On 8 April 2024, the new Criminal Code was published in the Belgian Official Gazette. The old Criminal Code, dating back to 1867, was in urgent need of renewal. The new criminal code aims to create a simpler, more precise, and more effective framework for punishing offences. New criminal offences, such as ecocide, and a new arsenal of penalties reflect the current norms and values of society. The regulations regarding confiscation were also fundamentally changed.
The new regulations on confiscation are explained in further detail below.
What is confiscation?
Confiscation is a legal instrument whereby assets related to an offence are confiscated by the authorities. These include, for example, assets used to commit an offence or the proceeds of criminal activities.
The old regulations
The old regulations regarding confiscation – which remain applicable until 2026 – are complex and not always coherent. The rules are spread across Articles 42 to 43quater of the (old) Criminal Code. In these articles, confiscation is described as a penalty, a security measure, restitution, or restoration. These diverging definitions result in complex and often unclear regulations.
The new regulations
Simplicity and coherence
The new regulations address this complexity by describing confiscation as a penalty in the new Article 53 and as a security measure in the new Article 70. The term ‘special confiscation’ is replaced by the term ‘confiscation’, which simplifies and clarifies the terminology.
Specific assets and equivalents
General confiscation remains unconstitutional. Confiscation must relate to specific assets that show a relationship with an offence (object confiscation) or the equivalent value of those assets (confiscation by equivalent).
The new provision restates the three categories of items eligible for confiscation under Article 42 of the (old) Criminal Code:
1) the items forming the object of the offence, and those that served or were intended for committing the offence, provided they are the property of the convicted person;
2) the items arising from the offence;
3) the financial benefits obtained from the offence, the assets and values substituted for them, and the income from invested benefits.
Mandatory confiscation
Confiscation is mandatorily pronounced, unless a specific provision deviates from this, and on the condition that the offender is not subjected to an unreasonably severe penalty.
Under the new Criminal Code, the judge can also impose confiscation as a principal penalty when they can pronounce a level 1 penalty.
Book 2: specific regulations
Book 2 sets out specific regulations for confiscation, for example, confiscation in cases of money laundering or of assets held by a criminal organisation.
Confiscation by equivalent remains in place. The payment of a sum of money then replaces the direct confiscation of the financial benefits or the substitute assets withheld from the authorities.
Responsibilities with multiple offenders
If there are multiple offenders or accomplices, only the person who possesses the asset or who has withheld it from the judicial authorities is sentenced to pay the corresponding amount. If this person cannot be identified, each of them is sentenced to an amount corresponding to their share in the facts.
Confiscation as a security measure
Additionally, confiscation can also be pronounced as a security measure when its purpose is to remove unlawful, dangerous, or harmful objects from circulation. The new provision describes these items as items “whose possession is contrary to public order, public safety, or public morals.” Because this is a security measure, it is pronounced independently of a conviction or declaration of guilt.
The new Criminal Code thus provides a clearer and more precise description of confiscation. This simplifies the application and enforcement of confiscation as both a penalty and a security measure.
The new criminal code will enter into force on 8 April 2026.
If you have any questions about confiscation, you can always contact us.