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Netherlands: Proposal for Expansion of Pre-Trial Detention Sent to Legislature

(Sept. 27, 2012) The Dutch Ministry of Security and Justice has submitted a proposal to the Lower House of the Parliament that would make it possible to detain a broader range of criminal suspects during the period in which they are awaiting trial, when the trial involves accelerated proceedings. Thus, the suspects would not be released before the accelerated proceedings have been conducted; in the view of the Ministry, the current Dutch criminal procedure law does not allow sufficient opportunities for such detention. (Legislative Proposal to Expand Pre-Trial Detention Sent to the Lower House (Sept. 7, 2012).)

The measure would affect individuals who have committed violent crimes in public areas or violence against public officials, such as policemen, firemen, and ambulance staff. (<?Id.) If accelerated proceedings are not applicable, suspects have to be released before the court hearing. (Press Release, Suspects More Quickly Detained After a Violent Incident (May 20, 2010), Government of the Netherlands portal.)

The proposal would permit pre-trial detention when a trial is to be held within 17 days, provided that it concerns suspects who are accused of an offense that carries a penalty of a term of imprisonment of at least several weeks or months. In such cases, the ultimate punishment will typically be implemented immediately after pre-trial detention. (Legislative Proposal to Expand Pre-Trial Detention Sent to the Lower House, supra.)

Under the Dutch Code of Criminal Procedure, the examining magistrate has the responsibility to determine the legitimacy of pre-trial detention ordered by the public prosecutor (or deputy public prosecutor), and the power to order, at the public prosecutor’s request, a further extension of the custody period. The initial period of pre-trial detention is not to exceed three days, with the possibility of a three-day extension. The period may be extended for 14 days at the request of the public prosecutor. The grounds for suspicion of commission of a serious offense, on the basis of which pre-trial detention may be imposed, are set forth chiefly under article 67 of the Code of Criminal Procedure. (Wetboek van Strafvordering [Code of Criminal Procedure] (as last amended July 13, 2012), arts. 57, 58, 59a, 63, 64, & 67, OVERHEID.NL; MARIANNE F.H. HIRSCH BALLIN, ANTICIPATIVE CRIMINAL INVESTIGATION: THEORY AND COUNTERTERRORISM PRACTICE IN THE NETHERLANDS AND THE UNITED STATES 68 fn. 132 (2012); Fair Trials International, The Netherlands, in Appendix 2: Pre-Trial Detention Comparative Research, in Strengthening Mutual Trust in the European Judicial Area – A Green Paper on the Application of EU Criminal Justice Legislation in the Field of Detention (Nov. 30, 2011).)

In the view of the Ministry, the rationale for the proposal is that the potential for violent crimes such as assault, arson, and vandalism can, under some circumstances, pose an added danger to individuals or give rise to serious disturbances of public order or even uncontrollable situations, and “lead to significant social unrest, high-risk situations and indignation.” (Legislative Proposal to Expand Pre-Trial Detention Sent to the Lower House, supra.) Introduction of the new measure is intended, the Ministry pointed out, “for cases in which the criminal investigation is relatively simple and can be concluded quickly.” (Id.)

Ministry officials further noted that the victim may use the 17-day period to prepare his or her claim for compensation against the offender, which would then enable the claim to “be settled simultaneously at the hearing by the criminal court.” They also indicated that quick prosecution and adjudication of the accused in such cases “is necessary to make it clear to the accused and society immediately after the crime that such behaviour is unacceptable and deserving of a serious judicial response.” (Id.)