

There is no time limit on the duration of a seizure. An asset may remain under judicial control until an order is made for the seizure to be lifted, for its provisional return, for its confiscation, or for its definitive return.

Yes, a seized asset may be sold under certain conditions.

Whilst an investigation or preliminary inquiry is ongoing, the investigative judge or the Council Chamber may order the disposal of the seized asset if there is a risk of significant depreciation or if the costs are disproportionate to its value.

The investigative judge may also order the disposal of a seized asset that has not been claimed for more than six months.

After a case has been referred for trial, the court hearing the case, sitting in chambers, may also order the disposal of an asset provided that no final decision has been handed down.

Yes, seized property may be destroyed under certain conditions.

Whilst an investigation or inquiry is ongoing, the investigative judge may order the destruction of property that is perishable, dangerous or harmful, or whose possession is unlawful, or which has no value.

If you have received a letter from the BGA, please follow the instructions. If you are unsure how to proceed, please do not hesitate to contact the person handling your case or send an email to info@bga.etat.lu.