Netherlands

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Contents

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.

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.

Arrest

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.

Rights of the accused at all times

Double jeopardy

Article 68 DCC enshrines that no one can be put to trial again regarding an offense or crime for which an irrevocable decision has been rendered by the court already.

Legality principle

The principle of ‘nulla poena sine lege’, which means no conviction without an enforceable law, is captured in article 1 DCC, which states that no person can be punished if there is no basis for it in the law at that time. The same prohibition is embodied in article 16 of the Dutch Constitution. Sub 2 of article 1 DCC protects the suspect against a change of law: if the law is changed after an offense is committed, the law should be interpreted in favor of the suspect. Thus, punishment cannot be inflicted upon a person for some prior act that, at the time it was committed, was not illegal.

The protection of the defendant is also provided in article 7 of the European Convention (no punishment without law).

Presumption of innocence

The presumption of innocence is defined in Article 6 Sub 2 of the European Convention: everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Standards of proof and standards for conviction

The court decides whether it has been proven that the defendant committed the crime he has been accused of (article 350 DCC). The decision requires to be based on the indictment. The court may only use legal evidence to base its decision on.

The applicable standard of proof is the conviction of the judge (article 338 CPC). This shall not be a subjective conviction of the members of the court, but an objective conviction ‘beyond reasonable doubt’. Should there be any reasonable doubt, the court will acquit the defendant (in dubio pro reo). In its decision, the court is required to outline the evidence used and motivate her views regarding the passing of the defendant’s defense (see article 359 CPC).

There is a minimum standard of evidence that should be met before the court can convict the defendant. For example, the mere statement of the defendant or one witness is not enough to lead to a conviction beyond reasonable doubt.[22]

Witnesses

The prosecution and the defendant may use evidence in the form of witnesses and experts to support their case.

Fair trial rights

Freedom from prolonged pre-trial detention

Article 5 of the EU Convention safeguards the right of liberty. Only under certain circumstances may someone be held in detention. Furthermore, every suspect shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

The CPC further outlines the certain circumstances when, and for how long, pre-trial detention is permitted (as discussed above).

Freedom from punishment

In no circumstances may torture be applied to the suspect. Or, as article 3 of the EU Convention articulates, no one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Habeas corpus

Article 59a CPC enshrines the right of the suspect to be brought before a magistrate within three days and 15 hours of his arrest, who will then judge the lawfulness of the detention of the suspect and, if determined unlawful, release him. During this process, the suspect is entitled to a lawyer.

Article 5 sub 4 of the EU Convention provides for a more generic provision. Under this article, everyone who is deprived of his liberty by arrest or detention is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Right to notice of charges

This right is embodied in article 6 sub 3a of the EU Convention: “everyone charged with a criminal offence has the right to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.”

Article 30 up to and including 34 CPC add that the defendant may request to review the procedural documents. The Supreme Court has held that “procedural documents” can be defined as all documents that may reasonably be of relevance for the suspect, whether incriminating or exonerating.[23]

Right to non self-incrimination

Before they are heard, the suspect will be informed that they have the right to silence.[24] The officers who will interrogate the suspect, must abstain from obtaining a statement that is not made in with free-will.[25]

This right is not absolute in the sense that the defendant can be required to, for example, participate in a DNA test.[26] Although it is not absolute, exceptions to the nemo tenetur principle should remain few. Or, as the European Court of Human Rights stated: “…as commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.”[27]

Right to a fair and speedy trial

Article 6 Sub 1 of the EU Convention protects this right, entitling the defendant to a fair and public hearing within reasonable time.

Right to an independent and impartial court

The right to trial by an independent and impartial tribunal established by law is protected under Article 6 of the EU Convention and, for example, Article 271 Sub 2 of the Dutch Criminal Procedure Code. The Dutch legal system is not familiar with the concept of a trial by jury.

The independence of the judges is one of the most important principles of law. The Code of Civil Procedure provides that, should the defendant or any other party question the impartiality of the court, the court can be challenged. Such a request will be promptly investigated by the court (with exclusion of the judge that is under investigation).[28]

Court procedures

Pre-trial

The Dutch criminal procedures generally consist of two phases: the preliminary investigation and the trial itself. When the preliminary investigation is concluded, the prosecution authorities consider how to take the matter forward. During the preliminary investigation, the Magistrate may, if he believes it to be necessary, hear the suspect. Following its investigations, the prosecution authorities may decide to prosecute, or to drop the case against the suspect in the interest of the public.[29]

The public prosecutor has the authority to independently, without the interference of the court, issue a specific penalty order in respect of offenses and crimes upon which an imprisonment sentence of maximum six years can be imposed. If the suspect disagrees with the sentencing imposed by the public prosecutor, he can appeal to the criminal court. The (limited) sanctions available are: (i) community service not exceeding one hundred and eighty hours; (ii) a fine; (iii) denial to participate in traffic; (iv) the obligation to pay to the State a sum of money for the benefit of the victim; (v) denial of the right to drive motor vehicles for more than six months.[30] The sanction may include several conditions to which the suspect must adhere.

