séquestre en garantie de créances compensatrices

English translation: [request for] assets to be frozen as collateral for the compensation claims

15:00 Aug 8, 2019
French to English translations [PRO]
Law/Patents - Finance (general) / This is from a memorandum written by the defendants\' legal counsel
French term or phrase: séquestre en garantie de créances compensatrices
This is from a memorandum written by the defendants' legal counsel concerning charges brought against individuals relating to financial crimes. I'm a little unsure of the whole thing to be honest. Any help would be appreciated.

il est néanmoins nécessaire de faire porter l’enquête sur cet élément essentiel en vue de traiter la requête de confiscation, respectivement de séquestre en garantie de créances compensatrices, des avoirs provisoirement bloqués en France...

it is nevertheless necessary to focus the investigation on this essential element with a view to processing the application for (the?) seizure, respectively for sequestration as collateral for compensatory claims??, (of the?) assets provisionally frozen in France/...
Vivien Green
United Kingdom
English translation:[request for] assets to be frozen as collateral for the compensation claims
Explanation:
There are two legal terms here: (1) séquestre, and (2) créances compensatrices.

Séquestre does NOT mean seizure or forfeiture. Those terms are used for the legal process of taking assets and/or title in them away from the owner. In contrast, séquestre means taking away control of the assets but not title in (ownership of) them. The asset still technically belongs to the current owner but she can't do anything with it (can't spend the money, sell the goods, use the bank account, etc.).

"La 'mise sous séquestre' est la mesure conservatoire à caractère provisoire permettant de mettre " sous main du justice" une somme d'argent, un bien meuble ou un bien immeuble pour le rendre momentanément indisponible" until the court makes a final decision.
https://www.dictionnaire-juridique.com/definition/sequestre....

That's called freezing an asset in English: https://thelawdictionary.org/frozen-asset/

A créance compensatrice is a claim for compensation: you're telling the court that the defendant owes you money, e.g. because they stole or destroyed some asset belonging to you and since you can't get that asset back (or in case you can't get that asset back), you want money to compensate you for the loss.

"Le but de la créance compensatrice est d'éviter que celui qui a disposé des objets ou valeurs à confisquer soit privilégié par rapport à celui qui les a conservés.... vise à empêcher que l'auteur d'une infraction demeure en possession d'avantages qu'il s'est procurés au moyen de ses agissements délictueux." https://entscheidsuche.ch/kantone/ne_trican/NE-trican-ARMP-2...

The term has been translated here before as "compensation claim," which works in the current example too: https://www.proz.com/kudoz/french-to-english/finance-general...

Without more context I can't be sure but it sounds like the plaintiff is asking the court to either seize (confisquer) X asset and/or freeze (séquestrer) Y asset in order to turn them over to the plaintiff (or sell them and turn the proceeds over) if the plaintiff wins the underlying case.




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Note added at 2 days 15 hrs (2019-08-11 06:14:39 GMT)
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PS to Daryo: "sequestration" has a lot of different meanings in legal English, whereas "freezing"/"frozen" doesn't. "Sequester" is also not as commonly used, and as you note, in the sense used here, they're synonyms so either one works.

https://legal-dictionary.thefreedictionary.com/sequestration
Selected response from:

Eliza Hall
United States
Local time: 05:53
Grading comment
Selected automatically based on peer agreement.
4 KudoZ points were awarded for this answer



Summary of answers provided
4 +4[request for] assets to be frozen as collateral for the compensation claims
Eliza Hall
4 -1sequestration of the provisionally frozen assets ..., as collateral for the compensation due.
Daryo
4 -2pledged deposit as collateral for claims for compensation
Francois Boye
3 -1forfeiture to cover compensation claims (the victim's 'equivalent' claims)
Adrian MM.
4 -3seizure of assets for an equivalent claim
Leighton Jacobs


  

Answers


35 mins   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): -2
pledged deposit as collateral for claims for compensation


Explanation:
my take

Francois Boye
United States
Local time: 05:53
Specializes in field
Native speaker of: Native in FrenchFrench
PRO pts in category: 259

