Short Reads

Psychiatric reports into the mental health of perpetrators: obtainable for the victims and their surviving relatives or not?

Psychiatric reports into the mental health of perpetrators: obtainable for the victims and their surviving relatives or not?

Psychiatric reports into the mental health of perpetrators: obtainable for the victims and their surviving relatives or not?

07.10.2015 NL law

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.

The post Psychiatric reports into the mental health of perpetrators: obtainable for the victims and their surviving relatives or not? is a post of Stibbeblog.nl

Related news

08.07.2020 NL law
Dutch State breached duty of care in providing information to victims and surviving relatives of plane crash

Short Reads - Earlier this year, the District Court in The Hague ruled that the Dutch State is liable vis-à-vis the victims and surviving relatives of a 1992 plane crash in Faro, Portugal. The State was found liable because it is responsible for the information provided by the Dutch Aviation Safety Board (a government agency) to the victims and surviving relatives. This information, on the causes of the crash was deemed by the court to be incorrect and incomplete.

Read more

02.07.2020 NL law
Aansprakelijkheid van de Staat bij vliegtuigcrash in Faro

Articles - In haar uitspraak van 8 januari 2020 oordeelde Rechtbank Den Haag dat de Nederlandse Staat onrechtmatig heeft gehandeld jegens de slachtoffers en nabestaanden van de vliegramp in Faro (Portugal) in 1992, waarbij een Nederlands toestel was betrokken. De onrechtmatigheid is gelegen in onjuiste dan wel onvolledige informatieverstrekking over de oorzaken van deze vliegramp door de toenmalige Raad voor de Luchtvaart, inmiddels opgegaan in de Onderzoeksraad voor Veiligheid (‘Raad’). 

Read more

07.07.2020 NL law
Actualiteiten bescherming Nederlandse ondernemingen

Short Reads - Het afgelopen half jaar zijn er verschillende ontwikkelingen geweest op het gebied van bescherming van Nederlandse ondernemingen. COVID-19 zorgde daarbij voor een stroomversnelling. De verslechterde economische situatie als gevolg van COVID-19 maakt dat ondernemingen sneller bloot kunnen komen te staan aan ongewenste overnames of investeringen. Het Kabinet biedt ondernemingen handvatten ter bescherming tegen ongewenste overnames en investeringen als de nationale veiligheid in het geding komt.

Read more

27.05.2020 NL law
Accountants advising in real estate transactions: be aware of penalties in mortgage deeds

Short Reads - The Court of Appeal of Arnhem-Leeuwarden ruled on 3 March 2020 that an accountant did not properly advise her client with respect to a sale of real estate (ECLI:NL:GHARL:2020:1875). In her research concerning the consequences of the sale, the accountant had failed to properly review the contracts between the seller and the financier of the real estate. The accountant had therefore acted unlawfully.

Read more

07.07.2020 NL law
UBO-register starts on 27 September 2020

Short Reads - It was announced on 7 July that the UBO register will go live on 27 September 2020. The Act on the implementation of the UBO register ("Implementation Act") and the corresponding decree of entry into force have each been published today in the Bulletin of Acts and Decrees. The Act will (partially) enter into force on 8 July 2020, and concerns the obligation for legal entities to collect and maintain information about their UBOs and the obligation for foundations to maintain benefits of 25 percent or less.

Read more