All the questions
Seizure and evidence
i Securing assets and products Criminal remedies
At the investigation stage and also during the trial, the courts may decide to seize property for the purpose of preserving evidence or as a guarantee of the victim’s claim for the recovery of the property or for damages.35 The rule applies to property, movable property and property controlled by the suspect of a crime and even – although to a lesser extent – to property in the possession of a non-suspect.
A seizure decision will be made by court order, and the order can be requested by the police as well as by the victim.36 In some cases, however, the police can bypass the courts and make a summary decision to enter whether the objective would otherwise be lost.
The attachment order will be lifted or terminated depending on its terms and the outcome of the investigations and any subsequent criminal proceedings. The decision-making powers of the court are subject to certain restrictions – on the one hand, no decision can be taken by the court during criminal proceedings as to who owns the seized property.37
Civil remedies Seizure orders
As a general rule, the execution of a complaint can be requested in accordance with Section 478 of the Danish Administration of Justice Act. Court judgments, out-of-court settlements, arbitral awards, debt securities, and mortgages and pledges can serve as the basis for enforcement.
However, a victim of fraud will usually have no basis for execution, and if the victim has to wait for a court to rule on the matter, there is a risk that the offender has disposed of his profits and assets. .
Certain interim remedies are available to deal with this risk. A victim of fraud can apply for a seizure order on the property belonging to the offender.38 When a peg order is issued, the owner loses control of the asset affected by the peg order.
A seizure order does not grant a guarantee on the asset. Instead, the purpose of the order is to ensure that the owner does not have the assets so that creditors can seek performance. Any creditor can, however, enforce performance on the asset and not just the person requesting the order.
A seizure order can be issued if the following cumulative criteria39 are met:
- there is no basis for the execution of the victim’s request under section 478 of the Danish Administration of Justice Act;
- the prospect of the victim obtaining coverage for his claim would deteriorate significantly in the absence of an order for the seizure of the defendant’s property. The victim bears the burden of proof. The criteria will generally be met if the victim can prove that the defendant’s transactions are unusual;40 and
- the defendant cannot prove that the victim’s claim probably does not exist. Usually, the party claiming to have a claim has the burden of proving its existence. Under this rule, however, the defendant must prove that the claim (most likely) does not exist to prevent the attachment order.
A request for an attachment order must be filed in writing with the competent enforcement court and must include the necessary information about the circumstances to support the request.41 The enforcement court may ask the person requesting the garnishment to provide a guarantee for damages vis-à-vis the defendant if the order turns out to be unjustified.42
The enforcement court may also decide to physically remove the property affected by the defendant’s order to ensure that the defendant is unable to dispose of it.43
After obtaining a seizure order, the victim must then bring a civil action against the defendant within seven days of the seizure hearing.44 The court must confirm that the claim on which the order was granted is justified and confirm the seizure order (this is called a “confirmatory action”).
Disposal of assets before bankruptcy
When a bankruptcy order is issued, the debtor loses control of the assets.45 However, before issuing a bankruptcy order, the probate court may decide, at the request of a creditor, to dispossess the debtor of his property if there is a risk that the debtor will dispose of the property to the detriment of the creditors.46
ii Obtaining evidence
The rules on the taking of evidence can be found in the Danish Administration of Justice Act. Common means of obtaining evidence are party examination, disclosure and expert evidence.
Any person summoned by a party to an ongoing civil case will be required to appear and testify before the competent court. The person summoned may ask to be excused either in part (on certain matters) or in full – for example, if testifying would expose the person or one of the persons related to him or her to the penalty of the law or would be prejudicial. to his or her, or their, safety or well-being.47
A victim of fraud can seek a disclosure order with respect to documents in the possession of the defendant or a third party.48 If so, the victim should clarify what documents are requested, what facts they seek to prove with the documents and why the documents are relevant to those facts. The victim should also provide the reasons why the documents are (believed to be) in the possession of the other party.49
If the defendant does not comply with the order, the court may conclude in its decision on the merits that the alleged evidence contained in the requested documents is prejudicial to the defendant’s cause.50 While the court cannot force the disclosure of any document in the defendant’s possession, it has certain measures to compel a third party to comply with the disclosure order.51
Expert evidence is primarily used to explain the complex factual circumstances of a case. The rules governing expert testimony can be found in Part 19 of the Danish Administration of Justice Act.
A party may apply to the court for permission to obtain evidence even before the proceedings begin.52 The purpose of obtaining evidence before a trial is to enable a party to obtain evidence for the purposes of the trial, and it is therefore a prerequisite for obtaining evidence that the request in question may serve as a basis for a trial.53
In the case of bankruptcy proceedings, the debtor is required to provide the trustee of the bankruptcy estate with all the information necessary for the administration of the estate.54 The trustee can subpoena the debtor or others to testify in probate court. In this case too, the debtor and others can ask for an apology.55 With the assistance of the enforcement court, where appropriate, the trustee of a bankruptcy estate may seek to recover all documents as well as assets which can be assumed to belong to the bankruptcy estate.