Forfeiture of leased cars in criminal cases. Can it be done?

For some time now, leased cars can be forfeited (read: assigned to the State) by the police judge. This is so that the persistent traffic offender could not escape the consequences of the law by leasing his car and thus not purchasing it directly in his own name.

In correctional cases, however, things are a little different. We are happy to explain it for you in this article.

Forfeiture and the requirement of ownership

More specifically, it is possible for criminal courts to apply forfeiture to three categories of property:

Matters it object of the crime determine whether they served or were intended for the commission of the crime (a relevant example in this regard involves a getaway car);
Matters that arise from the crime; and
Wealth benefits that directly were obtained from the crime, goods and values substituted or income from invested benefits.

Regarding the first category, it should be noted that the same property can only be forfeited when they are the property of the convict.

So, if you lend your car to a friend and they use your car as a getaway car in connection with a crime, then your car cannot in principle be forfeited.

In drug cases, although this property requirement does not apply, the court may still order the forfeiture of items referred to in the first category, even if they are not the property of the convicted person.

In other words, if you lend your car to a friend and that friend uses your car as a way to transport drugs, for example, your vehicle can still be forfeited.

So leasing companies also face some risk when their leasers use the cars they lease to commit drug offenses.

Exception: owners in good faith

So while the strict rules in drug cases are clear, judges have nevertheless put limits on their interpretation.

Thus, the Courts of Appeal in Antwerp and Ghent have ruled that it is not fair to indirectly punish owners of cars when they are not aware that a drug offense has been committed with their car - a view, incidentally, that the Constitutional Court also holds.

Parents are protected in this way, for example, when one of their children used the family car to transport and/or sell drugs.

Similarly, it can be held that leasing companies are also protected when they are not aware of the drug crimes committed with the leased cars.

In any case, the personal nature of punishment and the right to property will also have to be taken into account.

Seizure and its lifting

Nonetheless - even before a judgment has been rendered on possible forfeiture - a car may be seized during the investigation. This will also have a pernicious consequence for the owner of the car, such as the leasing company. After all, they can no longer use the car.

In this regard, the investigating judge and the public prosecutor can cite various reasons to justify the seizure.

Thus, they may deny a request to lift the attachment if:

They consider that the necessities of the investigation require it
If, as a result of the lifting of the attachment, the rights of the parties or third parties are affected
If the lifting of the attachment would endanger persons or property
Where the law provides for the restitution or forfeiture of the property in question.

However, the latter reason will no longer be able to be cited when the waiver is requested by the owner/leasing company who was acting in good faith, because of what was outlined above.

Do you have questions about forfeiture or seizure? Contact us at info@bannister.be or 03/369.28.00.

April 6, 2021