The legislative intent of asset recovery or disgorgement is to prevent anyone convicted of a criminal offence from retaining the fruits of their offence. According to the unanimous opinion expressed in case law and legal literature, asset recovery is not a punishment but actually a legal measure in its own right. Whenever someone has been convicted of a criminal offence, any assets obtained through or for the offence may be subject to a confiscation order. In other words: the person concerned will be ordered to return a specific asset or to pay a sum of money to the public treasury.
Assets may be confiscated or attached as early as during preliminary proceedings to safeguard any future recovery. Apart from being remanded in custody, this is arguably the most intrusive procedural measure, as it permits actions such as the “freezing” of accounts, even though there may only be an initial suspicion.
In addition, asset recovery and disgorgement also play an important role in the context of administrative offence proceedings against companies. As administrative fines imposed on companies are always intended to disgorge any economic benefits derived from the sanctioned administrative offence, this may even result in the usual scope of fines being exceeded.