The Criminal Division

In 2022, the Criminal Division of the Supreme Court rendered over 3,000 decisions. In 2099 of those cases, the appeal in cassation was declared inadmissible. The most common grounds for this are that no objections to the contested judgment were raised (1279) or that the complaints were manifestly incapable of leading to cassation (734). Since 1 October 2022, District Courts and Courts of Appeal have been able to refer questions to the Supreme Court for a preliminary ruling in criminal cases as well. The first questions were received at the close of 2022.

Questions referred for a preliminary ruling and digital investigation

The first questions were received at the close of 2022. These concern information about users of, among other things, the Encrochat messaging service, who became the subject of an international investigation into organised crime. Earlier this year, the Supreme Court rendered a decision on the transfer of encrypted conversations (the so-called Ennetcom data, ECLI:NL:HR:2022:900) by Canadian authorities. Another form of digital investigation was at the heart of the questions that the Supreme Court itself referred to the Court of Justice for a preliminary ruling following a claim for cassation in the interest of the law lodged by Advocate General Keulen (ECLI:NL:HR:2022:475). These concerned, among other things, the conditions for application under which the Public Prosecutor can demand a communications service to provide traffic and location data of a user, if in the specific case the granting of access to such data causes only minor interference with the user’s right to private life.

Litigation agreements

Following a claim for cassation in the interest of the law by the Procurator General, the Supreme Court handed down a judgment on “litigation agreements” in criminal cases (ECLI:NL:HR:2022:1252). This involves agreements between the Public Prosecution and the defence regarding the course of the criminal proceedings and/or the manner in which the criminal case is disposed of. For example, a litigation agreement could involve the defence waiving requests to call and examine witnesses or to present certain defences and the Public Prosecution delineating the scope of the charges against the defendant in some way, there being consensus between the Public Prosecution and the defence on what would be an appropriate outcome of the criminal case. According to the Supreme Court, litigation agreements can be allowed even in the absence of a general statutory regulation. In the judgment, the Supreme Court formulates focus areas for assessing the litigation agreements.

Chain evidence and untrue statements by suspects

A number of homicide cases involved special evidence constructions. In trying a case involving the voluntary manslaughter of three women in 2003, 2004 and 2017, the Court of Appeal availed itself of what is known as chain evidence. This type of evidence relies on the circumstance that the suspect was involved in one or more other similar offences. The Supreme Court accepted in this case that the Court of Appeal had factored into its judgment that a pattern was apparent by which the evidence of the individual facts strengthened the evidence of facts collectively (ECLI:NL:HR:2022:1902). Following a voluntary manslaughter on Saba, the Supreme Court provided more general reflections on the inclusion of an implausible or untrue statement by the suspect in the judgment on the proven facts (ECLI:NL:HR:2022:1864). The Supreme Court distinguishes cases in which the court considers the making of an untrue statement to be a circumstance relevant to the significance that can be attributed to other evidence used and cases in which the court uses an untrue statement made by the suspect as independent evidence against the suspect. The latter evidence construction (the “manifestly untruthful statement”) is of a special nature and is admitted only if the conditions referred to in the judgment are met, in particular the condition that such untruthfulness must be evident from other evidence. An example is ECLI:NL:HR:2022:1190. However, there was no such special evidence construction in a case in which a woman was convicted of co-perpetrating the voluntary manslaughter of her husband, in which the Court of Appeal, in its finding that the suspect’s interpretation of the facts was not credible, merely attributed significance to the untruths she had put forward (ECLI:NL:HR:2022:1250).

Nervous shock damages

The same case involved the award of nervous shock damages, in which regard a mixed panel of members from the Criminal Division and Civil Division had clarified the case law on this issue at an earlier stage already (ECLI:NL:HR:2022:958; see also the joint advisory opinion by Advocates General Spronken and Lindenbergh of the civil and criminal section at the Procurator General’s Office in a previous case, ECLI:NL:PHR:2022:166). Nervous shock damages may be awarded in cases in which the unlawful conduct towards a primary victim has caused intense emotional shock to the secondary victim. This may be caused by the confrontation with the victim’s mortal remains, for example. Damages are awarded for harm resulting from mental injury that is serious in terms of nature, duration and/or ramifications and is adequately objectifiable on the basis of a report by an authorised and competent expert, such as a psychiatrist, general practitioner or psychologist. If mental injury is present (this need not be a syndrome recognised in psychiatry), both tangible and intangible loss or harm resulting therefrom are eligible for compensation. In addition to being entitled to claim nervous shock damages, the secondary victim, if they are also a close relative of the primary victim, may be entitled to claim fixed damages under Article 6:107(1), opening words and (b), and Article 6:108(1) in conjunction with Article 6:108(3) of the Civil Code (“emotional damage”).

Special conditions in the event of a suspended sentence

With some regularity, complaints are raised in cassation about the application of Article 14c(2), opening words and (14°), of the Criminal Code. This article allows the court to impose certain conditions on conduct in the event of a suspended sentence. These may include conditions aimed at preventing criminal conduct by the convicted person and conditions relating to conduct by the convicted person to which they are bound, as a result of the fact declared proved, from the point of view of social decency, for example towards victims of the fact declared proved (ECLI:NL:HR:2022:807). Such conditions must adequately state the rules of conduct they are meant to embody. They must not amount in effect to having to cooperate with extensive and intrusive coercive measures to be exercised by the police (ECLI:NL:HR:2022:1196). The imposition of such a condition must also ensure that the monitoring thereof does not result in more than a limited invasion of the convicted person’s privacy. Following convictions for possession of child pornography, for example, this may involve the frequency with which and the manner in which the convicted person’s computer and/or telephone may be monitored and which (police)  officials may be involved therein (ECLI:NL:HR:2022:1763).

Accelerated disposal and cases that matter

In 2022, the Criminal Division of the Supreme Court rendered over 3,000 decisions. In 2099 of those cases, the appeal in cassation was declared inadmissible. The most common grounds for this are that no objections to the contested judgment were raised (1279) or that the complaints were manifestly incapable of leading to cassation (734). In response to the view expressed by the UN Human Rights Committee on 26 July 2022 in Jaddoe v. the Netherlands, the Supreme Court explained that even in case of accelerated disposal according to Article 80a or Article 81 of the Judiciary (Organisation) Act the substantive assessment by the Criminal Division is identical to the assessment in case the reasoning were not “accelerated” (ECLI:NL:HR:2023:40). According to a WODC (Research and Documentation Centre) report published this year, it appears that this ability to opt for the accelerated disposal of cases certain to fail enables the Supreme Court to provide direction for legal development in cases that matter. These may include cases involving major social issues in the context of downright complex legal issues. An example of this is a case on the money laundering of funds fraudulently obtained through the childcare allowance (ECLI:NL:HR:2022:1822). A special case, with both international and substantive legal aspects, concerns the prosecution of a natural healer arrested in Germany under a European arrest warrant and surrendered to the Netherlands. She has been convicted of voluntary manslaughter of a victim she had administered ibogaine. The Supreme Court subscribed to the view that the case involved the conscious acceptance of the substantial likelihood that the outcome would be death, because the real risk of complications had also become apparent in two specific incidents in which the woman was involved as well, after which she had not changed her practices (ECLI:NL:HR:2022:982).