LJN: BQ9251, Supreme, J. 10/00101         Print statement

Date of decision:        01/31/2012

Date of publication:  01/31/2012

Jurisdiction:   Punishment

Type of procedure:   Cassation

Inhoudsindicatie:    Virtual amulet and mask in the online game Runescape can be regarded as ‘good’ in the sense of Art. Sr and 310 are susceptible to theft. Suspect and co-defendant forced the victim to violence and threats of violence to login to his account in the online game Runescape and virtual objects to leave (dropping) in the virtual game environment. The suspect was then the virtual amulet and mask to transfer to his own Runescape account, making the victim the power to dispose of these objects is lost. These virtual objects, which the actual victim and exclusive sovereignty had had for him, suspect and his accomplice a real value. In light of the intent of the legislature to the disposal of the holder of a ‘good’ protection, and the earlier case as including non-physical objects can fall, the Supreme Court held that the virtual nature of the objects itself does not preclude the state to be regarded as good in the sense of art. Sr. 310. The mere fact that an object also has properties of ‘data’ in the sense of Art. 80quinquies Sr. does not mean that this object has therefore not as good in the sense of art. 310 Sr can be considered. In borderline cases where non-physical characteristics of both a business ‘good’ as ‘data’ show, the legal interpretation depending on the circumstances of the case and their valuation by the court. The complaint that the removal of the virtual property of another is precisely one of the goals of the game Runescape is bounce up to it that the rules do not provide the suspect and his accomplice followed method of removal.

Location (s):   Rechtspraak.nl

Statement

January 31, 2012

Criminal Chamber

No. S 10/00101 J

Hoge Raad der Nederlanden

Judgement on the appeal in cassation against a ruling of the Court of Appeal Leeuwarden 10 November 2009, number 24/002668-08 in the criminal case against: [Defendant], born in [place of birth] on [birth date] 1992, living in [].

1. Cassation proceedings in the action is brought by the accused.

On behalf of these is Mr. RP Snorn, attorney in Heerenveen, in writing appeal proposed funds.

The scripture above is attached and forms part. Hofstee The Advocate General has applied for annulment of the contested decision regarding the amount of the penalty imposed and otherwise dismiss the appeal.

2. Proven Statement, qualification and evidence

2.1. Paid by the suspect is proved that: “he September 6, 2007 in Leeuwarden, together and in conjunction with one another, for the purpose of unlawful appropriation has removed a virtual amulet and a mask, which are virtual objects of the online computer called Runescape, belonging to [victim], the theft was preceded and accompanied by violence and threats of violence against [victim], committed the theft with the intention to prepare and easy to make, any violence and the threat of violence existed in this that he, defendant and his co-perpetrator [victim] repeatedly and forcefully with into fists clenched hands to the head and ribs and elsewhere on the body beaten and [victim] repeatedly and forcefully against the chest and the legs and elsewhere against the body have kicked on the body of [victim] started to stand and a knife towards the body of [victim] have kept with knives swinging and swaying movements [victim] made and [victims] have added the words “I will kill you”, and [victim] back in his chair and pulled to the ground have worked and neck [victims] have taken a stranglehold. ”

2.2. This finding of fact based on the following evidence:

a. a record of police, to the extent which includes a statement of [victim]: “I put a game on the internet. It’s called Runescape. It is a game where you have a little doll that you can make money. This afternoon I cycled from school home. When [co-defendant] suddenly I opfietste, he told me that he Runescape money and possessions I wanted. I said that my stuff was. He said he had me clapping would give. He had many times said, but he had me never done anything. Suddenly there was another guy I knew him by name [defendant]. [Defendant] is about 20 cm taller than me and 15 or 16 years old. [co-defendant] and [ Defendant] know each other well.

