On 10 July 2015 the Dutch Supreme Court delivered its judgment in a case about whether victims and their surviving relatives have the right to obtain a copy of a report containing the findings of a psychiatric and psychological investigation into the mental health of a perpetrator on the basis of Section 843a of the Dutch Code of Civil Procedure (“DCCP”).

This case concerned the shooting incident in a mall in Alphen aan den Rijn. During the incident a gunman wounded 16 people and killed 7, including himself. The gunman held a valid firearms certificate. In the Netherlands, a firearms certificate is issued and annually renewed by a chief constable, which concerned the Hollands Midden Regional Police in this case.

Multiple investigations into the circumstances of the shooting incident were carried out, including an investigation into the issuance and renewal of this firearms certificate. One of the findings was that the gunman was compulsorily detained in a psychiatric hospital for a period of ten days in 2006. The National Police Internal Investigations Department established that the Hollands Midden Regional Police had not taken this fact into account when issuing the firearms certificate, although this information was filed for inspection purposes. The National Police Internal Investigations Department concluded that if the Regional Police had taken this compulsory detention into consideration in assessing the application, the gunman would have been asked to submit at least a medical certificate to determine whether the possession of weapons could be entrusted to him.

According to the claimants, the gunman would not have been able to produce a satisfactory medical certificate in view of his mental health. The Regional Police should have asked the gunman to submit a medical certificate and in light of the circumstances it would not have issued and/or renewed the gunman’s firearms certificate. The claimants have held both the Hollands Midden Regional Police and the State liable for the damage suffered on the grounds that the firearms certificate was issued and renewed unjustly. The claimants endeavoured to gather as much evidence in support because they expected to shoulder the burden of proof.

One of the institutions that conducted an investigation, at the request of the Public Prosecution Service, was the Netherlands Institute of Forensic Psychiatry and Psychology (“NIFPP”). The NIFPP specifically looked into the mental health of the gunman at the time of the shooting incident. This is a so-called post mortem-investigation. However, unlike the other reports, the Public Prosecution Service decided not to provide the resulting report of this investigation to the victims and their surviving relatives.

As it is legally impossible to summon the Public Prosecution Service, the claimants summoned the State to appear in preliminary relief proceedings. Their claim was to order the State to provide them with a copy of the NIFPP-report. Both the District Court of The Hague in preliminary relief proceedings and the Court of Appeal of The Hague rejected their claim. The claimants therefore appealed to the Supreme Court. One of the grounds considered by the Supreme Court is the obligation to produce exhibits under Section 843a DCCP.

For an obligation to produce exhibits under Section 843a DCCP it is required that the claimant has a legitimate interest in obtaining the documents claimed. Only specific documents can be produced and the defendant must have the documents at his disposal. Furthermore, the claimant has to be party to a legal relationship to which the documents claimed relate. If these requirements have been met, the claim will, in principle, be granted, unless the documents claimed are privileged, or important reasons dictate otherwise.

The Court of Appeal of The Hague held that Section 843a DCCP was not applicable in this case, as there was no legal relationship between the claimants and the State, as required. After all, the Hollands Midden Regional Police issued the firearms certificate and not the State itself.

The Supreme Court set this judgment aside and held, with reference to the Explanatory Memorandum of the most recent amendment, that Section 843a DCCP does not require the party who has the requested documents at its disposal, the defendant, to also be a party to the legal relationship to which the documents relate. The fact that the claimants are a party to this legal relationship is sufficient.

This implies that claimants can bring an action against opposing parties to this legal relationship and to third parties, as long as they have the documents claimed at their disposal. Therefore, the judgment of the Court of Appeal cannot be upheld and the case is referred back to the Court of Appeal in another district. It is now up to this new Court of Appeal to decide whether all criteria of Section 843a DCCP for granting the claim have been met.