Is it possible to question tax officers working for the tax authorities, the Fiscal Intelligence and Investigation Service (FIOD) or public prosecutors as witnesses in a civil provisional examination of witnesses? This issue arose in the case of an asset manager who – as a result of a false letter from a former employee – ended up in a criminal investigation. The Dutch State was opposed to the witness examination but has been given the brush-off for the time being.
What preceded this
In the Hertoghs Considers of 7 October 2018, we paid attention to the decision from the Supreme Court (civil chamber) that related to the interrogation of a number of tax officers, FIOD officers and public prosecutors in a provisional examination of witnesses while at the same time there was a criminal investigation. The Supreme Court considered that the mere circumstance that in the provisional examination of a witness the same questions were to be raised or the same facts were to be investigated as in another lawsuit – in this case in the criminal court – did not constitute grounds for rejecting a request to hold a provisional examination of a witness. The Supreme Court added that grounds could exist for limiting the possibility of a provisional examination of a witness if it were plausible that the specified circumstance – asking the same questions – would actually lead to a disruption of the criminal investigation. According to the Supreme Court, the interest involved in the criminal investigation could very well be so substantial that the interest of the provisional examination of a witness should yield ‘as long as this substantial interest requires that’. With this last addition, the Supreme Court clarified that if a possible substantial interest is in conflict with a provisional examination of a witness, this will not be for all eternity. The question in the aforementioned issue of Hertoghs Considers was whether the Supreme Court decision was as groundbreaking as was alleged in the media.
Request provisional examination of a witness exclusively to obtain evidence in a criminal case?
After referral of the case to the Arnhem-Leeuwarden Court of Appeal, a decision was given on 30 January 2019. The court cited a few grounds from the Supreme Court, among which a remark from the Supreme Court that a request for a provisional examination of a witness is rejected if that examination is requested exclusively to obtain evidence in the criminal proceeding. The court then applied this test and judged that it was insufficiently plausible that the provisional examination of a witness was requested exclusively (italicised by the court) to obtain evidence for the criminal proceeding. The court came to this conclusion on the grounds of the claimant’s statements in his application for a provisional examination of a witness. This hurdle seemed relatively easy to take. If there are sufficient facts in the application pointing to an independent interest in a provisional examination of a witness, the court will not easily come to the conclusion that the application was made exclusively to obtain evidence in an adjoining criminal case. This must be regarded as a positive development.
Does an application for a provisional examination of a witness lead to an actual disruption of the criminal case?
But this was only the first hurdle. In line with the referral decision from the Supreme Court, the court also had to answer the question whether examining the witnesses would lead to an actual disruption of the criminal proceeding. However, the court was unable to establish this, since the public prosecutor on duty could not provide specific information on the criminal investigation.
Tax officers and public prosecutors can be interrogated as witnesses
In this specific case it meant that tax officers working for the tax authorities, the FIOD and also public prosecutors could be interrogated. The court also added that – in line with the decision from the Supreme Court – courts that interrogate witnesses can also still decide for themselves to prevent certain questions from being asked. Whether this will be the case, depends very much on the wording of the questions put to the witnesses.
An interesting new dimension
The case law we have discussed offers interesting possibilities to examine tax fraud officers and public prosecutors as witnesses because there are more options than had been thought in the past. This means boundaries have not only been explored, but also extended. We will undoubtedly hear more on this subject.