#17: White lies or swindle?

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

#08: Truth is stranger than fiction

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

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

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

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

#03: Dutch pragmatism is taking over

The public prosecutor’s office in the Netherlands is of the opinion that professional privilege creates an obstacle in criminal investigations, mostly in fraud cases. In a public statement a public prosecutor stated that professional privilege is misused by for instance lawyers in order to cover up potential evidence in fraud cases. The public prosecutor’s office requested the judicial powers to clarify the scope of the professional privilege. It is not clear whether this public request of the public prosecutor’s office was obeyed. However we notice an increasing number of judicial decisions in which the professional privilege is object of discussion. While the professional privilege has a lot of interesting aspects we would like to lift out one topic. In this article we concentrate on the rules and procedures with regard to a search and seizure of for instance a law firm. Furthermore we question whether the current practice meets the criteria of the European Court of Human Rights (ECHR).READ MORE