Supreme Court Ruling on Notarial Privilege

In a criminal investigation against a notary and his employee, documents were seized in 2022 that also contained the names of two notaries who were not suspects (the complainants). This involved more than 6,000 digital data files. In 2023, the examining judge ruled that the Public Prosecutor’s Office was permitted to review the data files and documents. On behalf of these notaries who were not suspects, a complaint was filed against this ruling by the examining judge, arguing that the material was subject to attorney-client privilege. In 2024, the district court dismissed the complaints as unfounded. The complainants filed an appeal to the Supreme Court against this decision. The Supreme Court then overturned the district court’s decision (Supreme Court, September 24, 2024, ECLI:NL:HR:2024:1290).
After the Supreme Court remanded the case, the district court ruled in 2025 that the complaint regarding a number of documents was well-founded. The district court held that there were no highly exceptional circumstances under which the interest in ascertaining the truth would outweigh the complainants’ right to refuse to disclose. The court based this ruling, among other things, on the fact that the dates of many of the documents covered by the right to withhold evidence fall outside the period covered by the allegations in the criminal investigation against the notary and his employee. The public prosecutor responsible for confidentiality matters did not specifically indicate what the “direct link” is between those documents and the allegations in the criminal investigation.

The court therefore found that there was no such connection between the documents covered by the right to refuse to disclose and the suspicion that a violation of the complainants’ right to refuse to disclose was necessary.

The Public Prosecutor’s Office filed a petition for cassation against this decision, challenging, among other things, the court’s ruling that there were no highly exceptional circumstances justifying a waiver of the complainants’ right to refuse to disclose information.

Supreme Court: This complaint is unsuccessful. In its ruling, the court—understandably—expressed the view that, as far as the interest in ascertaining the truth is concerned, these documents are not so directly linked to the criminal offense that is suspected to have been committed that this information could serve to bring the truth to light. In its reasoning, the court further took into account that the complainants in this case are not themselves suspects and that it has not been established that the relevant information cannot be obtained by other means. The court’s subsequent ruling—that there are no highly exceptional circumstances under which the complainant’s right to refuse to disclose information must yield to the interest in establishing the truth—is legally correct and not incomprehensible.

Read the ruling here: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:HR:2026:1527&showbutton=true&keyword=25%252f02404&idx=1