#17: White lies or swindle?

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Various classic criminal offences are getting more common in the area of fraud cases. Examples are charges of forgery or money laundering in a case which is in principle a tax fraud case. The wide coverage of those penal provisions make them a beloved weapon for the authorities to prosecute alleged fraud. If tax or another kind of financial fraud cannot be proven, these kind of provisions are a good back-up. In practice they are some sort of safety net. The new kid in town seems to be the charge of swindle. Jurisprudence shows that article 326 of the Dutch Penal Code is getting more and more popular. But when does an act qualify as swindle? The Supreme Court of the Netherlands has set some records straight by the end of last year by giving an overview judgement .READ MORE

#16: Fishing expeditions, or not?

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Transparency is a keyword these days. The banking secrecy is something that belongs to the past. All over the world information is exchanged between countries and tax authorities in order to counteract tax evasion. Also in the Netherlands, the Dutch Tax Authorities have intensified their efforts to prevent tax evasion. However, it is up for debate whether these authorities are overreaching their powers. In this article we take a closer look at two recent cases in which the Dutch Tax Authorities pushed the limits in their attempt to receive information from UBS and American Express by submitting information requests to foreign tax authorities. Although the Courts in these two cases allowed the information exchange, we have some critical notes.READ MORE

#15: Fundamental rights are not always stretched to fit the purpose

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Procedural errors are the thorn in the side of lawyers. At least, the (lack of) consequences of such errors. In Lawlunch #02 we explained how the system for compensation due to procedural errors works in the Dutch criminal law. Case law shows that it is an uphill battle to get procedural errors acknowledged and to receive compensation for these errors the government made during investigation. In tax law other criteria are applicable when it comes to procedural errors. These criteria and the interpretation by the courts are very refreshing.READ MORE

#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