#60: Bring on 2021!

In last years holidays greeting we wrote that ‘we are curious of what 2020 has in store for all of us’. Well, that became apparent quite clear early on in the year. The pandemic has impacted all of our personal lives tremendously. And we have shown to be resilient. As did the law.

Throughout the pandemic, lawyers all across the world have been working creatively to keep on providing legal assistance at the highest standards. Various interesting developments have taken place still showing opportunities and inspiration, despite the pandemic. With the efforts all around the world to turn the tides we are confident 2021 will continue to bring opportunities and inspiration.

We wish you all happy holidays and hope you are able to use this time to recharge to start the new year with renewed energy and enthusiasm. We look forward to be in touch with you all in the new year!

#59: Dutch settlement policies

It is well known that settlement procedures in the Netherlands are not bound by restrictive rules. A lot comes down to the discretion of the Dutch Prosecutors’ Office (DPO). Of course the DPO has set out some policy rules which are guiding in informal talks with the DPO. As of 4 September 2020, a new designation order has come into force regarding settlements out of court entailing large amounts of money,  so-called “high transactions”. This designation order has replaced the Designation Order for High and Remarkable Transactions, which entered into force in 2008. What has changed?

The new designation order is a response to recent criticisms on transactions entered into by the DPO. The complaint is that a judicial review is missing. The Minister of Security and Justice has announced that a legal regulation for this will be drawn up. In anticipation of the statutory regulation, the College of Procurators General in coordination with the Minister decided to issue an amended designation for high transactions which is evident from a letter from the Minister dated 29 June 2020. 

The most important change in the Designation of High Transactions is that transactions will from now on be assessed by an independent committee and will no longer be submitted to the Minister of Justice and Security. The committee tests the transaction proposal marginally on the basis of a substantiated transaction proposal, a statement of facts including the applicable penalty provisions and the draft press release. There is also a possibility to hear the defence. On the basis of this, it is assessed whether, in view of all the circumstances of the case and with due observance of the principles in the Designation, the DPO could have reasonably decided to enter in this settlement. The committee then issues an opinion to the College of Procurators General.

The committee consists of a former attorney at law, a former judge, a professor of criminal law and criminal procedure and former officers of the judiciary, in varying composition. A proposed transaction is assessed by three members. From now on, the minister is officially not involved. We do not yet know which members will be on this committee.

This new working method also provides various opportunities for the defence. Whereas in the past the defence was often handed over to the “whims” of the case officers when it comes to achieving a transaction, the committee now offers an entrance to have a transaction assessed on reasonableness. We believe that the defense should also be given the opportunity to present its case to this committee, so that it can assess whether a case qualifies for a transaction, even if the case officers initially believe that it is not.

Another noteworthy change is that the criteria for when a transaction qualifies as a high transaction have changed without further explanation. The threshold value for a high transaction has been raised from € 50,000 to € 200,000 for the penalty component. For the total transaction amount this has been increased from € 500,000 to € 1,000,000. The advantage for defending these higher threshold values is that a press release does not have to be issued for transactions that fall under this category. The DPO therefore has more freedom to independently enter into transactions below these thresholds.

The designation of high transactions therefore provides a slightly different transaction landscape than the current one and also offers opportunities for the defence on some points.

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

#58: It is not always smoke and mirrors

Although suspects should be held innocent until proven guilty, a suspect is not always treated this way. Not by the government and not by society. This is a heavy burden that suspects have to bear. The apparent idea that where there is smoke, there will also be fire, plays a role in this. This even occurs if the evidence is flawed at first sight. A good defense is therefore of great importance to make the image tilt. This takes time, a lot of time, and is therefore costly. If the defense succeeds in stopping the case or to achieve an acquittal, there is the possibility to get the lawyer’s costs reimbursed on the basis of article 530 of the Dutch criminal procedural code (CPC). Only to ease the pain a bit then, because the actual damage is greater of course.

This compensation procedure provides a lot of room for discussion. For instance, a recent procedure concerned the question whether ‘a case’ was eligible for compensation. The investigation showed all the symptoms of a penal case, but the Public Prosecutor’s Office had stopped the investigation before it had registered it as a case in the systems. The Public Prosecutor therefore stated that this was no ‘case’ in terms of article 530. Fortunately, there was a clear judicial decision about this. In such a situation, as well, the case ended and costs are eligible for reimbursement.

