Costs of legal counsel paid by a third party: new questions about article 591a DCCP

Article 591a of the Dutch Criminal Proceedings Law (DCCP) provides a former suspect with the possibility to receive compensation for the costs of legal counsel. Last September, the Dutch Supreme Court ruled that this article also applies to costs borne by a third person. But while this judgment answers one question, it brings along several new ones, says attorney-at-law Thom Dieben.

On September 4th of 2018, the Criminal Chamber of the Dutch Supreme Court (ECLI:NL:HR:2018:1428 ) made an important decision regarding the scope of article 591a of the Dutch Criminal Proceedings Law. The main question was whether or not a claim for compensation, filed on the basis of this article, can be granted when the legal counsel was not paid for by the former suspect, but by a third person (e.g. their employer).

Read the full article here (in Dutch).

ECtHR communicates applications against the Netherlands about refusal to apply mandatory suspension of surrender detention after 90 days

On 5 October last, the European Court of Human Rights (ECtHR) decided to communicate to the Dutch Government three applications filed against the Netherlands.

The applicants complain about a violation by the Netherlands of art. 5 ECHR (right to liberty and security), more particularly the obligation laid down in this article that all detention must be in accordance with national law.

All three applicants were detained on the basis of a European Arrest Warrant (EAW). Dutch law (art. 22, par. 4 of the Surrender Act) provides that if the Amsterdam District Court does not rule on the EAW within 90 days, the wanted person must be conditionally released from detention.

In the cases of the applicants, the Amsterdam District Court had been unable to rule on the EAWs within 90 days. The reason for this was that it had to postpone its decisions multiple times because of problematic detention conditions in Romania and a preliminary reference on this issue made to the Court of Justice of the European Union.

As a result of the lapsing of the 90 days time limit, the applicants requested the Amsterdam District Court to conditionally release them. The District Court denied these requests, arguing that because of the special circumstances of the case, the 90-days time limit had been suspended (see ECLl:NL:RBAMS:2016:1995ECLl:NL:RBAMS:2016:2630 and ECLI:NL:RBAMS:2016:9691). The applicants filed an appeal against this decision. The Amsterdam Court of Appeal, however, confirmed the decisions of the District Court, albeit on the basis of a different line of argumentation (see ECLl:NL:GHAMS:2016:1838ECLl:NL:GHAMS:2016:4900; and ECLI:NL:GHAMS:2017:220). Interestingly enough, the subject matter of the case resulted in a serious disagreement between the Amsterdam District Court and the Amsterdam Court of Appeal. The disagreement was so fundamental that the district court felt compelled to stick to its own line of reasoning even though this reasoning was overturned time and again in appeal by the court of appeal.

The applicants believe that it is not necessary to establish which court (District Court or Court of Appeal) is right. After all, the Amsterdam Court of Appeal decided on their applications for release in final instance and that court’s line of argumentation does in any event not stand up to legal scrutiny. In the applicants’ view, the line of reasoning of the Amsterdam Court of Appeal is in clear contravention of the plain text of the law as a result of which their continued detention was also unlawful. They therefore decided to submit an application to the ECtHR.

By communicating the applications, the Dutch Government is given an opportunity to respond to the arguments of the applicants. Only a very small number of applications reaches this stage of the complaint procedure at the ECtHR. The ECtHR will decide on the merits of the applications after having heard (further) arguments of the various parties involved.

The applicants in all three cases are represented by Thom Dieben, attorney and partner at JahaeRaymakers. The communication decisions of the ECtHR can be downloaded herehere and here.

Thom Dieben speaks in London during the third seminar of Defense Extradition Lawyers Forum (DELF)

On June 7th, Thom Dieben spoke in London, during the third seminar of DELF, from a Dutch perspective on mutual trust in extradition matters. In this context, Thom spoke about the implementation of the Aranyosi & Căldăraru ruling dated 5 April 2016 in the Netherlands and the mutual legal assistance to Turkey after the failed coup.

