English summary

The second chapter of this book explains how the law-making role of judges expanded in the course of the twentieth century. The courts – In particular the Dutch Supreme Court – are now instrumental in demarcating the boundaries of lawful conduct by the police and the Public Prosecution Service in preliminary judicial investigations. The courts interpret the legal standards governing their conduct. They also monitor compliance with those standards and have the power to impose legal consequences when breaches occur. In this way, the courts secure the defendant’s right to a fair trial and help maintain a balance between the frequently conflicting interests of effective investigation and prosecution and the protection of individual rights and freedoms, not only of suspects of crime but also of every other member of society.

The role the criminal courts play today in reviewing and responding to breaches of procedural rules evolved when the courts – partly under the influence of the ECHR1 – intensified their scrutiny of police and prosecutorial conduct in the second half of the twentieth century. First they introduced the possibility of excluding evidence and barring prosecution as responses to breaches of procedural rules committed by the police or Public Prosecution Service during preliminary judicial investigations. Later the option of sentencing reduction was introduced as an alternative to barring prosecution in cases where the Public Prosecution Service had exceeded the reasonable time limit. When trial judges review and attach legal consequences to procedural errors there can be significant disadvantages in addition to the advantages. A comprehensive investigation is costly, time-consuming and may detract attention from other aspects of the criminal case. Criminal proceedings can be completely derailed when evidence is excluded or the prosecution’s case is declared inadmissible, and when a sentence for a proven offence is reduced so is its appropriateness. Yet, initially, the criminal courts applied these radical measures with a certain degree of inflexibility and without giving a detailed explanation of their reasoning. The arguments implied (but not expressed) in their judgments were presented in the literature and tended to be dogmatic and quite abstract.

In the 1970s the work of the criminal courts came under increased scrutiny and, as a result, under growing criticism. Irregularities differed strongly in nature and gravity from case to case. The same was true of the interests involved in the cases, which could be at odds with the interests served by the courts’ application of radical responses such as the exclusion of evidence or dismissal of the case. When differences of this nature are not fully appreciated, it is all too easy for an imbalance to arise between seriousness of the procedural error and impact of the legal consequences attached to it. The rigorous application of radical responses to procedural errors soon began to chafe, and it became clear that the interests involved in each case should be weighed carefully in order to arrive at a commensurate outcome. The Dutch Supreme Court began to take a more conservative approach. By the end of the 1980s a breach of the right to a trial within a reasonable time would no longer lead to the Public Prosecution Service being barred from prosecuting, but would instead be settled by reducing the defendant’s sentence. In addition, the standard for barring prosecution due to unlawful investigation was raised significantly. Furthermore, the lower courts’ power to exclude evidence was curtailed in various ways, for instance through the development of the Schutznorm principle, or protective norm requirement, which shares similarities with the principle of ‘standing’.

Despite these changes, the legislature nonetheless took action in response to growing dissatisfaction in society with this aspect of criminal procedure.

On 2 November 1996 article 359a was added to the Code of Criminal Procedure (CCP). This provision requires the courts to examine each case individually to determine what legal consequences are commensurate with the breach of procedural rules that has occurred and, in each case, to take into consideration the purpose of the rule that was breached, the seriousness of the breach and the resulting disadvantage. The thinking was that compelling judges to consider the circumstances of the case and the various interests involved would prevent them from imposing disproportionately severe legal consequences. Article 359a imposed new requirements with respect to both the substance and the grounds of court decisions. This new provision ended the rigid, knee-jerk response to breaches of procedural rules on the basis of implicit arguments. Article 359a CCP requires courts to explain in every case why it is necessary to bar prosecution, exclude evidence or reduce the defendant’s sentence, i.e. why the disadvantages are proportionate and acceptable. At the same time, article 359a CCP leaves it entirely up to the judge to answer these questions. This can easily give rise to undesirable inequalities of justice when judges have disparate opinions about what is necessary, ensuing in part from divergent perceptions of the criminal court’s task and the weight of the interests he must to take into account.

As the highest court in the land, the Supreme Court of the Netherlands is responsible for setting the parameters, preferably on the basis of comprehensive information drawn from scholarship and judgments handed down by courts of fact. Leaving aside a few exceptions, the European Court of Human Rights (ECtHR) leaves it to the member states to respond to breaches of procedural rules. The Supreme Court has taken on this responsibility; for example, in its comprehensive judgment on article 359a CCP in 2004 it established the criteria criminal courts are to apply when making decisions on barring prosecution, excluding evidence and reducing sentences.2 Nevertheless, this judgment leaves a great deal of scope for unequal treatment, particularly because the Supreme Court did not explicitly specify the objectives of these legal consequences.

