Billiet & Rousseau, 2012

Carole M. Billiet & Sandra Rousseau, Milieucriminaliteit: verbeurdverklaring van wederrechtelijk verworven vermogensvoordelen in cijfers [Environmental crime: forfeiture of illegal benefits in numbers], Tijdschrift voor Strafrecht 2012,  195-205

The possibility to forfeit illegal benefits generated by crime has been introduced in the Belgian Criminal Code in 1990. The first judgements using the new sanction to punish environmental offences were pronounced in 1993 and concern waste offences. This paper gathers and analyses empirical data with regard to the use of the sanction since then. The largely unpublished case-law generated in the resort of the Court of Appeal of Gent, one out of five Belgian appeal courts, in the years 2003-2007, is studied. It appears that the use of forfeiture of illegal benefits has spread to many types of environmental offences, such as those regarding environmental permitting and conditions, groundwater and surface water protection, manure control, noise hindrance and soil pollution (Figure 2 and Tables 3 and 4). The forfeited amounts dwarf the fine amounts, with, for instance, averages being 60 (first instance) to 5 (appeal) times higher (Tables 5 and 6 and Figure 4). Judgements with a forfeiture of illegal benefits are appealed in one on two cases (as compared to a normal rate of one on ten), with only one on four judgements being confirmed at the appeal level. Illegal benefits consisting of avoided costs appear to be more robust in appeal than those consisting of illegal income (Table 7). Motives to annul the sanction most often relate to an evidence issue, namely a lack of evidence of the existence of the illegal benefits or a lack of evidence regarding the causal relation offence-benefit.

Full publication (Dutch) here.