Both began to threaten me that I have my money and property from Runescape to give. I had come along to their home, or I would be most affected. I was very scared. I dared not refuse. I cycled forced along with [co-defendant] and [defendant] to the house of [co-defendant]. I then had with [defendant] and [co-defendant] shadowing for a bedroom in the house. There was a computer. Then I had to [co-defendant] and [defendant] to contribute money and goods from my account to transfer to the account of [Defendant]. When I said that I did not want me to hit and both began to kick. I was apparently deliberately and forcefully with hands clenched into fists against my head beaten. Both intentionally and forcefully struck many times against my head against my ribs. The blows I fell to the ground. Then I saw and felt that both me and apparently deliberately kicked with force against my chest and my legs. also saw and felt that both kennelijk deliberately and forcefully on my chest stood up. I heard they said to me they kill me would make. Then I saw and heard that first [co-defendant] to the kitchen was and a knife, picked up and shortly afterwards [Defendant] also to the kitchen and two knives picked up. with knives threatened [co-defendant] and [defendant] kill me. Then I could not help but participate. I saw that [Defendant] his account logged on the game Runescape on the computer in the bedroom. then I had both of them to a computer in the living room, where I had to log into my Runescape account. I had to [defendant] to play. He played from the bedroom. [co-defendant] stayed with me standing in the living room. then exchanged. [Defendant] came down and stayed with me and I played against [co-defendant] above Sat Suddenly I was by [Defendant] with the chair I was sitting back pulled. I lay on the floor and gave [defendant] back blows and kicks to my head and my body. When it stopped, I saw that [Defendant] was in the chair at the computer in living room. I got up and saw that [suspect] all my money and property from my Runescape account on set for his own account, from my house. After [defendant] all the money and property from my account was stolen, I noticed that he uitlogde. Also [co-defendant] walked in the living room. With both I was then put out of the house. ”

b. a record of police, to the extent which includes a statement of [co-defendant]: “While [victim] and I had played the game, I wanted to [victim] to hack. I to [victim] walked [defendant] took the game from me. I walked into the bedroom where [victim] was playing. [Defendant] was on that time in the living room to play against him. When I [victim], I saw how rich he was in the game . I was very jealous. I told [victim] that I wanted to continue playing under his account. In this way, because I could steal things from him. I am with [victim] to fight, because he would not sign. I kick him. I think I’ve kicked him twice hard. I hit him hard on his legs. I [victim] also pushed and pulled. I worked him to the ground. [Defendant] has [victim] beaten at head. He also squeezed in the head of [victim]. [Defendant] has [victim] knocked to the ground and [defendant] and I are on top of [victim] stood. [defendant] and I were on his hips and take turns to side of his ribs. I then walked into the kitchen and I grabbed a knife from a kitchen drawer. It was a big fat steak knife with a black handle. [Defendant] also picked up two knives. I made threatening motions with the knife in my hand . I swung it a little. [Defendant] made with two knives threatening movements by the blades back and forth. [defendant] and I wanted to [victim] and I’m frightened by [victim] said, “I’ll kill you . “We have the knife then put back and said [victim] had to get in logging. [victim] is then logged, because he was afraid. He has logged on the computer in the living room. I went behind the computer to play and have things of him dropped. I have an amulet and a mask dropped. I’m in an arena in the game dropped. I walked into the living room, where [defendant] was on the computer. I’m against [Defendant] said that the stuff of [victim] in the arena were dropped and that he had to tackle. I saw [defendant] had found the mask. He put the mask on his stuff. It was now his property. [Defendant] and I share many things in this game, so I could also benefit. Immediately after that [defendant] off the computer in the bedroom and I went back to the living room to even turn off the computer. I saw [defendant] and [ victim] had a fight. [Victim] was that the computer was turned on. I saw [defendant] [victim] grabbed at his clothes at the height of his chest. I saw [defendant] [victim] hard on the ground threw. ”

c. a record of police, to the extent which includes a statement of [co-defendant]: “You ask me if [defendant] and I the theft of the coins had planned. [Defendant] and I had this really the day before agreed on MSN . I told [defendant] that [the victim] a lot of stuff had found a dead man on the game Runescape. I said, “Let’s go steal his stuff.” [Defendant] said he liked it. It was an idea of both of us. If [victim] did not want to work, we would beat him. ”