The intention of this study is to bring about improvements in this aspect of the administration of criminal justice. To that end, the following key questions will be examined: (i) what does the trial court’s task entail with respect to reviewing and responding to breaches of procedural rules and what requirements must they meet? (ii) how can a pragmatic instrumental approach help improve how the courts carry out this task? (iii) how has the Supreme Court shaped the way in which this task is currently carried out? (iv) what improvements are possible?

In chapter 2 it emerges that the criminal courts bear full responsibility for imposing legal consequences when breaches of procedural rules occur. They are also largely responsible for shaping the way trial judges review the conduct of the police and the Public Prosecution Service in the preliminary judicial investigation phase. To ensure that the task of reviewing and responding to breaches of procedural rules is fulfilled consistently and proportionately, the criminal courts must take a pragmatic approach aimed at achieving the objectives of that task, namely: (i) to secure the defendant’s right to a fair trial, as referred to in article 6 of the ECHR, by preventing breaches of procedural rules from harming that right; (ii) to provide an incentive for the police and the Public Prosecution Service to comply with the rules by responding to breaches in a way that discourages unlawful conduct (police deterrence); and (iii) to provide the defendant with an effective remedy for a breach of any of his rights other than the right to a fair trial. Identifying these objectives is only the first step. The criminal court’s ability to fulfil these objectives is one thing; knowing which of them must be served in a particular case and which of the possible responses should be applied to that end is another. Answering these questions is a complex matter, susceptible to differences of opinion. Chapter 3 maps out the dynamic context that influences how criminal courts fulfil their task. Chapter 4 sets out the effects of using the set of instruments available to the courts. Chapter 5 explains the importance of sound argumentation and an accurate perception of this field of the law by the general public. On that basis, chapter 6 sets out the key requirements that criminal courts must endeavour to meet when adjudicating breaches of procedural rules, which are as follows:

In addition, it would be beneficial if the courts were to stimulate research and fruitful debate, specifically on contentious issues and matters where clarity is lacking. Because of the substantive importance of this subject, the complexity and volatility of the context and the immense responsibility judges have for shaping the way criminal courts respond to breaches of procedural rules, this matter deserves close attention, and trial court judges should be able to rely on the results of thorough scholarly research and debate.

Prior to this study, the author conducted comparative law research and published the results in Dutch in 2010 in a book entitled Vormfouten in de Verenigde Staten, Juridische consequenties van vormfouten in strafzaken (Procedural errors in the United States: Legal consequences of breaches of procedural rules in criminal proceedings).3 The findings led to the conclusion that the requisite guideline case law that fulfils the key requirements set out above can be established only by applying an pragmatic instrumental approach. In this approach it is necessary:

This thought-decision-argumentation model could be used as a framework to structure the case law and scholarly research on judicial responses to breaches of procedural rules in a way that facilitates productive debate, with the aim of optimising the courts’ fulfilment of all components of this task. Within this model, all of the arguments for and against review by trial courts and for and against the application of a particular legal consequence can be presented explicitly and included in the assessment. It offers a concrete, practical framework that encourages the courts to focus on what must be done to serve the objectives of responding to breaches of procedural rules consistently and proportionately and on what works best in practice. It is a pragmatic approach, but not in the sense that applying it would push the principles and interests at play into the background. On the contrary, with this model a comparative assessment can be made of the various compelling interests to be served by the court’s response to procedural irregularities and due consideration can be given to the diversity of opinion concerning them. In the one case, for instance, compelling police compliance with procedural rules or protecting the interests of the defendant will outweigh all other interests, while in another case, establishing the truth will take precedence. In both cases, however, the reasons why will be clear. This will not only shed light on the consistency and proportionality of decision-making by the courts, but it will also make the choices that are made in the case-law contestable. Dogmatic arguments may still play a role in the objective-instrument approach, but instead of cutting off all debate they will most likely inspire it. This approach invites critical examination of the extent to which the objectives to be served by the courts’ response to procedural errors can actually be achieved in practice. Consistent application of the objective-instrument approach can lead to significant improvements in the quality of the examination of procedural errors made during preliminary judicial investigations and criminal court’s response, the quality of the scholarly debate and of court decisions, precisely in the areas where the case law and legal scholarship in the Netherlands fall short.

