In a judgment of 18 January 2023, the Court of Cassation recalled the requirement to give reasons for the additional penalty of confiscation and the nature of that penalty, which requires it to be imposed as punishment for offences of which a defendant has been found guilty.
This case is not new: it had already come before the Criminal Chamber in November 2021, when the parties raised a priority preliminary question of constitutionality (QPC) concerning the rights of a third party acting in bad faith whose property had been ordered confiscated, compared with the defence rights afforded to a defendant. The question was not referred to the Constitutional Council, the Court of Cassation having held that a « third party, even one acting in bad faith, who has not been subject to criminal proceedings cannot be equated with a defendant » (Criminal Chamber, 17 November 2021, No. 21-82.838, unpublished, § 5).
That QPC had already been raised in the appeal on points of law against the judgment of the Aix-en-Provence Court of Appeal of 16 March 2021, on which the Criminal Chamber now rules on the merits.
In this case, following a judicial investigation, seven defendants were committed for trial before the criminal court. In 2018, that court sentenced one of them (the « Defendant »), in particular, to four years’ suspended imprisonment for money laundering. It also rejected applications for the return of property made by two third-party interveners (the « Third-Party Interveners ») and ordered confiscation.
Following appeals by the Defendant and the Third-Party Interveners, on the one hand, and by the prosecution, on the other, the Court of Appeal:
- convicted the Defendant of laundering the proceeds of drug trafficking and tax fraud, imposed a principal sentence of four years’ suspended imprisonment, and imposed the additional penalty of confiscation of the items held under seal, her vehicle and her house;
- ordered the confiscation of boats and immovable property against one of the Third-Party Interveners, rejecting both an application to lift the criminal seizure and an application for the return of those movable and immovable assets.
Both the Defendant and the Third-Party Interveners lodged appeals on points of law.
The former challenged the additional penalty of confiscation imposed on her, on the grounds that neither the contents of the « items held under seal » nor the precise legal basis justifying the measure had been specified.
The latter challenged not only the judgment’s lack of precision but also the confiscation of their property itself. According to their grounds of appeal, the assets were neither the proceeds of the offence of which the Defendant had been convicted nor assets belonging to her or freely at her disposal. In the Third-Party Interveners’ view, this rendered unlawful any confiscation of the proceeds of the offence or of the convicted person’s assets.
The Court of Cassation reaffirmed settled case law on both issues, recalling:
- first, the conditions under which the additional penalty of confiscation may be imposed, and that a court of appeal must specify the assets covered by the measure and the basis on which they are confiscated, so that the lawfulness of its decision can be reviewed;
- second, that confiscation is an additional penalty that may be imposed only where the defendant is found guilty, and cannot be imposed against third-party interveners seeking the return of their property during the proceedings where no decision has been delivered concerning the persons prosecuted at the conclusion of the proceedings in which the property was seized.
For these reasons, concerning both the reasons given for the additional penalty of confiscation and its very nature, the Court of Cassation quashed and set aside the appellate judgment. The consequences of that decision in this case nevertheless remain uncertain.
Restatement of the requirement to give reasons for the additional penalty of confiscation
In this case, the Court of Appeal had ordered « confiscation of the items held under seal » in respect of the Defendant, « without specifying the assets covered by the measure or the basis on which they were confiscated » (§ 15).
The Court of Cassation quashed the judgment on this ground, relying on Articles 131-21 of the Criminal Code and 593 of the Code of Criminal Procedure, since the Court of Appeal had not enabled it to review the lawfulness of the decision.
It took the opportunity to recall that, under the first of those provisions, « the additional penalty of confiscation may be incurred in the cases provided for by statute or regulation. Confiscation then applies to property used or intended to be used to commit the offence, and to property constituting the subject matter or proceeds of the offence which cannot be returned to the victim. If the statute penalising the serious or other criminal offence so provides, confiscation may extend to all or part of the property belonging to the convicted person » (§ 13).
This ruling is not new: the Criminal Chamber has stated it on numerous occasions (for example, in recent years, Criminal Chamber, 22 April 2020, No. 19-84.431; 6 October 2021, No. 20- 83.413; 21 April 2022, No. 21-82.790; 11 May 2022, No. 21-82.940; 9 June 2022, No. 21-85.875; 30 November 2022, No. 21-85.698).