Peer comments on this answer (and responses from the answerer)
disagree  Daryo: https://fr.wikipedia.org/wiki/Séquestre_(droit) // has a bit more weight than "my take" ...
3 hrs

disagree  AllegroTrans: séquestre is a court procedure freezing or charging assets not a pledge
10 hrs
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6 hrs   confidence: Answerer confidence 3/5Answerer confidence 3/5 peer agreement (net): -1
forfeiture to cover compensation claims (the victim's 'equivalent' claims)


Explanation:
The term seems to parse: séquestre > en garantie de créances compensatrices and not séquestre (en garantie) de créances compensatrices (cf. Art. 12 Cst. et art. 268 CPP; séquestre en couverture des frais)

la requête de confiscation, respectivement de séquestre en garantie de créances compensatrices, des avoirs provisoirement bloqués en France

the (often: ex parte = without notice) for confiscation (used in the UK for the proceeds of crime), alternatively / in the alternative / for forfeiture as a way of securing the victim's compensation claims, of credit balances (on bank accounts and) provisionally frozen in France.

web ref. 71.5 créance compensatrice > 'equivalent claims'

I had to go through a Swiss-German website that refers to Einziehung = forfeiture and Erstazforderungen = créances compensatrices, though there are others that equate the latter to set-off claims on divorce for equalising or balancing payments between the spouses: entscheide.weblaw.ch/cache.php?link=12.03.2018_6B_783-2017&sel_lang=de

séquestre : also a receivership or interpleader (not an impleader) process - see also Daryo's ref. and the second example sentence.








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Note added at 6 hrs (2019-08-08 21:53:12 GMT)
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the (often: ex parte = without notice) *application* for confiscation....

Example sentence(s):
  • Comme c’est le cas du séquestre *conservatoire* (interim), l’autorité qui statue en matière de séquestre en garantie d’une créance compensatrice doit pouvoir statuer rapidement, ce qui exclut qu’elle s’arrête sur des questions juridiques c
  • Le séquestre (droit) est la procédure par laquelle un tribunal décide de placer un bien ou une somme d'argent sous la garde de la justice, rendant le bien séquestré momentanément indisponible pour son propriétaire jusqu'au jugement qui y mettra fin

    Reference: http://www.droit-bilingue.ch/rs/lex/1937/00/19370083-index-f...
    Reference: http://www.lawinside.ch/73/
Adrian MM.
United Kingdom
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 24

Peer comments on this answer (and responses from the answerer)
neutral  Daryo: "sous la garde de la justice" => nominally assets are still in the same ownership, only not available while if "forfeited" assets would be taken away for good, no chances of getting assets back?// These Scots, they just keep creating confusion ...
2 hrs
  -> Yes. You're right. Problem is a DE source (?) version of 'Einziehung' def. means forfeiture - undermining the FR version of séquestre vs. saisie - seizure, impounding//or *attachment* if of credit bals.// BTW, 'sequestration' in Scotland means bankruptcy.

disagree  Eliza Hall: Forfeiture = confiscation in FR, not sequestre. And "equivalent claim" is misleading: it sounds like it means a claim that is equivalent to another claim, but the meaning here is a claim for money of equivalent value to the thing lost.
2 days 8 hrs
  -> You are oblivious to the German source-word of 'Einziehung' meaning forefeiture and the point that séquestre may well be a mistranslation of such.
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5 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): -1
séquestre [en garantie de créances compensatrices] des avoirs provisoirement bloqués en France
sequestration of the provisionally frozen assets ..., as collateral for the compensation due.


Explanation:
séquestre [en garantie de créances compensatrices] des avoirs provisoirement bloqués en France
=
séquestrer les avoirs provisoirement bloqués en France [en vue de garantir les (/le paiement des ...) créances compensatrices]
=>
sequestration of the provisionally frozen assets in France, [that are to used] as collateral for the payment of compensation due.

créances compensatrices = "créances" what is owed by this person + "compensatrices" = the "debt" in question is the obligation to pay compensation to victims of his/her financial crimes.


https://fr.wikipedia.org/wiki/Séquestre_(droit)

https://en.wikipedia.org/wiki/Sequestration_(law)

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Note added at 1 day 6 hrs (2019-08-09 21:03:47 GMT)
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[that are to be used]

Daryo
United Kingdom
Local time: 10:53
Specializes in field
Native speaker of: Native in SerbianSerbian, Native in FrenchFrench
PRO pts in category: 164

