Dutch Judicial Process

Dutch Judicial Process

PROSECUTORIAL AND JUDICIAL PROCESS

1. Rights of the Accused.

* Rights of the accused. During the pretrial
process the accused may file an appeal against the
writ of summons and may request, if the case has
not been brought to trial, that a competent court
formally declare that the case has ended. Another
pretrial right is the protection against further
prosecution if the defendant enters into a
transaction with the prosecutor. (Hoyng, 1992;
26).
Plea bargaining, the entering of a guilty
plea in exchange for a lesser charge, while not
prohibited, is an uncommon practice in the
Netherlands. Entering a guilty plea provides no
particular advantages to the accused (Hoyng, 1992:
26).
The rights of the accused at trial process
begin with the right to counsel. The defendant has
the right to choose one or more attorneys to
represent him but must, in essence, pay for an
attorney of his choice. All cases involving
deprivation of liberty guarantee the suspect the
right to state appointed legal representation if
the suspect is unable to afford counsel.
The defendant has the right to be present at
trial, although this is not required. As long as
the defendant has been properly presented with a
court summons, he or she is not obliged to be
present at the trial. The defendant has the right
to remain silent and may not be questioned at the
trial under oath. The defense attorney may not
cross-examine a witness, but may request the judge
to ask questions of a witness. There is no right
to cross-examination. The defendant may be found
guilty or innocent only of the offense charged.
(Hoyng, 1992: 26, 27; Tak, 1993: 13,17)

* Assistance to the Accused. If the accused
cannot afford an attorney, a request can be made
to the District Legal Assistance Council which
will assign counsel to represent the suspect.
After the initial 6 hour detention in police
custody, the suspect is provided legal assistance
by the counsel on duty. This will be reviewed by
the president of the district court (Tak, 1993:
28).
The government pays for Legal Assistance
Bureaus which provide free advice to any Dutch
citizen seeking legal assistance. In cases
involving indigent defendants charged with
indictable offenses (those prosecuted in the
district courts), the District Legal Assistance
Council will assign a lawyer to represent the
accused. These counselors are paid a fixed rate
by the criminal justice authorities. (Netherlands
Ministry of Justice, 1990a: 19). A full bench
trial would earn an assigned lawyer a meager fee
of about 1,600 Dutch guilders. (Tak,1993: 28)

2. Procedures.

* Preparatory procedures for bringing a suspect to
trial. The police or prosecutor’s office may
conduct a preliminary investigation of a crime or
suspect. In certain instances, such as in customs
or tax violations, other authorities may conduct
the investigation. Under oath, the police
prepare a report which includes all information
and evidence and turn the report over to the
prosecutor’s office. In limited cases, those in
which “police investigations cannot be finalized
because specific further measures need to be
taken,” the prosecutor will request a judicial
preliminary investigation by an “Examining Judge”
at the District Court level. Other situations
are dictated by the Code of Criminal Procedure to
act as a check on senior police officers or
prosecutors, such as circumstances involving the
search of premises. Judicial examinations occur
in about 6% of all investigations. (Lensing and
Rayar, 1992: 625-626; Pease and Hukkila, 1990:
187; Tak, 1993: 12).

* Official who conducts prosecution. The Public
Prosecutor has sole responsibility for
prosecution. He or she may decide the nature of
the charge and has the power to reduce the charge,
even if sufficient evidence exists to warrant a
higher charge. The judge has no authority over
this decision. (Tak, 1993: 13).

* Alternatives to trial. The criminal justice
system in the Netherlands operates under the
principle of opportunity or expediency
(opportuniteits-beginsel). This allows the
prosecutor to dismiss cases in the interest of
expediency or public interest The principle of
opportunity is operative when other penal
sanctions or measures are more preferable,
when the prosecution would be “disproportionate,
unjust or ineffective” with regard to the nature
of the offense or the offender, or if the
prosecution is contrary to the state or the
victim. (Code of Criminal Procedures: Sections
167, 242; Tak, 1993: 12-13, Van Kalmthout, 1992:
684).
The Public Prosecutor can also exercise
numerous options to dismiss charges. For
instance, a technical dismissal, sometimes
referred to as procedural waiver, will occur if
insufficient evidence exists to prosecute the case
in court. The procedural waiver is unconditional.
Policy dismissals or waivers occur when the
prosecutor feels that a criminal trial is
unwarranted and that other alternatives are better
suited to the defendant and the individual
situation. These policy waivers are often
conditional and can be combined with any number of
dispositions (e.g., alcohol or drug treatment,
community service, restitution to the victim,
requirements to contact social work department,
prohibition against visiting certain places). (Van
Kalmthout and Tak; 685).
Another alternative to formal processing is
the use of transaction, which involves payment by
the defendant. This alternative terminates the
case. The introduction of the Financial Penalties
Act in 1983 allowed prosecutors to employ
transaction with a wider range of offenses,
excluding crimes which carried a prison sentence
of more than 6 years. Conditions are specifically
spelled out in the Criminal Code
(Sections 74: subsection 2). Detailed regulations
governing transaction procedure are outlined in
section 74-74c of the Penal Code and section 578
of the Code of Criminal Procedure. (Van Kalmthout
and Tak, 1992: 682-691; Pease and Hukkila, 1990:
188).

