Difference between revisions of "Netherlands"

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==Pre-trial Procedures==
 
==Pre-trial Procedures==
  
==Police Procedures==
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===Police Procedures===
  
''Complaint/Information''
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====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.<ref>Article 160, Criminal Procedure Code. Under the nemo tenetur-doctrine, no one can be obliged to incriminate themselves.</ref> In any other case involving a crime or offense, any person may, but is not obliged to, declare this.<ref>Article 161, Criminal Procedure Code.</ref> A false declaration is subject to punitive measures pursuant to article 188 DCC.
 
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.<ref>Article 160, Criminal Procedure Code. Under the nemo tenetur-doctrine, no one can be obliged to incriminate themselves.</ref> In any other case involving a crime or offense, any person may, but is not obliged to, declare this.<ref>Article 161, Criminal Procedure Code.</ref> A false declaration is subject to punitive measures pursuant to article 188 DCC.
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Some particular criminal offenses outlined in the DCC separately can only be prosecuted upon a complaint filed by anyone.  Without such complaint, the prosecution authorities are not authorized to pursue prosecution.  
 
Some particular criminal offenses outlined in the DCC separately can only be prosecuted upon a complaint filed by anyone.  Without such complaint, the prosecution authorities are not authorized to pursue prosecution.  
  
''Arrest, search and seizure laws''
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'''Arrest, search and seizure laws'''

Revision as of 14:19, 2 March 2015

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. Without such complaint, the prosecution authorities are not authorized to pursue prosecution.

Arrest, search and seizure laws

  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.