#44: What is the value of a confession?

It is completely up to a Court to decide upon a punishment when a suspect is found guilty of a crime. The Courts are only bound by the maximum penalties as stated in the law. In fraud cases it hardly ever happens that the maximum sentence is ordered. It is quite an arbitrary process in which (the) judge(s) ha(s)(ve) to weigh all the facts and circumstances of the case to come to a reasonable punishment. A difficult question to answer in this respect is: What will the suspect get in return for a confession?

The LOVS guidelines, which have been drawn up by the Courts of Appeal, provide guidance for the courts to determine which penalty should be imposed in a specific case. However, in the end every punishment is ultimately tailor-made. After all, the LOVS guidelines also state that aggravating and mitigating circumstances must be taken into account. But how these circumstances should be weighed and what effect these circumstances have on the punishment remains mystical. This applies in particular to the question on whether cooperation of the suspect in the investigation yields in terms of punishment. To this question, lawyers often are unable to give an answer. The Court of Appeal in The Hague recently made clear what the effect of cooperating on a punishment can be and – we believe it is fair to say – should be.

The case concerns a suspect who is convicted by the regional court for forgery of documents. He had submitted false declarations for an expensive drug for a period of two years, while in reality that drug had not been provided at all. However, the reimbursements for it had been collected by the suspect. The sentence he was given for this was a prison sentence of 18 months, 6 of which were conditional. The suspect appealed against this sentence. For most part, the Court upholds the statement of evidence, but in particular deals with the penalty.

The Court considers that according to the LOVS guidelines the sentence should be an unconditional prison sentence between 18 and 24 months. Nevertheless, the Court believes that in this case there is no reason to impose an unconditional prison sentence. The Court of Appeal explicitly states the circumstances that reduce the sentence:

1. Immediately after the case has come to light, the suspect fully cooperated with the investigation;

2. He has repaid the amounts wrongly received;

3. During the trial, the suspect has shown that he is aware that he has acted wrongly;

4. The consequences of the criminal case have had an enormous impact on the life and family of the suspect, partly due to media attention;

5. The suspect is a first offender.

In view of these circumstances, the Court of appeal comes to a conditional 12-month prison sentence and a 240-hour community service. Because the Court of appeal explicitly provides insight into what the mitigating circumstances are and what they result in, lawyers can now provide better advice to their clients on the (positive) effects of cooperating with the investigation.

We welcome the result of this judgement. After all, an unconditional prison sentence comes with a great amount of damage for the suspect and certainly also for relatives and loved ones. In such a situation we find this disproportional, as does the Court of appeal. A second chance can be deserved by cooperating. We therefore hope that other courts will take an example of this judgement.

Do you have any questions about this subject, are you confronted with a related issue and would you like to discuss this with us? Please feel free to contact us via boezelman@hertoghsadvocaten.nl and boer@hertoghsadvocaten.nl.


#43: The fading and fallible memory

In many criminal investigations under the Dutch continental law system, the investigation à décharge on behalf of the defense is a challenge. Due to the inquisitorial system it is not a given that the defense can interview any and all witnesses. The defense has to convince the (investigating) judge on the interest of interviewing certain witnesses. Especially requests that are made during the investigation of the police or FIOD (financial intelligence unit) are hard to realize. Even though interviews à décharge can be of crucial importance in this early stage. The Court of Appeal in Amsterdam now acknowledges that interviewing witnesses in a later stage has influence on the memory of the witness. Therefore it also has an influence on the reliability of the evidence, which is one of the arguments for granting permission to interview witnesses on the request of the defense in an early stage.

In a recently published decision the Court of Appeal had to decide on a case regarding taxi rides without running a taximeter. The defense was first granted to interview a witness in the appeal phase. The defense argued that the right to interview witnesses in the sense of article 6 ECHR was breached. The reason was that the witness was interviewed 4 (!) years after the alleged criminal act was committed. Because of the passing of time the witness could remember the incident only on headlines.

The Court of Appeal however decided that in this particular situation article 6 ECHR was not breached. At first the suspect was offered to accept his punishment by payment of a fine (the so called “strafbeschikking”). The suspect however did not accept this and appealed to the regional court. Soon after this appeal the suspect received the indictment to appear before the court. Before the indictment was received, the defense had the possibility to ask the investigating judge to interview witnesses, this momentum was however not used. The criteria to decide upon such a request is whether there is an interest for the defense. Now the request was first made during the hearing at the regional court. At that moment the criteria is whether the request to interview the witness is necessary for the defense. This request was then denied.

