ECtHR communicates application to Dutch Government about right to conjugal visits

On 2 November 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. 8 ECHR (right to respect for private and family life) in conjunction with art. 14 ECHR (prohibition of discimination). The applicants in this case had been remanded into custody in connection with a criminal case. After several months they requested to be granted a conjugal visit (Bezoek Zonder Toezicht). This request was denied because the applicable legal framework does not provide for conjugal visits for prisoners in pre-trial detention. However, prisoners already convicted did have a right to conjugal visits. The applicants considered this to be an unjustified form of discrimination. They  filed an appeal against the decision rejecting their request for a conjugal visit. This appeal was rejected in last instance on 8 August 2014 by the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection (cases 14/1062/GA and 14/1038/GA). The applicants therefore submitted their complaints to the ECtHR.

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 applicants in this case are represented by Thom Dieben, attorney-at-law at Jahae Raymakers, and Jacqueline Kuijper. The decision to communicate the case can be downloaded here.

ECtHR communicates case about refusal of Dutch Supreme Court to refer case to CJEUfor a preliminary ruling

On 22 September last, the European Court of Human Rights (ECtHR) has decided to communicate to the Dutch Government a complaint filed against the Netherlands. The complaint alleges that the Netherlands has violated article 6 of the ECHR, which, among other things, guarantees the right to a fair trial and the right of access to an independent court. Reason for the complaint was the fact that the Dutch Supreme Court denied a defence request to refer the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling on the interpretation of EU Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residenceThe Dutch Supreme Court did not give any reasons for denying this request, let alone that it applied the so-called ‘Cilfit-criteria’ in its reasoning. In the Cilfit-case, the CJEU ruled that a national court against whose decision there is no judicial remedy is obligated to refer a case for a preliminary ruling on the interpretation on EU law unless 1) this interpretation is not relevant for the case; the interpretation is evident (acte clair); or 3) this interpretation has already been given by the CJEU (acte éclairé). According to consistent case law of the ECtHR, denying a request for a referral to the CJEU without providing reasons or without applying the Cilfit-criteria violates art. 6 ECHR.

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 Gwen Jansen. The decision to communicate the case can be downloaded here.

AG: Dutch Supreme Court should refer question of legal assistance during the police interview for a preliminary ruling

The Dutch Supreme Court should refer the controversial question of whether art. 6 of the European Convention on Human Rights (ECHR) guarantees a right to legal assistance during the police interview to the Court of Justice of the European Union (CJEU) for a preliminary ruling. That is the conclusion of Advocate-General Knigge in his advice to the Dutch Supreme Court published yesterday. The Dutch Supreme Court held in April 2014 (ECLI:NL:HR:2014:770) that the Netherlands (and other EU Member States) have until 27 November 2016 to make arrangements for the presence of a lawyer during the police interview. According to AG Knigge, however, the CJEU should be asked whether a suspect can already before that date derive a right to legal assistance during the police interview from art. 6 ECHR. This is also in line with the request of the defence in this case. The conclusion of an Advocate-General is an independent non-binding advice to the Dutch Supreme Court. The Supreme Court expects to deliver a judgement in this case on 22 December 2015.

Thom Dieben, attorney-at-law at Jahae Raymakers, and Gwen Jansen argued the case on behalf of the accused.

The full opinion of AG Knigge [in Dutch] (ECLI:NL:PHR:2015:1996) is published on the website of the Dutch Supreme Court. The appeal memorandum (cassatieschriftuur) filed on behalf of the accused by Thom Dieben and Gwen Jansen can be downloaded here.

Amsterdam District Court grants defence request for ‘European Supervision Order’

On 24 September last, the Amsterdam District Court granted a request to order the prosecution to issue a so-called ‘European Supervision Order’.

The request was filed by Han Jahae and Joost van Bree, both lawyers at JahaeRaymakers, who assist a Dutch businessman suspected by the Dutch Public Prosecutor’s Office (PPO) of involvement in investment fraud. The execution of the pre-trial detention order of this suspect had previously already been conditionally suspended by the Amsterdam District Court. One of these conditions was that the suspect was to report every three months at the police station closest to his place of residence. Since the suspect had in the meantime moved to Spain, the defence was of the view the suspect should henceforth report to the Spanish police. According to the defence, an EU framework decision (Framework decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention) recently implemented by the Netherlands offered an appropriate legal basis for such a situation. The PPO disagreed. It was of the view that such a request should not be addressed to the District Court but to the public prosecutor. Furthermore, the PPO was of the view that – should the District Court hold otherwise – the request should be denied on the merits.

