Hoofdstuk 9 English Summary

In the literature, it is assumed that offences against property are conduct offences. Conduct offences are offences in which an act has been criminalized. Criminal liability for result offences requires that a specific consequence be brought about. Chapter 2 addresses the question of whether the extensive differentiation in the offences against property can be explained entirely by the choice for describing the offences as conduct offences or that – in addition to this – other factors also play a role. In brief, what is the rationale behind the differentiation?

For this purpose, the drafting process of the current offences against property has been considered. Furthermore, the distinction between conduct offences and result offences as such has been considered on the basis of the literature. Legislative history does not support the thesis that extensive differentiation in the offences against property is explained by a systematic choice for the description of the offences against property as conduct offences, to the extent that this is indeed the case. Barring one exception, the legislature did not show to have explicitly considered the distinction between conduct offences and result offences. Nor does legislative history show a preconceived intention to describe offences against property as conduct offences.

It can be established, however, that the legislature chose for differentiation and that it intended to clearly delineate the different offences against property. The difference between the offences can be found in the criminalised acts. In respect of diefstal it is the wegnemen (taking) of property of another, in respect of verduistering it is the appropriation of property which a person already onder zich heeft (in one’s possession), and in respect of afpersing and oplichting it is the inducement to afgifte (surrender) of property. What the reason for the differentiation was is not very clear. The Minutes of the De Wal Committee show that it was inspired by other (national and international) legislations. It is perhaps most likely that those legislations provided the inspiration for the differentiated criminalisations. In that case, the differentiation would be based, in particular, on historical and practical arguments. Simply put: it was in alignment with the existing practice. There seemed to be no necessity to change, everything was functioning just fine. After all, not only was the current system enshrined in legal awareness, but also in society.

In general, the question may be raised whether it is even possible to speak of conduct offences and result offences, in the sense that the two types of offences can be clearly distinguished from one another. Offences can have features of conduct offences as well as of result offences. A good example is given by the offence of diefstal. With regard to the (conduct) element of wegnemen – which is the element that distinguishes diefstal from the other offences against property mentioned above – the Supreme Court of the Netherlands also requires a consequence, i.e. obtaining actual control to or withdrawing actual control from the person having title.

Legislative history of the offences against property shows, as stated above, that the legislature attached great importance to distinguish clearly among the offences against property. The difference among the offences can be found in the acts that have been criminalised. Chapter 3 outlines the development of the offences against property. For this purpose, Dutch legislation, the literature, and case law have been reviewed, in particular, from a historical perspective, with particular attention being paid to the distinguishing elements of diefstal, afpersing, verduistering, and oplichting. The sub-question in this context was which elements from the original system had been upheld in case law and which elements had crept in that were foreign to the system.

In the literature, diefstal is often given as the very example of a conduct offence. This is defensible in itself, for when looking at Section 310 of the Dutch Criminal Code, an act has been criminalized there, namely the wegnemen of property of another. When the current Criminal Code had just been implemented, wegnemen was interpreted factually and wegnemen meant moving property. In that meaning, diefstal could well be regarded as an offence with features of a conduct offence. Soon after the implementation of the Criminal Code, the element of wegnemen was interpreted quite functionally. It was required that the offender had taken actual control over the property or had withdrawn the property from the actual control of the person having title. This does not point to the performance of an act, but more to bringing about a consequence. That is rather remarkable, because the different offences against property seem to derive their existence from their boundaries, which – in their turn – are connected with the different acts criminalised in those offences. Appropriation of property which a person already onder zich heeft and afgeven also have features of result offences. For onder zich hebben within the meaning of Section 321 of the Dutch Criminal Code, the actual relationship to the property is not always – or perhaps better: hardly ever – sufficient. It is a matter of onder zich hebben if the property has been entrusted to the defendant or if a legal relationship exists from which it necessarily follows that the defendant has the property onder zich. Onder zich hebben in itself cannot be regarded as an act, and not at all as a punishable act. The punishable act in Section 321 of the Dutch Criminal Code is appropriation. An act qualifies as appropriation within the meaning of Section 321 of the Dutch Criminal Code if a person has taken possession of property belonging to another without being entitled to do so. Appropriation is an act, but the performance of that act results immediately in a consequence, i.e. that the person entitled to dispose of that property is no longer able to do so. In brief, just like the victim of diefstal, he has lost control over the property. Something similar applies to afgifte. Afgifte is a constituent element of afpersing and oplichting. Neither the damage inflicted, nor the mere deceiving with the intention to disadvantage a person is sufficient for the completion of oplichting. This actually requires afgifte, as De Wal Committee already stated during its deliberations on the criminalisation of oplichting. The Supreme Court of the Netherlands formulates it as follows: afgifte requires the property to be taken out of the control of the victim. So, also the victim of afpersing and oplichting loses his property. Seen in this perspective, verduistering, afpersing and oplichting could also be regarded as result offences, or at least as offences with features of result offences.