d. the statement of the defendant at the hearing at first instance, provided holding: “On September 6, 2007 are [co-defendant], [victim] and I went to the house of [co-defendant] in Leeuwarden. [co-defendant], [victim] and I all play the online game Runescape. A day earlier had [co-defendant] and I are using MSN talked to virtual goods from the online game Runescape from the account of [victim] to transfer to our account. I’ve seen that [co-defendant] [victim] has beaten. I have also seen that [co-defendant] a knife, packed and thus the direction of [victim] walked. A virtual amulet and a virtual mask by [co-defendant] from the account of [victim] transferred into my account. [co-defendant] and I would each half of the value of those items get. ”

e. a medical certificate on September 7, 2007, prepared by MT Zarza, doctor, if holding:

“Externally perceived injury tenderness on the right chest:

abrasions and tenderness on the right shoulder and low on the back:

pressure sore right buttock and right ankle. ”

2.3. The Court regarding the judicial finding is further held as follows:

“II. Is a virtual object good?

The position of the defense to accused is primarily charged with that he, along with one another, as a player in the online computer game “RuneScape”, a principal in that game illegally acquired amulet and mask (and violence) has allocated appropriated. Counsel has argued that a virtual amulet and a virtual mask can not be considered “good” in the sense Article 310 of the Penal Code. It is good not only tangible nor material, but – unlike, say, electricity – no value in trade. Now the element ‘good’ according to the counsel can not be proven, should defendant be acquitted of the principal charges laid. The assessment by the court Declarants and defendants are all avid players of the global online computer game RuneScape. Players do so through a personal account, an alter ego, through which they conduct various nature to flourish, develop skills to fight and communicate with fellow players and individual tasks to perform. They obtained thereby points and earn “items”, such as here at issue virtual amulet and mask. to suspect and his co-defendant is primarily robbery (with violence) these virtual objects accused.

The court must now answer the question whether a virtual object is a property within the meaning of Article 310 of the Penal Code. The idea that the requirement of materiality should be met in order for a well within the scope of the said Article has been since the Electricity Judgement in 1921 abandoned. That electricity output object with a use was – and concerned – by the Supreme Court at the time of greater significance considered the answer to the question whether the whether or not a theft prone went well, then the immaterial nature. Gradually, the jurisprudence also the economic value concept continues perspective and subjectified.

What is relevant is mainly whether it is good for the possessor of value. In the present for assessment existing thing is clear that possession of virtual goods and points to be obtained very desirable for principal defendant and the co-defendant.

The – then 13 years – principal in this regard said, essentially: “I am very rich in RuneScape because I’m rich, I’m also very strong. I am very much with different weapons, and almost unbeatable. My great hold on RuneScape I change my password almost every three days, because I fear me that someone “hacked”. The co-defendant [co-defendant] stated: “[victim] (the principal) had a few days ago lucky because he had stuff found on a dead man and the man was very rich and had so many valuable things. I was there actually jealous of. ” This suggests that principal suspect and his co-defendant in the game, their accumulated assets have real value, who can be decreased. The court notes that this is in the course of the game resulting values, which effort and time investment acquired or are acquiring. The court is based on one and another to the conclusion that a reasonable interpretation of the law implies that this virtual objects shall be regarded as goods within the meaning of Article 310 of the Penal Code.

Also relevant is that the rules of RuneScape do not provide a method of acquiring these goods in this case is done. The wegnemingshandeling was committed outside the context of the game. It is thus not a virtual actions within a virtual world, but to physical acts resulting in a virtual world is affected.