Continue reading “Thom Dieben speaks in London during the third seminar of Defense Extradition Lawyers Forum (DELF)”

Dutch Supreme Court rules legal framework for smartphone insufficient

On 5 April 2017, the Dutch Supreme Court ruled that the current legal framework in the Netherlands for searching a smartphone is insufficient.

Counsel for the accused had argued before the Supreme Court that the current legal framework was insufficient because searching a smartphone does not require a prior judicial warrant nor permission of the prosecutor. Instead, the authority to search a smartphone was considered to be included in the general authority of a police officer to seize an item (art. 94 et seq of the Dutch Code of Criminal Procedure). However, searching a smartphone results in a major intrusion of of a suspect’s privacy. After all, a smartphone contains lots of very personal data such as, for example, (chat) conversations with family and friends, photos, etc. All in all, smartphone technology has advanced to such an extent that, according to the defence, additional legal safeguards to safeguard privacy are required.

The Dutch Supreme Court agreed with the defence. It quashed the appeal judgement and remanded the case to the Amsterdam Court of Appeal for a fresh determination of the original appeal.

The Supreme Court ruled that the current legal framework is sufficient in cases where searching the smartphone results in a limited intrusion of the suspect’s privacy. This could be the case where only a limited amount of data is accessed. However, when the search of the smartphone is so extensive that it results in a more or less complete insight into specific aspects of the personal life of the user, the search can be unlawful. This will particularly be the case when all data on the smartphone is analysed. The Supreme Court therefore did not agree with the position of the Amsterdam Court of Appeal that art. 94 of the Dutch Code of Criminal Procedure constitutes a sufficient legal basis for a police officer to search a smartphone.

The accused in this case was represented by Thom Dieben and Jacqueline Kuijper. Click here for the full text of the judgement of the Dutch Supreme Court (ECLI:NL:HR:2017:588).


The implementation of Aranyosi & Căldăraru (ECLI:EU:C:2016:198) in the Netherlands

The first time the Amsterdam District Court had to rule on the implications of the Aranyosi & Căldăraru judgment d.d. 5 April 2016 (ECLI:EU:C:2016:198) was only three days after the CJEU had delivered its judgment.

In his contribution to the February edition of the Defence Extradition Lawyers Forum (DELF) newsletter, Thom Dieben discusses the implementation of the Aranyosi & Căldăraru judgement in the Netherlands. The contribution furthermore provides a handy overview of the various European prisons where, according to the Amsterdam District Court, a wanted person does or does not run a real risk of inhuman or degrading treatment. Continue reading “The implementation of Aranyosi & Căldăraru (ECLI:EU:C:2016:198) in the Netherlands”

Critical advice of the ACS re exceptions to new Salduz law

The permanent advice committee (ACS) of the Dutch Bar Association (NOvA) on 5 December last issued an advice on a draft regulation proposed by the Ministry of Justice & Security. The goal of the draft regulation is – stated succinctly – to implement art. 28ab of the Dutch Code of Criminal Procedure, which, after entry into force of the new Dutch Salduz law (Stb. 2016/475), allows for the possibility to exclude by regulation the right of access to a lawyer for certain misdemeanors. The General Council of the NOvA agreed with the advice of the ACS and forwarded it to the Ministry of Security & Justice. Continue reading “Critical advice of the ACS re exceptions to new Salduz law”

ECtHR communicates application to Dutch Government about right to question witnesses in criminal cases

On 28 June last, the European Court of Human Rights (ECtHR) has decided to communicate to the Dutch Government a complaint filed against the Netherlands.

The application alleges that the Netherlands has violated art. 6 ECHR (right to a fair trial), more specifically the right of an accused in a criminal case to question witnesses which is also guaranteed by this article.