As a result of the functional interpretation provided for offences against property in case law soon after the implementation of the Dutch Criminal Code, the wish of the legislature to clearly distinguish among the offences against property faded into the background. An aspect that stands out is that the consequences of the respective offences against property to be brought about show great similarities, at least partially. In a large number of cases this means in essence that the offender had taken control over property and – as a result of this – withdrew the property from the control of the person entitled to the property. This development has caused the boundaries between the different offences against property to shift or become diffuse, in the sense that there is currently an overlap between the various offences. The shifting of these boundaries and overlaps between the offences is discussed in Chapter 4. In doing so, an attempt has been made to answer the question whether the boundaries between the offences against property are fading.

The conclusion may be drawn that the boundaries between, in the first place, diefstal and afpersing and, in the second place, diefstal and oplichting appear to have disappeared in some cases. The Supreme Court of the Netherlands has interpreted the distinguishing elements broadly and has explicitly accepted overlap. An overlap could also exist between afpersing and oplichting, but hardly any case law exists on this point to be able to make clear statements. The only offence that is clearly defined differently from the other offences against property is verduistering. The element ‘other than through a crime’ prevents overlap with other offences. In order to answer the question raised by De Jong in his commentary on a decision of the Supreme Court of the Netherlands (HR 19 April 2005, NJ 2007/386): it is true, the Dutch criminal courts have been a bit careless in the application of the statutory descriptions of the offences against property. The reason for this seems to be that the Supreme Court of the Netherlands does not want any problems. The manner in which the Supreme Court of the Netherlands deals with the offences against property does not seem to cause any problems, at least no major problems. Any complications appear to arise mainly from the interpretation of the element of property, but that is exactly an element that the offences against property have in common.

Chapter 5 deals with English law (i.e. substantive law) pertaining to offences against property, the law of theft and the law of fraud. The purpose of this part of the research was to identify points of reference for answering the question of whether a different legal methodology could provide a reasonable alternative. The English law system was chosen because the English system is built differently from the Dutch system, and in the literature it is assumed that English ‘theft’ is broader than diefstal alone. What we call verduistering could also be brought under the heading of theft.

English legislative history regarding the offences against property shows problems that are strikingly similar to those in the Dutch system: both countries must deal with criminalisations that have been fragmented to a greater or lesser extent and are difficult to apply, with loopholes, and with procedural problems with prosecution for the wrong offence. In the English system, those problems occurred before 1968, when the law of larceny was still in force. The law of larceny contained rather specific penal provisions.

At the time, the most important problems were the difficulty and complexity of the law and the situation that specific forms of dishonesty were not punishable whereas they should have been. The result was that the law could no longer be applied by juries and that defendants were unjustly acquitted. The law of larceny was considered to be too inadequate and, therefore, the English system of offences against property has been revised fully since 1968.

The English system of offences against property is currently built around the very broad offence of theft. It is, however, not the case that only one offence against property suffices for the English. Other important offences against property are: robbery, blackmail, burglary, and fraud. Roughly speaking, together these penal provisions correspond with the Dutch offences of diefstal (with violence), verduistering, afpersing, and oplichting. There are no clear dividing lines among the English offences. Overlap has been anticipated since the revised system entered into force. In England, the distinction between conduct offences and criminal offences is apparently also used as a type of legislative technique. Describing offences as result offences results in broad offences, which prevents a patchwork of criminalisations such as was the case under the law of larceny.

When comparing English ‘theft’ with the Dutch diefstal, there are several aspects that stand out. Firstly, it is remarkable that the offences do not vary widely as regards their elements. Actually, it is only the English element of appropriation that is broader than the Dutch wegnemen. This results in the fact that what we call verduistering can also be included under theft. Another aspect that stands out is that the elements of wegnemen and appropriation have developed very differently. By now, wegnemen in the Dutch provision of diefstal has been interpreted as an element of a result offence. The element of wegnemen requires that a consequence is proved, i.e. that the defendant has taken actual control over the property or has withdrawn property from the actual control of another. As a result of this, the subjective element of intention of unlawful appropriation has lost much of its importance. In England, the opposite development can be seen. Appropriation is interpreted to such a broad extent, that nearly every act regarding property of another suffices. It has become a purely factual act. As a result of this, the offence has become extremely broad. This has resulted in much weight being attached to the subjective element of dishonesty. As a result of this, theft has become an offence with a description that is quite similar to that of a conduct offence. The comparison of oplichting with fraud shows something similar. The element of oplichting requires afgifte of property by the victim. With the English fraud, the emphasis is more on the prohibited conduct and the intention of the defendant, and not so much so on the consequences.

In England, delineation problems are limited to theft and fraud. As a result of the structure of the English, delineation problems are less obvious. In cases of overlap, prosecution for fraud is more obvious than prosecution for theft. As far as possible, the offence of fraud is even broader than theft and it is furthermore easier to prove.

