An extract from The Asset Tracing and Recovery Review, 8th Edition

Seizure and evidence

i Securing assets and proceedsSeizure of assets and proceeds pending civil proceedings

A creditor may secure assets and proceeds by applying for a conservatory attachment, whereby the assets of his debtor are essentially frozen. This form of attachment is opposed to an executory attachment, which entails the (forced) liquidation of the attached assets and the distribution of the proceeds to the creditor, usually after the (civil) conviction of the perpetrator.

A creditor seeking conservatory attachment must in principle request permission from the competent court to obtain an order for the attachment measures. However, in some instances, he or she may instruct a bailiff to perform such an attachment measure merely on the basis of exhibits provided by the creditor him or herself. The documents must in that event constitute proof of the claim.

A conservatory attachment limits the debtor's powers to dispose of the attached assets, but it does not deprive the debtor of his or her proprietary or possessory rights to these assets. The creditor must make a separate request if he or she prefers to have these assets put under the custody of a third party (which request may be heard by different courts, depending on the case).

A conservatory attachment can be made on the debtor's movable and immovable property. The creditor may also attach goods held by a third party, for example, (most commonly) a bank. Such an attachment affects all of the debtor's funds in the bank account at the date of the conservatory attachment, irrespective of the amount of the attaching creditor's claim. However, the creditor may choose to limit the conservatory attachment to a certain sum only (e.g., to avoid counterclaims based on abuse of attachment in situations where the attached funds largely exceed the creditor's claim).

Seizure of assets and proceeds pending the criminal trial

Both the public prosecutor and the investigating judge may, during an investigation, order the seizure of any goods that can be the subject of a confiscation order upon an eventual conviction (see below), or that can serve to establish the truth or to avoid the disappearance of the goods prior to trial.

Confiscation after a conviction

If the accused is sentenced for an offence that qualifies as a serious crime or major offence according to Belgian law, the court must order the confiscation of the object of the criminal offence and the items used for committing the criminal offence if they are property of the convicted person, as well as the confiscation of the proceeds of the criminal offence. The court can also order the confiscation of the financial gains resulting from the criminal offence, including any assets acquired from the original gains of the criminal offence and any income generated from its investment, but only if the public prosecutor specifically requested this last element. If the assets are not found among the possessions of the convicted person, the judge will estimate the total value of these assets and will order the confiscation of goods that have an equivalent value. The court will order the restitution to the civil claimant of any confiscated goods or money belonging to him or her. The court can also order the confiscation of assets located outside Belgium.

ii Obtaining evidenceObtaining evidence in civil matters

There is no specific action available under Belgian civil procedural law that can be used to obtain evidence in cases of fraud or dishonesty. As such, victims of fraud or dishonesty, who carry the burden of proof, will have to rely on the generally available actions to obtain information to support their claim in court.

A full-fledged document discovery or disclosure (as known under US or UK law) is not available in Belgian civil procedure. However, upon request by any party to the proceedings, a Belgian court may order the production of specific documents that are in the possession of either another party to the proceedings, or a third party. The documents must contain the evidence of a certain fact that can be relevant (material) for the outcome of the case. To avoid fishing expeditions, the party making the request must precisely identify and describe the requested documents as well as the relevant facts for which the documents may provide supporting evidence. A party may request the production of documents during the proceedings on the merits, but it may also do so in separate proceedings (e.g., preliminary relief). The party may also request that the relevant court additionally orders the payment of a periodic penalty for any breach of the order, as an additional means of enforcement of the main order to produce the documents.

Obtaining evidence in criminal matters

In criminal matters, the public prosecutor and the civil claimant carry the burden of proving, beyond reasonable doubt, that the accused committed the alleged criminal offence. Belgian criminal procedure does not have rules on the evidential value of elements of proof; the prosecutor can present all evidence that was legally collected during the investigation to prove the facts, and the court can evaluate freely the credibility of the evidence submitted. Evidence gathered in violation of procedural rules can be excluded and removed from the file (by the Council Chamber or Chamber of Indictment) or excluded from the debates (before the trial court) if the procedural rules that are violated are sanctioned with nullity, or the breach is so severe that the reliability of the evidence is lost or the rights of defence of the accused have been violated.