The Dutch Code of Criminal Procedure contains rules to ensure that prosecutions are conducted fairly. In Dutch criminal proceedings, all the parties involved – judges, the Public Prosecution Service, defendants and their lawyers, and sometimes the victim or relatives of victims and their lawyers, witnesses and experts – have different roles to play.
See the infographic about the criminal justice procedure in the Netherlands.
Roles of the parties involved in criminal proceedings
In the Netherlands, complex criminal cases are handled by full-bench chambers. This means that several judges consider each case. A full-bench chamber usually consists of three judges.
During a trial, the judges consider the charges put forward by the Public Prosecution Service and determine what actually happened. They do this by examining all of the information gathered during the criminal investigation and by putting questions to the defendants or their lawyers (if the defendants or lawyers appear). They can also put questions to witnesses and experts. After that, they decide whether, under Dutch law, the defendants are guilty of the criminal offence(s) that the Public Prosecution Service has charged them with. If they find defendants guilty, the judges will decide what penalty to impose.
Public Prosecution Service
The Public Prosecution Service has the exclusive right to prosecute suspects in the Dutch criminal courts. The Public Prosecution Service ensures that criminal offences are investigated and that, where appropriate, the suspects are prosecuted. It does this work in cooperation with the police and other investigative services. During the preliminary investigation into the MH17 crash, the Dutch police and Public Prosecution Service worked with investigative authorities from four other countries within the Joint Investigation Team. As a result of that investigation, the Public Prosecution Service has decided to prosecute the suspects.
The Public Prosecution Service is represented by the public prosecutor. In criminal proceedings, usually one public prosecutor is present in court, but two may be assigned to bigger cases.
Defendants and their lawyers
The defendants in criminal proceedings receive a summons from the Public Prosecution Service, which explains the offences they are charged with and when the case will be heard. Defendants are innocent unless and until they are proven guilty. In criminal proceedings the defendant is not required to be present in court or to hire a lawyer, but it is wise to do so. The defendant’s lawyer defends his or her interests during the proceedings and helps ensure that he or she receives a fair trial.
Relatives of victims
Sometimes relatives of victims have a legal right to address the court. They have the right to speak during the trial about the personal impact of the death of their family member and about the penalty they think should be imposed on the defendants. Relatives of victims can submit also a claim for compensation.
The law says that the following relatives of victims have the right to address the court:
- The spouse or partner of the deceased.
- Blood relatives from the same direct line of descent as the deceased (the direct line of descent means people who are descended from one another, for example parents and children, grandchildren and great-grandchildren).
- Blood relatives of the deceased from a collateral line, up to and including the fourth degree (this means people who are not descended from one another but who do have a common ancestor, so for example siblings and cousins; the degree is determined by counting the number of births that lie between the relatives in the family tree: for example the birth of the deceased, birth of a parent, birth of an aunt or uncle, birth of a cousin).
- People who were depending on the deceased. These are people whose position is similar to that of members of the immediate family, but specifically refers to those who were financially supported by the deceased. For instance, this could include a child who the deceased had not officially acknowledged as their own or someone living in the same household who was not a blood relative of the deceased.
Sometimes, a person is permitted to address the court on behalf of the next of kin, for instance if the next of kin cannot do so. This person could be a lawyer or someone from Victim Support Netherlands.
If the Public Prosecution Service or a defendant disputes the outcome of an expert investigation, they can ask the district court to obtain a second opinion from other experts.
An official written order, instructing a person to appear before the district court and stating the accusations against them.
The judges decide whether they want to examine any witnesses during the trial. In a criminal case, the Public Prosecution Service will have already examined most of the witnesses during the preliminary investigation. In the MH17 case, witnesses will be examined by the Joint Investigation Team. Witnesses may also be examined by an examining magistrate. The judges who hear the criminal case might consider it important to examine these witnesses themselves. If so, they will question the witnesses during the trial. It is also possible that new witnesses may be examined.
How is a trial conducted?
After the initial procedural hearing(s), there will be a trial at which the judges look at the substance of the case. The procedure is as follows:
- The court usher calls out the names of the defendants and of the case and everyone takes their places in the courtroom.
- The court verifies the identity and personal details of the defendants and gives a brief explanation of their rights during the trial. For instance, they have the right not to answer questions. If the defendant is not present, a check will be made as to whether he/she is lawfully summoned to appear. The public prosecutor reads out the indictment. This part of the summons gives a precise legal description of the charges against the defendants.
- The judges go through the case file with the defendants, ask the defendants questions, examine witnesses and/or experts and consider the case documents.
- Relatives of victims who have the right to address the court are given the opportunity to exercise this right.
- The judges discuss any compensation claims submitted by the relatives of the victims. The relatives of the victims may take the opportunity to speak in order to discuss their claims.
- The judges discuss the personal circumstances of the defendants.
- The public prosecutors present in their closing speech their views on the case (in their closing speech) and ask the judges for acquittal of the defendants or for the judicial finding of facts, for imposal of a penalty or a non-punitive order and for their view on any claims of relatives of the victims.
- The defendants or their lawyers then give a speech stating the case for the defence.
- Defendants have the last word.
- The public prosecutor and the defendants or their lawyers are given the opportunity to respond to each other’s arguments.
- After the last word, the judges bring the trial to a close and say when they intend to hand down their judgment.
Different legal systems
Roughly speaking, legal systems in countries around the world fall under one of two main categories: civil law systems and common law systems.
Most European countries, including the Netherlands, have civil law systems. This means that their laws are largely written down in codes containing abstract rules. Judges base their decisions on these rules.
In a common law system, like the United Kingdom or United States, law is based mainly on precedent laid down in previous court decisions. Judges look to these decisions and derive general rules from them, which they then apply to the cases presented to them.
Differences in how criminal proceedings are conducted
Criminal proceedings are also conducted differently around the world. Some countries, like Belgium, France and the United States, have a jury system, but the Netherlands does not. Under a jury system, members of the public decide whether a defendant is guilty of the charges against them. In the Netherlands, judges make that determination on the basis of the case file and the trial proceedings. Then they hand down judgment and decide on the sentence.
In the Netherlands it is not a standard procedure to question witnesses in a hearing. If the court has decided to question witnesses, the case is usually referred to the supervisory judge. He or she questions the witnesses in the presence of the lawyer and the public prosecutor.