#64: An exciting read

A case file usually consists of documents, statements, reports of wiretaps and other pieces of evidence. These items of evidence are often summarized in official acts and accompanied by conclusions of the reporting officers. In practice, we often see official acts that read like an exciting boys’ book. This as a result from far-reaching assumptions and presumptions that are not supported by the evidence. Assumptions and conclusions are not evidence in itself. Nothing new thus far. But it remains an important point of attention, as a recent Supreme Court decision also shows.

In the case at hand, the defendant was convicted by the court for money laundering because, according to the court, the defendant knew that sums of money derived from a crime. The court justified this judgment by referring to an official report of a police officer. This report contained a summary of tapped telephone conversations but also conclusions of the officer about what the contents of the conversations would show with respect to the knowledge of the suspect about the criminal origin of the money. In cassation this manner of using ‘evidence’ is objected. This is confirmed by the Supreme Court. According to the Supreme Court, this method of reasoning is inadmissible. Furthermore, a lesson on the use of evidence is provided.

Pursuant to Article 359, paragraph 3, of the Dutch Code of Criminal Procedure, a conviction must be based on evidence which contains the facts and circumstances. These means of evidence must be stated in the judgement or in the supplement to it. Another option is for the court to indicate the facts and circumstances in the judgement in sufficient detail, indicating the means of evidence from which these facts and circumstances are derived. The pieces of evidence that are used to substantiate the judgement must have been discussed during the court hearing.

The Supreme Court ruled that in this case the court used a statement of an official that contains conclusions that are inadmissible for the evidence. A judge must independently reach certain conclusions based on the underlying facts. It is not sufficient for the court to only consider that it agrees with the interpretations and conclusions of the reporting officer. The court has an independent task in drawing certain conclusions based on the facts instead of conforming unreasonably to conclusions of an official.

This judgement not only clearly indicates once again how a verdict or judgement must be substantiated with respect to the use of evidence. It is also an important point of attention for the defense: do not be misled by the interpretations and conclusions of the reporting officers and always assess independently whether the facts can support the conclusions. Also encourage the prosecution and the judge to do so. Always form your own opinion about the facts and circumstances, because a exciting boys’ book might as well be fiction.

Do you have any questions about the above or would you like to exchange views? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.

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