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

07.08.2018 NL law
Legislative proposal to protect trade secrets: update

Short Reads - On 5 July 2016, the EU Trade Secrets Directive came into effect (Directive 2016/943/EU). The directive intends to harmonise rules regarding the protection of undisclosed know-how and business information (trade secrets) across all EU member states. As the directive is not directly applicable in the member states, each member state must enact national implementing legislation.

Read more

07.08.2018 NL law
Protection of listed companies against unsolicited takeovers, prevention of unwanted influences in the telecoms sector and protection of other vital sectors: latest developments

Short Reads - Following a recent series of (attempted) unsolicited takeovers by foreign bidders of Dutch listed companies, such as PostNL, Unilever and AkzoNobel, the protection of companies against unsolicited takeovers and the protection of vital sectors have received more attention in both the Netherlands and Europe.

Read more

31.07.2018 NL law
Can an SPV be misled before it exists?

Articles - Transactions are regularly structured through special purpose vehicles (SPVs). An SPV is often established at the end of the negotiations, just before signing the agreement. The other party to the agreement provides information and raises certain expectations during the negotiations. The individuals negotiating for the SPV do not necessarily become officers of the SPV once it is established.

Read more

07.08.2018 NL law
Boskalis v. Fugro: scope of a shareholder's right to put items on the agenda

Short Reads - Under Dutch law (section 114a of book 2 of the Dutch Civil Code), shareholders have the right to put items on the agenda of the general meeting. The question arises as to whether shareholders also have the right to force an (informal) vote in the general meeting on subjects which are not within their powers. A judgment of the Dutch Supreme Court of 20 April 2018 between Boskalis and Fugro focused on this question.

Read more

12.07.2018 NL law
Voortgang wetsvoorstel Wet bescherming bedrijfsgeheimen

Short Reads - Op 5 juli 2016 is de Richtlijn bedrijfsgeheimen (2016/943/EU) in werking getreden. De richtlijn heeft tot doel de regels inzake bescherming van niet-openbaar gemaakte knowhow en bedrijfsinformatie (bedrijfsgeheimen) in de EU lidstaten te harmoniseren. De richtlijn moest voor 9 juni 2018 geïmplementeerd zijn in de Nederlandse wet- en regelgeving. Nederland heeft deze termijn niet gehaald.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring