Criminal liability of directors, that’s the thing

In my previous blog I wrote about the report against the Rijksmuseum. The museum used the Indonesian term Bersiap for an exhibition . According to the declarant , this would be racist and insulting . I briefly mentioned in that blog that charges had been filed not only against the Rijksmuseum itself, but also against the director and two (guest) curators of the museum. In this blog I will tell you more about the criminal liability of directors and other de facto managers.

Own perpetrator and functional perpetrator

Criminal liability of directors can arise in two ways: via personal perpetrators and via functional perpetrators. I think self-defense speaks for itself. This is the case if a driver has committed a criminal offense himself or with the help of others. Consider, for example, the situation in which the company has gone bankrupt and the director has not complied with the accounting obligation. This is punishable under Article 342 of the Criminal Code. I will go into more detail about this in my next blog.

In addition, criminal liability can arise on the basis of functional perpetration. The most important condition for this is that the criminal liability of the legal entity must first be established. If that is the case, then a number of other conditions must be met. These conditions are also referred to as the Slavenburg criteria, referring to the rulings of the Supreme Court in which these conditions are laid down:

1. the de facto manager has not taken any measures to prevent the punishable conduct, even though he was authorized to do so and could reasonably be expected to do so; and
2. the de facto supervisor has consciously accepted the chance that the punishable conduct would take place.

Consider, for example, the situation in which an employee becomes trapped and dies as a result. Supposing the driver was aware of his employees’ non-compliance with safety regulations and failed to intervene, the driver could be prosecuted for the employee’s death.

Criminal liability & functional offending: prevention is better than cure

Whereas in civil law there is usually only the liability of the legal person, criminal prosecution can focus on both the legal person and the director (or both at the same time). If your company comes into contact with criminal law, criminal liability on the part of you as a director is therefore lurking quite quickly. To prevent this as much as possible, it is advisable to ensure an effective compliance system , including:

• standards and practices have been introduced
• periodic inspection takes place 
• trainings are given to create awareness
• risks are analyzed and identified
• appropriate action will be taken in case of violation 
• the top of your company encourages the use of the compliance system

Would you like to discuss the importance of a compliance system? Then feel free to contact us. This is of course also possible if you, as a director, unexpectedly have to deal with criminal law. 

And the director of the Rijksmuseum?

What exactly had the director of the Rijksmuseum done? In the NRC Handelsblad of January 14, 2022, the following quote could be read from him: ” What I want to say clearly: the Rijksmuseum is not scrapping the term Bersiap ” According to the declarant, this statement would be discriminatory.  However, the public prosecutor ruled otherwise; the use of the term ‘ Bersiap ‘ falls under freedom of speech. The director of the Rijksmuseum will therefore not be prosecuted.