* Proportion of prosecuted cases going to trial.
About 1/3 of criminal cases go to trial. The
proportion of cases which go to trial does not
vary greatly with the seriousness of the offense.
What does vary is the method used by the
prosecutor to dispose of the cases.
The majority of criminal cases (over 64% in
1990) are resolved by the prosecutor through
transaction or dismissal. Of the remaining cases
which actually reach the court, the majority
(almost 83% in Cantonal and 91% in District Courts
in 1990) result in guilty verdicts. (Statistics
are available for the years 1980, 1985, 1988,
1989, and 1990. The fewest number of guilty
verdicts in Cantonal Courts was 71.7% in 1985. In
1980, 96% of the cases appearing before these
courts resulted in guilty verdicts. In the
District Courts, 1988 held the record low with 89%
guilty verdicts compared to a high of 92.5% in
1980. (Statistical Yearbook of the Netherlands,
1993:405)
Information is not available on what
percentage of these were a result of guilty pleas.
Since plea bargaining is an uncommon practice, it
can be safely assumed that the percentage of
guilty pleas is relatively low. (Statistical
Yearbook 1993 of the Netherlands, 1993: 405).
In 1990, of the 1,182,991 cases which were
slated for Cantonal Courts, 815,912 (69%) were
handled by the prosecutor, 537,059 (65.8%) of
these through transactions, and the remaining
278,853 (34.2%) cases were disposed by other
means.
Also in 1990, 251,454 cases were slated for
the District Court. Of these, 162,015 (64.4%)
were handled by the prosecutor, of which 49,757
(30.7%) were disposed through transaction, 75,484
(46.6%) through dismissals, and 28,538 (17.6%)
through “joinders”–known as “voegingen” in Dutch,
“joinders” is a measure which regulates payment by
the offender to the victim. (Statistical Yearbook
1993 of the Netherlands, 1993: 405).
While the prosecutor disposes of
approximately two-thirds of the cases in both
minor and serious offenses, transaction is clearly
the more preferable disposition with less serious
offenses in the Cantonal Courts. The high number
of dismissals with more serious offenses in
District Courts is probably due to the use of the
conditional dismissal which is more restrictive
than transaction.
The legislature has upheld harsher penalties
for suspects who refuse transactions and go to
trial. According to 1990 statistics, of those
defendants who went to trial, guilty verdicts were
returned in 82.9% of the cases in Cantonal Courts
and 91.1% of the cases in District Courts.
(Statistical Yearbook 1993 of the Netherlands,
1993: 405; Van Kalmthout, 1992: 688)

* Pretrial incarceration conditions. There are
several pretrial incarceration conditions. A
person may only be detained for 6 hours before
being charged with an offense, that charge being
an informal charge, stating the violations of the
criminal code. Within 3 days, the accused must be
brought before a magistrate or the “Examining
Judge” of the District Court. Trial must follow
within 100 days after the initial police custody
if detention is ordered. An automatic review of
the detention occurs every month. (Tak, 1993: 16,
Hoyng, 1992: 28).
Detention may be ordered only for arrestable
offenses, which are those carrying a sentence of
imprisonment for 4 years or more. Detention can
be ordered on the grounds that the suspect is a
flight risk, or endangers public order or safety,
particularly if the individual has committed a
crime which is punishable with a sentence of
incarceration over 12 years, or the danger exists
that the individual will commit another serious
offense which carries a possible penalty of 6
years incarceration. Another ground for detention
is the possibility that the suspect may endanger
the investigation by destroying evidence or
tampering with witnesses. (Tak, 1992: 55).
Pretrial detention may not be ordered if it
is likely that the accused will not be sentenced
to incarceration. It must be terminated if the
time of detention has exceeded the probable
sentence of incarceration. (Tak, 1993: 16).

* Bail procedure. While detainees are not legally
entitled to bail, provisional release may be
granted by the District Court under certain
conditions. (Hoyng, 1992: 28).

* Proportion of pretrial offenders incarcerated.
In 1990, 14,811 (6.5%) of pretrial offenders
(total: 227,494) were incarcerated. . As of
December 31, 1990, 3,143 (48.2%) of the 6,526
incarcerated inmates were awaiting trial
(Statistical Yearbook of the Netherlands, 1993:
416; Gevangenisstatistiek 1991, 1992: 21).

Note: this work was completed in 1993

Resources

See Also

  • Criminal Justice
  • Legal System
  • Criminology
  • Dutch Criminal Justice System

Further Reading

  • Cole, George F., S. J. Frankowski, and M. G. Gertz, (1987) Major Criminal Justice Systems. Beverly Hills: Sage.
  • David, R. and J. E. Brierley (1968) Major Legal Systems of the World Today. London: Free Press.
  • Fairchild, E. (1993), Comparative criminal justice systems. Belmont, CA: Wadsworth.
  • Feeley, Malcolm M. (1973), “Two models of the criminal justice system”. Law and Society Review, 7(3): 407-425.

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