Subsequently, the court will assess whether the defendant committed the offence or offences he or she has been charged with, whether the defendant is punishable and if so, what penalty or non-punitive order should be imposed on the defendant. When it hears the substance of the case, the court will assess whether the charges the Public Prosecution Service has brought against the defendant have been ‘lawfully and conclusively’ proved. The questions it must consider include the following:

  • Have the offences in the indictment (part of the summons stating the charges against the defendant) been proved? 
    To answer this question the court assesses the evidence in the case file. Examples of legal evidence in criminal cases are the police report, witness and expert witness testimony and audiovisual material. The court must be convinced on the basis of the evidence that the defendant committed the offences he or she is accused of. If this is not the case, the defendant is acquitted
  • Are the offences committed by the defendant punishable by law?
    If the charges are proved, the court will assess whether the defendant’s actions constitute punishable offences. All punishable offences are defined in law. It can also be the case that the punishable offence nevertheless is not punishable, because there is a justification for it, such as self-defence.
  • Is the defendant criminally liable?
    Even if a charge has been proved and constitutes a criminal offence, the defendant may still be found not guilty, for instance if they suffer from a developmental disorder or mental illness. In that case, the person is said to be not criminally responsible by reason of mental disorder. 
  • What penalty or non-punitive order should be imposed?
    If the court finds a defendant guilty, an appropriate penalty or non-punitive order will be imposed. A penalty can be imposed only if the defendant is found guilty of a criminal offence. A non-punitive order can be imposed when a defendant is found guilty of a criminal offence, but he or she cannot be held criminally responsible, for instance due to a developmental disorder or mental illness.

The court will base its answers to these questions on articles 348 and 350 of the Code of Criminal Procedure.

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