The Amsterdam District Court rejected both objections and granted the request (ECLI:NL:RBAMS:2015:6386). The full decision (in Dutch) can be read here.

Critical advice of the ACS re use of IMSI-catcher by Dutch FIOD

The permanent advice committee (ACS) of the Dutch Bar Association (NOvA) on 11 September last issued an advice on a draft regulation proposed by the Ministry of Economic Affairs. The goal of the draft regulation is – stated succinctly – to authorize the Dutch Fiscal and Economic Crime Investigation Service (FIOD) to independently use a so-called IMSI-catcher. The General Council of the NOvA agreed with the advice of the ACS and forwarded it to the Ministry of Economic Affairs.

The ACS has assessed the draft-regulation and is of the view that it is defective on several points. In summary, the ACS is of the view that:

  • The need to give the FIOD an independent authority to use an IMSI-catcher is insufficiently substantiated by the Minister;
  • If issued, the draft regulation would under certain circumstances allow the FIOD to use an IMSI-catcher without prior authorization of a prosecutor. That is contrary to the case law of the Dutch Supreme Court and the requirement that follow from art. 8 of the European Convention on Human Rights (ECHR). Furthermore, this would lead to unequal treatment between the FIOD and, for example, the Dutch National Police. An article should therefore be added to the draft-regulation which provides that an IMSI-catcher can never be used (not by the National Police nor the FIOD) without prior authorization of a prosecutor;
  • The need to appoint the director of the FIOD as ‘qualified authority’ (art. 1, par. c, sub 4) catcher is insufficiently substantiated by the Minister;
  • De noodzaak om de directeur van de FIOD als ‘bevoegde autoriteit’ aan te wijzen (art. 1, onderdeel c, onder 4) wordt onvoldoende onderbouwd.

The ACS is tasked with providing the General Council of the NOvA with advice in the field of criminal (procedural) law. Han Jahae and Thom Dieben, both lawyers at JahaeRaymakers, are a member of the ACS.

The full text of the advice (in Dutch) can be downloaded here.

Course: Conducting legal proceedings in Strasbourg

On 30 October 2015, Thom Dieben will act as an instructor in a course organized by the Bijzonder Strafrecht Academy [Special Criminal Law Academy] entitled “Procederen in Straatsburg” [Conducting legal proceedings in Strasbourg]. For many Dutch lawyers, the ins and outs of filing a complaint at the European Court of Human Rights (ECtHR) as well as the subsequent proceedings are to a large extent terra incognita. Also, the ECtHR has recently tightened the admissibility criteria. As a result of this, the possibility to interrupt the six months’ time-limit by means of a so-called ‘first letter’ has been abolished. Furthermore, an application form that does not satisfy the formal requirements will not be accepted. The course is intended for lawyers who want to prevent frequently made mistakes in this regard and who would like to know more about the complaints procedure in Strasbourg.

The following topics will be discussed during the course;

  • What to do before filing a complaint (inter alia, exhaustion of domestic remedies, time limits etc.);
  • The drawing up and filing of the complaint form (inter alia the new Rule 47 of the Rules of Court as a result of which dozens of complain are declared inadmissible for not complying with the formal requirements);
  • The complaint procedure itself (written observations by the respondent Government, referral to the Grand Chamber, procedural requirements, possibility to submit new arguments etc.);
  • The claim for just satisfaction (what can and what cannot be claimed?);
  • The friendly settlement / unilateral declaration (tactical considerations, when to accept, when not?);
  • Legal aid (Rule 100 of the Rules of Court);
  • The judgement / decision of the ECtHR (the (im)possibility to request a referral to the Grand Chamber, execution of the judgement, what to do in case of interpretation problems, revision of the judgement);
  • Legal options in the Netherlands after a successful complaint (revision etc);
  • Other possibilities when a complaint has been dismissed (for example filing a complaint with the UN Human Rights Committee in Geneva);

Thom Dieben works as an attorney-at-law at JahaeRaymakers. In this capacity he frequently acts as counsel in ECtHR proceedings. Furthermore, Thom is also the co-author of the commentary to the European Convention on Human Rights (ECHR) in the ‘Tekst & Commentaar’ Series (Criminal Procedural Law).

