The Criminal Division

Criminal Section breakdown

The following points up a number of cases in which a judgment was handed down in the reporting year.

Right to demonstration

The right to demonstration and the possibilities of intervening in it under criminal law are a subject of discussion. In September 2025, the Supreme Court handed down a series of judgments involving demonstrations in the hall of the Ministry of Economic Affairs and Climate (ECLI:NL:HR:2025:1313), in a bank office (ECLI:NL:HR:2025:1438) and in the House of Representatives (ECLI:NL:HR:2025:1436). The protesters had been convicted of breach of the peace and unlawful entry of a dwelling and disrupting a meeting of the House of Representatives. As the criminal offences were committed during a demonstration, the issue in cassation was whether the manner in which action was taken under criminal law – i.e. arrest, prosecution and sentencing – was compatible with freedom of assembly as guaranteed by Article 11 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In these judgments, the Supreme Court set out a number of parameters on how the courts should consider in the fact-finding instance whether action under criminal law is necessary given the right to freedom of peaceful assembly in a democratic society. Even if a demonstration involves the commission of a criminal offence, such as a failure to comply with a police order to leave, criminal prosecution may not be necessary. The case law of the European Court of Human Rights emphasises that the action of the authorities in connection with a criminal offence committed in an (otherwise peaceful) demonstration must be proportionate and not so intrusive as to act as a deterrent to others wishing to exercise their rights to freedom of expression and peaceful assembly. At the demonstrations in the hall of the Ministry, the House of Representatives and the bank office, the protesters had refused to leave the buildings and had subsequently been detained by the police and taken to the police station. While the Court of Appeal had held that this could have been sufficient, it ruled that the further police action as well as the prosecution and conviction of the protesters constituted a permissible restriction on the right to freedom of expression and freedom of peaceful assembly. After all, it involved criminal offences. The Supreme Court held that the Court of Appeal should have assessed whether the criminal action as a whole had been proportionate and, if not, it should have dismissed the protesters from all prosecution because a criminal prosecution would then be in breach of Articles 10 and 11 of the ECHR. The Court of Appeal's judgments were set aside and the appeal proceedings must continue.

Professional privilege of (suspected) holders of confidential information

The 2024 annual report addressed Supreme Court decisions on the scope of legal professional privilege. This is the right of lawyers, physicians and civil-law notaries, among others, to keep data and information of anyone who turns to them confidential, so that their clients do not have to fear that information will unintentionally be disclosed and end up with the investigating authorities, for example. Professional privilege, or right to refuse to give evidence, also covers data stored elsewhere, for example at a communications service provider. The police and the judicial authorities must prevent violations of professional privilege as much as possible. That this is not easy is demonstrated by a number of cases in which the Supreme Court rendered decisions in 2025 that are of interest for further development of law in this area. If the holder of confidential information entitled to privilege is himself suspected of committing a criminal offence together with his client, this may be a very exceptional circumstance under which professional privilege must give way to the interest of finding the truth. Then the message traffic of the suspect intercepted by the police can be  taken into consideration by the judicial authorities.  This also applies to communications related to "a normal lawyer-client relationship", if that information can serve to uncover the truth (ECLI:NL:HR:2025:302).  In doing so, the District Court must ensure that the breach of professional privilege does not go beyond what is strictly necessary, the Supreme Court ruled following an advisory opinion by Advocate General Frielink in a case involving a suspected civil-law notary (ECLI:NL:HR:2025:446). The interests of clients other than the client involved in the criminal offence of which the person entitled to privilege is suspected must also be protected in this regard, as Advocate General Van Wees also concluded (ECLI:NL:HR:2025:1788). In the case of large quantities of (digital) documents or data, a filtering of documents or data that can and cannot be covered by professional privilege must take place under the responsibility of the examining judge, and the examining judge can order that data covered by professional privilege be destroyed or made digitally inaccessible so that it cannot play a role in the criminal proceedings.

Applications to examine witnesses at final oral arguments: delaying tactics?

On 14 October 2025, the Supreme Court rendered decisions in three cases (ECLI:NL:HR:2025:1519, ECLI:NL:HR:2025:1555 and ECLI:NL:HR:2025:1556) in which the examination of incriminating witnesses who had not previously been examined by the defence was only applied for (conditionally) during the substantive hearing at the Court of Appeal. Although the court should in principle grant such an application, even if no substantiation is provided, the Courts of Appeal concerned rejected the applications because the defence could have submitted the application earlier or because the defence returned to its earlier position that further investigation was not necessary, without stating reasons. According to the Courts of Appeal, the late applications were an unacceptable use of procedural resources and were detrimental to the quality and effectiveness of criminal procedure. According to the Courts of Appeal, it cannot be the intention for such untimely requests to not require further substantiation.
 In their advisory opinions, Advocates General Keulen, Van Kempen and Spronken provided nuances to the Courts of Appeal's interpretation of the law. The Supreme Court held as follows.  Only if the defence has expressly refrained from further investigation at an earlier stage, or if the defence has been clearly informed at the time the court asks whether they wish an investigation, that failure to indicate the desire for an investigation will be construed as not wanting one, the defence can be required to provide a further explanation in the event of a late request to examine an incriminating witness. The mere circumstance that the defence did not take advantage of an earlier opportunity to make their desire to examine witnesses apparent cannot support the rejection of such a request at a late stage.

Impact of EU law: investigation of smartphones

On 18 March 2025 (ECLI:NL:HR:2025:409), the Supreme Court addressed the significance of decisions of the ECJ, in particular the case of CG v Bezirkshauptmannschaf Landeck (ECJ 4 October 2024, case C-548/21, ECLI:EU:C:2024:830). This concerns the requirements for investigations by police and judicial authorities of electronic data carriers such as smartphones. Following the ECJ's decisions, the Supreme Court, following Advocate General Harteveld's advisory opinion, updated its previous case law and ruled, put succinctly, that if access to a smartphone, for example, poses the risk of a serious interference with the user's fundamental rights, prior judicial review is required. This is not the case with a limited invasion of privacy, but that is already no longer the case if it is foreseeable in advance that the investigation of the smartphone will reveal traffic and location data, but also other types of data (such as photos, browser history, the content of communications exchanged via that smartphone, and sensitive data).