14 February 2019

Criminal procedure: minister wants judicial review of large “transactions”

The Dutch Minister of Justice and Security has announced plans to amend the Dutch Code of Criminal Procedure in response to questions raised by parliament about substantial or extraordinary “transactions”. Transactions are payments agreed between the public prosecutor and a suspect in lieu of criminal prosecution. The plans amend the existing rules on substantial transactions and introduce a process of judicial review. The Minister also stated that the Public Prosecution Service’s instructions on these types of transactions should be aligned with the current practice of transparency. He stated that he will involve the Public Prosecution Service and the Council for the Judiciary to draw up the rules in further detail.

The recent letter to parliament proposes that the judicial review may take place behind closed doors and that both the public prosecutor and the suspect will be heard. The minister believes that legal representation should be compulsory during the review process. The letter explains, among other things, that before a transaction is agreed the court:

1) must have sufficient information to conduct the judicial review;

2) tests the way the transaction has been concluded; and

3) assesses if the transaction conforms to the conditions for high transactions as laid down in the Public Prosecution Service’s Instruction (OM Aanwijzing hoge transacties and bijzondere transacties).

According to the Minister, this would mean that the court’s assessment about whether the transaction is reasonable will be based on the information provided by the public prosecutor, and that the court itself will not perform any further investigation. According to the Minister, it stands to reason that the outcome of the judicial review will be published. The Minister will work on the proposed changes together with the Public Prosecution Service and the Council for the Judiciary.

On 12 February 2018 Dutch newspaper FD further reported that according to sources within the Dutch government, the Dutch state is currently looking at how to discontinue doing business with companies that have settled a criminal case with the public prosecutor. The ministries of Economic Affairs and Finance are allegedly examining how these types of companies can be excluded from government bidding processes and how running contracts may be terminated in the near future. We will of course continue to monitor this development.

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