Cassation in the interest of the law

Requests

In 2022, the Procurator General received 38 requests to initiate claims in cassation in the interest of the law, 6 fewer than the year before.

In the reporting period, 35 rejection letters were sent in response to requests to initiate claims in cassation in the interest of the law, 7 more than the year before. The most common reason for rejecting a request was that the request did not raise an issue of law that needed clarification with a view to promoting the uniformity and development of the law, for example, because there was not sufficient proof that the issue in question was leading to divergent court decisions.

In 2022, twelve claims for cassation in the interest of the law were submitted, two of which were in related cases, five more than the year before. Three of these cases were tax cases, four were criminal cases and five were civil cases.

Swearing-in of justices

Two claims regarded the swearing-in of several justices and acting justices for the Court of Appeal of ‘s-Hertogenbosch which had involved the use of a form that was intended for a civil servant instead of the form intended for the swearing-in of a member of the judiciary. The Procurator General decided to submit claims for cassation in the interest of the law in a criminal-law case and in a tax-law case in order to obtain clarification as quickly as possible regarding the potential impact this mistake could have for the cases that had been handled by those justices. The Supreme Court rendered judgment within six weeks, ruling that the use of the wrong text during a swearing-in ceremony did not require the setting aside of the decisions those justices had rendered in the cases they had handled and adjudicated.

(See ECLI:NL:PHR:2022:819 and ECLI:NL:PHR:2022:820 for the claims and ECLI:NL:HR:2022:1438 and ECLI:NL:HR:2022:1509 for the Supreme Court’s decisions.)

Agreements for the sake of judicial economy

An issue relevant to the practice of criminal law regarding which a claim for cassation in the interest of the law was submitted this year involved the making of agreements for the sake of judicial economy in criminal cases. There are no specific statutory rules governing the making of agreements for the sake of judicial economy between the Public Prosecution Service and the suspect’s defence counsel. It was therefore unclear whether, and if so under which conditions, agreements for the sake of judicial economy could be made. In order to obtain clarification of this issue in the short term, the Procurator General submitted a claim for cassation in the interest of the law. The Supreme Court ruled that the lack of specific statutory rules did not mean that agreements for the sake of judicial economy could not be made. The Supreme Court formulated the factors which the court adjudicating a criminal case must take into account when assessing such agreements, including to ensure that the right to a fair trial is not impaired and the court’s independent responsibility for the outcome of the criminal case is not neglected. (See ECLI:NL:PHR:2022:566 for the claim and ECLI:NL:HR:2022:1252 for the Supreme Court’s decision.)

eHerkenning

A discussion arose in tax practice about the obligation to file payroll tax returns using eHerkenning. The issues raised in the claim for cassation in the interest of the law that was submitted were whether there was a statutory basis for that obligation and whether it was permissible for costs to be incurred in order to satisfy that obligation. The Supreme Court answers these questions in the affirmative. (See ECLI:NL:PHR:2022:553 for the claim and ECLI:NL:HR:2022:1787 for the Supreme Court’s decision.)

Providing information to third parties

An important issue in the practice of civil law is whether, in connection with the  admistration of justice being public, judicial authorities are required to provide third parties with information about ongoing civil proceedings. This issue was brought to the attention of the Committee for Cassation in the Interest of the Law, which advised the Procurator General to submit a claim. The Advocate General who submitted the claim believes that this question must be answered in the affirmative. She makes several recommendations in her claim.

(See ECLI:NL:PHR:2022:533 for the claim. The Supreme Court has not yet rendered a decision.)

Exclusion of partner alimony

Another civil case in which a claim was submitted regarded the question of whether intending spouses could stipulate, prior to their marriage in their pre-nuptial agreement, that they were excluding the right to partner alimony in light of the provisions of Articles 1:158 and 1:400(2) of the Dutch Civil Code. This issue had been debated in the literature. The Advocate General who submitted the claim answered the question in the affirmative. Consistently with previous Supreme Court case law dating to 1980 and 1996, the Supreme Court answered in the negative, holding that it was up to the legislature – if it found such to be desirable – to provide for an option to waive the right to partner alimony prior to a marriage. (See ECLI:NL:PHR:2022:457 for the claim and ECLI:NL:HR:2022:1724 for the Supreme Court’s decision.)

The other cases in which claims were submitted were as follows.

Criminal law

-The question of whether a power of attorney within the meaning of Article 2:3 of the Forensic Care Act was a measure that resulted in the deprivation of freedom within the meaning of Article 67a(3) of the Code of Criminal Procedure. (See ECLI:NL:PHR:2022:302 for the claim and ECLI:NL:HR:2022:983 for the Supreme Court’s decision.)

- The question of whether a court that is not holding a hearing on an appeal can also render a decision in chambers on an application to lift or suspend an order issued in the first instance regarding the actual enforceability of a conditional sanction. (See ECLI:NL:PHR:2022:635 for the claim and ECLI:NL:HR:2022:1319 for the Supreme Court’s decision.)

Civil law

- The question of whether a patient is entitled to review the findings of a physician who assessed – on the instruction of the hospital or its liability insurer and based on the patient’s medical file but without actually seeing the patient – whether that patient was treated in accordance with the rules. (See ECLI:NL:PHR:2022:762 for the claim. The Supreme Court has not yet rendered a decision.)

- The question of whether an application of the debt restructuring scheme can be terminated early and/or whether the clean slate can be revoked if it becomes known after the judgment referred to in Article 354 of the Bankruptcy Act but before the formal end of the debt restructuring scheme that the creditors were prejudiced or that there was an attempt to prejudice the creditors. (See ECLI:NL:PHR:2022:977 for the claim. The Supreme Court has not yet rendered a decision.)

- The question of whether a claim for the erasure of personal data can be granted by a civil judge in a summary proceeding after the term referred to in Article 25(2) of the General Data Protection Regulation Implementation Act has elapsed. (See ECLI:NL:PHR:2022:1154 for the claim. The Supreme Court has not yet rendered a decision.)

Tax law

- The question of whether the penalty scheme that applies to the tardy rendering of a decision on an application also applies to a request for an ex officio reduction of tax assessments. (See ECLI:NL:PHR:2022:690 for the claim. The Supreme Court has not yet rendered a decision.)