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Netherlands: New Offense Tailored to Police Officers’ Use of Force

(Jan. 13, 2017) The House of Representatives (Tweede Kamer) of the Dutch Parliament is considering legislation that addresses the special position of investigating officers in criminal law. (Bill Sent to House of Representatives: Special Position of Investigating Officers in Criminal Law, Ministry of Security and Justice website (Dec. 23, 2016).) Under the draft legislation, “[p]olice officers will no longer automatically be considered a suspect during an investigation into use of force,” and officers’ alleged use of force would be assessed in the light of a newly worded offense “tailored to police officers and criminalising any violation of the rules governing the use of force.” (Id.)  As Minister of Security and Justice Ard Van der Steur noted, the police are permitted to use force, and it is part of their duties to do so, therefore “it is not fitting to treat police officers as suspects right away.” (Id.)

According to the Ministry of Security and Justice, under whose auspices the legislation was presented to the Parliament, the new description of the offense provides more leeway “for a suitable response to use of force by police officers,” taking officers’ special position into account, than the current practice of prosecution for a general violent offense (assault or manslaughter). Nevertheless, the Ministry indicated, the legislation would ensure that “that proper and thorough investigations continue to be conducted into the circumstances of the use of force and into whether the rules were followed.”  (Id.)

Features of the Legislation 

The draft law would amend the Criminal Code to include a specific statutory defense for police officers who have used violence in the legitimate exercise of their duties, along with an offense of breach of the rules of engagement. The draft legislation also would amend the Code of Criminal Procedure to include a basis for conducting a criminal investigation into the use of force by law enforcement officers.  (Voorstel van wet (Herdruk) [Bill (Reprint)], No. 34641-2 (Dec. 23, 2016), Tweede Kamer website (click on PDF icon to view text) (in Dutch).)

The draft legislation would add a paragraph to article 42 of the Criminal Code, stating that an officer who uses force in the lawful performance of his duties and in accordance with the rules of engagement is not to be held criminally liable. (Id. art. IA; Criminal Code (Mar. 3, 1881, text valid as of Oct. 1, 2012), European Judicial Training Network (EJTN) website; Wetboek van Strafrecht [Criminal Code] (Mar. 3, 1881, as last amended effective Jan. 1, 2017), OVERHEID.NL.) It also would insert an article 90novies after article 80octies of the Code, to the effect that rules of engagement are defined by or pursuant to the generally binding provisions on instructions regarding the use of force addressed to officers in the Police Act 2012 and the Special Investigations Act.  (Voorstel van wet, art. IB; Politiewet 2012 [Police Act 2012] (July 12, 2012, as last amended effective Jan. 1, 2017), OVERHEID.NL; Wet op de bijzondere opsporingsdiensten [Special Investigations Act] (May 29, 2006, as last amended effective  Jan. 1, 2013), OVERHEID.NL.)

In addition, the draft legislation provides for insertion of a new article 372 in the Criminal Code, on the punishment of officers who have been granted the authority to use force under the Police Act and the Special Investigations Act and who are guilty of violating the provisions on the rules of engagement.  If an officer’s improper action causes injury, the punishment would be imprisonment for up to one year or a fine; if it results in serious bodily harm, the punishment would be a prison term of up to two years or a fine; and if it causes death, the officer would be imprisoned for up to three years or fined.  (Voorstel van wet, art. IC.)

In the Code of Criminal Procedure, the draft legislation would insert, among other changes, a new article 511a on investigations of the use of force by officers. The article would provide, in part, that a prosecutor could order that a fact-finding investigation be conducted in cases where an officer authorized to use force has used force in carrying out his duties; the officer concerned would be informed that an inquiry is being conducted.  (Id. art. IIC, art. 511a(1); Code of Criminal Procedure (text valid on Oct. 8, 2012), EJTN website; Wetboek van Strafvordering (Jan. 15, 1921, as last amended effective Jan. 1, 2017), OVERHEID.NL.) The fact-finding would be aimed at determining whether the use of force was in accordance with the rules of engagement.  (Voorstel van wet, art. IIC/art. 511a(2).) Insofar as they are relevant, articles 51a-51d of the Code (on the rights of the victim) would apply mutatis mutandis.  (Id. art. IIC/art. 511a(3).)  The proposed new article further provides that additional rules about fact-finding can be set by or pursuant to an administrative order.  (Id.)

A proposed new Criminal Procedure Code article 511aa sets forth the powers conferred under the Code on the prosecutor, assistant prosecutor, or investigating officer as the competent authorities of the fact-finding. (Voorstel van wet, art. IIC/art. 511aa(1).)  Such powers would only be exercised if: the use of force has resulted in an injury; the exercise of the investigatory powers is reasonably proportionate to the nature of the use of force under investigation; and the collection of data for the fact-finding exercise by the relevant authority cannot be conducted in another, less intrusive manner. (Id. art. IIC/art. 511aa(3)(a-c).)  Under a draft new article 511ab, the prosecutor would decide on the basis of the fact-finding what subsequent decision would be taken and would promptly transmit his decision in writing to the officer concerned.  (Id. art. IIC/art. 511ab(1)&(2).)