#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.