The Court also states that if the witness would have been interviewed at the regional court, this would not necessarily have led to a more detailed witness interview, as at that time also a lot of time – 2,5 years – had already passed since the incident.

In our opinion the argument that the passing of time influences the ability of witnesses to give a useful interview in criminal investigations, should be taken more seriously. If the defense requests to interview witnesses during the investigation phase, these requests should be granted. With the passing of time it will become more and more difficult for the witness to remember certain matters, perhaps important details, which are relevant for the case. Even though this situation did not cause a breach of article 6 ECHR in this specific situation, this does not mean that this witness could have provided important information for the case if he would have been interviewed earlier. After all, the importance to interview this witness in the appeal case was acknowledged.

This case not only shows that the defense should make their interest to interview certain witnesses early in the investigation, it also shows that these requests should be taken more seriously to be able to establish all the relevant facts and find the truth.

If you have any questions about this subject or if are you confronted with a related issue please feel free to contact us via boezelman@hertoghsadvocaten.nl and boer@hertoghsadvocaten.nl.

#42: The right to a trial within a reasonable period

Article 6 of the ECHR gives a suspect the right to a public hearing before an independent and impartial court within a reasonable period of time. Our experience is however that (financial) criminal investigations take a very long time. The workload of the Financial Intelligence office is too high. Also the workload of the Courts prevents the prosecution of all criminal cases. The question is: what can a do suspect against such delays? Can a suspect enforce the right to a trial within a reasonable time?

What a reasonable period is depends on the circumstances of the case. It depends on i) the complexity of the case; ii) the influence of the suspect or his counsel on the proceedings and iii) the way in which the case was handled by the competent authorities. According to the jurisprudence of the Dutch Supreme Court, an exceedance of a reasonable period is usually compensated by a reduction in sentences. Exceeding the reasonable period does not lead to inadmissibility of the public prosecutor, not even in exceptional cases.

But what if no prosecution takes place and the public prosecutor does not bring the case to trial? In the Netherlands it is possible to submit a request to terminate the case on the basis of Article 36 of the Code of Criminal Procedure. The question is however, whether the prosecution can be deprived of its right to prosecute due to a violation of the reasonable period on the basis of Article 36 of the Criminal Code. Courts seem to answer this question in various ways. However, such Court decisions cannot be appealed to the Supreme Court.

For this reason an advocate general of the Supreme Court, who provides independent advice to the Supreme Court, has submitted this legal question to the Supreme Court in a cassation procedure which is initiated in the interest of the law. One of the questions is whether an infringement on the right to a fair trial within a reasonable period can be a criterion in the application of Article 36 of the Dutch Criminal Code. Especially taking into account the jurisprudence of the Supreme Court which states that exceeding the reasonable period can never constitute a ground for declaring the prosecutor inadmissible in his prosecution.

The advocate general comes to the conclusion that sanctioning an unreasonable delay in the investigation and prosecution cannot lead to and end of the case, since this would be contrary to the aforementioned case law of the Supreme Court. However the advocate general provides another route to speed up the procedure. According to him the appropriate route to prevent an unnecessarily long investigation or the absence of a prosecution is the following:

At the request of the suspect, the examining magistrate can, on the basis of Article 180 (3) of the Criminal Code, commission a public prosecutor to end the investigation an prosecute the case if the investigation takes too long. However if the public prosecutor ignores this term the law does not provide for an explicit sanction. That is why, according to the advocate general, Article 36 DCC can serve as a safeguard. In that omission, the examining magistrate can find reason to submit the case to the court, who can then declare that the case has ended. In that case, that statement is not a sanction for exceeding the reasonable period as such, but for exceeding the set term by the examining magistrate. According to the advocate general, this is then compatible with the case law of the Supreme Court regarding the reasonable period.

In our opinion, this step-by-step plan is somewhat artificial. Why does the public prosecutor still have a last chance after an unreasonably long deadline? Is an infringement of the set term of the examining magistrate more serious than a violation of the human rights of the suspect on the basis of Article 6 ECHR? We believe that it is up to the prosecutor to consider and protect the fundamental rights of Article 6 ECHR. If a public prosecutor does not prosecute a case for an unreasonable period of time, apparently it is not that important. And can it still be possible to find truth even so many years afterwards? We believe that Article 36 CC should have an important function in protecting Article 6 ECHR in the event of an inactive or slow investigation. Maybe the Supreme Court in its decision provides the tools to protect the rights of a fair trial of a suspect.

