#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.