The pragmatic instrumental approach has been applied in recent Supreme Court judgments,4 notably in the two handed down on 19 February 2013 on the exclusion of evidence.5 This is a new development. Until recently, Supreme Court judgments rarely explained the objective of the selected response to a breach of procedural rules, and almost never specified the pros and cons of applying a particular response. Moreover, hardly any empirical research has been done to determine whether the objective was actually achieved and, if so, if it was realised in an optimal manner.

This study is intended to provide an impetus for change by analysing the current case-law of the Supreme Court to identify opportunities for improvement through further application of the pragmatic instrumental approach. It is not the aim of this study, nor would it be possible, to furnish ready-made solutions for specific cases. As the framework for reviewing and responding to breaches of procedural rules takes shape, the process of weighing interests will remain complex and continue to yield varying outcomes as circumstances evolve in time. As the author’s comparative study of American jurisprudence shows, there are no clear-cut, permanent answers. The emphasis therefore lies on the continuing development of an assessment framework that provides ample scope for differentiation and is, in principle, appropriate for reviewing any type of procedural error.

Chapters 7 and 8 address the third research question. These chapters present an analysis of the objectives pursued and the instruments employed, according to the Supreme Court’s current case law, and the advantages and disadvantages taken into consideration in the assessment. The analysis is based on the questions that arise with respect to the aforementioned key requirements placed on the courts. Has the Supreme Court explained in sufficient detail the objectives that are to be served by the trial court’s review of and response to breaches of procedural rules? Are the substantive objectives achieved effectively and efficiently, without undue harm to the interests involved? Does the judicial assessment framework provide sufficient latitude and guidance to enable courts to arrive at a commensurate response to procedural errors in actual cases? Are the grounds for decisions adequately articulated in court judgments? The analysis is divided into two parts: chapter 7 examines the extent of the criminal courts’ review of preliminary judicial investigations and which aspects fall under their purview, while chapter 8 defines the scope of application of the various responses that the criminal courts have at their disposal and the factors considered in the assessment.

In its interpretation of article 359a of the Code of Criminal Procedure, the Supreme Court has placed various limitations on the trial court’s review of preliminary judicial investigations. This is based on the principle that if a certain type of procedural error is placed outside the framework of article 359a the trial judge does not check whether such errors have occurred. These limitations are important because they ensure that trial judges’ workload and, by extension, the cost and duration of criminal proceedings remain manageable. The point is therefore to ensure that the court takes on no more and no less responsibility than is necessary to fulfil the objectives to be served by reviewing and responding to breaches of procedural rules. However, problems can arise when the – justifiable – creativity of lawyers and their zeal in defending their clients leads to a torrent of defence pleas because the boundaries are not quite clear enough.

Chapter 7 reveals that only the most cursory, formal reasons are given for many of the Supreme Court’s limitations, which have been formulated on the basis of, for instance, an interpretation of the terms from article 359a (‘committed during the preliminary investigation’), the closed system of legal remedies and the ‘Schutznorm principle’ (standing requirement). Decisions concerning the scope of review trial judges are meant to exercise with respect to preliminary judicial investigations are not substantiated by determining whether fulfilment of any one of the objectives to be served by reviewing and responding to breaches of procedural rules necessitates bringing the type of breach concerned under the purview of the trial judge. The most unfortunate consequence of this is that there is no research and no debate on the issue of whether review is actually necessary from the perspective of the stated objectives. No empirical research is done to determine the effects of particular choices made by the courts. Consequently, it cannot be ruled out that certain breaches of procedural rules occur systematically and go unchecked by the courts, a situation that should not be possible in a country governed by the rule of law. This leaves scope for abuse and distorts the division of tasks between trial judges and others responsible for ensuring that the police and Public Prosecution Service comply with the rules. The brevity and formality of the reasons given for the limitations also lead to uncertainty. The lower courts have little to go on in borderline cases, when the reasoning is not based on the stated objectives. The case law of the Supreme Court of this nature offers too little guidance. This can jeopardise legal uniformity and efficiency in the conduct of proceedings. In recent years, the Supreme Court has accepted a relatively large number of exceptions in which criminal courts had to review breaches of procedural rules that fell outside the scope of article 359a and were at liberty to impose legal consequences. In most cases, the Supreme Court created these exceptions in order to safeguard the defendant’s right to a fair trial.

