#07: Accessory penalties and measures

The Dutch sanctions system distinguishes between penalties and measures. Penalties are mainly aimed at punishment and general deterrence. Measures, on the other hand, aim for the improvement of the security and safety of persons or property. Another element is the restoration of the situation as it was before the criminal conduct occurred. Practice shows that besides the possibility to punish someone who is convicted of a crime with imprisonment, community service or a (severe) fine, the possibility of imposing accessory penalties and measures is becoming more common. Therefore an overview of such penalties and measures as stated in the Dutch national law might be helpful.

The accessory penalties that can be imposed according to the Dutch Criminal Code (DCC) are i) Deprivation of certain rights and disqualification from practicing professions, ii) forfeiture and iii) publication of the judgment. It should be mentioned that certain specific criminal laws contain specific accessory penalties. It goes beyond the scope of this article to go into detail of each specific law . However, one accessory penalty should be mentioned with regard to our practice. Based on the law for economic offences for specific offences the closure of a company can be ordered.

Rights that one may be denied of, are for instance the right to hold a public office, the right to serve in the army, the right to vote and to be elected, the right to serve as an official administrator or a lawyer and the right to practice specific professions. An example of this last category is for instance the profession of tax advisor or accountant. These deprivations of rights are described in article 28 DCC. Jurisprudence shows more and more that Courts order professional facilitators in fraud cases to be denied from their right to practice their profession for a certain period of time. This penalty seems to be imposed when the Courts are of the opinion that there is a high probability of recidivism. An example is the judgement of an Appeal Court in which a tax advisor is convicted for fraud for the second time. The Court imposes in that case the penalty of deprivation of the right to act in the profession of tax advisor for a period of five years. In order to prevent this accessory penalty it is important for the defense to make a clear statement in which it is explained why likelihood of recidivism is small.

The second accessory penalty is forfeiture. Objects that can be forfeited are described in article 33a DCC. To have objects forfeited three conditions have to be fulfilled: First the object can only be forfeited if a criminal conviction was rendered with regard to that object. Second, objects which are suitable for forfeiting are those obtained by means of the criminal offence, or in relation to which the offence was committed or which are manufactured or intended for committing the crime or the illegally obtained profits of the crime. The last condition that has to be fulfilled is that the objects – in principle – have to be forfeited from the suspect himself. This is only different if these objects are owned by a third party and this third party knew that the objects derived from a criminal activity.

With regard to the second condition we would like to add that the possibility to forfeit the profits of a crime is reintegrated in the legislation since 1 July 2011. These objects were in 1993 removed from article 33a DCC when article 36e DCC came into effect. This article (also) makes it possible to confiscate illegally obtained profits. While the legislator first felt that these laws would be duplicates. The legislator was later of the view that it would be easier to have both procedures to forfeit and confiscate illegally obtained assets. The relation between the two will later on be discussed.

The third accessory penalty is that the Court can order the judgment to be published in a newspaper or a specialist journal for instance. Judgements are in general only published anonymized on www.rechtspraak.nl. However a Court can order based on article 36 DCC that the judgement is published publicly. The expenses for the publication in that case are to be borne by the convict. However, this penalty is hardly ever imposed. An example is a judgement in which the convicted acted as a dentist while he was not competent to do so.

Measures can be imposed in conjunction with different sanctions. The range of different measures provided for in the DCC range from hospitalization to confiscation. The measures which are mainly relevant in our practice – economic an tax fraud cases – are confiscation of illegally obtained assets and compensation for victims.

Confiscation seems to be similar to the forfeiture of assets, however confiscation of illegally obtained assets is not considered a penalty. This does not mean that a certain amount can be forfeited and after this forfeiture the same assets can be confiscated again. The Dutch Supreme Court recently ordered that if the forfeiture specifically relates to illegally obtained assets the same amount cannot be confiscated as well. It is therefore the responsibility of the defense to demonstrate in a confiscation case – if the penalty of forfeiture is already imposed – what the reason of the forfeiture was.

Since the 1993 Criminal Code law reform the Court may impose an obligation to pay the State Treasury an amount that equals the financial gain obtained through the commission of criminal offences: this is the confiscation procedure. This measure was introduced in order to improve the fight against organized crime such as drug trafficking, fraud, environmental crime and money laundering. This measure is dealt with in a separate procedure. This procedure can take place during or after the criminal procedure. This confiscation measure is a non-punitive measure and can be imposed if the following conditions are met:

• The convict has benefited ‘by means or from’ the offence for which he or she has actually been convicted;
• The convict has benefited ‘by means or from’ other criminal acts of which there are sufficient indications that the convicted person also committed these acts;
• The conviction was based on a serious offence on which a fine of the fifth category could be imposed. The height of the category of fines has been varying over the years.

Following the example of the UK Drug Trafficking Offences Act 1994 article 36e DCC was amended in 2011. This amendment made it possible to confiscate conform article 36e, subsection three, part a, all expenditure done by the defendant six years prior to the date when the crimes were committed. Based on the conviction it is assumed that the expenses are illegally obtained profits. This assumption can be refuted by making it sufficiently plausible that the spent money has a legal source. The same applies for assets obtained in the six years prior to the criminal offence as described in article 36, subsection two, part b.

This measure can have great implications. An active role of the defense is an absolute must because of the low burden of proof in these cases. In financial fraud cases money flow charts can demonstrate the necessary evidence to establish where the assets come from and whether the assets have a legal or illegal source.

Last but not least attention should be given to the measure of compensation for the victim as stated in article 36f DCC. The exact definition of ‘victim’ in a Dutch criminal case is as follow (article 51f Dutch Procedural Code (DPC)): “The person who suffered damage directly through a criminal offense has the right to participate as a victim in the criminal proceedings to claim for damages.”

It is possible for a victim to request for (the relevant parts of) the case file based on article 51b of the DPC. This gives the victim the opportunity to determine whether there is reason to file a claim for damages in the criminal case. While it often happens that a civil party claims to be a victim in a case a request for compensation is rare. The reason is probably that a claim of a victim is only admissible when it does not put too much pressure on the criminal proceeding itself. Practice shows that the victim status is often used to gather information to file a civil claim. It can therefore be considered as an effective instrument to get access to the case file, based on which also a civil claim can be filed.

We are curious to see/hear whether other countries have completely different accessory penalties or measures that can be imposed in fraud cases. We are looking forward to hear about your experiences.