Criminal Division
Working with current legislation pending the introduction of a new Code
The Code of Criminal Procedure regulates the investigation, prosecution and trial of criminal offences and the enforcement of sentences. The current Code dates back to 1926, since when parts of the text have repeatedly been amended. Since 2014 the Ministry of Justice and Security has been working on a far-reaching modernisation of the Code. Draft bills have been published but not yet introduced in the House of Representatives. For some time now, the courts have been working with current legislation while taking account of the proposed changes. The two judgments below show that this situation influences judicial lawmaking.
In the first case the defendant argued that on account of police violence following his arrest, the Public Prosecution Service’s case against him was inadmissible. In another case the defendant was arrested in Venezuela and transferred to the Netherlands, where he was arrested on suspicion of joint perpetration of preparatory acts leading to the import of cocaine. This defendant believed that that the Public Prosecution Service’s case was inadmissible on account of the course of events surrounding his transfer to the Netherlands and a lack of information from the Public Prosecution Service. Both defendants invoked article 359a of the Code of Criminal Procedure. This provision states as follows: ‘If it emerges that procedural rules were breached during the preliminary investigation, that the breach can no longer be remedied and that the law does not stipulate the legal consequences of such a breach, the court may […] declare the Public Prosecution Service’s application inadmissible’.
In earlier rulings the Supreme Court had used an assessment framework to explain when a breach of procedural rules within the meaning of article 359a has occurred, setting out the conditions to be met before this article can successfully be invoked. The draft proposals referred to above contain a new provision which departs to a degree from the current article 359a. If the bill becomes law, after its entry into force the question might arise in practice of the extent to which the assessment framework continues to be applicable.
In these two cases the Supreme Court ruled that the current work on amending article 359a gave grounds for caution and that it would not therefore make any substantial changes to the original assessment framework. However, in light of the new provision, the precise formulation of certain conditions already set out in previous judgments would to some extent be qualified or modified.
HR 1 december 2020, ECLI:NL:HR:2020:1889 and HR 1 december 2020, ECLI:NL:HR:2020:1890 (Supreme Court, 1 December 2020)