Chapter 8 examines the scope of application for barring prosecution, evidence exclusion and sentence reduction.

The main objective of barring prosecution is to safeguard the right to a fair trial. In principle, this legal consequence is only considered if a fair trial is no longer possible. However, there are rare exceptions to this rule. These are situations in which fundamental rules of law have been grievously violated. In such cases, the objective to be served by barring prosecution is to compel future compliance with the rules. In this respect, the Supreme Court’s case law is similar to that of the US Supreme Court on ‘dismissal’, which is comparable to barring prosecution: unless the defendant’s right to a fair trial has been irreparably harmed, this measure may be applied only in a ‘truly outrageous case’ or an ‘absolutely shocking case’.

The standard for barring prosecution should, however, be more clearly tailored to the objectives to be served by its application, as the Supreme Court did for evidence exclusion in its judgments of 19 February 2013. It is also advisable to consider creating the possibility of barring prosecution, as in the judgments on evidence exclusion, for structural breaches of procedural rules that yield no evidence and are ignored by the responsible authorities. Like the third rule of evidence exclusion mentioned below, this option should be used only in highly exceptional cases and for the sole purpose of prompting thoroughly prepared test cases.

In the Supreme Court’s judgments of 19 February 2013 on evidence exclusion, the Court embraced the pragmatic instrumental approach and formulated three different exclusionary rules, each with its own objective. This is a positive but incomplete development. Its impact has yet to be thoroughly tested in practice. The analysis in this book, which reviews previous case law within the framework of the new exclusionary rules, suggests that the scope of application of evidence exclusion will in all likelihood remain limited.

The first exclusionary rule provides a basis for applying this legal consequence in cases where it is necessary on the grounds of art. 6 ECHR. This rule is based largely on ECtHR case law. The purpose of the second exclusionary rule is to encourage future compliant behaviour by the police and the Public Prosecution Service with respect to breaches of procedural rules that result in serious violations of the suspect’s or defendant’s fundamental rights. Whether or not evidence should be excluded in such cases depends on the resulting advantages and disadvantages. Given the striking similarities between this rule and the US Supreme Court’s exclusionary rule for Fourth Amendment violations, there may also be scope for development of the good-faith exception. It is also likely that this rule is unsuitable for procedural breaches committed under the responsibility of others than the police or the Public Prosecution Service. If an examining magistrate makes a procedural error, evidence exclusion is not an obvious consequence. It is reasonable to assume that a measure that radical is not needed to encourage an officer of the court to comply with the law in future. The third exclusionary rule established in the judgments of 19 February 2013 - which is aimed at stopping systematic breaches of procedural rules - is new and potentially very significant, particularly if the scope of the first and second rules remains limited, as expected. The third exclusionary rule invites empirical research. It also provides a basis for well prepared test cases, aimed at compelling the police and the Public Prosecution Service to take measures to prevent the procedural breaches concerned from occurring in future. This could be done outside the bounds of a court hearing in an actual case, for instance in a collaborative project involving the Dutch Association of Defence Counsel (Nederlandse Vereniging van Strafrechtadvocaten) and the research community. With this new exclusionary rule, parties other than the trial judge are urged to take responsibility for examining what actually goes on during investigations and identifying measures that would be effective in preventing common procedural irregularities from occurring in the future.

Sentencing reduction as a response to breaches of procedural rules in preliminary judicial investigations has an unusual history. A defendant’s sentence can be reduced in cases where the reasonable time limit, as referred to in art. 6 ECHR, has been exceeded in order to safeguard this aspect of the right to a fair trial. Beyond that, the scope of application has proven to be limited. Reducing sentences is not an appropriate remedy for breaches of other rights ensuing from art. 6 ECHR, because most of them pertain to the elements that are necessary to ensure an adequate defence and an efficient conduct of proceedings. This measure appears to have little effect as an incentive for the police and the Public Prosecution Service to comply with the procedural rules, unless it is applied rigorously. However, if applied rigorously the outcome could easily be incommensurate with the breach and undermine the primary purpose of criminal proceedings: namely, to respond appropriately to the commission of a criminal offence.

The final part of this study is an examination of the question as to whether the objectives to be served by the trial court’s review and response to breaches of procedural rules are achieved effectively and efficiently, without undue harm to the interests involved. In answering this question, a distinction has been drawn between the various objectives.