The applicant in this case was prosecuted in the Netherlands for fraud. During the investigation into this fraud, the police interviewed several witnesses. The applicant’s lawyer was not present during these interviews. He therefore requested that he be given an opportunity to question these witnesses himself. All these request were turned down. The Court of Appeal was of the view that the defence had provided insufficient reasons as to why it wanted to interview the witnesses in question. Even though the applicant was unable to question the witnesses, all their statements were used by the Court of Appeal to sustain the applicant’s conviction. The Supreme Court upheld this decision.

The applicant subsequently turned to the ECtHR. In his application, he indicates that it is consistent case law of the ECtHR that, as a rule, the defence should be given an opportunity to cross-examine witnesses for the prosecution (so called witnesses à charge) during the court hearing. It was therefore not for the defence to provide reasons as to why it wanted to interview the witnesses in question but for the Court of Appeal to provide reasons as to why cross-examination could be dispensed with without this leading to a violation of the applicant’s defence rights.

By communicating the case, the Dutch Government is given an opportunity to respond to the complaint. After an exchange of written submissions, the ECtHR will decide if the complaint is well-founded.

The applicant in this case is represented by Thom Dieben, attorney-at-law at Jahae Raymakers, and Rob Baumgardt. The decision to communicate the case can be downloaded here.

Contribution Thom Dieben to cassation blog VCAS

The website of the Dutch Association of Cassation Lawyers in Criminal Cases (VCAS) publishes a blog about recent developments of particular relevance to the lawyer assisting clients in cassation proceedings before the Dutch Supreme Court. The blog is edited by various (prospective) members, namely Jacqueline Kuijper (editor-in-chief), Dian Brouwer, Gwen Jansen, Thom Dieben, Simon van der Woude and Sander van ’t Hullenaar.

On 27 January last, a contribution by Thom Dieben entitled “Art. 80a RO: Met recht heeft het (af en toe) niets te maken“. [Art. 80a RO it (sometimes) has nothing to do with the law] was published on this blog. In this contribution, Thom discusses recent case law of the Dutch Supreme Court on art. 80a Wet op de rechterlijke indeling (RO) [Dutch Judiciary Organization act]. Pursuant to this article, the Dutch Supreme Court may declare an appeal inadmissible if it is manifestly devoid of interest or because it is manifestly ill-founded. Particularly in relation to the former category (devoid of interest) the case law of the Supreme Court is constantly developing . Thom is of the view that on the one hand, this poses a (new) practical dilemma for cassation lawyers. On the other hand, this case law is the start of a worrying trend in human rights protection in Dutch criminal cases.

Click here for the text of the full blog post (in Dutch)

Farewell seminar for Prof. Taru Spronken: “our” Advocate(-General)

In 2013, Prof. Taru Spronken left the profession of defence lawyers to become an advocate-general at the Dutch Supreme Court. In honour of her work as a defence lawyer, a farewell seminar was held on 18 December last at the Law Faculty of Maastricht University. The seminar was organised by the Dutch Association of Criminal Defence Lawyers (NVSA), Maastricht University and JahaeRaymakers, the last law firm where Prof. Spronken held office before her transfer to the Dutch Supreme Court.

Topic of the seminar was (the role of) criminal defence lawyers in 2030. Various speakers gave their vision on the future of criminal defence. Mr. J.W. Fokkens, Procurator-General at the Dutch Supreme Court, spoke about the future of attorney-client privilege and the role of defense lawyers in cassation proceedings, Mr. B.E.P. Myjer, former judge at the European Court of Human Rights, gave his vision on the future of the Strassbourg case law and defence rights and Mr. B. Nooitgedagt, pondered about the role of religion in criminal law and the right of lawyers to be present during the police interview of suspects.

The second part of the seminar consisted out of a discussion about theses defended by four young lawyers, including Thom Dieben and Marleen van Beckhoven, who all received their legal education from, among others, Prof. Spronken, at Maastricht University.

At the end of the seminar Prof. Spronken was presented with the first copy of the liber amicorum ‘Advocaat(-Generaal)’, edited by Han Jahae, Thom Dieben and Petra van Kampen.