Facts
On 8 December 1990, Z.X. dies, leaving as heirs his four children, each entitled to one quarter, as well as his spouse A.X., who is granted the usufruct of the entire estate. Following partial distributions, only two of the children, D.X. and X.X., become bare owners in indivision of the remaining unallocated estate assets, which include properties generating substantial rental income, of which A.X. retains the usufruct.
On 24 December 2005, X.X. commits the murder of his mother A.X., his sister D.X. and a family friend. Convicted to life imprisonment by the Criminal Court of the Vaud Eastern District on 27 June 2008, X.X. is subject to confiscation of sequestered assets. Following a review of the proceedings, a new judgment of 18 March 2010 finds him guilty of the same offences and confirms the confiscation of the rental income received up to that date, namely a balance of 1,263,100 francs in a dedicated account. This judgment, confirmed by the Vaud Criminal Cassation Court on 4 October 2010, becomes final following a partial ruling by the Federal Supreme Court on 20 December 2011.
After the 2010 judgment, the management continues to pay into the same account the rental income received on behalf of X.X.’s share in the indivision of the estate. On 21 March 2013, the Attorney General of the Canton of Vaud initiates an independent confiscation proceeding pursuant to Art. 376 CrimPC, considering that these income streams received after 18 March 2010 also constitute the proceeds of the crime. A sequestration order is issued, followed by full confiscation of the account assets by the Central Public Prosecutor’s Office on 13 April 2015, on the grounds that the 2010 judgment only covered assets sequestered prior to that date. X.X. files an objection, then an appeal, both dismissed by the cantonal authorities. X.X. then appeals to the Federal Supreme Court, seeking annulment of the confiscation order and restitution of the assets, arguing a violation of the ne bis in idem principle and of Art. 376 CrimPC.
Considerations
The Federal Supreme Court first examines the admissibility of the independent confiscation proceeding initiated after the final conclusion of the ordinary criminal proceedings. It recalls that, in accordance with consistent case law, such a proceeding is subsidiary and may only be initiated if new confiscable values emerge after the end of the ordinary criminal proceedings or if the criminal authority was unable, due to negligence or impossibility, to order confiscation within the framework of those proceedings. In the present case, the disputed future rental income was ascertainable and available at the time of the judgment of 18 March 2010, at which point the Criminal Court could and should have confiscated it.
The Federal Supreme Court further states that confiscation under Art. 70 para. 1 SCC aims to prevent a crime from yielding a gain for its perpetrator. This measure may extend to future benefits, provided they are sufficiently ascertainable in time and amount, including by estimation. The future rental income from the estate indivision, of which X.X. was a co-owner as an heir, met this condition. Its confiscation could have been ordered as early as 2010, either by precise estimation or by clearly designating the subject of the measure (for example, the net income until the statistical life expectancy of A.X., set at 31 December 2014).
The…