English legislative history shows various arguments in favour of broad criminalisations. Broad criminalisations are easy and effective, in the sense that many undesirable forms of conduct are included. Seen in this perspective, the public is well protected. However, the development of the offence of theft, and more in particular the element of appropriation, immediately shows a major disadvantage: broad offences may be extremely broad and vague, as a result of which criminal liability depends on a subjective element. For the purpose of legal certainty, this seems not a good thing.

This research has not shown an absolute necessity to amend the offences against property. A general offence against property does not seem necessary and, considering the objections to general criminalisations, not immediately desirable either. Inspired by English law, it was considered whether it is possible to join specific elements of the offences against property. In this context, reference is made, in particular, to the offences of diefstal and verduistering, offences which both come under the offence of theft in England. In addition, diefstal with violence and afpersing could possibly be joined. In England, these offences fall under the scope of the offence of robbery.

An attempt has been made to formulate a penal provision that includes both diefstal and verduistering. This could possibly be formulated as follows:

The difficulty with this provision is that afpersing and oplichting also seem to fall under this scope. Due to the overlap between diefstal (with violence) and afpersing accepted by the Supreme Court of the Netherlands, this could be considered an advantage. Afpersing will then be an aggravated form of diefstal. The relationship to oplichting is much more problematic. The maximum sentence does not differ, so that the restrictive conditions currently stipulated in Section 326 of the Dutch Criminal Code (means of provocation) are useless as the conduct constitutes diefstal anyhow. Considering the (in this case limited) problem for which the joining of the offences of diefstal and verduistering should be the solution, I do not think it advisable to implement it.

The offences of diefstal, with violence or with the threat of violence, and afpersing may be quite similar, as a result of which it is sometimes difficult to establish which offence has been committed. The situation that is created by the defendant with regard to the distinguishing elements of wegnemen and afgeven is the same: the person entitled to the property loses control over it. The added value of making afpersing a separate offence consequently seems limited. However, there are differences between the two offences. The offence of diefstal with violence, for example, only relates to property, whereas afpersing may also be committed with regard to debts, claims, and data. The provision for diefstal is somewhat broader with regard to the violence and the threat of violence. However, these differences appear not to be playing a role in offences committed at the interface of diefstal with violence and afpersing, such as robbery and muggings. A provision that could include those cases of overlap could be formulated as follows:

There appear to be fewer objections to this joining than the joining of diefstal and verduistering. As legal practice is generally able to deal with cases of overlap, and law pertaining to offences against property does not appear to have any loopholes, there is no urgent necessity for legislative amendments. It is therefore more obvious to let the current criminalisations be and to accept the overlaps. A more liberal attitude to dealing with criminal procedure – to be discussed below – could ensure that any problems arising from the charges in cases of overlap do not necessarily need to be fatal.

The problems that may arise from prosecution of offences against property do not originate only in the manner of criminalization. In this context, also Dutch procedural law, in particular the grondslagleer (doctrine of legal basis) laid down in Sections 348 and 350 of the Dutch Code of Criminal Procedure, and the manner in which the Supreme Court of the Netherlands has dealt with this have played a role. The essence of the system of legal basis is that the court is bound by the charges, during the court hearing, in the deliberations in chambers, and in its judgment. The offences not charged are not under discussion. A principal, secondary or alternative charge allows more scope for the court, but the Supreme Court of the Netherlands still requires the court to make a choice among the alternatives provided in the charges if this is important to the meaning of the proven facts under criminal law. An alternative conclusion that the charges have been proved or qualification is consequently not permitted. This may lead to problems if it is not possible to establish more than that the defendant has committed in any case one of the mutually excluding offences. A more detailed choice is sometimes not justified in that case. It would be accurate, but very unsatisfactory, if the court were to acquit the defendant in such a case. It would be more satisfactory in such a case if the court, despite the doubt, still choses one of the two alternatives. The question is, however, whether justice is done in doing so. In this research, it was not the system of legal basis that was called into question. The present research pertains only to the question of whether there are possibilities for relaxation within this system, in particular in the form of an alternative conclusion that the charges have been proved and qualification.

Chapter 6 pays attention to research on the German practice. In Germany, it is possible for the court to arrive at an alternative conviction. This is referred to as a Wahlfeststellung. German literature states as an important argument in favour of a Wahlfeststellung that it is unacceptable to acquit a defendant if it has been established that, for instance, he has committed either diefstal or verduistering, but that it cannot be established which of the two offences he actually committed. This is considered reasonable, to ensure that the perpetrator in an individual case does not benefit from the differentiated manner in which socially harmful conduct has been criminalised. Neither the principle of nullum crimen sine lege nor the principle of in dubio pro reo prevents this. A Wahlfeststellung – which has not been provided for by law and is therefore slightly controversial – is an exception construct that is only permitted if unequivocal conviction is not possible.

Such a solution would also be in keeping with the Dutch system. This may even be possible without legislative amendment. Alternative charges are permitted. The only step to be taken would be that the Supreme Court of the Netherlands to some extent abandons the requirement that the court must make a choice among the alternatives charges. For this purpose, the conditions set in German law could be considered. Those conditions could be as follows: