I’ve had a few questions about the dismissal of the case by the prosecution service and wanted to give some information.

Most of what follows is a condensed version of “Consensual Criminal Procedures, C.H. Brants-Langeraar and “The Dutch criminal justice system“, P.J.P. Tak.

Role of the prosecutor and the police

The Dutch Criminal Code (Wetboek van Strafrecht) divides crimes into felonies (misdrijven) and misdemeanours (overtredingen). With a few exceptions, misdemeanours are tried by a single judge (kantonrechter). Felonies are always tried in a district court (arrondissementsrechtbank), of which there are 19, spread around the country, sometimes by a panel of three judges, sometimes by a single judge.

The Dutch prosecutor is a powerful figure in Dutch criminal procedure, with an immense amount of discretion. Dutch public prosecutors are trained in the same way as judges and the Public Prosecution Service is regarded as part of the judiciary.Their most important tasks are: controlling and monitoring an impartial pre-trial investigation by the police, compiling the dossier and deciding whether or not to prosecute on the basis of their findings.

It is the police who do the actual investigative work and in this they are fairly independent, although formally under the supervision of the prosecutor. Prosecutors do not, for example, usually interview suspects or witnesses themselves, although they may tell the police to do so. The police also take the first steps in the compilation of the dossier, which is then handed over to the prosecutor for completion.

The police have the power to apprehend a suspect and take him to a place for questioning by the assistant prosecutor (hulpofficier) a police officer of a certain rank. The purpose of an arrest is interrogation, after which the prosecutor or assistant prosecutor may order that the suspect be held in custody for three days (with an extension of a further three days if strictly necessary) – but only if the arrested person is suspected of an offence punishable by more than 4 years imprisonment.

The decision whether or not to prosecute, and on which charge(s), is the exclusive prerogative of the prosecutor (known in Dutch law as the monopoly principle). There is no formal hearing to assess the sufficiency of the evidence, but the prosecutor is required to inform the victim of the outcome of his deliberations. Although the decision (not) to prosecute is one that is made by the individual prosecutor on the case while the law binds him only to the very generally worded considerations of public interest, he is not entirely free in the way he uses this discretionary power.

Prosecutors are bound to the directives from the procurators-general. For many sorts of crime, these stipulate that the prosecutor must, or must not, prosecute under certain circumstances.If the prosecutor does not prosecute while a directive stipulates that he should, this could play a part if the victim or other interested party should attempt to compel prosecution.

The existence of prosecutorial directives means that many if not most decisions on (non) prosecution are a matter of routine, although the magisterial role of the prosecutor in principle requires him to balance the interests in each specific case. The Dutch criminal justice system has a range of out-of-court measures at its disposal – most of which are imposed by the prosecutor and in minor cases by the police. This includes grievous bodily harm, some cases of manslaughter, theft, intimidating a witness, blackmail, and many other offences of a more or less serious nature.

Cancelling the prosecution of a crime

The principle of opportunity is a principle in Dutch law (opportuniteitsbeginsel), Swedish law, Slovenian law and French law, which says that a crime will be punished only if its prosecution is considered opportune. This means that public prosecutors have the discretion to cancel the prosecution of a crime. Cancelling the prosecution of a crime is called a sepot or seponering (in Dutch). If the prosecution of a crime is cancelled, it can still be resumed later. – the ne bis in idem principle, also known as double jeopardy, does not apply to sepots.

By law, the opportunity principle (principle of expediency is a better term for the Dutch situation) governs the prosecutor’s decision to prosecute and filters down to the police at the investigative stage. For this, there is no explicit legal basis, but in practice the police have considerable discretion in deciding which cases to pursue, sometimes even if serious crimes are involved. It is, of course, unlikely that they would ignore a murder, but they may well simply note a citizen’s report of a theft or burglary (usually for insurance purposes), perhaps visit the house and then take the matter no further if they feel it is unlikely that the case could ever be solved and that further investigation is a waste of time.

Although the law makes no mention of such police-discretion, it is primarily based on prosecutorial directives. These may be regarded as quasi-law and it is in the directives from the prosecution service, themselves based on a generic form of the opportunity principle, that (non) prosecution policy – as opposed to decisions in individual cases – is formulated and anticipated by the police.

Reversing the prosecution cancellation – Article 12-procedure

The only way that the prosecutor’s decision not to prosecute can be reversed, is through a so-called Article 12-procedure (Artikel 12 Wetboek van Strafvordering). Article 12 Sv gives any person with a reasonable interest in prosecution the right to apply to the appeal court in order to have the prosecutor’s decision to either drop the case or to deal with it himself out of court, overturned.

Under Article 12 Sv, the appeal court reviews the complete case, hears all concerned (including the defendant) and then takes the decision on whether or not prosecution should follow as if it were the prosecutor; i.e., the court must take all of the interests involved into consideration and then decide, on the basis of the opportunity principle, whether prosecution is in the public interest. If it so decides, it may then order the prosecutor to prosecute.

Article 12 Sv is the only way in which a private person can formally influence the decision on prosecution, but the appeal court, not the interested party has the last word: if the court upholds the prosecutor’s original decision, there is nothing that anyone can do about it.

