Several parties are involved in criminal proceedings, including the suspect and the Public Prosecution Service (Openbaar Ministerie, OM). The OM is represented by the public prosecutor (officier van justitie). It is the public prosecutor who decides whether or not to prosecute someone on the basis of the information available. The court will then decide whether the suspect is guilty or innocent. This page describes the situation in the Netherlands.
Prosecution for a criminal offence
To start criminal proceedings, there must be a suspicion that a criminal offence has been committed. Only acts that have been made punishable by law can lead to a conviction. In criminal law, there are two types of criminal offence: minor offences (overtredingen) and serious offences (misdrijven). Serious offences are grave criminal acts, while minor offences are rather light infringements. Many criminal offences are set out in the Dutch Criminal Code (Wetboek van Strafrecht), but other laws can also contain criminal offences. Examples are the Commodities Act (Warenwet), the Compulsory Education Act (Leerplichtwet) and the Opium Act (Opiumwet).
Rights and obligations in case of a criminal offence
If it is believed that a criminal offence has been committed, the suspect has a number of rights. For example, the suspect has the right to legal assistance before the interview, and a suspect may not be held for an unnecessarily long time. It is important that a suspect is well informed about his or her rights and obligations.
Rights and obligations during the interview
The police may interview a suspect at the police station if a criminal offence is suspected. At the police station, you always receive a leaflet setting out your rights, for example the right to a lawyer. Since 1 March 2017, the law has provided that an arrested suspect can consult a lawyer before the first police interview (Article 28c of the Dutch Code of Criminal Procedure, Wetboek van Strafvordering) and that the lawyer may attend the interview (Article 28d of the Code of Criminal Procedure). In practice, the right to consult a lawyer before the interview already applied earlier, following the Salduz judgment of the European Court of Human Rights. In short, the suspect has the following rights and obligations:
- Right to a free interpreter if the suspect does not speak or understand Dutch well enough
- Obligation to identify yourself (bring a passport or driving licence to the interview)
- Right to a lawyer before and during the interview
- Right to remain silent and not answer questions
- Right to know which criminal offence you are suspected of
- Right to urgent medical care or medication
- Right to inspect documents, unless the public prosecutor decides that this is not allowed
If the public prosecutor decides that you must remain at the station, you may ask for a third party to be informed (for example your partner). Anyone who does not have Dutch nationality may also ask for their embassy or consulate to be informed.
Right to a lawyer
The suspect always has the right to speak to his or her lawyer before an interview. The lawyer may also be present during the interview. The lawyer will explain the criminal offence, give legal advice, explain how the interview will proceed, explain the rights and obligations and, if necessary, contact the family or the employer. The police may not listen in on the conversation with the lawyer.
At the beginning and at the end of the interview, the lawyer may make comments to the interviewing officer. During the interview, the lawyer may in principle not intervene, but there are exceptions. For example, the lawyer may ask for a break for consultation. The lawyer may also point out to the interviewer that his client does not understand certain questions, is being put under pressure or, because of his medical condition, is not able to be interviewed further. After the interview, the lawyer will read the official report (proces-verbaal) and check whether it contains any inaccuracies.
Detention for questioning
For the investigation into a criminal offence, the police may hold the suspect for a maximum of nine hours, or six hours if pre-trial detention is not permitted for the offence (Article 56a of the Code of Criminal Procedure). During this period, they can, for example, take photographs and fingerprints. In practice, you can actually be held for longer. This is because the time between 00:00 and 09:00 does not count. You can also be placed in police custody (inverzekeringstelling). The public prosecutor then decides that you must stay longer for questioning. Police custody lasts up to three days, and this period can be extended by three days. It is also possible that the suspect is brought before the public prosecutor.
Being brought before the public prosecutor
If it is decided to bring the suspect before the public prosecutor (voorgeleiding), the public prosecutor will already have received the file from the police. The public prosecutor is therefore already aware of the facts. He or she can decide that it is not necessary for you to remain in detention any longer. You may then go home and you will receive a summons. If the public prosecutor does believe that you should remain in detention for longer, this is called pre-trial detention (voorlopige hechtenis). The public prosecutor then asks the examining magistrate (rechter-commissaris) for a remand order (bevel tot bewaring); it is the examining magistrate who orders the remand in custody (Article 63 of the Code of Criminal Procedure). You then go to a remand centre (huis van bewaring). Remand in custody (bewaring) can last up to fourteen days (Article 64 of the Code of Criminal Procedure). If the public prosecutor wants to hold you for longer, the district court must issue a detention order (bevel tot gevangenhouding).
Course of criminal proceedings
Criminal proceedings always start with the preliminary investigation or the criminal investigation. After that, it is decided whether or not the suspect must appear in court. Although hiring a lawyer is not mandatory, it is advisable to do so as soon as possible.
- Criminal investigation
Criminal proceedings usually start with the police discovering a criminal offence, for example because someone reports it to the police (aangifte). A criminal investigation is then started under the direction of a public prosecutor. The police will gather evidence, for example by analysing camera footage or interviewing witnesses. The police record their findings in an official report that goes to the public prosecutor.
- The public prosecutor decides
On the basis of these findings, the public prosecutor will assess whether the suspect will be brought before the court. The public prosecutor checks whether the evidence gathered is convincing enough to stand a good chance. If this is not the case, the public prosecutor will not prosecute. The public prosecutor can also drop the case (seponeren) in other situations, for example if it is clearly a case of self-defence (noodweer: committing a criminal offence to protect someone else or yourself from an immediate threat).
