Case law of the Central Appeals Tribunal (Netherlands) on asset investigation in Türkiye

After a large number of earlier rulings, on 1 October 2018 the CRvB ruled in four cases on appeals alleging unlawfully obtained evidence. Two of them (ECLI:NL:CRVB:2018:2911 and 2912) concerned investigations that Bureaubuitenland had carried out in Türkiye for a Dutch inter-municipal social services department. In both cases, a pre-check had preceded the asset investigation.

The ruling was clear: municipalities and the Sociale Verzekeringsbank (Social Insurance Bank) were permitted to use the evidence of concealed real estate obtained in Türkiye to withdraw and recover social assistance. In line with settled case law, the Tribunal added:

Evidence is only unlawful if the means of evidence have been obtained in a manner so contrary to what may be expected of a properly acting government that such use must be considered inadmissible under all circumstances.

And further:

No rule of Dutch law, including treaty law, prescribes that evidence gathered by, on behalf of or under the responsibility of Dutch administrative bodies must have been obtained lawfully under Turkish law.

Under Dutch law, however, there must be a fair trial (Article 6 ECHR) and protection of private life (Article 8 ECHR). The law of the commissioning party’s country is therefore decisive.

The CRvB consistently rejects the argument of a breach of private life. On the consultation of data in digital registers, the Tribunal considers that this constitutes a limited and acceptable interference with the right to respect for private life.

Here too the CRvB is clear: no unjustified distinction may be made between persons born abroad and persons born in the Netherlands. An investigation into assets abroad may therefore not be directed exclusively at benefit recipients with a place of birth abroad. This is why we only investigate on the basis of a concrete suspicion in a case file, never on the basis of origin.

The Tribunal considered that it could not be held that a less intrusive means of investigation had been available at any time to examine the lawfulness of the social assistance, because the persons concerned had not themselves declared the ownership of the assets. The requirements of proportionality and subsidiarity had thus been met.

Insofar as it was argued that the Dutch State acted contrary to international law by having investigations carried out without the permission of the Turkish authorities, this could not assist the persons concerned: those rules of international law protect the interests of the Turkish State, not those of the persons concerned.

ECLI:NL:CRVB:2018:2912 states that the asset investigations were preceded by a number of screenings. On the group that remained after the third screening, Bureaubuitenland carried out a pre-check in Türkiye. On that basis, the investigation assignment was issued. In that case, the use of the pre-check as a screening instrument did not stand in the way of the use of the evidence. Each ruling relates to a specific case file and offers no guarantee for the outcome of another case. Nor does a pre-check in itself establish fraud. How the pre-check works today is explained under pre-check.

Sources: ECLI:NL:CRVB:2018:2911, 2912, 2913 and 2914, published on rechtspraak.nl on 1 October 2018. Quotations translated from the Dutch by Bureaubuitenland; not an official translation.