Peer comments on this answer (and responses from the answerer)
neutral  Eliza Hall: Sequestration works (see my PS to you). "Compensation due" doesn't because we don't know yet if it is due -- it might be, so a request is made to sequester/freeze the assets pending resolution.
2 days 10 hrs
  -> well, if the court is willing to get involved, it must be at least a pretty high probability that a compensation will be due at some point in future- I guess you could make it more hypothetical "for any compensation possibly due"

disagree  GILOU: as collateral for the compensation due = ce n'est pas très clair
5 days
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1 day 2 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): +4
[request for] assets to be frozen as collateral for the compensation claims


Explanation:
There are two legal terms here: (1) séquestre, and (2) créances compensatrices.

Séquestre does NOT mean seizure or forfeiture. Those terms are used for the legal process of taking assets and/or title in them away from the owner. In contrast, séquestre means taking away control of the assets but not title in (ownership of) them. The asset still technically belongs to the current owner but she can't do anything with it (can't spend the money, sell the goods, use the bank account, etc.).

"La 'mise sous séquestre' est la mesure conservatoire à caractère provisoire permettant de mettre " sous main du justice" une somme d'argent, un bien meuble ou un bien immeuble pour le rendre momentanément indisponible" until the court makes a final decision.
https://www.dictionnaire-juridique.com/definition/sequestre....

That's called freezing an asset in English: https://thelawdictionary.org/frozen-asset/

A créance compensatrice is a claim for compensation: you're telling the court that the defendant owes you money, e.g. because they stole or destroyed some asset belonging to you and since you can't get that asset back (or in case you can't get that asset back), you want money to compensate you for the loss.

"Le but de la créance compensatrice est d'éviter que celui qui a disposé des objets ou valeurs à confisquer soit privilégié par rapport à celui qui les a conservés.... vise à empêcher que l'auteur d'une infraction demeure en possession d'avantages qu'il s'est procurés au moyen de ses agissements délictueux." https://entscheidsuche.ch/kantone/ne_trican/NE-trican-ARMP-2...

The term has been translated here before as "compensation claim," which works in the current example too: https://www.proz.com/kudoz/french-to-english/finance-general...

Without more context I can't be sure but it sounds like the plaintiff is asking the court to either seize (confisquer) X asset and/or freeze (séquestrer) Y asset in order to turn them over to the plaintiff (or sell them and turn the proceeds over) if the plaintiff wins the underlying case.




--------------------------------------------------
Note added at 2 days 15 hrs (2019-08-11 06:14:39 GMT)
--------------------------------------------------

PS to Daryo: "sequestration" has a lot of different meanings in legal English, whereas "freezing"/"frozen" doesn't. "Sequester" is also not as commonly used, and as you note, in the sense used here, they're synonyms so either one works.

https://legal-dictionary.thefreedictionary.com/sequestration

Eliza Hall
United States
Local time: 05:53
Works in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 8
Grading comment
Selected automatically based on peer agreement.

Peer comments on this answer (and responses from the answerer)
neutral  Daryo: agree with all of your explanations - only can't see why you shun "sequestration (of assets)"? As far as I can see, it's the exact equivalent?
3 hrs
  -> That works, but sequestration has numerous possible meanings in legal English, most of which aren't relevant. Freezing (assets) only has one. So to my mind, it's less susceptible to misinterpretation.

neutral  Adrian MM.: we already have a 'freeze' in des avoirs provisoirement bloqués en France... That's why I didn't use that double-up translation.
1 day 14 hrs

agree  GILOU
3 days 8 hrs

agree  AllegroTrans: I would prefer "for any compensation found to be due" but this works
4 days

agree  Leighton Jacobs: After further consideration and research I completely agree and my suggestion is definitely inaccurate. I will be sure to refrain from commenting on questions dealing with legal issues in the future!
5 days
  -> What an incredibly polite response. It's very unusual for commenters on the web to acknowledge when they were wrong, even though EVERYONE is wrong sometimes. You've set a great example and I'll be as polite as you are the next time I make a mistake.

agree  Michael Confais
10 days
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23 hrs   confidence: Answerer confidence 4/5Answerer confidence 4/5 peer agreement (net): -3
seizure of assets for an equivalent claim


Explanation:
If you refer to the Swiss Penal Code and The Swiss Criminal Procedure Code you will find that the French "sequestration" is referred to as "seizure" in English and that "Créance compensatrice" as "equivalent claim". I think given the legal nature that it would be most appropriate to use the existing terms.