Another common discussion concerns the fees charged by the lawyers and the time spent on the case. As a rule, the Public Prosecutor’s Office feels that the fees are too high and that too much time has been spent on the case. Although in some cases judges go along with this, there are also judges who do not allow themselves to be tempted to do so. This is also the case with the District Court of The Hague in a recent judgment. And the court also explains why.

In this case the court fully recognizes that this was an investigation that has been very laborious for the defense. It concerned an investigation into possible fraud in the form of forgery and fraud when applying for subsidies for innovative greenhouse construction. The investigation was lengthy – 2014 to 2019 – and extensive and ended in an acquittal for the person involved. According to the court, it also involved complex administrative, financial and technical matters. It is this nature of the case that the court takes into account when deciding to what extent the requested compensation is fair.

The court ruled that it should be cautious in its assessment of the hourly rates used. These do not appear unreasonable to the court, also in view of the above and the fact that the case required special specialization on the part of the counsel. In this specific case, assistance was provided by several lawyers. The District Court finds this understandable and finds that these costs are also eligible for reimbursement: ”The District Court does not consider it unfair in this case to also fully reimburse the costs involved. In addition, in the case of a long-term investigation, it is not uncommon for more hours to be spent on file research, because to a certain extent a lawyer has to re-read the case after the investigation – as in this case – has come to a standstill for some time.”

The court also understands that coordination has had to take place between the lawyers of the co-defendants. The District Court considers this: “To the extent that work has been divided between the counsels, such as the submission and substantiation of investigation requests, the questioning of witnesses and the preparation and presentation of the defense in court, it has become plausible that this has led to efficiency and time savings and, ultimately, cost savings. The court therefore considers it fair to also reimburse the costs involved in consultation with the counsel of the co-defendants”.

With the exception of a number of limited reductions, the court grants almost the entire request for compensation. Although the person concerned would undoubtedly have preferred to have been spared the investigation entirely, this can still ease the pain.

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

#57: Colored laundery

The doctrine of money laundering knows many complex issues. Issues that can be addressedd for example are: when is there a casual link between the predicate crime and the object that has been laundered? And if money has been laundered when does it qualify as illegally obtained gains which can be confiscated? Or when can an action be qualified as an act of concealment? These issues are frequently discussed by us. However, one aspect of the money laundering problem has not yet been discussed often. It concerns the blending problem: what if ‘white’ money mixes with ‘black’ money? A recent judgment of the Supreme Court gives reason to discuss this topic.

In the underlying case the Court of Appeal established that approximately half of the turnover was not accounted for and was not involved in the levying of corporate income tax and sales tax. This means that the tax that was not paid derives from a crime and can in principle be laundered. The Court of Appeal also established that there was a mixture of legally obtained and illegally obtained funds. In any case, it was established that part of the cash that was kept off the books was brought to Switzerland. Loans were subsequently granted with this money and real estate was purchased; these were allegedly acts of concealment on the basis of money laundering. The Court of Appeal therefore considers all unjustified turnover as “deriving from crime”.

The question is whether all non-responsible turnover was obtained from crime or just the part that was not taxated? First of all, the Supreme Court finds that assets that were made available as a result of tax evasion can be regarded as derived from crime. This is therefore not the entire turnover that was kept out of the books but only the amount that should have been paid in tax. Subsequently, the blending theory comes into play. In case assets that derive from crime are mixed with assets obtained through legal activities, the mixed assets can be regarded as ‘partly’ derived from crime. The Supreme Court concludes:

“The findings of the court of appeal cannot therefore support the conclusion of the court of appeal that “all turnover that was kept outside of the book” can be regarded as “deriving from a crime”.”

It is just that the part that was made available as a result of tax evasion. However, this part was mixed with the turnover and could therefor be laundered as part of this turnover derived from a crime.

It is noteworthy, however, that the Supreme Court subsequently came to the conclusion that although the plea was rightly put forward, this could not lead to cassation. The Supreme Court ruled that, despite of the Court of Appeal’s consideration, it was proved that a considerable sum of money can be regarded as derived from crime and that, also in view of the other circumstances of the case, the accused has insufficient interest in setting aside the judgment under appeal and reopening the case.

