In its judgment of 10 January 2023 (ECLI:NL:HR:2023:2), the Supreme Court of the Netherlands confirmed that the standard of proof for “intentional” violation of EU sanctions under Dutch law is generally low Did. The judgment confirmed that the defendant’s intent with respect to the relevant sanction prohibition component must be sufficiently demonstrated to establish willful violation, but that intent need not be demonstrated with respect to the illegality of the conduct. bottom.
This decision is suspected of indirectly financing one or more listed terrorist organizations (through a one-off wire transfer of €245) in violation of Article 2(2) of EU Regulation 881/2002. related to an incident in This article basically stipulates that “no funds or economic resources shall be made available, directly or indirectly, to or for the benefit of any particular listed party.” Similar restrictions exist in other he EU sanctions regimes as part of the so-called ‘designated person’ or ‘DP’ regulations.
The EU sanctions restrictions set out in EU Regulation (e.g. EU Regulation 881/2002) directly apply to all EU Member States. However, enforcement and related penalties are primarily governed by national law. In the Netherlands, violations of EU sanctions restrictions are subject to the Dutch Economic Crimes Act (Wet op de economische delicten). Violation of EU sanctions can lead to fines, community service or imprisonment, among other things. Liability may also arise for unintentional violations, but the potential maximum penalty is significantly higher for intentional violations.
In its decision, the Supreme Court had a legal basis for concluding that it must (also) prove that the defendant had the intention not to comply with the relevant EU sanctions, despite allegations by the defense to the contrary. decided not to. Intentional breach under Dutch law. However, the Supreme Court held that the Court of Appeals held that the elements of the prohibited conduct (in this case, (i) the making available of funds or financial instruments and resources; and For). Accordingly, the Supreme Court reversed the relevant portion of the judgment and remanded the matter for retrial.
From this judgment it follows that (i) while the accused intends to No need to prove as to the illegality of the act, (ii) such intent; To do To support a finding of willful violation, the relevant prohibition component must be sufficiently demonstrated. Based on established case law, at least “conditional intent” is required. This means that the defendant must have at least deliberately accepted the considerable likelihood that the act would be committed.
This ruling is of general relevance for how EU sanctions are prosecuted under Dutch law. (ii) One-off violations, including those of relatively small monetary value, may result in enforcement action and criminal liability. These factors are particularly important in light of the Netherlands’ central role in international trade flows and, particularly in relation to Russia, the Dutch authorities’ generally more restrictive position and heightened scrutiny on possible violations of EU sanctions. It is important.