It follows from the provisions of articles 131-21 paragraphs 3 and 9 of the Criminal Code, 706-141-1 and 706-154 of the Code of Criminal Procedure that the value of a seizure cannot exceed the value of the property liable to be confiscated.
Thus, where several perpetrators or accomplices have participated in a set of acts, whether they constitute the whole or only part of it, each of them is liable to confiscation of the proceeds of the offence or offences of which he or she is personally accused, whether or not he or she is considered to be part of an organised gang, provided that the total value of the property confiscated does not exceed the total proceeds of the offences judged.
While the plea alleging breach of the principle of proportionality with regard to property rights is inoperative where the seizure concerned the value of the direct or indirect proceeds of the offence (Crim, 5 January 2017, no. 16-80. 275), a judge who orders the seizure of the value of property belonging to a person or of which he or she has free disposal, even though it is not clear from the evidence in the proceedings that he or she has benefited from all of the proceeds of the offence, must nevertheless assess, when this guarantee is invoked, the proportionality of the infringement of the interested party’s right of ownership with regard to the portion of the proceeds of the offence from which he or she has not benefited.
Thus, in the case of a company that has not benefited from the entirety of the proceeds of the undeclared work offence of which it is accused, the investigating chamber must evaluate the proceeds of the offence from which it has benefited in order to verify the proportionality of the infringement of its right of ownership over the part of the proceeds of the offence from which it has not benefited.
To this end, URSSAF must carry out a precise calculation of the proceeds of the offence and produce evidence of the number of hours worked, month by month and employee by employee.
Any other sum not related to the proceeds of the offence, such as various unpaid taxes, cannot be included in the contribution.
Cass. crim., 7 February 2024 – no. 23-84.319