However, the preliminary relief judge concludes that there is no reason to assume that the civil attachment of evidence cannot be applied against the Dutch State.
Seizure of evidence in brief
Seizure of evidence is an effective means of securing evidence. If you have a claim against a party and the evidence to support that claim is in the possession of the other party or a third party, you have three options: 1) request the other party or third party directly to provide the documents, 2) file a claim for disclosure and ask the court to order the documents to be handed over, or 3) seize the evidence (or have it seized). The risk of a summons or claim for disclosure without seizure is that evidence may disappear or be destroyed in the meantime. Evidence seizure can be carried out without prior notice, which ensures that evidence is not lost.
The preliminary relief proceedings between the Dutch State and the four defendants
The four defendants have obtained a civil attachment order (pursuant to Articles 730 and 843a of the Dutch Code of Civil Procedure) against the Dutch State because the State is in possession of confidential documents, documents that are subject to the right of non-disclosure, which should have been returned pursuant to a court ruling. The four defendants are suspects in a criminal case that started in 2013 for money laundering and forgery. In that criminal case, the public prosecutor requested data from the defendants' hosting provider. Based on the data provided by the hosting provider, a search was also conducted at the suspects' accounting firm. Two more envelopes containing (digital) data were seized there. In view of the appeal to the right of non-disclosure by the accountant's office's lawyer, proceedings were initiated in which the judge ruled that the data in the two sealed envelopes were confidential documents. The court ordered the return of the seized data.
However, this did not happen immediately, nor were the documents returned, despite the court order and multiple requests to do so from the defendants. As a result, the Dutch State is violating the defendants' right to legal privilege.
Leave to seize evidence
On January 2, 2019, the defendants requested leave from the court to seize evidence from the Dutch State, including the confidential documents that had been wrongfully seized. On January 4, 2019, the court granted permission to seize evidence and ordered the Dutch State to cooperate with the seizure on pain of a penalty of EUR 2,500,000 and a penalty of EUR 250 per day if it refused to cooperate, up to a maximum of EUR 25,000,000.The seizure of evidence was carried out on January 8, 2019, against the Dutch State, more specifically the openbaar ministerie, the FIOD, and the Tax and Customs Administration.
Lifting of the seizure of evidence
Seizure may be lifted in the event of a procedural irregularity, the claim being unfounded, the seizure being unnecessary, or security having been provided. In these preliminary relief proceedings, the Dutch State is seeking the lifting of the seizure of evidence and argues, among other things, that:
there are no grounds or necessity to use a drastic coercive measure such as seizure of evidence against the Dutch State;
the Molenbeek judgment handed down by the Supreme Court, in which the Supreme Court ruled that seizure of evidence can also be ordered in cases that do not involve the enforcement of intellectual property rights, cannot be applied to the Dutch State, and in any case not to the Ministry, the FIOD, and the tax authorities;
the seizure of evidence does not meet the strict requirements set for it. For example, the defined documents are too vague and the Dutch State's obligation of confidentiality prevents the request from being granted pursuant to Article 843a of the Dutch Code of Civil Procedure;
the lawyers have no personal interest in the seizure of evidence because the right to refuse to give evidence does not serve to protect the individual lawyer, but is based on a general social interest that everyone should be able to freely turn to a lawyer for assistance and advice;
there is no reason to impose a penalty payment on the Dutch State because the State complies with Dutch court rulings.
The defendants have defended themselves and, in short, argued that they have an interest in the seizure of evidence in order to assess the extent and seriousness of the breach of the right to refuse to give evidence, by finding out how many and which confidential documents the openbaar ministerie the FIOD have in their possession, how these were obtained, who had access to the documents, and what happened to those documents. As a counterclaim, the defendants requested access to the seized documents.
Seizure of evidence under the Dutch State
The preliminary relief judge in the summary proceedings does not agree with the Dutch State's assertion that permission to seize evidence should not have been granted.
Neither the Molenbeek judgment nor other case law of the Supreme Court suggests that civil seizure of evidence cannot be applied against the State of the Netherlands, the openbaar ministerie, the FIOD, or the Tax and Customs Administration. The non-IE seizure of evidence is a protective measure aimed at the release of the seized evidence after separate proceedings on the basis of Article 843a of the Code of Civil Procedure, and it is not clear why [the defendants] would not be able to use this remedy against the State of the Netherlands in order to determine the extent to which the right of non-disclosure invoked by [the defendants] has been violated and what the consequences of this are.
The preliminary relief judge further ruled that the right to refuse to give evidence and the duty of confidentiality are essential to the relationship between lawyer and client. If information that clients share with their lawyer ends up in the hands of third parties, this is detrimental to the relationship of trust. This also affects the lawyer, and lawyers therefore do have a vested interest in the right to refuse to give evidence. The defendants also have an interest in the seizure of evidence because invoking a violation of the right to refuse to give evidence in the criminal case may lead to a different ruling for the defendants, but this does not say anything about the civil liability of the Dutch State towards the defendants.
The preliminary relief judge concludes, with some (justified) criticism of the data separation process, that the seizure of evidence does not interfere with the criminal case, especially since the investigation was completed a year ago. Nor was there any less drastic means of obtaining the documents, since the State had failed to comply with the order and the earlier requests. Furthermore, according to the preliminary relief judge, there are grounds for imposing penalty payments, although these are moderated because the State did not fully cooperate with the seizure of evidence by refusing to provide login details and making data inaccessible.
According to the preliminary relief judge, there is therefore no reason to lift the seizure of evidence from the Dutch State. On the other hand, he does not allow the defendants to inspect the seizure because there is no urgent interest. The Dutch State fundamentally disagrees with the seizure of evidence and must be able to have its position assessed by a court of first instance before the defendants are able to inspect the seizure. The final word on this matter has therefore not yet been spoken.
source: Rechtspraak.nl