Indeed, it had previously provided more detailed reasons for this approach, stating, for example, most recently that « a judge deciding to confiscate property must therefore, after ensuring that it is liable to confiscation under the statutory conditions, specify the nature and origin of that property and the basis of the measure and, where appropriate, explain the necessity and proportionality of the interference with the defendant’s property rights, except where the confiscated property constitutes, in its entirety, the subject matter or proceeds of the offence » (Criminal Chamber, 29 November 2022, No. 21-85.579, § 35, Dalloz actualité, 3 January 2023, commentary by M. Recotillet ; AJ pénal 2022. 584 and accompanying commentary 📄).
Reaffirmation of the nature of confiscation as a penalty
The courts ruling on the merits had ordered confiscation of movable and immovable property against the Third-Party Interveners.
From the reasoning challenged in the appeals, it appears that the confiscation concerned neither the subject matter nor the proceeds of an offence and was ordered in conjunction with the rejection of their applications for the return of property, rather than as a consequence of the Defendant’s conviction.
Thus, in this case, confiscation was indeed ordered against third parties rather than against a convicted person.
The Court of Cassation firmly rejected this approach. It recalled that confiscation is an additional penalty and may therefore be imposed only where the defendant is found guilty. Consequently, « judges cannot order confiscation of seized property against its owners, who are third-party interveners seeking its return, in the absence of a decision concerning the persons prosecuted at the conclusion of the proceedings in which the property was seized » (§ 22).
Despite its in rem character – it operates against a thing (which may belong to another person, particularly where it constitutes proceeds of the offence and/or the third-party owner acts in bad faith), rather than against the convicted person – confiscation remains a penalty, inherently linked to the defendant’s personal conviction.
In this respect, case law has drawn the consequences of that nature by specifying that, where confiscation is not mandatory, in particular under paragraph 7 of Article 131-21 of the Criminal Code:
- it is merely an option available to the judge (Criminal Chamber, 27 May 2015, No. 14-84.086, Dalloz actualité, 23 June 2015, commentary by C. Gayet) ;
- a judge ordering confiscation of all or part of a person’s assets must give reasons for the decision by reference to the seriousness of the facts, the offender’s character and personal circumstances, and assess the proportionality of the interference with that person’s property rights (Criminal Chamber, 8 March 2017, No. 15-87.422, Dalloz actualité, 3 April 2017, commentary by C. Fonteix ; D. 2017. 648 📄 ; ibid. 2501, commentary by G. Roujou de Boubée, T. Garé, C. Ginestet, M.-H. Gozzi, S. Mirabail and E. Tricoire 📄 ; RDI 2017. 240, commentary by G. Roujou de Boubée 📄), which in fact follows from applying the principles of necessity and proportionality of penalties expressly laid down in Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789, which has constitutional status. The latter safeguard does not apply to confiscation of property which, « in its entirety, constitutes the proceeds or subject matter of the offences of which the defendant has been found guilty » (Criminal Chamber, 7 December 2016, No. 16- 80.879, Dalloz actualité, 11 January 2017, commentary by D. Aubert; AJ pénal 2017. 142, commentary by O. Violeau 📄), or which represents their value (Criminal Chamber, 16 January 2019, No. 17-86.581, Dalloz actualité, 19 February 2019, commentary by C. Fonteix; D. 2019. 128 📄 ; AJ pénal 2019. 218, commentary by J. Hennebois 📄) ;
- it is not a preventive security measure (although that characterisation by the courts ruling on the merits does not affect the validity of the decision where the Court of Appeal « took into consideration the defendant’s character and personal circumstances, resources and liabilities, and assessed the proportionality of the measure », Criminal Chamber, 17 May 2022, No. 21-85.611, Dalloz actualité, 30 May 2022, commentary by D. Goetz; D. 2022. 994 📄 ; AJ pénal 2022. 375 and accompanying commentary 📄) ;
- it cannot be imposed on a person found not criminally responsible by reason of mental disorder (Criminal Chamber, 21 May 2019, No. 18-84.004, Dalloz actualité, 21 June 2019, commentary by L. Jay; D. 2019. 1109 📄 ; AJ pénal 2019. 400, commentary by M. Hy 📄); a civil party cannot appeal against its non-imposition (as regards the prior seizure securing its enforcement, Criminal Chamber, 22 June 2022, No. 21-87.334).