Click here for more information about the course and the application form.

Article: Developments regarding the professional legal privilege of notaries public

This month’s (July/August) edition of Fiscaal Tijdschrift Vermogen (FTV) [Fiscal Journal on Property] features an article by Jurjan Geertsma entitled “Ontwikkelingen omtrent het (notarieel) verschoningsrecht.” [Developments regarding the professional legal privilege of notaries public].

The article provides an overview of recent developments regarding the professional legal privilege of notaries public and other legal professionals. In inter alia covers the “Wet verruiming mogelijkheden bestrijding financieel-economische criminaliteit” (the new Dutch law increasing the (legal) possibilities to combat financial-economic crime), recent case law and the debate in parliament on professional legal privilege in general. According to the author, it is clear that in the name of combatting crime, authorities are banging on the doors of professional legal privilege in the hope that behind it, the key to preventing crime can be found.

Jurjan Geertsma is attorney-at-law and partner at JahaeRaymakers. He frequently assists notaries public in criminal and disciplinary proceedings.

Click here to download the full article (in Dutch)

29/10/2015 ‘Anti-corruption and integrity’ training

On 29 October 2015, Jurjan Geertsma will act as an instructor in a ‘Anti-corruption and integrity’ training organized by Kluwer.

The training is focussed on anti-corruption and integrity and will deal with dilemmas lawyers, in-house counsel, legal advisors and internal accountants are confronted with in practice. All this with be done from the overarching knowledge and experience that general, theoretical, knowledge will often not provide clear cut answers for questions and incidents that occur in practice.

For more information about the training (in Dutch) click here.

New employee: Anne Hof

On August 15th, Anne Hof took up service with JahaeRaymakers. Prior to joining the team as counsel, Anne worked for the judiciary and, after that, as attorney-at-law at A3 advocaten. In this latter capacity, Anne gained invaluable experience in assisting clients during (witness) interviews and special legal proceedings. Anne will primarily be working in the economic and international sanctions practice of JahaeRaymakers.

Click here for more information about Anne.

Letter to European Commission re apparent failure of Amsterdam District Court to refer cases for a preliminary ruling in EAW cases

On 30 July 2015, Thom Dieben and Han Jahae, together with six colleagues from Amsterdam, requested the European Commission to look into the Amsterdam District Court’s apparent failure to refer cases to the Court of Justice of the European Union in Luxemburg for a preliminary ruling on the interpretation of EU law in cases concerning a European Arrest Warrant (EAW).

According to consistent case law, the District Court is under an obligation to refer cases to the Court of Justice in cases where the interpretation of EU law is not clear. Only when a similar matter has already been resolved by the Court of Justice or where the can be no doubt as to the correct interpretation of EU law, may the District Court refrain from referring the case to the Court of Justice (CILFIT-judgement; ECLI: EU:C:1982:335).

The authors are of the view, however, that the Amsterdam District Court rarely to never refers cases to the Court of Justice even when such a referral was clearly called for. Since neither the wanted person nor his or her lawyers can petition the Court of Justice directly this has lead to a de facto legal vacuum.

If the Commission establishes that the Amsterdam District Court indeed wrongfully refuses to refer cases to the Court of Justice, it may start infringement proceedings against the Netherlands. The first step in this regard is the Commission issuing a letter of formal notice (ingebrekestelling). Ultimately, the Commission can petition the Court of Justice to sanction the Netherlands for failing to comply with its obligations under the EU treaties. In such a case, the Court of Justice may impose fines and/or periodic penalty payments.

On 30 June 2015, 27 letters of formal notice (ingebrekestellingen) were pending against the Netherlands, three of which concerned the Ministry of Security and Justice.

Download the letter to the European Commission here.

UPDATE (March 2016): A reply has been received from the European Commission. Click here to download this letter.