III. Satisfy the other conditions for criminal liability under Article 310 of the Penal Code?

Another argument of the defense is that there is no ownership nor possession of the virtual goods, but only a right to use the Runescape game. Changing ownership of virtual property rights does not change in the physical world. The game, and everything happens inside, is owned and will remain with the owner, knowing Jagex Ltd.. in the UK. In this way, the defense in the opinion of the court a narrow meaning to the term “accessory” in Article 310 of the Penal Code. The court notes that the principal in the actual game and exclusive dominion had the goods. Only he could, by logging on his RuneScape account, in which he acquired the amulet and mask out and dispose. In a criminal sense were the goods in issue to the principal. He is the theft affected in the undisturbed enjoyment of the available power that he exclude one another on those goods had. That the RuneScape game obviously an owner and / or administrator, eight court in the context of this criminal case is not relevant. Thus, a passport undisputed property of the State of the Netherlands, but this document does through theft from the disposal of the container getting. Further, the court noted that in this case met another case-condition for theft, which includes the goods at the hands of the accused from the disposal of the declarant must have become suspicious and that have come. This is different, so the Supreme Court has held, with regard to the stealing – for example – software, computer and a PIN as well not matter the decision power of the declarant become undesirable but also in those of the ontvreemder. In those cases can not therefore be said to be stolen. All in all, the Court considers that in the present case there is standing at the discretion of theft under Article 310 of the Penal Code. Furthermore, the Court held that due to the digitization of society, a virtual reality created, not in all respects, be dismissed as mere illusion, for which the commission of criminal acts would not be possible. ” 2.4. The Court the proven facts qualified as “theft, preceded and accompanied by violence and threats of violence against persons, committed with a view to the theft to prepare and easy to make, while the offense was committed by two or more persons”, punishable under Art. 310 in connection with Art. Sr. 312.

3. Assessment of the first plea

3.1. The plea challenges the opinion of the Court that the virtual amulet and virtual mask in RuneScape the online computer can be regarded as a ‘good “susceptible to theft in the sense of art. Sr. 310. 3.2. Art. 310 Sr. reads: “He that any property which wholly or partly belonging to another takes away with the intention of it illegal to appropriation, is guilty of theft, punishable by imprisonment not exceeding four years or a fine of the fourth category. ”

3.3.1. the plea, the question of whether virtual objects such as this can be regarded as a ‘good “within the meaning of Art. 310 Sr.. The legislature at the time of the creation of art. 310 Sr. in 1886 with this question obviously unable to make. In the case of the Supreme Court, this particular question is not before the been discussed. Nevertheless, both the law and the law earlier clues to answer the present question.

3.3.2. The legislature has, through various penal provisions envisaged the power to dispose of ownership of any well protected. in art. 310 Sr is punishable intentionally evading the effective control of any property which belongs to another with the intention of unlawfully appropriating it. The concept is good only while an independent criminal significance. A material object can not be below understood if it is an object that by its nature is appropriate for the effective control of another to be extracted.

3.3.3. Over the years the Supreme Court has interpreted various questions about the meaning of the term ‘good , also with regard to other provisions which that understanding is a part. In HR 23 May 1921, NJ 1921, p. 564 concerned the question of whether electricity could be regarded as a ‘good’ in the sense of Art. 310 sr. That question was answered in the affirmative by the Supreme Court. It was considered that include electrical energy to “a certain independent existence can not be denied” and considerations were devoted to it that electricity can be generated by man and controlled and that they “represent a certain value, on the one hand because her acquisition for him coupled with cost and effort, on the other because he’s able to use either their own benefit or remuneration to others to bear”. This led to the conclusion “So that, where Art. 310 Criminal law aims to protect assets of another and that in order to remove “any good” under the circumstances mentioned in that article criminalizes without any way to be determined what constitutes “any good” to be counted, based on those properties this Article to electrical energy is applied. ” In HR 11 May 1982, NJ 1982/583, on Art. 321 Criminal Code which embezzlement is punishable, the question arose whether bank money can be regarded as a good as belonging to another is subject to appropriation. The Supreme Court ruled that a reasonable interpretation of Art. 321 Criminal Code creates an affirmative answer, “given the role of so-called book money in society.” Furthermore, the Supreme Court ruled that in the mind of a person with knowledge stored in its corresponding digit debit card can not be regarded as a ‘good’ in the sense of Art. 317 (old) Sr and the (involuntary), naming a PIN can not be regarded as issue within the meaning of that Article, if it can only be spoken by the sender that issued the decision issued on the loose (see HR 13 June 1995, NJ 1995/635).

