#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.

READ MORE

#28: Big brothers have responsibilities

The digitalization of our life leads to an enormous amount of data: e-mails, documents and exchange of information like SMS and WhatsApp. Digital data leaves its footprint. This footprint can be of great interest to, for instance, investigation or prosecutions services as they might lead to evidence of criminal offences. Consequently, in practice, large amounts of data are seized under criminal law. And the question is whether it is possible to communicate anonymously in a digital way. It seems Big Brother is always watching you. But Big Brothers have responsibilities. Dealing with this data in a careful manner is a responsibility of the investigating services in our opinion which comes along with this development. In an increasing amount of criminal investigations the seized data is of such an amount that the criminal defense can no longer see the forest for the trees. In our opinion a lot of progress can be made in data-structuring and transparency of the data investigation in the investigation process.

READ MORE

#26: Exotic settlement agreements

A relatively new phenomenon in fraud cases is the multi-jurisdictional settlement agreement. Various of these agreements – in which a suspect settles prosecution with multiple countries – have been subject of media attention and therefore it is unlikely that they escaped the attention of professionals in this field. Also in the Netherlands the phenomenon of multi-jurisdictional settlement agreement has set foot on the ground. A settlement with a Dutch company and the US authorities resulted in a transaction of USD 795 million of which the Dutch authorities got their fair share (USD 397,5 million). A profitable deal for the Dutch as this deal – according to a letter of the Dutch Minister of Justice to the government  – made it possible for the Dutch authorities to reach their financial goals in the fight against fraud. In principle, these agreements however do not lead to the result that all parties involved are ‘off the hook’. Various entities and private persons are still under criminal investigation by the Dutch authorities. In our opinion it is wise to guarantee their rights of defense in an early stage of the investigation, as every party involved has an interest that possible future issues deriving from such an investigation and settlement agreement land on their feet. Time to take a closer look into this phenomenon.

READ MORE

#24: See you in 2018

Only two days left until 2017 comes to an end.

What a year it has been. It has been a year of interesting, frustrating and wonderful developments in our legal field. It is also safe to say that 2017 has been an exciting year for us. Our firm Hertoghs advocaten has started a new office in Amsterdam. And we are able to say we made an amazing start.

The year 2017 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 share and use. We hope to have given you inspiration to do so.

For now; happy holidays and see you in 2018!

#14: International servers and data collection

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

#12: Happy New Year!

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!

#09: Money laundering struggles

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