#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.


#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.


#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?


#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.


#34: Paper over the cracks of the system

The recent decision of the European Court of Human Rights (ECHR) of 9 October 2018 in the case of Corallo vs. the Netherlands makes us wonder whether the human rights of the European Convention are taken seriously. In this case the suspect complaints that the circumstances in his prison cell in the Sint Maarten police station where he had to await the decision on the request of Italy to extradite him were miserable. The defense attorneys had requested to ensure that his human rights would be taken seriously and therefore to suspend his arrest until a decision was taken or to take other measures. The poor decisions on these requests led to this complaint against the State of the Netherlands.

It started on 21 November 2017 when the court in Rome requested the arrest of the claimant in relation to an investigation into, amongst other things, tax evasion, money laundering and embezzlement. On 13 December 2016 Italy sent out a Red Notice via Interpol with the purpose to extradite the claimant to Italy. The claimant was arrested and stayed in a cell on the police station of Philipsburg in Sint Maarten until his extradition on 16 August 2017. At first he stayed in a cell with multiple others. Later on he was transferred to a cell on his own. His request to be transferred to a prison complex in Point Blanche instead of staying in a temporarily cell on a police station was impossible according to the authorities due to safety reasons. The claimant repeatedly requested suspension of his incarceration while awaiting the decision on the extradition request. However this was denied.

The claimant complaints at the ECHR that article 3 of the convention is breached because of the poor circumstances he was kept in for months. In the decision of the ECHR is stated that he was kept in a 16 square meter cell for the period of 13 December 2016 until 29 March 2017. Also from 4 until 12 April 2017 he was kept there. That was not a cell for him alone, he continuously had to share the cell with 5 to 6 persons.

In the decision it the circumstances are described vividly:

“The toilet in the multi-occupancy cell had leaked and had not been covered. Detainees had partitioned off the sanitary area with towels and sheets. The multi-occupancy cell had been equipped with two sets of bunk beds for four detainees. It was the rule rather than the exception that one or two additional detainees were held in the cell, who during the night would sleep on mattresses on the floor.”

 On behalf of the State it was argued that various improvements on the detention facilities of the police station in Philipsburg were made as recommended by ‘the Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment’ (CPT). The State further argued that because of a lack of detailed information they cannot respond to the circumstances as described by the claimant. These circumstances however were not denied. They were qualified as ‘not ideal’. However a breach of article 3 of the Convention was not the case according to the State.

The European Court however acts firmly upon this complaint of the claimant. The Court states that article 3 of the Convention has been breached because the claimant was detained for more than eight months – of which 114 days in a cell with multiple persons – in a cell of which the CPT was of the opinion that the cell is not suitable to keep detainees for a longer period than three days, and certainly not longer than ten days. The facility is simply not suitable to guarantee the minimum human rights for a longer period. The Court grants the complaint of the claimant and grants a compensation for damages of € 10.000.

This compensation of course is not more than paper over the cracks of the system the claimant had to endure. It should not be necessary to file a complaint against the State – also in areas overseas – for the miserable circumstances in prison. Human rights should be a higher priority on the agenda of the State. And not only of the State. A judge who is confronted with facts such as occurred in this case should give a strong signal to the authorities that the defense complaints cannot be put aside in such a case. Also if a solution is not easy accessible the judge still should order the authorities to put energy in finding a solution. And if that is not possible the judge should guarantee the human rights as laid down in the ECHR and suspend the detention. In our opinion that should have been the only right decision.

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

#33: Settlements and individual accountability

On 3 September 2018, ING Bank (further: ING) accepted and paid a settlement of € 775 million offered by the Dutch Public Prosecution Service (PPS) for violation of the Anti-Money Laundering and Counter Terrorism Financing Act and for culpable money laundering (Article 420quater of the Dutch Criminal Code. The largest transaction in history for the Netherlands. Not only the amount of the transaction makes this transaction memorable. Another remarkable fact is that no individual employees or managers will be prosecuted by the Dutch public prosecution service. What is the reason for this?


