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Article Netherlands: New Code of Criminal Procedure Under Consideration by Legislature

On March 20, 2024, the Dutch Ministry of Justice and Security announced that a new Code of Criminal Procedure (Wetboek van Strafvordering, WvSv) would come into effect on April 1, 2029, if the legislative process has been completed by then. The Dutch government submitted the bill for the new Books 1–6 of the Code of Criminal Procedure to the House of Representatives (Tweede Kamer) in March 2023. Following adoption by the House, it will be discussed by the Senate (Eerste Kamer). After the bill has been passed by both houses, it will be published in the Official Gazette of the Kingdom of the Netherlands (Staatsblad van het Koninkrijk der Nederlanden).

According to the government, a new code of criminal procedure is necessary because the current one from 1926 is outdated. Among other things, it is difficult to read after 150 changes, it does not incorporate judicial interpretations from the Dutch Supreme Court, and it does not include ways to deal with modern crimes, such as cybercrime. The bill for the new code aims to provide a code that “is systematic in design, reflects the applicable law, has a logical layout and is transparent to citizens; simplifies the preparatory investigation and the regulation of investigative powers; provides a clear regulation of the powers and procedural position of the various participants in the criminal proceedings; facilitates a digital criminal process; streamlines procedures in the preliminary investigation and trial and thereby contributes as much as possible to a reduction of administrative burdens; encourages an expeditious process and completes the investigation as much as possible before the substantive hearing with the aim of shortening processing times. (Explanatory Memorandum, at 20.)

Overview of the Proposed Content of the New Code of Criminal Procedure

The new Code of Criminal Procedure will be divided into eight different books. Books 7 and 8 were modernized a few years ago and will therefore be adjusted only to align them with the structure and terminology of Books 1–6 of the new code once these are adopted. Book 1 will deal with criminal procedure in general; Book 2 with criminal investigations; Book 3 with prosecution decisions; Book 4 with court trials; Book 5 with remedies; and Book 6 with special arrangements. Book 7 deals with enforcement, and Book 8 with international and European criminal law cooperation.

Notable changes in the new Code of Criminal Procedure concern the rights of victims, which are strengthened. In particular, directly interested parties, such as victims and surviving relatives, would be able to complain about the decision not to investigate, prosecute, or continue the prosecution. (Bill, arts. 1.5.4, 3.5.1.) Furthermore, victims would have to be provided with copies of case documents, and be given the opportunity to add documents to the case file before the trial begins and to complain to the magistrate judge if the public prosecutor does not comply with the requests. (Arts. 1.5.15, 1.5.5, 1.8.8, 1.8.4.)

To facilitate the digitalization of the criminal proceedings, the new code would contain an obligation for the public prosecutor and lawyers to submit case documents electronically, unless the judge determines otherwise. (Art. 1.9.2; art. 5.2.2, para. 5.) In addition, citizens would be able to submit messages electronically. If they are represented by a lawyer, electronic communication would be mandatory. If they provide an email address, notifications from the prosecutor and judge would be sent there. (Art. 1.9.4, paras. 1, 2; art. 1.9.5, para. 4.)

In addition, the new code would generally put an emphasis on finding a balance between the interests of the state to collect data and the right to privacy codified in articles 10 to 13 of the Dutch Constitution and article 8 of the European Convention on Human Rights. (Explanatory Memorandum, at 56, 57; Bill, arts. 2.1.2, 2.1.3.) New rules would be added for examining data from a seized digital data carrier, such as a smartphone or a computer. In particular, investigators would be able to examine data sent to the device within three days after the seizure. Prosecutors would be able to request an extension of up to three months from a magistrate judge if the investigation urgently requires it. The prosecutor would be able to order the suspect to cooperate and provide access to encrypted or password-protected devices. In the case of biometric security or encryption, measures to undo the security or encryption could be taken against the will of the suspect. (Arts. 2.7.38, 2.7.39, 2.7.43.) Furthermore, a prosecutor would be able to authorize the systematic copying of personal data from publicly accessible sources when the commission of a crime is suspected. (Arts. 2.8.8, 2.9.1.)

Pilot Projects

On October 1, 2022, the Criminal Procedure Innovation Act (Innovatiewet Strafvordering) entered into force. It amended the current Code of Criminal Procedure and added a new Title X (Innovation of Various Subjects) to its Book 4. The Criminal Procedure Innovation Act allows establishing pilot projects to gain practical experience with five subjects to be included in the new code. The topics are audiovisual material, data received after seizure, mediation, asking the Dutch Supreme Court preliminary questions in an ongoing procedure, and expanding the powers of the assistant public prosecutor. The pilots will determine whether the proposed legal regulations are sufficient or whether adjustments or supporting measures are necessary. All pilots have started and will continue for three years. The pilots are evaluated by the Scientific Research and Documentation Center of the Ministry of Justice and Security (Wetenschappelijk Onderzoeks- en Documentatiecentrum, WODC). The results of the pilot projects will inform the adoption of the new Code of Criminal Procedure.

Jenny Gesley, Foreign Law Specialist
April 25, 2024

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