- Summons of the suspect
If the public prosecutor believes that the suspect should appear in court, the suspect receives a summons (dagvaarding). This is a written order to appear in court. The summons states which criminal offence is involved. Anyone who disagrees with the content of the summons can submit a notice of objection (bezwaarschrift).
- Hearing and ruling
During the hearing, the court checks whether the preliminary investigation was conducted properly and whether it has jurisdiction to hear the case. The court then decides whether the criminal offence has been proven, whether the suspect is criminally liable and what sentence should be imposed. The suspect has the opportunity to respond during the hearing. It is also possible that the suspect does not appear. This is called a judgment in absentia (verstek). Usually an oral ruling follows immediately, after which the suspect receives the judgment within two weeks. This may state that the suspect is acquitted or that the suspect is given a sentence.
- Appealing
In many criminal cases, it is possible to appeal against the ruling. The court of appeal (gerechtshof) will then hear the case again. If you want to appeal, you must notify the registry of the district court within fourteen days of the ruling. Your lawyer can also do this for you. The court of appeal will hear the case again on appeal. In doing so, it looks in particular at the objections to the judgment. Not only the convicted person can appeal; the public prosecutor also has this option.
More information about appealing - Appealing in cassation
In some cases, it is also a good option to appeal against the ruling of the court of appeal. The Supreme Court (Hoge Raad) will then check whether the law has been applied correctly. This is called appealing in cassation (cassatie). The facts themselves are then no longer discussed, as the facts established by the court of appeal are assumed to be correct. It is only about the correct application of the law. Here too, you must give notice within fourteen days of the ruling that you want to appeal in cassation.
Criminal proceedings against a minor suspect
A minor suspect has a number of extra rights. For example, the police must tell the parents that you are at the police station. The parents may also call and visit their child at the police station. Minors are in principle prosecuted under juvenile criminal law. In some cases, the court can decide to apply adult criminal law to minors aged sixteen or seventeen. Or it can decide to apply juvenile criminal law to adults up to and including the age of 22. Children under the age of 12 are not prosecuted under criminal law in any case. The parents of the minor suspect may have to pay compensation to the victim. This has to do with the liability of parents for their children.
Mediation in criminal cases
In some cases, mediation can be used. The victim and the suspect then voluntarily talk to each other, under the guidance of mediators. This does not replace criminal proceedings. Mediation in criminal cases is mainly a solution for emotional, material and/or financial recovery. That is why it is required that the suspect takes responsibility for the facts and that both parties want to talk to each other.
More information about mediationLegal expenses insurance in criminal proceedings
If you have legal expenses insurance, you may be able to get assistance through the legal expenses insurer. Whether this is possible differs per legal expenses insurance policy and depends on the circumstances of the case. No legal expenses insurance offers help if the offence was committed intentionally. Many insurers therefore only cover the costs if the suspect is later acquitted or not prosecuted. Sometimes extra conditions apply, such as the obligation to report this to the insurer within a month of the acquittal. The type of case also plays a role. Many insurers, for example, offer cover for criminal cases in traffic, but not if the charge is causing death or injury through negligence. There are very big differences, so be sure to get information from the insurer.
More information about legal expenses insuranceRead also: Witnesses and witness statements and Rights of a suspect.
Frequently asked questions about criminal proceedings
Criminal proceedings can have far-reaching consequences, and during the proceedings, too, people have to deal with unpleasant feelings. It is no surprise that criminal proceedings raise questions for many people. This FAQ about criminal proceedings tries to answer a number of frequently asked questions.
Is a lawyer mandatory in criminal proceedings?
A suspect in a criminal case is not obliged to hire a lawyer. However, it is advisable to do so. A lawyer will not only help prepare for the court hearing, but will also be present during the interviews and will check whether the criminal investigation is being conducted according to the rules. Criminal proceedings can have far-reaching consequences, which is why legal assistance is advisable.
How does the hearing in criminal proceedings work?
First, the court usher calls out the name and the case, after which everyone takes their seat. The judge checks a few details and states the rights of the suspect, for example the right not to answer questions. This is followed by the charge (tenlastelegging), which explains which criminal offence the suspect is accused of. An examination follows: the judge asks questions, hears experts and witnesses, looks at evidence and so on. An injured party may also have submitted a claim for compensation. This is then dealt with as well. The victim may be able to exercise a right to speak. The judge then considers the personal circumstances of the suspect, and the public prosecutor may set out his or her position. The suspect is then given the opportunity to defend himself in a defence plea, after which the public prosecutor has the chance to respond to this plea. In any case, the suspect always has the last word, after which the judge closes the examination and says when the ruling will be given.
How long can a suspect be held in pre-trial detention?
A suspect, who is innocent until proven guilty, is not meant to remain in pre-trial detention (voorarrest) for too long. This period can therefore not last longer than 110 days. This consists of twice three days of police custody, fourteen days of remand in custody and ninety days of detention under a detention order.
Are the days in pre-trial detention deducted from the sentence?
Yes, the days a suspect has spent in pre-trial detention are deducted from the prison sentence. However, the hours of the preliminary investigation do not count.
I was wrongly held in pre-trial detention. Can I get compensation?
Yes, if you were wrongly held in pre-trial detention (you are ultimately not given a sentence or fine), you can ask for compensation for this. This must be done in time. Your lawyer can apply for it for you.
What is the difference between criminal proceedings and an administrative fine?
An administrative fine is only imposed for lighter offences, for example a minor speeding offence. Criminal proceedings are for more serious offences, for example driving without a driving licence. In criminal proceedings, all factors are taken into account, for example reoffending. With an administrative fine, reoffending is in principle not taken into account.