Rules of evidence

The evidentiary rules in the Netherlands constitute what is known as a negative system of evidence: the court must have a legal sufficiency of evidence of a certain legal sort and may not convict unless that evidence has convinced it of guilt.

An offender can be convicted only when the Court, during the Court trial, is convinced by the evidence that the offender has committed the offence defined by statute as charged (sect. 338 Code of Criminal Procedure – CCP). The evidence may not rest upon the testimony of a single witness (unus testis nullus testis), and a conviction may never be based solely on the statement of the accused. A guilty plea is unknown.

The court is free in assessing the truthfulness and quality of the evidence. In the verdict, the court has to state the reasons for convicting the accused. The burden of proof as a rule lies with public prosecutor. The court may play, however, an active role in gathering evidence during the trial by ordering further investigation. The presumption of innocence is a fundamental principle of the Code of Criminal Procedure.

Five means of evidence are defined by statute (sect. 339 CCP):
– the court’s own observations during the court hearing, e.g. photos or audio/video-recording;
– the statement of the accused in or out of court, provided the statement is filed;
– the statement of a witness in court, including hearsay testimony;
– the statement of an expert in court; and
– written (police) materials.

The Code distinguishes five categories of written materials (sect. 344 CCP):
– written decisions by members of the judiciary;
– reports by members of competent agencies, e.g. police reports on facts or circumstances personally perceived or experienced by them;
– documents of public agencies concerning subjects related to their competence containing the communication of facts and circumstances perceived or experienced by these agencies;
– reports of experts; and
– all other written materials. The latter category may only be used in relation with the content of other means of evidence.
Conviction may be based on a police report without further additional evidence being required.

Prosecution through penal orders

The prosecutor has a number of measures at his disposal, many of which would come under the heading of diversion in other jurisdictions. They are not aimed at removing offenders from the criminal justice system as such, merely at keeping them away from court while still keeping them within reach of the prosecutor and allowing for a punitive reaction on the part of the state. See Chapter IVA ‘Prosecution through penal orders’ (Titel IVa. Vervolging door een strafbeschikking, Arts. 257a-h Sv).

In a so-called penal order (strafbeschikking), the prosecution service may impose:
– a task penalty to perform non-remunerated work or compulsory participation in a training course;
– a fine;
– a withdrawal from circulation of seized objects;
– an order to pay to the treasury a sum of money to benefit the victim;
– the withdrawal of a driving license for a period of up to six months.

Furthermore, the order may consist of instructions to be complied with by the offender. Those instructions may not restrict the offender’s freedom of religion or his civil liberties. The instructions may consist of:
– the surrendering of objects that may be eligible for forfeiture or confiscation;
– the payment to the treasury of a sum of money that is equal to the profit of the crime;
– the payment of an amount of money to a public fund the aim of which is to support victims of crimes. The amount of money may not be higher than the maximum statutory fine set for the offence; or
– compliance with specifically-designed instructions during a probationary term of one year maximum.

Legal position of the victim

The term victim does not occur in the Code of Criminal Procedure or in any other criminal law statute. The victim has a procedural role only in his capacity as witness, informer or injured party. He has few rights in the pre-trial and trial phase. He has no
right to present a criminal charge or to be heard in his capacity of victim on the charge presented by the public prosecutor. The victim has neither the right to counsel nor the right of appeal.

Due to the changing attitude towards the weak legal position of the victim, and in line with the United Nations Declaration on Basic Principles of Justice for Victims of Crime and the Abuse of Power as well as the EU Council framework decision on the standing of victims in criminal proceedings, a number of guidelines have been issued by the prosecution service on how to treat victims. The guidelines oblige police and prosecutors to inform the victim whether the prosecution of the offender will take place, and about the possibility of financial compensation from the offender.

Furthermore, the legal position of the victim has been substantially improved by the 1993 Criminal Injuries Compensation Act. He now has access to police files, and the right to be informed by the public prosecutor on the standing of the criminal procedure. Since 2005 the victim has a restricted right to give an oral statement during court trial, the so-called victim impact statement. The model of restorative justice is gaining an increasing number of supporters.

Obligation to pay compensation (sect. 36f CC)

The 1996 Compensation Order Act introduced the possibility for the court to impose an obligation upon a person convicted of a criminal offence to pay the State Treasury a sum of money for the benefit of the victim of the crime. The Treasury shall remit the money received to the victim without delay. In cases of non recovery of the full amount due, the Court can order default detention of one year maximum. This measure was introduced in order to improve the legal position of the victim in the criminal procedure. This measure can also be imposed in addition to a penal order.

 A general note about complaints with the justice system in the Netherlands

I find it very strange how complaints with the justice system in the Netherlands are handled. For example, if you have a complaint against the police, you are required to file a complaint with the police. If you have a complaint with the prosecution service you are still required to call the prosecution service to get the status or information about the  case (Slachtofferloket – part of Openbaar Ministerie). It’s maddening, because I think everyone is protecting themselves rather than trying to get to the bottom of it.