Netherlands
System
The Netherlands is a democratic constitution, in which the power is divided over three separate bodies (trias politica): the legislature, executive and judiciary. The judiciary is formed by independent judges who judge cases regarding civil law, administrative law and criminal law.
The Dutch law system is a civil law system, in which the constitution and thereafter the formal legislation provide the main sources of law. The criminal legislation is divided into two Codes – the Criminal Code (DCC, Wetboek van Strafrecht) and the Criminal Procedure Code (CPC, Wetboek van Strafvordering). The latter Code (CPC) describes the procedures of the criminal law, whereas the Criminal Code describes the crimes, offenses and penalties.
The DCC was introduced in 1809. Shortly thereafter however, during the period of French domination in the Netherlands, the French Criminal Code (Code Pénal (1810)) came into force and remained so, even long after the Netherlands gained back its independence. Furthermore, the French Criminal Procedure Code (Code d’Instruction Criminelle) was effective in the Netherlands until 1838. This Code provided for both a (non-public) pre-inquisition in which the defendant did not have many rights and a final inquisition which introduced the right of public defense for the defendant. Gradually, the principles of the law, including the role and tasks of the judiciary and the rights of the defendant during the pre-inquisition, changed. It was not until 3 March 1881 that the current DCC (effective as of 1886) was introduced; the current CPC followed in 1926.
Other sources of (criminal) law are case law, authoritative literature and, more generally, the fundamental principles of law and international treaties, conventions and regulations (such as the EU Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (the EU Convention)). Article 94 of the Dutch Constitution provides that the rights enshrined in the EU Convention apply, even if the Dutch Code doesn't provide the defendant with such rights. The defendant can directly invoke the EU Convention in the Dutch courts.
The EU Convention was established in the spirit of the Universal Declaration of the Human Rights (1948) and provides for the right to liberty and security, the right to a fair trial and the prohibition of torture.[1] The EU Convention was ratified by the Netherlands in 1954.
Legal aid
The Dutch constitution establishes that everyone has the right to access to legal representation.[2] In criminal cases, the Dutch government will assign a pro bono (pro deo) lawyer to the defendant's case. A criminal defendant is however not obliged to be represented by a lawyer in court, but, for the obvious reasons, it is encouraged to seek legal support. It is also possible for the defendant to assign their own preferred lawyer. In this case, the government will by law provide legal aid when the defendant does not have the financial means to pay the lawyer’s fees. The defendant is then only obliged to pay a certain contribution depending on their income.
Structure of the court
In principle, criminal cases will be heard before a court comprised of three judges. In first instance, the case will be handled by the District Courts (apart from certain specific cases as outlined in the law, for example military cases or a serious offence involving abuse of office). In appeal, the Courts of Appeal are the competent court. Appeal in cassation can be submitted with the Supreme Court.
Pre-trial Procedures
Police Procedures
Complaint/Information
Under certain circumstances, depending on the severity of the crime, anyone who is aware of a crime committed by someone is legally bound to declare the crime to an investigation officer.[3] In any other case involving a crime or offense, any person may, but is not obliged to, declare this.[4] A false declaration is subject to punitive measures pursuant to article 188 DCC.
Some particular criminal offenses outlined in the DCC separately can only be prosecuted upon a complaint filed by anyone.[5] Without such complaint, the prosecution authorities are not authorized to pursue prosecution.
Arrest, search and seizure laws
'Stops and frisks'
A general investigation officer, i.e. a police officer, is authorized to stop any suspect in order to determine his identity.[6] A suspect is by law defined as the person against who, before prosecution, there is a reasonable suspicion of guilt of a criminal offense.[7] The authorized officer can examine the clothes of the suspect and items he carries with him to the extent necessary to establish his identity.
'Arrests'
When caught in action, any person may arrest someone committing a crime or offense.[8] The suspect will then be handed over to the investigation officer. If not caught in action, only an investigation officer is authorized to arrest a suspect of a criminal offense when the offense is embodied in Article 67 of the Criminal Procedure Code (see below). Subsequently, the investigation officer may guide the suspect to a place for questioning and/or order his arrest and arraignment.