It is difficult for us to resign ourselves to this judgment. In fraud cases, the amount laundered often plays a role in the level of punishment. It makes a big difference whether ‘all’ unjustified turnover from crime has been obtained or ‘only’ the portion that has not been paid to the Tax and Customs Administration.

However, the judgment of the Court of Appeal has not been published, so it cannot be ascertained to what extent the amount laundered played a role in the level of punishment. In our view this probably had some effect which would have made cassation obvious to us.

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

#56: House of cards

Many fraud investigations are troubled by the negative effects of the long duration of an investigation. In addition, the duration of the investigation compromises the possibility of truth finding and it can be questionable whether the investigation can still provide a sufficient basis for a fair trial. It is important to keep asking this question to the DPO. Not just or only at the hearing, but before the DPO decides whether a case should be brought before court. Only then can it be prevented that those involved are confronted with a (possibly unjustified) public procedure, with all its possible consequences. It can therefore be a huge risk to keep (all) your cards close to your chest.

In Dutch case law many examples can be found of cases in which the defense was able to expose that the investigation was suffering from flaws. Although the jurisprudence in the Netherlands concerning formal omissions in the investigation only allows under very exceptional circumstances that such defects should lead to inadmissibility of the DPO, judges seem to see more and more grounds to judge that the investigation is insufficient. Advocate General of the Supreme Court Mr. Bleichrodt in the meantime also encouraged the lower courts to act upon such defects in investigations, see his very interesting legal opinion of 30 June 2020 (paragraphs 181 – 189).

The prevailing idea that a suspect may never, ever, benefit from mistakes made by the investigative authority seems to be gradually making space for the more nuanced idea that criminal investigations must be carried out carefully. The investigation must be solid enough to bear the heavy burden of using it against an individual and in a public hearing. If there are flaws in the pillars of the investigation, the investigation can tumble down like a house of cards if these pillars are not strong enough. Of course it is the challenge to find the right cards and convince the DPO of the importance of these cards for the investigation.

In practice, it often seems an impossible task to make the DPO realize that an investigation must be stopped. Usually, the figurative investigation train of the DPO and investigative authorities always thunders in the direction of the end station: the public hearing. However, case law is making it increasingly clear within which contours the investigation by the DPO must take place. As soon as it is clear that the investigation exceeds those contours, it should not be necessary to ask for a judicial opinion. The DPO should then have sufficient self-reflection not to take that step. The overburdened courts – which are still recovering from COVID-19 – will benefit from this.

That the DPO is in fact capable of self-reflection is evidently shown in a recent judgment of the Amsterdam Court of Appeal in which the DPO argued for the acquittal of the accused of corruption because of the unreliability of witness statements. The same judgment shows both the defense and the DPO that it is important that the DPO shows this self-reflection in a timely manner and that a public hearing is prevented. It can therefor be wise to not keep (all) your cards close to your chest.

For the accused in this specific investigation, the turnaround of the DPO however was too late. Despite of the requests of the DPO and the defense to acquit the accused, the Court of Appeal still came to a conviction, because of a different insight about the reliability of the statements.

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

#55: Official secrecy

The temptation to abuse power hides around many corners. Temptation can exist based on one’s own gain. But simple curiosity can also be a reason, as a recent Supreme Court judgment shows. Civil servants have a form of power over citizens, in the sense that they can gain access to confidential information while they are not allowed to see it. These civil servants are subject to a statutory duty of confidentiality. A violation of this confidentiality is punishable under certain circumstances. The Supreme Court has set some boundaries.

Article 272 of the Dutch Penal Code makes the violation of official secrecy a criminal offence. The article reads: “Anyone who intentionally violates any confidentiality of which he knows or should reasonably suspect that he is obliged to keep it by virtue of office, profession or statutory regulation or by virtue of his previous office or profession shall be liable to a term of imprisonment not exceeding one year or to a fourth category fine”.