In any other cases, the prosecution authorities will start a trial by summoning the defendant to appear in court.[31] The case may be withdrawn before the start of the trial. Once the trial has commenced, the judge will have to come to a final decision.

Trial

Within eight days upon receiving the summons, the accused may appeal against it.[32] This procedure aims to safeguard against inadequate summons and thus against unnecessary public hearing of the accused. A period of at least ten days must lapse between serving the summons and the start of the trial.

In principal, criminal cases will be heard by a court of multiple judges. The judges have an active role within the hearing. It is the judges who are independently responsible for the completeness and correctness of the research that has taken place in court under his leadership.[33] Therefore, they take an impartial and independent position. The Magistrate who has conducted the preliminary investigation will not take part in the trial to safeguard independence.

The president of the court will hear the defendant (with or without presence of witnesses), after which the other judges, the prosecutor, defense counsel and co-defendant counsel may question the defendant.[34] The prosecutor is authorized to call witnesses, victims, experts and translators to the stand. During the hearing, the registrar maintains an official report.[35]

The court may only reach the conclusion that the accused has committed the crime as charged, if and when the court is convinced during trial by the content of legally obtained evidence.[36] The relevant burden of proof is discussed above.

Verdict and sentencing

After completion of the trial, the chairman will declare the case closed. The verdict will either follow immediately thereafter, or within a maximum of 14 days.[37] If found necessary by the court, for example when the court believes it requires more clarity on certain aspects before reaching a conclusion, the trial may be resumed.

In order to come to its decision, the court first examines the foundation of the indictment and, following the investigation at the hearing, (i) the validity of the subpoena, (ii) whether it has subject-matter jurisdiction, (iii) whether the prosecution officer is allowed to prosecute, and (iv) whether there are grounds for suspension of prosecution.[38]

If these are answered with the negative, only then the court will examine whether it has been proved that the offense was committed by the defendant and, if so, what exact offense by law the facts constitute to, and, when it has been established that the offense is both proved and punishable by law, then the court will continue to deliberate regarding the criminal liability of the suspect and the imposition of penalty or detention.[39]

The verdict itself will be elaborate, containing the motivated decisions of the court. If the judgment is different from the explicitly motivated opinions expressed by the defendant or by the prosecutor, it will state the reasons that have led to the differences. The verdict needs to be supported by the evidence included in the judgment. The verdict will be pronounced in a public hearing in the presence of the suspect.

Appeals

In most cases, the defendant has the right to appeal against the final judgment of the court.[40]

The defendant and the prosecution officer both have until 14 days after the verdict to appeal. Within another 14 days thereafter, they will need to file a written outline of the grievances against the verdict.[41] Article 415 CPC provides that the court of appeal will direct its investigation to the objections raised against the verdict by the defendant and/or the prosecution officer. Most of the procedural rules as discussed previously will apply similarly (mutatis mutandis).


References

  1. Respectively article 5, 6 and 3 of the EU Convention.
  2. Article 18, Dutch Constitution.
  3. Article 160, Criminal Procedure Code. Under the nemo tenetur-doctrine, no one can be obliged to incriminate themselves.
  4. Article 161, Criminal Procedure Code.
  5. Article 164, Criminal Procedure Code.
  6. Article 52, Criminal Procedure Code.
  7. Article 27, Criminal Procedure Code.
  8. Article 53, Criminal Procedure Code.
  9. Article 61, 57, and 58 Criminal Procedure Code.
  10. Articles 63 and 64, Criminal Procedure Code.
  11. Articles 67 and 67a, Criminal Procedure Code.
  12. Article 99a, Criminal Procedure Code.
  13. Article 56, Criminal Procedure Code.
  14. Articles 96 and 97, Criminal Procedure Code.
  15. Article 99a, Criminal Procedure Code.
  16. Article 61a, Criminal Procedure Code.
  17. Article 29, Criminal Procedure Code.
  18. High Court 30 June 2009, NJ 2009, 350.
  19. Article 35, Criminal Procedure Code.
  20. Articles 57 and 59a, Criminal Procedure Code.
  21. Article 18, Dutch Constitution.
  22. article 341 sub 4 and 342 sub 2 CPC.
  23. Supreme Court 7 May 1996, NJ 1996, 687.
  24. Article 29, Criminal Procedure Code.
  25. See also Article 173, Criminal Procedure Code.
  26. Article 151b, Criminal Procedure Code.
  27. Saunders v. United Kingdom, no. 43/1994/490/572.
  28. Article 36, Civil Procedure Code.
  29. Article 167 (and 242), Criminal Procedure Code.
  30. Article 257a, Criminal Procedure Code.
  31. Article 258, Criminal Procedure Court.
  32. Article 262, Criminal Procedure Code.
  33. Article 272, Criminal Procedure Code.
  34. Article 286, Criminal Procedure Code.
  35. Article 326, Criminal Procedure Code.
  36. Article 338, Criminal Procedure Code.
  37. Article 345, Criminal Procedure Code.
  38. Article 348, Criminal Procedure Code.
  39. Article 350, Criminal Procedure Code.
  40. Article 404 (and further), Criminal Procedure Code.
  41. Article 410, Criminal Procedure Code.



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