Last week, the lower house of the Dutch parliament, adopted a bill which proposes to lift the ban on criminal liability of the state. The acceptance of this bill, which still needs to be approved by the upper house, amounts to nothing less than a fundamental change in the General Part of the Dutch Penal Code. The bill ends a legal and political debate that has lasted for several decades.
The question is whether the acceptance of this bill will lead to the conviction of the state for committing criminal offences. I am inclined to answer this question with a no, for three reasons.
Firstly, a conviction of the state will largely depend on the criminal offence that has been committed. In cases in which the offence can easily be individualised, police investigation will probably concentrate on the individual who has committed this crime. In such cases it is less likely that the police will also investigate a corporation, such as the state, as well as the individual in question. Only in cases in which it is almost impossible to appoint one or more perpetrators of a certain crime, is it more likely that a corporation, such as the state, will become part of a police investigation. In particular, in cases in which the crime itself is not specifically an act that has harmed another person, the state may become the object of police investigation. But even in these cases, this will not mean that the state will become part of a criminal investigation. That will probably depend on the seriousness of the crime, whether or not the crime appears to be part of a pattern of violating certain laws (for instance environmental laws), and several other factors.
Secondly, a conviction of the state depends on whether the public prosecution service will decide to prosecute the state. Under Dutch law, only the public prosecution service can prosecute someone, including corporations (such as the state). The public prosecution service can only prosecute when this is in the general interest. One can imagine that it will rarely be in the general interest to prosecute the state. Only in cases of very serious criminal offences, is it conceivable that the state will be prosecuted. On top of this, we know that in many cases the public prosecution service will make a deal with a corporation. In exchange for not prosecuting, the corporation pays a fine. It is not unconceivable that the prosecution service will do the same when the state is suspected of committing a crime.
Thirdly, experience teaches us that when the public prosecution service makes a deal with a corporation, the (former) leadership of that corporation is in fact being prosecuted. If the same applies in cases of the state, who would form the (factual) leadership of the state? Ministers? Senior civil servants? We do not yet know the answer, but if it were to be ministers, they may only be prosecuted after resigning their post as minister. If it were to be civil servants, the question arises as to whether they should be viewed as factual leaders of the state, or as mere perpetrators of or participants in the crime? Case law teaches us that the prosecution of factual leaders is not very easy, certainly less easy than prosecuting perpetrators or participants. It could very well be possible that the public prosecution service decides to prosecute civil servants, not as factual leaders of the corporation (the state), but as mere perpetrators of or participants in the crime. In such cases, and according to Dutch law, the question of whether the state is criminally liable does not have to be answered by a court, leaving open the question of whether or not the state was criminally liable.