Criminal seizure : digiproof and (multi)functional ?

The main topic of this PhD research is criminal seizure. The legislation on criminal seizure in Belgian criminal procedure is being questioned because of the different functions that legislation and case law attribute to this measure and the ongoing digitization of society. This research, therefore, aims to establish a new, consistent framework for criminal seizure of goods and data. This framework is based on three normative pillars: it has to be able to perform the different functions of criminal seizure, it has to take into account all fundamental rights and it has to be digiproof. The main research question is: what does a consistent and digiproof legislative framework on the seizure and conservation of goods and data in a criminal investigation and European context look like, so that the measure can fulfil the functions of criminal seizure while respecting all fundamental rights?

The first part describes the broader context in which this research takes place. Combatting the financial flows that finance crime is the first important trend. This trend plays a major role in the fight of the European Union against organized crime and terrorism. It has affected national legislation on criminal seizure on several occasions. Another important trend is the digitization and dematerialization of society. This changes not only the way in which crimes are committed, but requires new tools for law enforcement in order to efficiently fight crime as well. Furthermore, this part elaborates on the normative pillars, explains the method of this research and delimits this topic from other investigative measures in criminal procedure or other fields of law.

The second part discusses the current legislation and its shortcomings. The first chapter deals with the different functions of criminal seizure. Originally, this measure had to ensure that evidence was available for the judge in the main proceedings. Afterwards, criminal seizure became an important tool to guarantee the execution of a possible confiscation or the restitution of goods to the victims. Finally, the Belgian Court of Cassation added the prevention of crime to these functions. The second chapter explores whether these rules are digiproof. The seizure of cryptocurrencies, for instance, does not only raise technical, but also legal questions. The third chapter contains an analysis of the case law of the European Court of Human Rights and the Court of Justice. The relevant fundamental rights, which are the right to a fair trial, the right to respect for private life, the right to data protection, the right to freedom of expression and the protection of property, are discussed according to the different functions.

In the third part, new, multifunctional and digiproof rules are proposed. A few comparative insights precede the suggestions. The rules on criminal seizure in the United States of America and the Netherlands will occupy a privileged position in this perspective.