In summary, these decisions establish that the following conditions must be satisfied before the additional penalty of confiscation may be imposed:
- the penalty must be provided for by the statute or regulation penalising the offence, as expressly stated in the first paragraph of Article 131-21 of the Criminal Code;
- the property must be liable to confiscation: it may, in particular, be an instrument used or intended to be used to commit the offence, its subject matter or proceeds, or, in certain cases, all or part of the property belonging to the convicted person. In this respect, the judgment does not specify that confiscation may be ordered by equivalent value, enabling enforcement against any property, of whatever nature, belonging to the convicted person or, subject to the rights of an owner acting in good faith, freely at the convicted person’s disposal;
- the defendant must be found guilty, a necessary condition for imposing any penalty;
- the courts ruling on the merits must justify the necessity and proportionality of the interference with the defendant’s property rights, except where the confiscated property constitutes, in its entirety, the subject matter or proceeds of the offence.
This makes it easier to understand why the judgment under discussion recalls, as apparently remained necessary, that the property must also be precisely identified: otherwise, the Court of Cassation cannot assess the conditions listed above…
Consequences in this case of the quashing of the confiscation orders
In this case, the quashing is expressly limited to the penalties imposed on the Defendant (thus including the confiscation in question) and the confiscation orders made against the Third-Party Interveners.
On both issues, the Criminal Chamber remits the case to the same Court of Appeal, differently constituted.
The Court of Appeal may again impose the additional penalty of confiscation on the Defendant, provided that it identifies the items held under seal more precisely and gives reasons for the measure.
In this respect, quashing with remittal appears inevitable, since a fresh decision on the merits is required and the Court of Cassation does not have the factual material necessary to apply the appropriate rule of law directly (Code of Judicial Organisation, Art. L. 411-3).
It is therefore to be hoped that this decision will help improve the reasons given by the courts ruling on the merits for this type of penalty, which in practice appear deficient (for example, reasons are repeatedly absent in immediate trial proceedings, in which judges most often merely order confiscation of « the items held under seal »).
Nevertheless, as with earlier case law concerning reasons for principal sentences, and given the Court of Cassation’s inability to rule directly on the merits without remittal where an appellate decision contains insufficient reasons, the Court may continue for some time to encounter reasoning that is, to say the least, brief.
In this case, it appears likely that no confiscation will be ordered against the Third-Party Interveners, through strict application of the case law under discussion.
The Court of Appeal will, however, have to determine the questions of confiscation of the property in question, which might be ordered against the Defendant (for example, if it constitutes the subject matter or direct proceeds of the offence; although it would then be difficult to understand why, had that option been available, the Court of Appeal attempted in this case the decidedly convoluted approach of imposing a penalty on a third-party intervener…), and its return to those third parties, failing restitution.
The criminal court « may refuse to return property where doing so poses a danger to persons or property, or where the seized property constitutes the instrument or direct or indirect proceeds of the offence » (Code of Criminal Procedure, Art. 481), without that refusal being regarded as a punitive sanction (Constitutional Council, 3 December 2021, No. 2021-951 12/01/2024 18:11 Reasons for Confiscation and Its Nature: Principles Reaffirmed by the Criminal Chamber – QPC, § 9, Dalloz actualité, 10 December 2021, commentary by D. Goetz ; D. 2021. 2181 📄). Case law appears to regard these grounds for refusing to return property as exhaustive: « where the seized objects are not liable to confiscation and are not claimed by a third party, the criminal court may refuse to return them only if doing so poses a danger to persons or property » (Criminal Chamber, 8 June 2017, No. 16-84.038). This appears consistent with the wording of the provision, which, unlike Article 41-4 of the Code of Criminal Procedure, makes no reference to « any other ground » (see, in this respect, the Court of Appeal’s reasoning in Criminal Chamber, 18 March 2020, No. 19-82.978, § 10, Dalloz actualité, 19 May 2020, commentary by S. Fucini; D. 2020. 2367, commentary by G. Roujou de Boubée, C. Ginestet, M.-H. Gozzi, S. Mirabail and E. Tricoire 📄 ; AJ pénal 2020. 372, commentary by M. Hy 📄, which may be contradicted by Criminal Chamber, 1 February 2023, No. 22-80.461, Dalloz actualité, 8 February 2023, commentary by T. Scherer).
In this case, the outcome may vary depending on factual aspects of the case that are not specified in the judgment under review. The Third-Party Interveners must therefore await the forthcoming decision…
by Ghislain de Foucher and Chloé Méléard, Members of the Paris Bar