Current judicial practice with respect to breaches of procedural rules appears to provide sufficient guarantees assuring the defendant’s right to a fair trial as required by art. 6 ECHR. This is objectively evidenced by the fact that there are few cases in which the Supreme Court has had to reverse a lower court judgment in order to safeguard this right and the ECtHR rarely finds against the Netherlands on these grounds.

It is less certain whether current judicial practice is sufficiently encouraging compliant behaviour in the preliminary judicial investigation phase or whether other unlawful breaches of fundamental rights are being adequately compensated, let alone whether this is being done effectively and efficiently without causing undue harm to the conflicting interests involved. The trial courts do not bear final responsibility for achieving these objectives, as they do for assuring a fair trial. In fact, they see only a small – and (due to the shift towards alternative methods of disposal of cases) shrinking – part of investigative police practice. In the cases that are to be judged by the trial courts their review has to be limited. Otherwise it is too time-consuming and costly and would detract too much from the primary object of criminal proceedings. In addition, the set of instruments available to trial courts is far from optimal for responding to every type of procedural irregularity in the most effective manner possible, without causing undue harm to the interests concerned. Clearly, primary responsibility for encouraging the police and the Public Prosecution Service to comply with the procedural rules does not rest on trial judges. It is a responsibility that should be shouldered by others, first and foremost by the police and the Public Prosecution Service themselves. Given the disadvantages inherent in the instruments at their disposal, the criminal courts should act in this respect only when necessary. Necessity largely depends on the degree to which the objectives concerned can be adequately served in other ways.

Because there is interaction and overlap between the work of the trial courts and that of others who bear responsibility for promoting compliance with procedural rules in the investigation process and for providing an effective remedy for breaches of procedural rules, it is important to have clarity not just about what the trial courts do but also about what the others do (i.e. the judiciary: examining magistrates, civil-court judges; the executive: the police, the Public Prosecution Service, the Public Order and Safety Inspectorate; and other agencies: the police complaints committee, the Ombudsman). Only once the picture is more or less complete will it be possible to determine whether the stated objectives can be served sufficiently and efficiently. And only then will it be possible to determine whether the trial courts are doing too little in the light of others failing to shoulder their responsibility. For now, the picture remains incomplete. This is troubling, because clearly, given the Supreme Court’s current case law, the trial courts have very limited scope for reviewing breaches of procedural rules that have no effect on the right to a fair trial.

In order to lay the present concerns to rest or flesh them out and resolve them, the following questions need to be answered:

Without research, it is difficult to say whether too little is being done to encourage the police and the Public Prosecution Service to comply with procedural rules, where the sticking points are, what the causes are or what the best solutions might be. Without research, there is a risk that the discussion and the chosen solutions will be based on incidents.

A database of procedural errors could provide useful insights into the current situation. To generate the database, Dutch criminal court judges (encouraged and facilitated by the Council for the Judiciary) could register decisions they have taken in cases where a breach of a procedural rule was observed by posting it on www.rechtspraak.nl with a reference, making it easy to retrieve. This would entail very little extra work. If cases are registered consistently, the database will eventually present a useful picture of the part of the investigative process that the criminal courts encounter. The data could be used to draw up an annual report for the Minister of Security and Justice and, if desired, other responsible ministers. In this way, those directly responsible for ensuring proper compliance with the rules in the investigation process will be confronted with the actual state of affairs and they can be expected to respond appropriately. An annual report of this kind would also reveal broader trends. For example, are breaches (or certain types of breaches) mainly incidental in nature or do they occur regularly in practice? And what are the structural problems? Policy can then be adapted accordingly.

In addition to a database, answering questions (a), (b) and (c) will require greater exertion on the part of the research community, as well as an organised effort from the legal profession. As part of its supervisory task under section 122 of the Judiciary (Organisation) Act, the Procurator General's Office at the Supreme Court could address any signs of recurrent procedural errors in investigations or prosecutions. Information from the database combined with, for example, a report drafted by the Dutch Bar Association or the Dutch Association of Defence Counsel on the basis of the experiences of their members could be used to identify which serious procedural errors occur regularly. The third rule of evidence exclusion invites research of this nature. And research could show where effective remedies for particular breaches of procedural rules are currently not available but should be offered.

In addition, it would be beneficial to research how breaches of procedural rules can best be prevented. When criminal courts review preliminary judicial investigations, what methods are the most effective, which legal consequences are useful incentives for compliant behaviour and in which cases? US legal literature can probably provide valuable information and inspiration for the design and execution of this further research.