The case that was pending before the Supreme Court revolved around a guard of the Military. He had looked up information of family and friends about criminal investigations and personal data in the system of the police and the Royal Netherlands Marechaussee. Not for the performance of his duties, but for private use. The Court judged that the accused confessed that the looked up this information for personal use and sentenced him with 20 hours of public service. The Supreme Court concluded that a breach of official secrecy is in place when a third party is informed about this information. The Supreme Court judged:

“It follows from the Parliamentary history of the law that the ‘breach’ of a secret within the meaning of section 272 of the Penal Code must be interpreted as the disclosure of secret information to another person who is not authorized to take cognizance of this information. In view of this, the opinion of the court of appeal that the accused has violated his official secrecy by disclosing secret information to himself, shows an error of law”.

The Supreme Court refers the case back to the Court of Appeal so that the case can be tried again. Based on this judgement we can conclude that criminal law cannot be used if a person who, by virtue of his position, has access to private data of citizens and cannot curb his curiosity. As long as secrecy is kept from others, the breach of official secrecy cannot be proven. As soon as this information is provided to others, a criminal intervention can take place.

Of course this does not mean that no disciplinary measures can or should be taken against this kind of curiosity. We believe that government officials should not abuse their power in any way and should respect personal data. But to breach official secrecy you should share a secret with a unauthorized third party to be penalized in criminal law.

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

#54: People can make honest mistakes

Making mistakes is human. It can happen to anyone. If you’re wrong, you don’t necessarily do something wrong intentionally. No, you make a mistake while your intentions are right. There is no criminal intent involved. A mistake should therefore not be legalized to criminal intent. A mistake is not the same as acting fraudulent. And fortunately the Amsterdam Court of Appeal shares this opinion.

In its judgment of 3 June 2020, the Court of Appeal of Amsterdam ruled in a case in which the defendant was primarily suspected of having intentionally filed an incorrect VAT return. The inaccuracy was caused by the declared amount of turnover, which was too low. The Court of Appeal acquitted the defendant with respect to the primary charge, because there was no question of a ‘declaration provided for by the Tax Act’. After all, the tax return had not been filed within the required time period, see in that respect also the judgment of the Supreme Court of 28 June 2016. Subsequently, the suspicion was the use of a false document, i.e. a false declaration.

The Court of Appeal ruled that this was a declaration of turnover that usually amounted to a fixed, round amount each month. The turnover that was not declared in this specific declaration related to specific invoices that were not related to the recurring activities of the company. These related to the buy-out of someone from a company. They were therefore incidental invoices. The Court of Appeal ruled that it must be “considered possible” that these invoices were overlooked. There is simply not enough evidence to conclude that the employee deliberately did not include this turnover in the declaration. The Court of Appeal refers to indications in the file that show that someone, in consultation with the defendant, needed money for specific purposes, but according to the Court of Appeal “solid evidence” is lacking.

Where the Amsterdam District Court had still considered that filing the tax return had been organized in such a way “that nowhere in the chain of business operations any form of effective control of the turnover tax to be paid took place and so the considerable chance of filing wrong tax returns was knowingly accepted”, the Court of Appeal ruled otherwise. The Court of Appeal ruled that the specific employee had the task of submitting the turnover tax returns. It concerned a fixed amount per month and was therefore not complex. The situation for this specific period was incidental. According to the Court of Appeal, there was no policy or work process that caused the significant chance of an incorrect tax return and that chance was knowingly accepted. According to the Court of Appeal, it must be considered possible that the error was made by mistake.

In our opinion, this is a correct judgment. A few indications that there could be a motive for fraudulent acts is not enough to conclude that fraud was committed. This requires hard evidence. If this is not the case, then the judge should give the suspect the benefit of the doubt and “consider it possible” that the person involved did not act criminally culpable.

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

#53: Money laundering: typologies vs. indicators

In the international fight against money laundering, the Financial Action Task Force (FATF) is the international organization that indicates money laundering typologies, by studying methods or techniques of money laundering. These typologies are used in criminal investigations as facts and circumstances which can construe a suspicion of money laundering. In the Netherlands, the Financial Intelligence Unit (FIU) is the national organization where unusual transactions can be reported. The FIU also publishes money laundering typologies. However, on 16 April 2020, the Dutch Anti Money Laundering Centre (AMLC) published an updated version of money laundering indicators. The question is: what is the difference between indicators and typologies and can all indicators be used as facts and circumstances to create a suspicion of money laundering?

