The Criminal Division

Criminal Section breakdown

The following points up a number of cases in which a judgment was handed down in the reporting year.

Professional privilege

Lawyers and other professionals with legal privilege have a statutory right to refuse to give evidence (Article 218 Dutch Criminal Code). This is the right of lawyers, physicians and civil-law notaries, for example, not to answer questions about a suspect. This is because the public interest in the truth being revealed in court must be subordinate to the public interest in everyone being able to freely turn to the person with privilege for help and advice without fearing that that information will unintendedly be disclosed and end up with the investigating authorities, for example. The protection of the right to refuse to give evidence also covers data stored with a communications service provider. Police and the judicial authorities must do whatever is necessary to prevent infringements of this right as soon as there is a reasonable presumption that the requested information is also confidential, either wholly or in part. If it is, the examining judge must be brought in to filter out such information. The issue here is the extent to which police and the judicial authorities allowed to make substantive assessments about whether or not that information is confidential. After all, examining such information is itself a breach of legal privilege.

The Court of Appeal in 's-Hertogenbosch referred questions for a preliminary ruling to the Supreme Court in civil proceedings, asking what rules must be applied when filtering information of this sort. In his advisory opinion, Advocate General Harteveld considered that there is a gap in the legislation in this regard and made recommendations for a greater role for the examining judge. The Supreme Court held as follows (ECLI:NL:HR:2024:375). If filtering is possible without actually examining the information, then the Public Prosecutor is authorised to do that. He may also assign that task to investigating officers. Otherwise, the Public Prosecutor must involve the examining judge in the case to carry out the filtering (or have it carried out). Whether there is a reasonable presumption of confidentiality before the requested information is provided or it only arises while that information is being investigated is irrelevant. The examining judge may seek the assistance of investigating officers in the filtering. In that case, it must be ensured that the information to which the legal privilege pertains does not or cannot somehow become known to those charged with the criminal investigation and the prosecution of the matter. The Supreme Court points out that this entails a significant increase in the workload of the examining judge and the associated manpower. Sufficient capacity and resources must be made available to the courts to enable the examining judge to fulfil this task.

In two judgments of 17 December 2024 (ECLI:NL:HR:2024:1875 and 1876), in accordance with the advisory opinion of Advocate General Spronken, the Financial Supervision Office and the local Dean of the Netherlands Bar Association were also designated as professionals with legal privilege as regards their supervisory responsibilities for the notarial and legal professions. As supervisory authorities, they have an independent right to refuse to give evidence to police and the judicial authorities in criminal investigations. This concerns the information shared with them that has been entrusted to the civil-law notary or lawyer to whom their supervision relates as such and is thus subject to the civil-law notary or lawyer's duty of confidentiality. The independent right to refuse to give evidence also covers confidential information obtained in the course of their supervisory duties. Furthermore, it extends to any communications issued, actions carried out or advice given in the context of the supervision itself.

Traffic cases: fault and recklessness

In fatal traffic accidents, there are various forms of fault and recklessness under criminal law. In ECLI:NL:HR:2024:1398, the issue is whether the “lower threshold” of fault under criminal law has been reached. The case involved a head-on collision after the accused had veered into the left lane on a curve. In that case, the Supreme Court upheld the conviction of the Court of Appeal but, at Advocate General Frielink’s request, addressed more generally the meaning of "fault" as a component of the offence under Article 6 of the Road Traffic Act (Wegenverkeerswet, “WVW”) 1994. The term "fault" in the sense of "culpable considerable negligence" comes down to whether the accused was remiss compared to another average person in similar circumstances and of a similar capacity. The court must assess this based on the entirety of the accused's conduct. The fact that an accident has serious consequences is not sufficient to automatically assume that there is question of "fault" on the part of the accused.  However, it may be the case that in certain circumstances even a brief moment of inattention may constitute a high degree of negligence.  What the accused actually did in such a brief moment may, if it leads to an accident, constitute "fault" within the meaning of Section 6 of the Road Traffic Act 1994.

Another traffic case (ECLI:NL:HR:2024:1405) involved the more serious form of culpability, namely recklessness. The accused was driving at between 175 and 184 km/h along a road with a speed limit of 80 km/h and caused a serious accident.  Recklessness within the meaning of Article 175(2) in conjunction with Article 6 of the Road Traffic Act 1994 is defined as exceptionally negligent conduct by the accused that created a very serious hazard, even though the accused was, or ought to have been, aware of that. For example, if on the basis of any of the offences listed in Article 5a(1) of the Road Traffic Act 1994 the accused intentionally behaves in traffic in a manner that seriously violates the traffic rules, that conduct may be regarded as reckless if it poses a hazard to life or the risk of serious bodily harm to another person. The appeal in cassation was dismissed in this case as well.

Injured party and damages resulting from death

The judgment in ECLI:NL:HR:2024:644 addresses the claim of a surviving relative of a man who was murdered by his business partner. The Court of Appeal had granted the claim for compensation for lost financial support in full. It found - briefly put - that the injured party had substantiated her claim on the basis of a calculation by a tax expert based on an accepted calculation method and customary standard amounts, and that the defence had not taken the initiative to have a counter-investigation conducted.  In line with Advocate General Frielink’s advisory opinion, the Supreme Court set aside the Court of Appeal's judgment.

