With this decision by the court, it seems that the attempts to prosecute the Tax Authorities for its role in the childcare allowance affair have come to a definitive end. In that scandal, thousands of childcare benefit recipients were wrongly labeled as fraudsters, resulting in financial difficulties.
The then State Secretaries of Finance Alexandra van Huffelen and Hans Vijlbrief filed a declaration in May 2020 regarding, among other things, gagging and professional discrimination by the Tax Authorities.
The Public Prosecution Service concluded in January 2021 after ‘a careful assessment of the facts and circumstances’ that there is no reason to prosecute. According to the Public Prosecution Service, civil servants could assume that they acted according to the rules, also because the Council of State had approved them several times. In addition, the public prosecutor was of the opinion that the tax authorities, like other government agencies, enjoy criminal immunity.
About 150 victims subsequently initiated proceedings before the Court of Appeal to enforce prosecution. But that court comes to largely the same conclusions as the Public Prosecution Service earlier. According to the court, there is a ‘reasonable suspicion’ that the tax authorities are guilty of professional discrimination, but they cannot be prosecuted for it because of the criminal immunity. Moreover, offenses committed before 2016 have now become time-barred. With regard to the other criminal offenses, according to the Court of Appeal, there are ‘insufficient leads’ to prosecute.
In the Netherlands, government agencies and officials who implement government policy cannot be criminally prosecuted. In 2013, the House of Representatives already passed a private member’s bill to limit that immunity, but that proposal was defeated in the Senate. A large majority of the House of Representatives is still in favor of curtailing the state’s criminal immunity, but no new attempts have been made to legislate this.
There is still a report on behalf of dozens of victims against individual employees of the Tax and Customs Administration due to racism. Lawyer Anis Boumanjal reports to the ANP on behalf of the victims that this report is still being processed by the Public Prosecution Service. ‘The approach of my clients’ declarations is different. This report was filed against individual employees who allegedly discriminated against. They have therefore not acted in the public interest and can therefore be considered punishable for that reason.’
‘I had foreseen legally from day one that the Tax and Customs Administration as a whole, including the senior officials who pull the strings, could not be prosecuted’, says Boumanjal. ‘The Tax and Customs Administration enjoys criminal immunity. As far as I’m concerned, the time is right to review those immunity rules.’