Legal Aid Clinic: Legal Advice in Case of Fraud

Questioner

I had a defective part of my computer replaced with a new part, but it turns out that this was a patched-up second-hand one. I feel cheated, but the police and the Public Prosecution Service believe that this is a civil matter and refuse to take up the case. The police information has proven unreliable so far, so I am seeking expert advice. Is this legally fraud? And if this is not fraud, what is an example of fraud?

Lawyer

First of all; in civil matters you have every right to a new product. You have a clear agreement with the seller for a new product (I assume) and you do not get what you are entitled to. There is a so-called shortcoming in the performance on the part of the seller. You can summon the seller to deliver a proper product after all and otherwise you can ask for your money back. I do understand your question, however. If there is a case of 'fraud', then the police are called upon and criminal proceedings can be taken. The point is that for 'fraud' there must be more going on than just a shortcoming in the fulfilment of the agreement. There must be a 'purpose to benefit oneself or another unlawfully', or the deliberate intent to supply you with a bad product and thus benefit oneself. This must be done by means of cunning actions or the use of false names/qualities. This is not immediately the case here. It is possible that the seller made a mistake or that the seller was under the impression that the product could still be passed off as new. If it really turns out that the seller does this deliberately and especially systematically, by false or cunning behavior and to make himself better off, then we can speak of fraud. There are enough examples of this on television, in programs such as 'Radar' and 'Opgelicht!'

Questioner

Seller does not respond to anything, has refused registered mail, and is doing his best to keep the case off the various internet forums: there is certainly more going on here than 'just a shortcoming'. Furthermore, the lawyer assigned to me by the Legal Aid Desk refuses to take on the case at the rate of subsidized legal aid, and the case is therefore closed for the Legal Aid Desk. With great difficulty I managed to persuade the police to file a report, but that was as far as it went: the Public Prosecution Service also felt that I should arrange my own lawyer. Is there any legal honor to be gained from this, or do I conclude that crime pays if I do not take the law into my own hands?

Lawyer

I fear that even with that information, criminal action will be too difficult. The file is not extensive enough. Fraud within the meaning of the Criminal Code is extensive and is systematic and deliberate. That is not immediately established here. The Supreme Court has previously ruled '... that even entering into an agreement and then failing to do so in itself - even if the person who entered into the agreement already anticipated that he would not be able to meet his obligations - does not constitute assuming a false identity or a cunning trick as referred to in Article 326 of the Criminal Code.' The only alternative is to pursue your case through civil law, but without legal expenses insurance or subsidized legal aid this can quickly become quite expensive. You could still try to put your counterparty 'in default' by means of a letter of demand. In such a letter you state that your counterparty is not fulfilling its obligations and that if it is not fulfilled within a reasonable period a summons will follow. This could still have a deterrent effect.

Questioner

Then I am left with the conclusion that in the Netherlands it pays to defraud someone for, say, EUR 700. The government is mainly interested in the government, and subsidized legal aid has been stripped down to such an extent that no lawyer sees any profit in taking on the case. I will put the fraudster in question on my bucket list: I will not get my money back, but I can make sure that this company regrets this for a long time to come.