If you have any questions about this subject or if are you confronted with a related issue please feel free to contact us via boezelman@hertoghsadvocaten.nl and boer@hertoghsadvocaten.nl.

#41: Tax: a dream, or a nightmare?

On 23 and 24 May 2019 we attended the Half Year Conference of the International Association of Young Lawyers (AIJA) in Hong Kong. One of the tax sessions was devoted to the changing landscape of professional liability of tax advisors across the world. We concluded that the transition of this landscape is in full force. The title of the conference “Tax: a dream, not a nightmare” therefore seems to be too soothing on this particular matter. The actions taken by the tax authorities and the prosecutions services against tax advisors are becoming harsher.READ MORE

#40: Dutch money laundering articles are being misused

In Lawlunch #21  we brought to the attention that we are noticing a shift in the perception of the presumption of innocence. The presumption of innocence dictates that the burden of proof lays with the prosecuting authority. This also entails that in principle the right to remain silent cannot be used against you. However, In Dutch case law we see a development – especially in relation to money laundering – that remaining silent can be held against you. We fear that this development results in the lost of meaning of the presumption of innocence. Also, it results in a preference of the use of the Netherlands as a jurisdiction to prosecute international money laundering cases. The idea is that a suspect has to prove the legality of the source of the money. The thresholds from Dutch jurisprudence however is another one.READ MORE

#39: Blinded by the cause

From the previous Lawlunches it becomes clear that the fight against (tax) fraud is fierce. “Facilitators”, such as tax advisors and financial institutions, are targeted by the various government institutions as described in Lawlunch #33. In Lawlunch #37 we concluded from the annual report of the FIOD (the Dutch tax intelligence and investigative unit) that this fight against fraud by going after facilitators will continue. We also concluded that this annual report lacks a very important topic: the rights of the accused.

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#38: To proof or not to proof

Criminal judges are given a difficult task. They need to reconstruct what happened and decide whether they are convinced somebody committed a criminal offence. The Dutch system of proof gives a judge a free hand when taking this decision: he is free in the valuation of the evidence and needs to be convinced that the crime was committed by the suspect to come to a conviction. This freedom of a judge is just limited by the rules regarding the minimum of proof. The unus testis nullus testis-rule is one of the basic principles in this regard. However, this rule does not apply to police officers. If a police officer witnesses something and writes this down in an official report, this report has probative value and the unus testis nullus testis-rule does not apply. We wonder of the probative value given to an official report is legitimate and whether a decision of the court could be solely based on an official report. Before we get to that, we will first consider the decision scheme of the Court to know which questions the Court has to answer. Thereafter, we will pay special attention to the probative value of an official report.

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#37: High and mighty

While 2019 is still brand new, we have already been treated with lots of developments. Britain is keeping everyone occupied with their Brexit worries, as are the United States with the shutdown. Meanwhile the various authorities are continuously expanding their fight against fraud. This year, on 4th of January, the Dutch Tax Intelligence and Investigative Service (FIOD) published an annual report for the first time. The title of the report on 2018 is: ‘The silent revolution in the financial investigation’. In the report the FIOD looks back on the accomplishments of the last year and their goals for 2019. Reading the report however makes one wonder: are there only just accomplishments or is the FIOD getting high and mighty on itself?

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#36: The end is near…

Just a few more days to enjoy the great year of 2018! And what a year it has been.

The developments in our practice area have been both interesting and exciting as well as a bit frustrating at times. The developments however all have one thing in common; they bring a lot of opportunities. We hope to have given you inspiration to use them.

Of course we will continue to share our view on the legal developments with you in the new year. But for now; happy holidays and we wish you all the best for 2019!

# 35: What is real?

In almost every fraud case in The Netherlands forgery is part of the suspicions. The offense of forgery can be committed in two ways. It is an offense if someone intentionally makes a false document or falsifies a document that is intended to be used as evidence of any fact. The second way is to intentionally use such a false or falsified document as if it were genuine and unfalsified or intentionally deliver or possess such a document. But when is a document false or not in line with the truth? The Dutch Courts have set some boundaries with regard to question when an agreement is considered to be false.

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