The Supreme Court did the same in another case (ECLI:NL:HR:2024:646), in which similar claims by the injured parties were based on a report with a damage calculation by a specialised agency. By allowing injured parties to institute a claim, the legislature intended - briefly put - to provide a simple and readily available form of criminal proceedings to ensure that persons who have suffered injury as a result of a criminal offence are compensated to the extent possible.  However, criminal proceedings lack a number of procedural safeguards that exist in ordinary civil proceedings.  This means that a criminal court must satisfy itself that both parties have had sufficient opportunity to make their submissions and provide substantiation regarding the admissibility of the injured party's claim.  Given the parties' own responsibility for putting forward and substantiating their submissions, the criminal court is of the opinion that this obligation generally does not require its independent attention. This may be different under certain circumstances, for example if the claim is substantial and complex and the extent of it cannot be easily determined. One example of this is where  a surviving relative claims compensation for lost financial support as referred to in Article 6:108(1) Dutch Civil Code. The amount of the compensation must then be estimated based on a number of uncertain factors, such as expectations about the income that the victim and the surviving relatives would have enjoyed in the future. Since information about this is usually entirely in the domain of the injured party, it may be difficult for the defendant to provide its challenge with further substantive reasoning. Moreover, the injured party can seek funded specialised legal assistance in asserting the claim, whereas such assistance and an equivalent possibility of funding is often lacking for the defendant.

The Supreme Court notes that when ruling on the injured party's claim, the courts are free to make a partial substantive assessment by granting or rejecting part of the claim and declaring the rest of it inadmissible. This splitting of the claim allows the criminal courts to decide on that part of the claim that does not thereby entail a disproportionate burden on the criminal proceedings, with the injured party then being able to submit the remaining part of his claim to the civil court. Claims may also be split in cases where a criminal court finds that the injured party is entitled to compensation for lost financial support, but that the award should then be lower than the claim.

Legal assistance

An accused who had been living in a mental healthcare institution for 28 years was convicted after confessing to having stabbed a fellow resident in her back, chest and upper arm with a potato peeler. The suspect had an autism spectrum disorder and/or personality disorder. She confessed to the police and, in doing so, waived her right to legal assistance both prior to and during the interrogation. The Supreme Court, in line with deputy Advocate General Van Wees, set aside the conviction because the Court of Appeal had not demonstrated that it had investigated whether, in view of the accused’s disorders, she was reasonably capable of judging the possible consequences of waiving that right (ECLI:NL:HR:2024:556).

The right to legal assistance for a suspect who has been arrested is guaranteed in Article 28c(2) of the Dutch Criminal Code. The law does not yet contain specific provisions on a waiver of this right by a suspect who has not been arrested. This does not alter the fact that the court must establish whether the accused – given the specific limitations associated with the defendant's vulnerability – was reasonably capable of judging the possible consequences of that waiver. If it does not do so, then, according to the Supreme Court, that is a breach of the procedural rules provided in n Article 359a of the Dutch Criminal Code. If that is challenged, the breach in question must generally mean that any statements made by the suspect without legal assistance during the first police interrogation are excluded as evidence. However, that legal consequence does not necessarily have to be linked to the breach of procedural rules if the exclusion from evidence is not necessary to guarantee the accused’s right to a fair trial within the meaning of Article 6 of the European Convention on Human Rights.

In two other cases, the Supreme Court also granted the appeal in cassation – in line with Advocate General Harteveld’s advisory opinion – on the grounds that insufficient attention had been paid to the right to legal assistance. In one case (ECLI:NL:HR:2024:412), this happened because the accused had waived that right, although she had not been told that legal assistance would be free of charge. In the other case (ECLI:NL:HR:2024:1781), the accused had been asked questions that could only be regarded as questions relating to his involvement in a criminal offence (briefly put: leaving the scene of the accident) for which he was considered a suspect. These questions constituted an interrogation. In that context, he was entitled to legal assistance.

Money laundering

Briefly put, the accused in the IJsberg case (ECLI:NL:HR:2024:887) was convicted for having exchanged 1,887.81 Bitcoins, whereas he should reasonably have suspected that they were the product of criminal activity. The Court of Appeal acquitted the accused because all it was able to infer from the evidence was that the accused had exchanged Bitcoins (valued at EUR 463,990.24) for cash. According to the Court of Appeal, there was insufficient compelling evidence that the accused had "intended" to conceal or disguise the source or provenance of the Bitcoins within the meaning of Articles 420a and 420c of the Dutch Criminal Code. The Public Prosecution Service filed an appeal in cassation against that judgment. The Supreme Court, in line with Advocate General Aben's advisory opinion, found that "concealing" and "disguising" refer to conduct intended to make it difficult to discover the provenance of items, among other things. It follows from the legislative history that the effectiveness of such conduct may be inferred from its "objective essence" (its concealing or disguising effect) and that the accused’s intention to conceal or disguise does not have to be proved. According to the Supreme Court, the Court of Appeal had wrongly held the accused’s intent to be decisive in determining whether he had concealed or disguised the provenance of the Bitcoins. The Supreme Court therefore set aside the acquittal.