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Netherlands: Legislative Proposal on Police Officers’ Use of Force

(May 12, 2016) It was reported on May 3, 2016, that Dutch State Secretary for Security and Justice Ard Van der Steur has formulated a legislative proposal that would discontinue the practice of automatically labelling police officers as suspects during inquiries into the use of force. Instead, an investigation of the relevant facts would be conducted, based on the assumption that an officer had acted lawfully.  (Police Officers No Longer Automatic Suspects After Using Force, Ministry of Security and Justice website (May 3, 2016).)

The draft legislation provides that agents suspected of violent abuse would essentially not be prosecuted for manslaughter or aggravated assault, as is currently the case, but could be prosecutable instead for a new type of offense, violation of the rules of engagement. (Jeroen Visser, Wetsvoorstel: agenten niet meer vervolgd voor doodslag [Bill: Officers No Longer Prosecuted for Manslaughter], DE VOLKSKRANT (May 3, 2016).)  It guarantees, however, “that a proper, thorough investigation will always be carried out into the circumstances of the use of violence and whether or not the rules were complied with.”  (Police Officers No Longer Automatic Suspects After Using Force, supra.)    According to the Ministry of Security and Justice, at present if a police officer is prosecuted for violating the rules on the use of force, he may be charged with the same general offense for violence as a person not authorized to use force.  Under the proposal, there will be a newly worded provision that makes breaching the rules on the use of force a separate punishable offense.  The punishment for such a breach would be a maximum prison term of three years if a fatality is involved.  (Id.)

Rules of Engagement and Possible Criminal Penalties

The current rules of engagement state how and when officials may use appropriate (proportional) force. The rules provide for a process of investigation of alleged abuses of the use of force that may ultimately lead to offenders being tried under the criminal law, as applied to regular individuals in cases of assault or manslaughter.  (Ambtsinstructie voor de politie, de Koninklijke marechaussee en andere opsporingsambtenaren [Official Instruction for the Police, Royal Constabulary, and Other Investigative Officials] (Apr. 8, 1994, in force on Jan. 1, 1994 (retroactively), as last amended effective Jan. 1, 2013) OVERHEID.NL; see also Samira Ezzahti, Geweldsinstructie: Onderzoek naar de geweldsinstructie van de politie in de praktijk [Rules of Engagement: Research on the Rules of Engagement of the Police in Practice], Master’s Thesis, University of Tilburg (Feb. 13, 2013), University of Tilburg website; Wendy Zeldin, Netherlands, in LAW LIBRARY OF CONGRESS, POLICE WEAPONS IN SELECTED JURISDICTIONS 63 (Sept. 2014).)

According to the Dutch Criminal Code, anyone who intentionally takes another person’s life will be found guilty of manslaughter and subject to a term of up to 15 years’ imprisonment or a fine of the fifth category. (Criminal Code (text valid as of Oct. 1, 2012), art. 287, European Judicial Training Network website.) A fine of the fifth category, as of January 1, 2016, is €82,000 (about US$93,442).  (Wetboek van Strafrecht (Mar. 3, 1881, as last amended effective Apr. 20, 2016), art. 23(4), OVERHEID.NL.) Upon conviction of the crime of assault, an offender is subject to the punishment of up to three years’ imprisonment or a fourth category fine (€20,500, about US$17,990, as of Jan. 1, 2016).  (Id. arts. 300(1) & 23(4).)  If the offense causes grievous bodily harm, a prison term of up to four years may be applied upon conviction; if it results in death, the applicable punishment is up to six years’ imprisonment. The amount of the alternative punishment of a fine is the same as for simple assault.  (Id. art. 300(2) & (3).)


The proposed measures are the result of a program of reform “set in motion to deal with bottlenecks in the procedures for investigating and settling incidents involving the use of force by police officers.” (Police Officers No Longer Automatic Suspects After Using Force, supra.) Van der Steur was quoted as stating that the main objective “is to do justice to and take proper account of the special, often vulnerable, position” of police officers who are not only authorized to use force  but are expected to act in situations where other people can avoid using violence to defend themselves.  (Id.)  While Van de Steur’s intention is not to place investigating officers beyond the law’s reach, in his view the present descriptions of the offenses of manslaughter or assault “are not sufficiently focused on situations where the police officer is acting by virtue of his task.”  (Id.)

In 2015, a police officer was sentenced to two years in prison because he had accidentally shot the passenger accompanying a suspected ramraider (a would-be burglar who uses a vehicle to smash through a shop window). (Visser, supra.)  In another, highly publicized and controversial case, a police report found that Mitch Henriquez, an Aruban holidaymaker, died as result “of the level of violence used by the police during his arrest” in a June 2015 incident in which five officers faced charges. Investigators stated that pressure on Henriquez’s throat, “resulting from the strangulation effect of the choke hold, was the ‘probable cause’ of his suffocation and eventual death,” and that “the punches to his nose also had a contributory effect.” (Police Violence Led to Mitch Henriquez’ Death: Official Report, DUTCHNEWS.NL (Nov. 6, 2015.) Among the reasons for the arrest listed in the report were “public drunkenness, breach of the peace, and threatening behaviour”; the death occurred after Henriquez was “thrown to the ground and bundled, apparently unconscious, into a police van after an open air concert by UB40.” (Id.) Reportedly, the police had at first “claimed Henriquez became unwell in a police car but retracted that statement after video footage showing him being held in a choke hold and dragged into the van was placed online.” (Id.)

Especially as a result of the Henriquez case, the use of force by Dutch officers was put “under a magnifying glass,” but in general the number of criminal cases involving police brutality has “increased considerably in recent years mainly because survivors pursue prosecution through an “article 12” procedure. (Visser, supra.)  “Article 12 Sv [Criminal Procedure Code] 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.” (C.H. Brants-Langeraar, Consensual Criminal Procedures: Plea and Confession Bargaining and Abbreviated Procedures to Simplify Criminal Procedure, 11:1 ELECTRONIC JOURNAL OF COMPARATIVE LAW 10 (May 2007).) 


According to one lawyer who has assisted a number of officers, the proposal offers “a good balance” that “provides greater legal protection for the agent, because it would now first be considered whether he has acted according to police standards, instead of being immediately regarded as a witness or suspect.” (Visser, supra.)  Another lawyer disagreed, deeming the amendment “undesirable,” and pointing out that officers already are not prosecuted if they are in compliance with the official rules.  “You get a kind of gray area,” he further stated, “where agents are tested differently than others.  Just as they have a monopoly on the use of force, so should they also be strictly controlled.  Moreover, judges themselves are already sufficiently aware of the special position of agents.”  (Id.)

A member of one of the Dutch police unions stressed that in the current situation officers are at a disadvantage, simply because in an emergency they sometimes have to use force. “It is bad enough,” he stated, “if someone is injured or worse, but it affects you and your family and then you also run the risk of being convicted of a serious offense.”  (Id.)

Next Steps

Van der Steur has sent the proposal to various bodies such as the Council for the Judiciary and the Public Prosecution Service (OM) for advice. (Police Officers No Longer Automatic Suspects After Using Force, supra.)  The Council for the Judiciary (Raad voor de rechtspraak) handles certain operational tasks for the Ministry of Justice, among them promoting quality within the judicial system and giving advice on new legislation that has implications for the administration of justice in the country.  (The Council for the Judiciary, de Rechtspraak [the Judiciary] website (last visited May 10, 2016).)

According to one news report, the question is, if the proposal goes forward, whether it will “remain unscathed by Parliament.” (Visser, supra.)