My suggestion would be along the lines of:

"Nevertheless, it is necessary to focus the investigation on this key element in view of processing the forfeiture request or the request for seizure of assets, provisionally frozen in France, for an equivalent claim."

https://www.admin.ch/opc/fr/print.html (Article 71.5)
https://www.admin.ch/opc/en/print.html (Article 71.5)

https://www.admin.ch/opc/fr/classified-compilation/20052319/... (Chapitre 7 - you can change the language at the top)

Hope this helps!



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Note added at 3 days 20 hrs (2019-08-12 11:43:28 GMT)
--------------------------------------------------

In response to comments regarding my suggestion I would just like to clarify a few things.

If you use "sequestration" in English, this makes "en garantie d'une créance compensatrice" redundant insofar as this is already implied in "sequestration". Using both would therefore only add an element of repetition to any translation as the notion of "en garantie d'une créance compensatrice" is already embedded in "sequestration".

Furthermore, I have seen suggested "freezing of assets". I don't believe this is quite right here because it seems as though the assets have already been frozen and the next step of actually seizing the assets is what is being sought after, i.e. "requête de confiscation" (this is more than simply "freezing assets").

This is besides the point however, as my suggestion is not my own translation; it is a translation of "Le séquestre en garantie d'une créance compensatrice" that is already used and accepted. I urge you to refer to the references I have provided as I feel these must have been overlooked much in the same way the language variant has been largely overlooked (Swiss French).

Just to once again provide another reference:
https://www.bger.ch/ext/eurospider/live/fr/php/aza/http/inde...

If you look under the subheading "Regeste b" at the link above, you will find the exact line "Le séquestre en garantie d'une créance compensatrice (art. 71 al. 3 CP)" where "CP" refers to the Code Penale (Swiss Criminal Code). If you then go to article 71 of this Swiss Criminal code (my original references above), you find the term "Equivalent claim" as the sub-section title for article 71 and the term is also mentioned in point 3 of this section ("[..] seizure [...] in the enforcement of the equivalent claim.

Unless I'm very much mistaken, I therefore fail to see how, on this evidence, the translation I have suggested can be considered incorrect and/or inappropriate to any degree. I appreciate that the fellow translators who have commented here have greater experience in the field than I, but to sweep the accepted terminology I propose to one side appears foolhardy at best and improper at worst. It is vitally important to research existing terms and to use them (of course after having ascertained their accuracy and reliability) so as not to cause any potential confusion or even to introduce any errors into your translation.

Many of the suggestions here are absolutely correct in linguistic terms, there can be no doubt of this and I do not disagree with them in this regard. But it seems they fail to consider the wider context and any terminology that may already exist. It is not for translators to pick and choose terminology as they fancy and to create new terminology in place of any that already exists. It is for these reasons that I have suggested the above-mentioned translation.

I hope I've been a little clearer than my original post and any further comments would allow. Please enlighten me if the case is such that I am indeed greatly mistaken.

Many thanks.

Leighton Jacobs
United Kingdom
Local time: 10:53
Specializes in field
Native speaker of: Native in EnglishEnglish
PRO pts in category: 4

Peer comments on this answer (and responses from the answerer)
disagree  Daryo: What's the point of your convoluted method??? A translation from Swiss French into EN doesn't prove that "une séquestration" = "seizing assets". Comparing definitions could, but as it happens their definitions don't match.
6 hrs
  -> Upon further consideration, I agree and believe you are correct. Thank you for your comments.

disagree  Eliza Hall: Equivalent claim and compensation claim don't mean the same thing at all. Also, re your answer to Daryo above, no, you can't just leave something out of a legal translation because you think it's redundant. Legal translations require more exactitude.
1 day 15 hrs
  -> Upon further consideration, I believe you are correct. To address your misconstrusion directly: I was not arguing for leaving anything out, that would of course be absurd. My argument was exactly the opposite: to not use sequestration for this reason.

disagree  AllegroTrans: It's not an "equivalent" claim it's ANY claim - but not yet certain as it's under investigation/assessment
5 days
  -> Thank you for your measured comment, I see now that my suggestion is indeed inaccurate.
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