In the prior post I talked about enforcement efforts that lagged in the Netherlands but are now gaining more traction. This post will cover recent amendments to the Dutch Criminal Code that are helping authorities prosecute overseas bribery, and Dutch civil remedies used to fight graft.
On January 1, 2015, relevant amendments to the Dutch Criminal Code came into force. The amendments simplify and harmonize the offenses for foreign bribery, including removing the distinction between bribery to induce a violation of official duty and bribery to receive a benefit within the official’s duty.
The amendments also increase the maximum sanctions for foreign bribery.
The Netherlands has made improvements to the regime of criminal liability of legal persons. But the OECD expressed regrets that the Netherlands has not amended its legislation since the OECD Working Group’s December 2012 Phase 3 Report to increase protections for foreign bribery-related whistleblowing in the public and private sectors. A copy of the Phase 3 Report is here (pdf).
Meanwhile, there are several legal instruments to assist a victim of corruption. If the fraudster or corrupt criminal is prosecuted by the Dutch public prosecutor, the victim can request access to the criminal file. This evidence can be used in civil proceedings against the fraudster or corrupt criminal or against related third parties.
Additionally, instead of starting civil proceedings against the fraudster or corrupt criminal, it is possible to join the criminal proceedings as a civil party and request damages.
Even if the Dutch public prosecutor reached an out-of-court settlement, the victim is not left empty-handed. According to a specific provision in the Dutch Code of Criminal Procedure, victims may choose to file a written complaint to the court on the grounds that an out-of-court settlement pertains to assets that belong to them.
Such complaints should be filed within three months after the fraudster or corrupt criminal complies with the out-of-court settlement.
Before doing this, though, one could also reach out to the public prosecutor who dealt with the out-of-court settlement and explain that a client is a victim of corruption and suffered substantial financial damages. Then the public prosecutor can be requested to share the disgorged proceeds collected under the out-of-court settlement connected to the corruption be returned to the victim.
These victim-related remedies only work if litigants have access to independent judiciaries — one of the markers Transparency International recognizes as a common characteristic of the least corrupt countries on its Corruption Perceptions Index.
The Netherlands — currently ranked fifth on the CPI — is perceived as one of the least corrupt countries in the world. While it is doing more to fight overseas corruption, as I discussed in the prior post, there’s still room for improvement.
And some are questioning whether the tendency by prosecutors and regulators to settle overseas corruption out of court might reduce the deterrent effect of the enforcement actions. That’s a subject for another post.
Cathalijne van der Plas is an associate partner at Höcker Advocaten in the company law division. Cathalijne’s practice is international in nature, consisting in large part of civil fraud and asset recovery matters. She’s a contributor of FraudNet, the network of the International Chamber of Commerce (ICC) which provides support to victims of commercial fraud (international or otherwise).