The Criminal Division

Total overview of the Criminal Division

Questions referred for a preliminary ruling and digital investigation

For the first time, the Supreme Court has answered questions referred for a preliminary ruling in a criminal case. In its judgment of 13 June 2023 (ECLI:NL:HR:2023:913) the Supreme Court, following an opinion issued by Advocate General Paridaens, addressed the requirements for questions referred for a preliminary ruling.

In this case, the questions referred for a preliminary ruling concern the legality of investigative operations in respect of encrypted messaging services EncroChat and/or SkyECC and their users. These operations involved cooperation with foreign investigative agencies and the use of new investigative techniques and powers (hacking) to intercept considerable amounts of data. Proceedings about this are pending in several countries as well as before the European Court of Human Rights and the Court of Justice of the European Union. Many Dutch criminal cases are based on evidence derived from crypto phones hacked abroad. So the first time questions were asked, the questions concerned a very important issue right away. This should not deter courts from referring questions for a preliminary ruling even in "smaller" cases.

During the discussion, the Supreme Court held that decisions of foreign authorities underlying foreign investigations must be respected and it is, in principle, assumed that the investigation was conducted lawfully. The court needs to consider how the results of the investigation conducted abroad were obtained only if that is of interest to the assessment of whether the use as evidence of those results is in line with the right to a fair trial.

Freedom of expression and freedom of assembly

The judgment of 19 December 2023 (ECLI:NL:HR:2023:1742) concerns an accused who was part of a group of around 25 to 30 activists who demonstrated at a Shell office building. The accused poured a black oil-like liquid over the stairs in front of that building as a "symbolic action and to lend force to the demonstration". She was convicted for vandalism.

The Supreme Court rejected the ground for cassation entailing that the accused should be released from all prosecution due to the criminal proceedings being incompatible with the freedom of expression and the freedom of assembly (Articles 10 and 11 ECHR). The Supreme Court noted, among other things, that the reason for the accused's prosecution was not her participation in the protest against Shell, but her committing a criminal offence during that protest.

In this regard, the Supreme Court referred to a decision of the European Court of Human Rights rendered shortly before, on 21 November 2023, No. 56896/17 et al. (Laurijsen and others v. the Netherlands). That judgment emphasises that what matters in the assessment of whether taking criminal action at a protest is a permissible restriction on the exercise of the right to freedom of expression and the right to freedom of assembly is whether the accused themselves committed a "reprehensible act" (engaged in objectionable conduct).

In the Shell case, the Supreme Court also took into account the fact that the Court of Appeal sufficed with imposing a wholly conditional fine of EUR 350, thereby ensuring that the punishment was proportionate and not so drastic as to have a "chilling effect" on persons who, by participating in a protest, wish to exercise their right to freedom of expression and their right to freedom of assembly.

Absence of criminal responsibility on account of mental disorder

The case of Thijs H. concerned a man who stabbed three people to death with a knife at Brunsummerheide and the Scheveningse Bosjes during a psychosis. The Court of Appeal sentenced Thijs H. to a prison term of 22 years and detention under a hospital order with compulsory treatment. In doing so, the Court of Appeal did not follow the opinions in two expert reports issued stating that the offences not be attributed to the accused. According to the Court of Appeal, at the time the proven offences were committed, the accused was to some extent capable of making an assessment and was sufficiently capable of understanding the unlawfulness of his conduct and acting in accordance with that understanding.

In the judgment of 17 October 2023 (ECLI:NL:HR:2023:1295) the Supreme Court, following an opinion by Procurator General F.W. Bleichrodt, provided a framework for ruling on the absence of criminal responsibility on account of mental disorder. It is up to the fact-finding court to decide that the charges cannot be attributed to the accused on the basis of Article 39 Dutch Criminal Code. The criterion is then whether, at the time of the offence, the accused was suffering from a disorder within the meaning of this provision and, as a result of that disorder, was incapable of understanding that the fact was unlawful or incapable of acting in accordance with his understanding of the unlawfulness of that offence. The court has a responsibility of its own in this regard and is not bound by expert opinions. The Supreme Court therefore dismissed the appeal in cassation, in part because the Court of Appeal explained in detail why it had deviated from the substance of the expert reports.

Review

Extensive proceedings preceded the latest review application with regard to the "Deventer murder case". Following a review application previously declared well-founded, the accused was sentenced again in 2005. Following a review application previously rejected, however, the applicant asked the Procurator General to order further investigation as described in Article 463 Dutch Criminal Code. That request was granted following an opinion rendered by the Advisory Committee on Concluded Criminal Cases (ACAS, Adviescommissie afgesloten strafzaken). Subsequently, another review application was filed.

The application was again rejected in the judgment of 19 December 2023 (ECLI:NL:HR:2023:1772). In this judgment, the Supreme Court set forth the legal framework regarding the substantiation and assessment of a review application and the requirements that apply when the application is based on a new and/or changed expert opinion. Contrary to the applicant's contention, the Procurator General, in conducting a further investigation, has the freedom "to make all such additional inquiries as he deems necessary", in which regard he may also perform investigative acts against the applicant's will. Subsequently, the Supreme Court may consider those findings in assessing the review application, regardless of whether the applicant relied on them in the application.

In Supreme Court, 21 November 2023 (ECLI:NL:HR:2023:1602), the review application was granted because after the conviction for stalking and threat, among other things, further investigation revealed that the person making the report had most likely sent the text messages for which the applicant was convicted herself by, among other things, using a paid service that allowed text messages to be sent in another person's name, with another person's phone number or anonymously.

Hacking

A company's accountant was convicted for making information on the company's server available to another employee in connection with his dismissal proceedings against that company. This is a criminal offence if the information was obtained through unlawful intrusion with a false key (hacking, Article 138ab Dutch Criminal Code). The case is special because it involves someone who was actually authorised to access the system for his regular duties. The question then is whether unlawful intrusion is at hand. After all, it cannot be that the mere violation of the employer's policy, for example, should already qualify as a criminal offence.

In its judgment of 18 April 2023 (ECLI:NL:HR:2023:610) the Supreme Court ruled that "intrusion" occurs when access to all or part of an automated work is obtained against the clear will of the rightholder. The accountant did have login credentials to access the company's secure server, but had used them to access a large amount of data that was in no way related to the work agreed between him and the company. He copied this data in order to make it available to the other employee and his attorney. In doing so, he acted "against the clear will" of the company.