Fiches Belges

Yes. Confiscation means a final penalty, imposed by a court following proceedings in relation to a criminal offence, resulting in the final deprivation of property of a natural or legal persons. As a consequence thereof the confiscated property is allotted to the State. Scope: all types of criminal offences. No alternative measure.

Confiscation certificates issued by another Member State are recognized and executed in accordance with rules and procedures set forth by Regulation 2018/1805. In other cases, articles 659 ff. of the Code of Criminal Procedure concerning requests for enforcement of foreign decisions of confiscation or restitution apply. The facts underlying the request must be sanctioned under Luxembourg law and the law of the requesting State by a maximum prison sentence of at least one year. > Unless an international convention is applicable, in particular one of the following: - European Convention on mutual assistance in criminal matters of 20th April 1959 (article 3 ff.), approved by statute of 21st July 1976, and its additional Protocol of 17th March 1978, approved by statute of 27th August 1997 The facts underlying the request must be sanctioned under Luxembourg law and the law of the requesting State by a maximum prison sentence of at least one year or by a severer sentence. Under the additional Protocol, criminal fiscal offenses must qualifiy as fraud under article 396, paragraph 5, of the Tax Bill (""Loi générale des Impôts""), or under article 29, 1st paragraph, of the Statute of 28th January 1948 concerning an equitable and accurate collection of registration duties and inheritance taxes. Mutual legal assitance is subject to the principle of opportunity. - Convention implementing the Schengen Agreement of 14th June 1985, approved by statute of 3rd July 1992, and its Protocol of 24th June 1997, approved by statute of 8th April 1999 - Convention of 29th May 2000 on Mutual Assistance in Criminal Matters between the Member States of the European Union, and its Protocol of 16th October 2001, approved by statute of 27th October 2010 - Benelux Treaty on Extradition and Mutual Legal Assistance in Criminal Matters of 27th June 1962 (article 23 ff.), and its Protocol of 11th May 1974 The facts underlying the request must be sanctioned under Luxembourg law and the law of the requesting State by a maximum prison sentence of at least six months or by a severer sentence. - Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime done at Strasbourg on 8th November 1990, approved by statute of 14th June 2001, as amended The facts underlying the request must be qualify as criminal offenses under Luxembourg law, the measure must be provided for under Luxembourg law by the Luxembourgish judicial authorities in an interal analogical case and the goods to be seized must be subject to confiscation (art. 3 and 4 of the statute of 14th June 2001). - United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on 20th December 1988, approved by statute of 17th March 1992, as amended The facts on the basis of which confiscation is sought or has been ordered must qualify as an offense under Luxembourg law and the author ought to be punishable in Luxembourg if the fact had been committed there (article 3 of the statute of 17th March 1992). Measure limited to a duration of two years, after which it must be prolonged.

The General State Prosecutor is the competent authority for both issuing and executing a confiscation certificate in accordance with Regulation 2018/1805. Where a request for assistance is not issued on the basis of Regulation 2018/1805, the General State Prosecutor forwards the request for executing a foreign confiscation decision to the State Prosecutor, who will refer the case to competent District Court in accordance with the procedure under articles 659 ff. of the Code of Criminal Procedure.

Translation of confiscation certificates into French, German or English. Translation of the letters rogatory and attached documents into French or German.

The time limits sets forth under article 20 of Regulation 2018/1805 apply as regards the execution of confiscation orders.

The issuing authority is required to transmit the original confiscation order or a certified copy thereof together with the confiscation certificate. Recognition and execution of confiscation certificates might be refused for the grounds provided under article 19 Regulation 2018/1805. The General State Prosecutor shall inform without delay the affected persons about the decision to recognize and execute a confiscation order. The affected person has the possibility to challenge the said decision in front of the Chamber for the execution of penalties of the Court of Appel on the basis of articles 697 ff. of the Code of Criminal Procedure. As regards letters rogatory, they shall provide - an indication of the authority making the request and of the authority that has rendered the decision whose enforcement is sought; - the object of and the reason for the request; - a summary of the facts, including time, place and circumstances of the offence, in so far that the decision to be enforced does not provide any information on these points; - an indication of the criminal conduct under investigation, including the statutory basis and the sanctions that have been imposed ; - if necessary, and where possible: i. the identification of the person(s) concerned, including name, date and place of birth, nationality and their whereabouts, and, for legal persons, their registered office; and ii. the goods in relation to which cooperation is sought, their whereabouts, their relationship to the concerned person(s), any relationship with the criminal conduct as well as any available information concerning the interests of third parties in relation to these goods. As a matter of principle, the ownership of confiscated goods is allotted to the Luxembourg State; under the legislation on drugs, it is allotted to the Fund for the Prevention of certain forms of crime, as instituted by statute of 17 March 1992. Particular agreements or settlements with the Luxembourg State may be negociated. Execution of the measure in conformity with the procedure applicable in the requesting State : possible as a matter of principle; to be assessed on a case by case basis. Relevant formalities to be expressly indicated.