Corporate criminal law

Fraud is in itself not a punishable offence provided for as such in the Dutch Penal Code. Fraud is an umbrella term described as “deliberate misleading aimed at obtaining unlawful gain”. The most common fraud offences mentioned in the law are forgery of documents, swindling and deceit. Examples of financial fraud are money laundering, investment fraud, bankruptcy fraud and benefits fraud. Fiscal fraud concerns defrauding the Tax Authorities or the Dutch Customs by, for example, committing VAT fraud or filing incorrect tax returns or customs declarations. Financial fraud may be penalised by way of the provisions in the Dutch Penal Code, but also on the basis of other special laws, such as, for example, the Algemene Wet inzake Rijksbelastingen (AWR) (the State Taxes Act), the Algemene Douanewet (ADW) (the General Customs Act), the Wet op het financieel toezicht (Wft) (the Financial Supervision Act) or the Wet ter voorkoming van witwassen en financieren van terrorisme (Wwft) (the Money Laundering and Terrorist Financing (Prevention) Act). Offences committed under the Wft and the Wwft are by way of the Wet op de Economische Delicten (WED) (Economic Offences Act) labelled as economic offences and are penalised as such. Often a fraud inquiry is opened by the administrative authorities, such as the Tax Authorities or the Dutch Authority for the Financial Markets. Criminal inquiries are as a rule carried out by the (financial) police and/or the Fiscal Intelligence and Investigation Service, under the responsibility of the National Office for Serious Fraud, Environmental Crime and Asset Confiscation of the Public Prosecution Service.

Environmental law as a rule is concerned with the (petrochemical) industry, the logistics sector and the waste sector, but other enterprises may likewise be faced with environmental rules enforced under criminal law. Environmental offences concern all sorts of (possible) harm caused to the environment, such as contamination resulting from discharges, excessive emissions and (oil) spills, infringements of regulations attached to permits or conducting a business without having obtained a permit, or environmental permit. Other examples are suspicious practices in the field of waste substances regulations and related rules (penalised under criminal law), such as the European Regulation on Shipments of Waste (ERSW). Often environmental matters under criminal law also involve an investigation into specific shipping documents, or their correctness. The Inspectie Leefomgeving en Transport (ILenT) (the Human Environment and Transport Inspectorate), the Environment Agency and the (environmental) police are as a rule charged with the investigation. The National Office for Serious Fraud, Environmental Crime and Asset Confiscation of the Public Prosecution Service employs public prosecutors specialized in environmental issues. Contained in the Dutch Penal Code are a number of environmental standards. However, most environmental-law provisions are found in special (environmental) laws, sometimes in subordinate legislation and sometimes even in permits granted to the enterprise concerned. By way of a specific act, such as the Wet milieubeheer (the Environmental Management Act), the Wet bodembescherming (the Soil Protection Act) or the Wet voorkoming verontreiniging door schepen (Prevention of Pollution from Ships Act), those standards may (by way of the WED) be regarded as economic defences. This so-called “multiple phases standard” often causes a criminal investigation into environmental offences to be more complex and of a particularly technical nature. For the above-mentioned reasons you are strongly advised to seek legal aid from a specialized lawyer.

Accidents at work, particularly serious ones, as a rule have an enormous impact on an enterprise and its workers. In addition to administrative-law and civil-law consequences, the enterprise and those involved in it may also be faced with a criminal investigation. An investigation of that nature is as a rule performed by the Inspectie Sociale Zaken en Werkgelegenheid (ISZW, the former Labour Inspectorate) (Inspectorate SZW). More than anything else the advice provided in the case of a criminal investigation into accidents at work will have to be brought in line with the other legal aspects of the case, while obviously the emotional element of an accident, or the impact and the consequences of it, should not be disregarded. Other examples of relatively common offences under occupational health and safety law which may carry criminal prosecution are those committed under the Arbeidstijdenwet (the Working Hours Act) and the Wet arbeid vreemdelingen (the Foreign Nationals (Employment) Act).

