#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.