#14: International servers and data collection

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We can hardly live anymore without foreign storage- and communication services like Gmail, Box, OneDrive or Apple Icloud. These services use mostly cloud applications and in most cases the cloud is owned by a third party. These applications can be accessed all over the world through different devices. It is therefore possible and likely that part of the data is stored in another country than the country where the owner of the data lives. In the Netherlands it is questionable whether the public prosecutor can order or seize data which is accessible in the Netherlands but is stored abroad.READ MORE

#13: Taxes and the upcoming elections

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Tax evasion and tax fraud are two different things even though the media tries to make you believe otherwise. Tax fraud is deliberately not filing a complete tax return due to which the public treasury is harmed. Classic tax fraud usually is committed in a non-transparent way, so the authorities have a hard time to discover it. Tax evasion however is no more than avoiding to have to pay (certain) taxes. Even though the difference between the two is quite clear, the two get generalized because tax evasion has become an unpopular phenomenon. The Dutch authorities in their ‘fight against fraud’ make grateful use of this situation, especially with the upcoming elections in March 2017.

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#12: Happy New Year!

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Only two days left until 2016 will come to an end.

It is safe to say that 2016 has been a rollercoaster for the international community with amongst other things Brexit and Trump. Time will tell whether this will affect the developments in the cross boarder investigations and jurisprudence.

The year 2016 was a good year in which the various legal development highs and lows have passed in review. One thing is certain; these developments provide opportunities which we can and should use. We hope to have given you inspiration to do so.

For now; happy holidays and see you in 2017!

#11: When may your smartphone be investigated?

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Privacy is a hot topic these days now that everywhere around us data is being collected. Our tablets and smartphones contain a lot of information about our private lives. Not only all your contacts are accessible, also the communication with these contacts is saved. Your smartphone nowadays even knows how many steps you have taken today and where. It is not hard to imagine how much valuable information a smartphone contains for investigative departments of the police. The question is when these data carriers may be seized by the authorities? And when may the data be investigated on your phone? In the Netherlands a discussion exists on the question whether police officers may seize a smartphone upon arrest and search through the data. We would like to share this discussion with you.READ MORE

#10: Fired by the Criminal Court

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As discussed in lawlunch #06 the Dutch authorities try to fight fraud by prosecuting the professionals – the facilitators of the crime – involved. Practice shows that (tax) advisors, accountants and notaries are increasingly put in the spotlight of a criminal investigation. As explained in lawlunch #06 professionals can be faced with administrative penalties, criminal prosecution or disciplinary proceedings. Although all of these possibilities are devastating for one’s career there is one accessory penalties which simply puts an end to a career. This is the accessory penalty of the prohibition to exercise your profession.READ MORE

#09: Money laundering struggles

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If the public prosecutor does not know for what crime he has to prosecute, he can always rely on money laundering. At least, this seems to be the latest strategy. The offence money laundering is often used by the authorities as a ‘safety net’ to come to an easy conviction. In the Netherlands the legal framework for money laundering is broad. Although the Supreme Court has set some boundaries the Public authorities wish to have a catch-all clause. However, judges keep on setting boundaries. We will give a brief overview of the (money) laundering jurisprudence in The Netherlands and the recent developments.READ MORE

#08: Truth is stranger than fiction

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Does the truth exist? In criminal cases the answer to this is questionable. Since the criminal procedure takes place after the alleged crime, the truth is always a reconstruction of what might have happened. Therefore it seems fair to say that the truth does not exist. In a criminal procedure the next best thing can be achieved; finding facts that are closest to the truth. The law provides us with tools to do so. The rules regarding lawful evidence are incorporated in the Dutch Criminal Procedural Code. In this article it will be questioned whether the legal provision giving more evidential value to reports from police officers is in accordance with the aim of finding the (next best) truth.READ MORE

#07: Accessory penalties and measures

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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.READ MORE

#06: The Dutch hunt for professional facilitators

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In the Netherlands not only the (alleged) offender of a crime can be prosecuted. The professional who advised on certain matters relating to the object of a criminal investigation can become a suspect as well. The notary who advised on a legal document which is possibly false can be prosecuted. The tax advisor who advised his client on how to evade taxes can be complicit to tax fraud. Any professional that is involved with alleged criminal offences of his client can thus be faced with a criminal investigation on his involvement. The legal ‘weapons’ of Dutch law enforcement have increased over the last years and the so called ‘facilitators’ of financial fraud are the targets of these weapons. In the fall of 2015 the prosecutor’s office announced in the media that they will open their ‘fight against fraud’ by aiming to punish accountants and notaries who assist mala fide entrepreneurs. In this hunt for professional facilitators, suspects may not only be faced with administrative penalties or criminal prosecution, but also with disciplinary complaints. Which legal ‘weapons’ does Dutch law provide for?READ MORE

#05: Impunity for procedural errors

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Every criminal defence lawyer will recognize the frequently asked question; how can you argue that a suspect should be set free based on procedural errors while you know he is guilty? A plea on the importance of the rule of law can be the logical response. However, the easy answer in the Netherlands is: “Well my friend, those days are gone.” We will first explain why this is and second what the risks are of this development.READ MORE