3.4. It contains, according the notes three problems. First, that the present virtual objects are not good, but a visual illusion, consisting of “bits and bytes.” Second, it is argued that these objects fall under the definition of ‘information’ as defined in art . 80quinquies Sr, so no room these objects to be regarded as ‘good’.

Third, it is argued that it is one of the goals of the game Runescape is the virtual property of another to take away.

3.5. For the evaluation of these complaints is important that the Court inter alia held that:

- the principal virtual amulet and mask of effort and time investment is acquired, that for him a fair value, and that the possession of the principal as well as for the suspect and his accomplice highly desirable was,

- the principal by logging on his Runescape account the actual and exclusive dominion had the virtual amulet and mask, and that the hands of the suspect from the disposal of the principal have become in the disposal of the accused have come and that the principal said was taken in the undisturbed enjoyment of the available power that he exclude one another on the virtual object was, and

- the rules of Runescape do not provide a method of acquisition as in this case occurred, so the wegnemingshandelingen committed outside the context of the game.

3.6.1. The complaint that there is no good because the objects present “bits and bytes’ existence fails. The virtual nature of these objects is at itself does not preclude them to be regarded as good in the sense of art. 310 Sr.. The corresponding opinion of the Court does not demonstrate an error of law and sufficient reasons, taking into account also that the Court regarding this objects has determined that “principal, defendant and his co-defendant to them in the game opgebouwde bezittingen fair value, who can be taken” and that “this is in the course of the game resulting values, which effort and time investment acquired or are acquiring “and that the principal objects within the game on the” actual and exclusive dominion “and he had by the actions of the defendant and his co-perpetrator of the power to dispose of these objects is lost.

3.6.2. This last findings also meets with the complaint that these objects by the Court should have been classified as “data” within the meaning of Art. 80quinquies Sr. (“Under the data means any representation of facts, concepts or instructions in an agreed manner, suitable for transmission, interpretation or processing by people or automated work “). The mere fact that an object also has properties of data in the sense of Art. 80quinquies Sr. does not mean that this object has therefore not as good in the sense of art . 310 Sr can be considered. Remark deserves that easily borderline cases may arise where the relevant non-material things both characteristics of a good as the data show. In such a case, the classification depends on the circumstances of the case and The valuation by the court. In light of the findings of the Court that the principal within the game on the virtual amulet and mask “the actual and exclusive dominion” and had he the actions of the defendant and his co-perpetrator power over these objects is lost, gives the opinion of the Court did not commit a wrong conception of art. 310 Sr and believes that it is not inconceivable

3.6.3. The latter, apparently mainly for the purpose of unlawful appropriation related to the complaint Removing the virtual property of another very purpose of the game Runescape, met with the finding by the Court that the rules do not provide for the suspect and his accomplice followed method of removal.

3.7. The product fails.

4 . Assessment of the second plea , the plea can not lead to cassation.

This need, in view of Art. 81 RO, no further reasons are the plea requires answers to legal questions in the interest of the legal entity or the development of law

5. Compulsory assessment contested decisionon the defendant’s criminal law for young people applied. The Supreme Court makes a decision after more than sixteen months have elapsed since the establishment of the appeal. This means that the reasonable time referred to in Art. 6, first paragraph, ECHR been exceeded. This should lead to a reduction in the defendant imposed community service of 160 hours, or alternatively 80 days replacement juvenile detention.

6. Conclusion

Since none of the means of appeal may result, while the Supreme Court no other than the one under 5 are based present considers that the contested decision automatically would be properly disposed of, brings what has been considered that the following should be decided.

7. Decision

The Supreme Court:

destroys the contested decision, but only with regard to the number of hours to perform community service, and the duration of the replacement juvenile detention, reduces the number of hours community service and the duration of the replacement juvenile detention in the sense that these 144 hours, or alternatively 72 days juvenile detention, amounts, dismisses the rest.

This ruling was given by the Vice President AJA van Dorst as chairman, and the justices BC Savornin Lohman, HAG Splinter Kan, WF Groos, and Y. Buruma, in the presence of the Registrar SP Baker, and pronounced on January 31, 2012.