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Netherlands: Overhaul of Rules on Review of Criminal Cases

(July 2, 2012) On June 12, 2012, the Upper House (Eerste Kamer) of the Dutch Parliament (Staten-Generaal) adopted draft legislation reforming the rules on criminal case review, which are deemed to have become obsolete and “too limited in legal practice.” (Criminal Cases Review Rules Reformation Bill Passed by the Upper House of Parliament, Government of the Netherlands website (June 13, 2012).) The revised measures affect provisions of the Dutch Code of Criminal Procedure under Title 8, “Revision of Rulings and Judgments,” of Book 3 part B (Extraordinary Remedies). (Text of the amendment proposal in Dutch, Eerste Kamer der Staten-Generaal website (Dec. 20, 2011).


The impetus for the changes, according to the Upper House website, was the Schiedam Park murder case – in which Kees B. was convicted, on the basis of a false confession, of the murder of a ten-year-old girl – as well as pressure from Members of the Lower House. (32.045 Wet hervorming herziening ten voordele [32.045 Law Reform Review for Benefit [of Former Suspects], Eerste Kamer website (last visited June 27, 2012) [machine translation consulted]; Gordon Darroch, Peter van Koppen on Miscarriages of Justice: 'Dutch Judges Need to Be More Critical,' THE AMSTERDAM HERALD (June 9, 2012).)

The Schiedam Park case, which involved the rape and murder of small children, gave rise to “much public and parliamentary outrage” when it became known that the Public Ministry (Openbaar Ministerie, the Public Prosecution Service) had withheld doubts expressed by some of the forensic experts from the case file and from the judge. Their findings had indicated that the perpetrator's DNA found on the victim did not match the defendant's DNA. (Nico de Jörg, Wrongfull [sic] Convictions in the Netherlands and in Aruba (2006), at 5 [the author was at the time the Advocate-General for Aruba at the Joint Court of Justice for the Dutch Antilles and Aruba].)

The innocence of the person convicted, a known pedophile who had confessed to the crime but later withdrawn the confession, only came to light when another pedophile confessed to the crimes. Thus, “[t]he case demonstrates the risk of tunnelvision [sic] once a confession has been obtained. Previous review petitions – on the basis of a reconstruction by a psychologist of law – had been unsuccessful: no novum was involved, only doubt.” (Id.; see also Chrisje Brants, 9: The Vulnerability of Dutch Criminal Procedure to Wrongful Conviction, in WRONGFUL CONVICTION: INTERNATIONAL PERSPECTIVES ON MISCARRIAGES OF JUSTICE 175 (C. Ronald Huff & Martin Killias, eds. 2008).)

Features of the New Rules

A summary of the law reform on the Upper House website states that it is for the benefit of former suspects, offering improved legal protection to citizens who were wrongfully convicted. It points out that as a result of the reform, the creation of ad hoc commissions, such as the Commission on Closed Criminal Cases (Commissie Evaluatie Afgesloten Strafzaken, CEAS), is unnecessary. (32.045 Wet hervorming herziening ten voordele, supra.) The CEAS was established in the aftermath of the Schiedam Park murder case. (Darroch, supra; Commissie Evaluatie Afgesloten Strafzaken, Public Ministry website(last visited June 27, 2012).)

According to the Ministry of Security and Justice, which formulated the draft legislation, the criminal case review process will be faster due to the reforms; it will be possible to investigate the grounds for review in a larger number of cases, using the input of experts, and review petitions can be better substantiated with the findings of such investigations. (Criminal Cases Review Rules Reformation Bill Passed by the Upper House of Parliament, supra.)

New Expert Opinion Can More Easily Be Taken into Account

Part of the problem with the pre-reform provisions, the Ministry stated, is the definition of novum, new evidence not known to the court in the original trial, which is necessary for instituting a criminal case review. Current case law in the Netherlands indicates that such a review will only be conducted “if there are new actual circumstances of which the court was unaware at the time of the trial,” making it rare for new expert insights to result in a review. (Id.) With the adoption of the new measures, according to the Ministry, it will be easier to obtain a review based on new expert opinion. However, that opinion alone will not be sufficient; new evidence must be presented and “give rise to a 'strong suspicion' that the court would have reached a different conclusion if it had known about this at the trial. That means that the expert opinion can only result in the review of a criminal case if it sheds new light on the case.” (Id.)

Wider Scope of Grounds for Investigation of New Evidence

Under the amendments, the Supreme Court retains its right of review in criminal cases where new evidence casts doubt on the original decision (as provided under Title VIII of the Code of Criminal Procedure). (32.045 Wet hervorming herziening ten voordele, supra.) According to one legal expert,

the procedure is designed to prevent the Supreme Court from becoming a court of third instance, by requiring that it establish that new evidence has emerged, … and then that such evidence would have led the original court to acquit. If it so finds, the case is referred to one of the appeals courts for a full retrial (but never to the court that originally gave the final verdict on the facts). (Brants, supra, at 167.)

The amendments broaden the options for investigation of new facts, however, so that, for example, it will be possible for those wrongfully convicted of a serious crime who lack the resources to make a case for a review to apply for an additional investigation to be conducted, so that they can prepare a review petition for submission to the Procurator- General. (Criminal Cases Review Rules Reformation Bill Passed by the Upper House of Parliament, supra.) A commission, a research team, and a magistrate can be involved in such in-depth fact-finding. To avoid frivolous review requests, however, legal representation is mandatory for submission of the request. (32.045 Wet hervorming herziening ten voordele, supra.)

In addition, the option of conducting a review on the basis of a proven violation of the European Convention on Human Rights is broadened. (Id.)

State Pays Back Undue Damages

If the review leads to an acquittal, then not the victim of the crime, but the State, repays the wrongfully convicted person for any undue damages that had been suffered by the victim, unless the miscarriage of justice was due to the victim's behavior. (Id.)

Transparency for Victims

The victims that had been involved in the original case will also be entitled to receive information about the criminal case review. (Id.)