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Published online by Cambridge University Press: 04 July 2014
In general, the Dutch codification of Criminal law is constructed on the basic divisions that can be found in most Civil Law jurisdictions. The substantive law and the procedure are regulated in two separate Codes: the Penal Code (Wetboek van Strafrecht) and the Code of Criminal Procedure (Wetboek van Strafvordering). The present Penal Code came into force in 1886; the present Code of Criminal Procedure in 1926. Both Codes have been reformed often, but their basic features have been preserved.
The Code of Criminal Procedure regulates the due course of the procedure as a chronological sequence of investigations and decisions. A trial before a District Court (arrondissementsrechtbank), which sits as a chamber of three judges (meervoudige kamer), serves as a model for the manner in which trials must proceed. Most of its provisions are also applicable to trials before other Courts, such as those before the Court of Limited Jurisdiction (kantongerecht); the District Court with a single judge sitting alone in simple cases; the District Court, which handles appeals from the Court of Limited Jurisdiction; and the Court of Appeal, which handles appeals from the District Court.
Associate Professor of Law at Leyden University and Justice in the Court of Appeal of Amsterdam.
** With acknowledgement to Prof. Roger C. Park, Minnesota for his help in editing this text, and to Mrs Reino Rustige for deciphering my cryptographs and Roger's text.
1 This is regulated in the Code, probably since it is an exception to the equal opportunities-principle in the system of remedies.
2 These decisions are also called: undue delay-decisions.
3 There are exceptions: a judge who only participated in a decision about a prolonged custody can participate later on in a full trial.
4 Possibly a fourth aspect could be added: 4. The directedness of the investigation to get all the evidence needed as soon as possible, through a confession (even during the pre-trial stage). We have to be careful here; in other systems confessions are required for different reasons (for instance ‘plea-bargaining’).
5 Very recently the incarceration rate has increased to about 50 per 100,000 inhabitants. See, for instance, Christie, N., Crime Control as Industry (London, 1993) 46 Google Scholar.
6 This is different for people who only use drugs. Soft drug use, such as marijuana or hashish, and small scale drug possession are normally not prosecuted. Trafficking, however, is still prosecuted.
7 “Common Law Evidence Scholarship seen from a Continental Perspective”, (1993) Am. J. Comp. L. 299–338 Google Scholar.
8 The Code itself contains three exceptions: Articles 295, 216/341, 2/422. These are not very important here. Therefore I will not explain their complexity and rationale.
9 As we have seen, the lenient way in which the rules of evidence are applied to their proper subject, the difference noted here is probably more or less a theoretical one.
10 In most trials the judges have personal contact with the defendant. However, a defendant in the Netherlands has the right to choose a trial in absentia. There are a number of guarantees that secure the awareness of the defendant that the trial ‘against him’ will be held in a certain place and at a certain time.
11 In the case of Doorson v. The Netherlands (26 March 1996) the Strasbourg court found that the evidence given by a witness unknown to the defence and not directly examined by the defence, can but be used if it is not the only evidence nor contributes to a decisive extent to the conviction.
12 To be exact, since 26th June 1962, NJ (1962) 87.
13 Hoge Raad der Nederlanden, 8 July 1992. A summary was published in Expert Evidence, Vol. 1, p. 142 (Wolters Case)Google Scholar.
14 The articles concerning obscenity and pornography were also subject of modernisation during the seventies and eighties of this century. These crimes will not be discussed in this paper.
15 The author is involved, as an expert, in the preparation of Recommendations in this field, under the auspices of the Council of Europe.
16 This is not a formal complaint. See section 5.2.
17 Recently the Supreme Court, however, accepted the way in which in a certain case the Court of Appeal (during the trial) had organised the examination of rape victims as witnesses using a closed TV-circuit in the Court building. HR 22 June 1993, NJB (1993) 177 (excerpt).
18 See Barning, L. and Nijboer, J.F., Het anatomisch correcte poppen-arrest, (Nederlands Juristenblad, 1989) 1173–1177 Google Scholar.
19 It is not impossible that prolonged activity after one of the partners has indicated a desire to stop can be included under other offences, such as assault and battery.
20 The example is traditional. According to the Dutch Criminal Code, rape of males is possible as well.
21 Hoge Raad, 1 October 1991, Nederlandse Jurisprudentie (1992) 197 Google Scholar.
22 The defendant sent a complaint to the Court of Human Rights in Strasbourg about not having the opportunity to be confronted with the witnesses during the trials at the District Court and the Court of Appeal. The Strasbourg Court has not given a decision yet.
23 See section 4.3. above.
24 See section 6.4. below.
25 Hoge Raad der Nederlanden, 2 juli 1990, NJ (1990) 57 Google Scholar.