Published today, and sparking a great deal of public interest, was the Opinion of Dutch Council of State’s Advocate-General Keus on gathering evidence in cases involving administrative fines.

In the Opinion, the A-G analyses and answers eight specific questions about the law of evidence as it applies to administrative fines.

The two most significant conclusions are:

  1. Someone who is heard in connection with the intention of imposing a punitive sanction on him must always be advised of his right to remain silent. This does not apply to persons who will be heard as witnesses, unless the hearing ‘changes colour’. As soon as the hearing ‘changes colour’, the witness must be advised of his right to remain silent before the hearing can proceed.
  2. The administrative body and administrative-law judge must always take into account – but need not attach decisive importance to – potentially exculpatory statements which a person to be fined submits in the course of the proceedings.

What happened? This Opinion was rendered in two cases involving high administrative fines (Dutch Foreign Nationals (Employment) Act) that the Dutch Minister of Social Affairs and Employment (‘SZW’) imposed on two companies. These companies disagreed with the fines and appealed them to the Rotterdam District Court, which held that the Minister of SZW had correctly imposed the fines. The companies then appealed these decisions to the Administrative Law Division of the Council of State. The two companies asserted that the SZW Inspectorate (regulatory authority) had not performed a careful investigation, such that certain evidence should not have been taken into account in from the Minister’s decision to impose the potential fine. The Minister was also accused of having wrongfully omitted exculpatory evidence from the fine report. The position of the two companies is that there was insufficient evidence of the violations and that the Minister’s imposition of the fines was unjustified.

In November 2016, the president of the Administrative Law Division requested the A-G of the Council of State to investigate what safeguards must be observed when dealing with the law of evidence as it applies to administrative fines. The A-G was requested to devote particular attention to the safeguards that should apply when submitting statements to the regulatory authority, to official reports and to the question of how exculpatory proof submitted at later stages of proceedings must be dealt with.

Eight specific questions were posed to the A-G regarding these issues. These concerned the procedural requirements and various possible defects that had been observed relating to: a) the obligation to use a sworn and/or telephonic interpreter; b) the consequences of not signing the official report; c) advising the individual of his right to remain silent; d) recording the statement in the official report; e) the fine report; f) exculpatory evidence and statements; g) gathering evidence after the conclusion of an investigation; and h) permissibility of the administrative loop. The A-G dealt with all eight questions.

The Opinion must also be read in the light of the – unsolicited – advisory report from the Advisory Division of the Council of State of 13 July 2015, which requested that attention be devoted to legal protection in relation to administrative fines. In this advisory report, the Advisory Division also devoted exhaustive attention to the still relatively underdeveloped law of evidence as it applies to administrative fines. It will be interesting to see how the Administrative Law Division of the Council of State applies the Opinion in the two cases in question. The Opinion in any case offers a transparent addition to the still underdeveloped law of evidence in punitive administrative law.