According to AMLC, money laundering indicators can be divided into three different subgroups: 1) money laundering typologies, 2) facts which are considered common knowledge and 3) other indicators. The AMLC also states that these categories of money laundering indicators play an important role in raising suspicions of money laundering as well as in the actual evidence of money laundering. We wonder whether each money laundering indicator can play a role in establishing a suspicion or proof of money laundering.

First of all, AMLC gives an exhaustive list of the money laundering typologies. These typologies are the same as established by the FATF and by the FIU. These are more or less objective characteristics that, as studies show, indicate laundering of the proceeds of crime.

The second subgroup concerns facts which are considered common knowledge; these are facts which everyone is expected to know. On the basis of case law, the AMLC has drawn up a list of common knowledge facts established by case law. It should be noted that this list is not exhaustive and that a large number of these facts have only been established as facts of general knowledge by lower courts. This means it is still possible to argue whether such fact is indeed a fact of common knowledge. After all, the question what can be considered as common knowledge is by no means always clear. Nevertheless, AMLC states that these facts can be used as indicators at the start of an investigation. In our opinion, this should be treated with caution, especially since the interpretation by the AMLC can only be judged in a much later stage in legal proceedings.

Finally, the AMLC pays attention to other indicators. These are characteristics that according to the AMLC indicate money laundering, but are not a fact of common knowledge and have not (yet) been identified as money laundering typology. With regard to the other indicators, reference is made in particular to the OECD handbook and to various FATF reports. The status of these other indicators is unclear to us. We believe that this ‘other’ list cannot yet be used to create suspicion or be used as evidence of money laundering. After all, it is with good reason that this group of other indicators has not yet been identified as a typology. The Explanatory Memorandum to the Dutch Money Laundering Act states clearly that the Public Prosecutor’s Office and judges can use money laundering typologies for evidence of money laundering. The subgroup of other indicators has not been mentioned here and thus should not be used.

In our opinion it is important to remain critical of the money laundering indicators used to construct a suspicion of money laundering. There is a risk that the Public Prosecution Service will conduct investigations on ‘vague’ grounds. It is therefore important that the defense is alert here. But that also applies to the Public Prosecution Service itself. It must be prevented that the Public Prosecution Service only investigates money laundering indicators without actually investigating the heart of the matter: the question of whether there has been a predicate offence. Such a lenient attitude in the investigation would not benefit the finding of the truth and increasingly places the burden of proof on the accused. We also wrote about this problem in Lawlunch #40.

Moreover, it is important to always place certain money laundering indicators in the right time frame the alleged facts took place. After all, the fact that something is seen as a money laundering indicator now, does not mean that this also yielded a red flag ten years ago. On 11 December 2019, the District Court of Rotterdam also rendered an enlightening judgment on this. The Court ruled that the so-called money laundering indicators in that case can not be qualified as that a-typical in that period of time that the suspect should have known that the money derived from a crime.

In short, if the Public Prosecutor’s Office starts an investigation solely on money laundering indicators, it is important to be extremely critical. In any case, you should ask yourself the following question: is the money laundering indicator a money laundering typology or a fact of common knowledge? And, can these facts and circumstances also be qualified as money laundering indicators at the time the alleged facts took place?

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

#52: Being acquitted sometimes just isn’t enough

News is available at any time of the day and it is freely accessible. And the news, even the old, can always be found through search engines like Google. Of course, this also applies to news about suspected criminal offences. Even if those suspicions eventually turn out to be incorrect. Although an acquittal for a suspect is certainly the most newsworthy of all, in practice the media unfortunately in general do not treat it this way. As a result, the news in which the person concerned is associated with the suspicion of criminal offences often remain to appear prominent on the internet. Should the acquitted suspect accept this?

Messages in the media about an unjustified suspicion of criminal offences can get in one persons’ way of life in general. All parties you deal with in daily life can find this information with a simple internet search: social contacts, a future employer, a financial service provider. For an acquitted suspect it is frustrating and damaging to be confronted with this all the time. This may even be experienced as an unjustified punishment.

Recently, the Dutch newspaper NRC reported “good news for innocent people with a contaminated reputation”. NRC brings to the attention a decision of a Spanish court. It concerns a case in which a Spanish psychologist, acquitted of abuse, continued to be confronted with all the accusing media reports when he was searched for via an online search engine. In the first eight results, only articles about the accusations emerged. The acquittal could only be found on the second search page.