#32: Tax fraud ≠ forgery

Dutch law distinguishes so called ‘ordinary’ criminal law and criminal offences described in other laws than the Dutch Criminal Code. In case an offense is specifically punishable under the General Code on Government taxes (GCGT) this provision might be a lex specialis and therefore prevail over applicable provisions from the Dutch Criminal Code. Prevail in such a way that the public prosecutor is obliged to prosecute on the basis of the lex specialis. If a suspect is prosecuted for the provision in the Dutch Criminal Code the prosecution service should be declared inadmissible. A recent verdict of the regional court of Amsterdam, which was published on 10 August 2018, sheds more light on this issue.


#31: Supplements on VAT tax returns and the right not to incriminate yourself

Since 1 January 2012 Dutch tax payers are obliged to report inaccuracies or omissions in tax returns to the Dutch tax authorities as soon as they are aware of this. This obligation is prescribed in article 10a of the Dutch State Taxes Act (AWR). Which inaccuracies or omissions have to be reported to the tax authority is provided by Orders in Council i. One example is the VAT tax returns. If an omission is detected a supplementation of the VAT tax return has to be filed as soon as possible. If this supplementation has not been filed, or has not been filed in time or not in the prescribed way, this act is punishable with a fine. However, public prosecutors have also used this article to hold people criminally liable for not filing a supplementation of one’s VAT tax return. However, a recent judgement stated that someone cannot be held criminally liable for this act and moreover it conflicts with the European nemo tenetur principle. Can you be punished for not filing a supplementation for your VAT tax return?

Someone can be held criminally liable if he is, under the Tax Legislation, obliged to provide information, data, or indications, and fails to provide them, or provides them incompletely. This criminal liability is found in article 69, subsection 1, jo. article 68, subsection 1, sub a, AWR. Based on these articles, criminal liability for article 10a AWR is construed. There are several judgements in which the public prosecutor summons a suspect for filing a wrongful Tax return and also for failing to file a supplementation of this tax return.

We believe however that you cannot be held criminally liable for not filing a supplementation of your VAT tax return. For one, because the parliamentary history does not speak a word of the possibility to hold someone criminally liable based on article 10a AWR. Secondly, article 10a AWR states that the violation of this article is a foul and not a crime. The AWR holds very specific rules for the criminalization of fouls.

Moreover, it would be very strange if someone willfully files an incorrect tax return and is then obliged to report this the second after he files this tax return. This would be a direct infringement of your right not to incriminate yourself. This would possibly be different if the first VAT tax return was not willfully incorrect but someone finds out later that this tax return was incorrect. However it would be strange if the obligation to file a supplementation of the VAT return only counts when someone thought he filed the first tax return correct but finds out later that it is was incorrect.

On 10 July 2018 a higher Court in the Netherlands ruled for the first time that a breach of article 10a AWR is not a criminal act. The Court judges that the parliamentary history does not refer to this possibility. Furthermore the Court gives an extra argument into consideration. Which is that the obligation to file a supplementation on your VAT tax return would infringe the right not to incriminate oneself.

The privilege against self-incrimination is not specifically mentioned in the ECHR. However, today, the existence of such a privilege is be considered to be part of a right to a fair trial ex article 6 ECHR. As article 10a AWR gives an obligation to give information about mistakes in the past we believe that one cannot be held criminally liable nor can be punished for this fact. It seems therefore that article 10a AWR creates an infringement on article 6 ECHR, the right to a fair trial.

We therefore believe that one cannot be held criminally liable for article 10a AWR but also no fine can be imposed.


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

#30: The end does (not) justify the means

A well-known and truthful saying is that ‘power corrupts’. Even though the public prosecution fights this phenomenon, the same can happen to a public prosecutor. The public prosecution service has a lot of power against civilians. As soon as a suspicion of a criminal act arises, the law provides a wide range of possibilities to investigate. Everyone would agree that misuse of these powers is unacceptable. This unfortunately does not mean that the prosecution service always uses these powers with prudence. A recent case in the Netherlands sows that the prosecution services went far beyond what is acceptable in order to ‘help’ the tax department to receive information. The Court of Appeal declared the prosecution service inadmissible because of this misuse of powers.