'Pre-trial detention'
After an arrest, the suspect may be held for inquisition for a maximum of six hours, which period can be prolonged for another six hours when necessary. After this period, if it is in the interests of the investigation and only after the suspect has been heard in this respect (in which case he may ask for a lawyer), the suspect may be held in detention for a period of three to a maximum of six days (1).[9] Subsequently, the suspect can be kept in detention for another fourteen days when the magistrate orders so upon request of the public prosecutor (2).[10] Article 67 of the Criminal Procedure Code provides that a pre-trial detention such as described under (1) and (2) can be ordered against a suspect in limited circumstances outlined in the law (e.g. in the case that the person is suspected of a crime which can be punished with detention of four or more years). Such order can however only be effected when there appears to be a serious risk of fleeing or a significant reason of social security.[11]
Further detention can be ordered for a maximum of another 90 days. Before such an order is effected, the defendant is entitled to be heard in front of a judge.[12] Within the period of 90 days, the criminal case should have been heard by the court. In many cases, this will just be a pro forma hearing where the detention may be prolonged again. The suspect can be held in detention for as long as the trial lasts. Article 6 sub 1 of the EU Convention however establishes that the (fair and public) trial should be held within a reasonable timeframe.
'Searches'
Upon arrest, physical examination of the suspect may be ordered when there is a serious suspicion of the suspect committing a crime but only if the examination is in the interests of the investigation.[13]
Where the suspect is caught in action, or when it concerns a crime as described in article 67 CPC, the authorized officer may seize objects and for that purpose enter and search any place of interest. Only in urgent circumstances, is the officer authorized to search someone’s house without permission.[14] During a search, the suspect has the right to be represented by a lawyer.[15]
Lineups and other identification procedures
Article 61a CPC establishes that measures may ordered against the suspect, such as: (i) taking pictures or video material; (ii) fingerprinting, taking footprints, etc.; (iii) line-ups (also known as the Oslo-confrontation); (iv) an odor identification test; (v) placing the suspect in an observation cell; (vi) cutting or growing his hair; etc. These measures may only be taken if it is in the interest of the investigation and when the suspect is being held on the suspicion of committing a crime which can be punished with a detention of four or more years.[16]
Interrogation
One of the most important tools of the investigation is the interrogation of the suspect. During the pre-trial investigation, either with the suspect in detention or not, the authorized officers may interrogate them. They should however refrain from extracting any statement from the suspect that has not been given out of their free will.[17] Furthermore, the Salduz-case has outlined that a suspect should have access to a lawyer before the first interrogation by the police (Salduz v. Turkey, 27 November 2008, 36391/02). They do however not have the right of the presence of a lawyer during these hearings (unless they are a minor).[18]
During the entire process, the suspect has the fundamental right to be heard before any decisions are made.[19] To illustrate, they will need to be heard before they can be held in detention; therefore the Magistrate will first hear the suspect in order to determine whether their detention is considered to be lawful.[20] The suspect may in this case request for a lawyer to support them.
Interrogations during the trial will be discussed below.
Right to counsel
As discussed previously, everyone has the right to access legal representation.[21] This also follows from Article 28 of the Criminal Procedure Code.
A pro bono lawyer will be assigned to any criminal case, or the defendant can choose their own lawyer. If the defendant would prefer to choose their own lawyer but is not in a position where they can afford legal representation, they will have access to legal aid.
- ↑ Respectively article 5, 6 and 3 of the EU Convention.
- ↑ Article 18, Dutch Constitution.
- ↑ Article 160, Criminal Procedure Code. Under the nemo tenetur-doctrine, no one can be obliged to incriminate themselves.
- ↑ Article 161, Criminal Procedure Code.
- ↑ Article 164, Criminal Procedure Code.
- ↑ Article 52, Criminal Procedure Code.
- ↑ Article 27, Criminal Procedure Code.
- ↑ Article 53, Criminal Procedure Code.
- ↑ Article 61, 57, and 58 Criminal Procedure Code.
- ↑ Articles 63 and 64, Criminal Procedure Code.
- ↑ Articles 67 and 67a, Criminal Procedure Code.
- ↑ Article 99a, Criminal Procedure Code.
- ↑ Article 56, Criminal Procedure Code.
- ↑ Articles 96 and 97, Criminal Procedure Code.
- ↑ Article 99a, Criminal Procedure Code.
- ↑ Article 61a, Criminal Procedure Code.
- ↑ Article 29, Criminal Procedure Code.
- ↑ High Court 30 June 2009, NJ 2009, 350.
- ↑ Article 35, Criminal Procedure Code.
- ↑ Articles 57 and 59a, Criminal Procedure Code.
- ↑ Article 18, Dutch Constitution.