The psychologist complained to the national Personal Data Authority. This authority ordered Google in 2017 to block the search results, except for the information about the acquittal. The Spanish court does not decide so rigorously on appeal: Google is free to show all news items, but the acquittal must be shown as the first google hit.

There has been a lot to do about the ‘right to be forgotten’. In fact, the question was always whether or not the information should be removed from the internet. It also led to the possibility to use this link to make a request to Google to have information removed from the search engine. But that possibility does not yet guarantee success for all cases.

So what can you do if the request for information removal about a suspicion from the past is not being granted? Because, for example, it is a fact that there was a suspicion of a criminal offence at the time and therefore the information at itself is correct? For that situation the decision as was taken by the Spanish court about which information should appear first, can perhaps mitigate the outcome of a Google search.

Being acquitted sometimes just is not enough. Of course, a compensation for lawyers fees and damages after an acquittal helps to recover from such an unpleasant experience. However, media can also be part of the process which jeopardizes the recovery. This Spanish decision shows that it can certainly be worthwhile to involve media law and a media law specialist in the aftercare of criminal proceedings that have ended successfully for the former suspect.

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

#51: COVID-19, capacity problems and choices

In the Netherlands, courts and the Department of the Prosecutor’s Office (DPO), are facing severe capacity shortages. These capacity problems will not decrease the upcoming period. Due to the outbreak of the coronavirus, the Judiciary decided to close the courts, tribunals and special colleges as of Tuesday 17 March until at least 6 April 2020. This week it was decided that the closure will continue after 6 April 2020. Only urgent cases will continue. The DPO will postpone red-handed detentions. They are limited to urgent, serious cases. Each case will be weighed up; taking into account circumstances such as the fear of repetition and the safety of others.

This means that a lot of cases will have to be postponed until after this uncertain period will end. The courts and the DPO will then have a lot of catching up to do which will put even more pressure on the judiciary system. This situation calls for choices. But how do we make sure that those choices are equal and fair?

Article 167(1) of the Code of Criminal Procedure gives the Public Prosecution Service the power to decide independently whether or not prosecution should take place as a result of an investigation that has been initiated. The decision of the Public Prosecution Service to prosecute lends itself only to a very limited extent to a substantive judicial review. Pursuant to Article 12 of the Code of Criminal Procedure, an interested party can request the court to order the Public Prosecution Service to prosecute the facts after all. But what considerations are made in this respect and what are the grounds for prosecution or investigation? In a recent decision, the Court of Appeal of Amsterdam decided that the Public Prosecution Service does not need to proceed with a prosecution due to capacity problem. This was despite the fact that after a criminal investigation it could possibly be established that documents were forged. The Court of Appeal puts forward the following reasons:

• The Court observes that partly in connection with the increased need to deploy police officers for personal security, the police and the judiciary are struggling with considerable capacity shortages. In view of this, choices are inevitable, and this justifies a more limited capacity in criminal law;
• Furthermore, the Court finds that the alleged false document has not led to any financial disadvantage for the complainant.

In view of the above consideration the Court holds that a large-scale international investigation does not outweigh the interest of the complainant. In this respect the Court deems it necessary to place some blame on the complainant as well. After all, a quick search on the Internet would have made it clear that the defendant is associated with a large-scale fraud. The complainant had omitted this simple Internet investigation before she placed an order for millions with the defendant. Apparently, the court of appeal is holding this against the complainant.

Although we understand that capacity problems require certain choices to be made, we believe that these choices must be well substantiated. Why is one case prosecuted and why does the other ‘get away’? Policy choices should be clarified to the public so that everyone can appeal to this.

The Court of Appeal is now giving some substance to this. Apparently, forgery does not have to be prosecuted if the victim has not suffered any direct financial disadvantage as a result and if time-consuming and costly international investigations have to be carried out as well. One apparently does not outweigh the other. Whether these were actually the considerations of the Public Prosecution Service is unknown. We believe that the Public Prosecution Service should be transparent about this, so that the shortage of capacity does not lead to arbitrariness but to well-founded policy choices that are the same for everyone. Also a suspect should be given the opportunity to put forward arguments why his case should not be prosecuted given certain policies of the government.

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