The above-mentioned offences merely represent the most common cases and the list is not intended to be limiting. Other, as yet unmentioned, (economic) offences are, for example, infringements of the Geneesmiddelenwet (the Medicines Act), the Gezondheids- en welzijnswet voor dieren (the Animal Health and Welfare Act), the Warenwet (the Commodities Act) and the Wet op de kansspelen (the Betting and Gaming Act). In principle the partners at Legaltree who are specialized in corporate criminal law deal with all cases involving the interface between business and criminal law.

Doctors, accountants, lawyers, civil-law notaries and bailiffs have their own disciplinary law, but sometimes they may also be faced with criminal investigations, for example when they are asked to provide information or act as witnesses by investigating bodies. However, those professionals, or the organisation employing them, may also become the subject of criminal investigations. Legaltree not only provides assistance to such professionals, but also has the experience and expertise in assisting investigating officers in the context of questioning (by the National Police Internal Investigations and otherwise) and in article 12 Code of Criminal Procedure cases. We furthermore regularly assist professional drivers suspected of traffic offences committed in the conduct of their professional activities. In short: Legaltree assists professionals (and their enterprises) who in the conduct of their business are faced with criminal investigations.

An enterprise may be faced with a search carried out by an investigating body. When such is the case, an investigating body enters the business premises with a view to confiscating objects and data, digital and otherwise. As a rule searches are performed unexpectedly and they have a major impact on the enterprise and on those involved in it. An event of that kind requires rapid action and a rapid response, also from the lawyer involved. In the course of a search a great number of questions will be raised about the scope of the powers of the officials performing the search and the enterprise’s rights and duties in that respect. Since Legaltree is made up of partners only, the lines of communication between the various partners and between the partners and the clients are very short and practice has shown that in such situations of great urgency the level of assistance can be scaled up quickly. Even if an enterprise is not a suspect itself, it may nevertheless have to deal with a request from a public prosecutor or a judge to provide certain information. In that case too it is advisable to ask for legal assistance in order to properly assess whether the request is adequately documented and in other respects too satisfies the applicable laws and regulations. Our specialized lawyers can provide advice about your rights and duties in such matters, also in relation to the one(s) to whom the requested information relates.

There are various ways in which an enterprise may get involved in criminal law questioning. If the enterprise itself has been labelled a suspect, it will have to designate and/or authorize a representative in order to be questioned on behalf of the enterprise. However, there is also the possibility of directors or other individuals involved with the enterprise to be questioned, either as suspects or as the persons actually in control of the enterprise. All suspects have the right to remain silent, but obviously the question should be asked whether doing so is appropriate under the circumstances. This means that all the relevant facts and circumstances will have to be considered. For a number of years now the suspect (including the representative of the suspected enterprise) has had the right to be assisted by a lawyer during questioning as well. Lastly, those involved in an enterprise, such as for example its employees, may also be questioned as witnesses in a criminal investigation. In all those cases we would advise a party to seek legal assistance from one of our specialized partners.

An enterprise itself may also become the victim of punishable offences committed by others, or discover that such offences have been committed by its own employees or by, for example, its suppliers. An enterprise may also be involved in civil proceedings and during those proceedings suspect that punishable offences are being committed by the other party. We regularly assist to persons and legal entities when they are faced with the question whether or not to report a matter. If it is decided to do so, we may assist with the process of filing the report. We have extensive experience in drafting and filing such reports, in maintaining contacts with the police and the Public Prosecution Service, both before and after the report has been filed, in providing further guidance when bringing a claim as an injured party and, where appropriate, in filing a complaint pursuant to article 12 Code of Criminal Procedure if a case is dismissed. Naturally, we can also act on behalf of persons or legal entities who are involved in such a complaint as former suspects.

There is considerable cross-over between corporate criminal law and administrative enforcement. Often administrative investigations turn into criminal investigations and they may even run side by side. Information obtained by administrative authorities may under certain conditions be used, or reused, in a criminal investigation. An enterprise often has the idea that it is punished twice by this combination of administrative and criminal enforcement. Precisely in these cases it is therefore recommended that you are advised about your rights and duties by one of our specialized lawyers. Please see the Sanctions chapter for a detailed description of our joint expertise, both in the field of administrative law and in the field of criminal law.