85: Mission (im)possible: The Certificate of Good Conduct
A criminal (fraud) investigation often has a major impact on those involved. This applies in the event of a conviction, but also if the case ends in a dismissal or an acquittal. A criminal investigation brings a lot of uncertainty and worry from start to finish. The most acute problem of a criminal investigation for companies is usually the relationship with the bank, which will be under pressure. But an investigation can also have an impact on the relationship with for instance a companies insurer. Problems with licenses (in the Netherlands for instance based on the BIBOB Act) or with the regulator of a specific profession, such as accountants, also occur. But perhaps the most well-known problem of a conviction is the more limited possibility of obtaining a Certificate of Good Conduct (CGC). But does a conviction guarantee the inability to obtain a CGC? Or is there still something in between?
In practice, the CGC is needed for several situations. A common situation is that a CGC must be presented as part of a job application procedure with an employer. However, that is not the only situation in which a CGC may be required. For instance, a supervisory authority may require a CGC from a (co)policy-making employee of a company in specific situations such as the context of a reliability assessment. When assessing the application to issue a CGC, the judicial documentation system is consulted, also referred to as the ‘criminal record’. That system shows whether an investigation into a particular suspicion is registered or whether it has resulted in an acquittal, a conviction or an alternative disposal such as a dismissal or a transaction. This information remains visible in the judicial documentation system for a certain amount of years.
Based on the June 2022 Dutch policy rules, a request for a CGC will be rejected if the objective criterion is met. The objective criterion involves assessing whether the judicial data found in respect of the applicant, if repeated, given the risk to society, constitutes an obstacle to the proper performance of the function/task/occupation for which the CGC has been applied for. The subjective criterion is then used to test whether the applicant’s interest in issuing the CGC outweighs the interest of society protected by the objective criterion. Circumstances of the case that are always included in the assessment are the disposal of the criminal case, the time course and the amount of antecedents.
It is notable that it does not include the circumstances under which an offence was committed. After all, these are also circumstances of the case. Paragraph 126.96.36.199. of the policy rules states: “In the event that COVOG [the decision making organ], after weighing the circumstances of the case, cannot reach a proper judgement and has doubts about whether a VOG [CGC] can be issued, the circumstances under which the offence took place will be included in the assessment”. In that context, the ruling by the Administrative Law Division of the Council of State on 29 March 2023 is interesting. The Division ruled on a case in which the Minister for Legal Protection took the position that, according to its own policy rules, it must consider the circumstances under which a criminal offence took place when deciding on a CGC, but only if there is doubt as to whether or not the CGC should be issued. Although the Division followed this position in the past, the Division is now changing its position. The Division is now considering that the proportionality test of article 4:84 of the General Administrative Code requires that all the circumstances of the case be taken into account to determine whether the policy rules should be deviated from and a CGC should be granted.
In our opinion this is the appropriate outcome. The decision to (not) grant a CGC in the case of convictions should be “tailor-made” and certain circumstances cannot be categorically excluded. Although this new jurisprudence is no guarantee that a CGC will be issued in the case of a conviction, it does offer more possibilities for customization fit for the specific situation.
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