Criminal Defense Attorney: Breach of Official Secrecy

Breach of official secrecy is a criminal offense under Article 272 of the Dutch Penal Code. This article provides:

“Any person who intentionally breaches a secret that he knows or has reasonable grounds to suspect he is obligated to keep confidential by virtue of his office, profession, or legal requirement, or by virtue of a former office or profession, shall be punished by imprisonment for a term not exceeding one year or a fine of the fifth category.”

It follows from the legislative history that the disclosure of a secret within the meaning of Article 272 of the Dutch Penal Code be interpreted as the provision of confidential information to another person who is not authorized to access it. The manner in which this occurs is irrelevant.

For a conviction for breach of official secrecy, the following, among other things, must be established:

1. There is such a thing as a secret: A secret is information that is not intended for disclosure. In this context, it is not only the content of the information that matters, but also the context in which it was obtained. Thus, information that may later become public can still be considered a secret at the time it is disclosed.

2. The suspect was subject to a duty of confidentiality: The suspect must be subject to a duty of confidentiality by virtue of his or her office, profession, or a statutory requirement. It is also required that the person in question knew or should reasonably have suspected that he or she was subject to a duty of confidentiality.

3. The defendant intentionally breached that confidentiality: For intent to be established, it is sufficient that the defendant was aware that confidential information was being disclosed to someone who was not authorized to receive it. It is not required that the defendant intended to cause harm.

‍An example of a breach of official secrecy is the case decided by the Supreme Court on January 13, 2026 (ECLI:NL:HR:2026:32)—the case of Aad de Mos. Upon taking office, he had taken an oath that included, among other things, a duty to maintain the confidentiality of confidential information. Despite that oath, he forwarded documents that had been provided to him in confidence to a third party via his official email account.

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In the appeal, the defense argued, among other things, that a “secret” within the meaning of Article 272 of the Dutch Criminal Code can only exist if the duty of confidentiality arises from a statutory provision. The Supreme Court rejected this position: a duty of confidentiality may also arise from an office or profession, without requiring a specific statutory basis.