Summary

Chapter 1 contains an introduction to the book and describes the underlying research. Although there is consensus on the raison d’etre for the legal remedies of appeal (hoger beroep) and cassation (cassatie) in Dutch criminal law, these remedies can of course be designed in a number of ways. An important discussion about the design of legal remedies concerns so-called leave to appeal systems (verlofstelsels). Especially since 1989, when the Cabinet proposed revising the judicial organization in general, (criminal) literature discusses the desirability of these leave to appeal systems in both appeal and cassation. In my opinion, this discussion leaves two questions unanswered. First, a number of judgments in the Kingdom of the Netherlands for the application of the existing leave to appeal system on appeal (Article 410a Code of Criminal Procedure; WvSv) have raised the general question as to the extent to which leave to appeal systems in criminal matters are permissible under human rights law. The fact that Dutch literature contains a number of definitions of the term ‘leave to appeal’ complicates this first question. The second question, therefore, concerns the meaning of the concept of ‘leave to appeal (system)’. Hence, the main question in this book is: To what extent are leave to appeal systems on appeal and cassation in Dutch criminal proceedings permitted with regard to human rights law?

In order to answer this question, research has been conducted in legislation, legal literature and in particular national and international jurisprudence (about 4,000 judgments and decisions on human rights law, some hundreds of judgments on Dutch criminal law). Central to this is the right to review of a criminal conviction from Article 14 paragraph 5 ICCPR (Treaty of New York) and Article 2 of the Seventh Protocol to the ECHR (Treaty of Strasbourg), as well as the right to a fair trial contained in Article 6 ECHR. As for Dutch criminal law, the research deals primarily with the leave to appeal system contained in Article 410a WvSv, the leave to appeal system of Article 80a Act on Judicial Organisation (RO) and the regulations on complaints/objections with regard to the admissibility of appeal and cassation. Although existing literature deals with said (inter)national regulations in general – often summarily – the specific question of permissibility of leave to appeal systems is hardly discussed.

Chapter 2 deals with the conceptual question of the meaning of the term ‘leave to appeal (system)’. This chapter considers what definitions of this term are used in the Dutch legal literature and an attempt is made to come up with a definition covering these various descriptions. First, the definition of a leave to appeal system in terms of the admissibility of an appeal or cassation is addressed. Thus, the object of a leave to appeal system is the decision on admissibility of an appeal. Secondly, three aspects of leave to appeal systems are distinguished, i.e. the substantive, discretionary and separate examination of the admissibility of an appeal. This concerns whether or not (i) the admissibility of an appeal is assessed on the basis of a prognosis of the merit of an appeal; (ii) the admissibility of an appeal is determined discretionally or according to highly vague criteria; and (iii) the admissibility of an appeal is examined within a separate procedural framework. Thirdly, the choice has been made to regard the term ‘leave to appeal system’ as polysemous, that is, a term that indicates more than one concept, in this instance both substantive leave to appeal systems and discretionary leave to appeal systems. In a substantive leave to appeal system, the admissibility of an appeal is decided on within a separate procedural framework on the basis of a prognosis of the merit of the appeal (a combination of substantive and separate admissibility examination). In a discretionary leave to appeal system, the admissibility of the appeal is decided within a separate procedural framework on the basis of a discretionary or highly vague criterion (a combination of discretionary and separate admissibility examination).

On the basis of these two definitions, three leave to appeal systems can be distinguished in Dutch criminal law. First, Article 410a WvSv, which contains a combination of discretionary and separated examination of the admissibility of an appeal. Secondly, Article 80a RO, which appears to contain a combination of all three aspects of examination of the admissibility of an appeal. And thirdly, the different rules regarding the submission of objections as an admissibility requirement on appeal and cassation can be considered as substantive, discretionary and separated aspects of admissibility examination.

Chapter 3 deals with the requirements of human rights treaty law regarding leave to appeal systems, in particular Article 14 paragraph 5 ICCPR and Article 2 Seventh Protocol ECHR. These provisions are applicable if a person has been convicted of a criminal offence by a tribunal. The ICCPR also requires the possibility of review against a conviction given on appeal after an acquittal in the first instance. Under the ECHR, the right to review is not applicable to this type of first conviction in the second or third instances. Several countries, including the Netherlands, have expressed reservations regarding the ICCPR with regard to the so-called forum privilegiatum. Article 2 P7 (2) ECHR explicitly allows the exclusion of the right to review in this type of case. Finally, with regard to the scope of application of the right to review, an exception is possible for offences of a minor character. Under the ICCPR, exclusion of the right to review seems acceptable for convictions resulting in relatively mild penalties. Under the ECHR, the right to review is excluded for convictions for crimes against which no custodial sentence (of more than one and a half weeks) can be imposed.

If the right to review is applicable, the conviction may be reviewed by a higher tribunal at the request of the convicted person. Review of a conviction by the same judge does not qualify as a review by a higher tribunal. According to both the ICCPR and the ECHR, a convicted person may be able to apply for a review of both the determination of guilt and the sentence applied by the tribunal. Perhaps only in exceptional cases may the legislature limit the scope of the review to, for example, the sentence.

According to the ICCPR, the right to review requires, on the one hand, no new assessment of the charges. The conviction may be reviewed on the basis of documents already available, without further investigation of facts. On the other hand, Article 14 (5) of the ICCPR requires that the higher tribunal not only reviews the contested verdict on legal grounds but also evaluates the (existing) evidence and, moreover, takes account of the procedure before the lower court. In addition, the higher tribunal may use the conviction as a starting point for review, but at the same time, it may review that conviction not only on the basis of new information. The same applies to the review on legal grounds. This review may not be limited to specific grounds, but it seems permissible restrict the review to objections raised during the procedure before the lower court. Under the ECHR, all sorts of reviews and conditions on the review are permissible. Restrictions on the right to appeal must, according to the Krombach/France ruling, comply with requirements of legality, legitimacy and also probably proportionality. However, these factors are hardly meaningful in practice. Instead of a step-by-step assessment of the different requirements, the European Court of Human Rights (ECtHR) usually allows some factual findings on the review procedure concerned before approving it in general terms. Of the more than 200 cases in which the ECtHR has addressed a complaint about Article 2 P7 ECHR, an infringement has only been found in about 15 cases. These were where no appeal was open, the threshold for offences of a minor character was too high or there were complaints about the so-called supervisory review from, for example, Armenia.

The appeal procedure is barely regulated by the right to review. However, Article 14 (5) ICCPR guarantees the availability of the verdict and the minutes of the lower court, but that right may be limited to cases where such documents are truly necessary for the effectiveness of the right to appeal.

Finally, for the admissibility of substantive and discretionary leave to appeal systems, the case law on leave to appeal systems is of particular importance. The HRC (Human Rights Committee) describes ‘leave to appeal’ in general terms as ‘a system not allowing for an automatic right to appeal’. Under the ECHR, both substantive and discretionary admissibility examination are considered as leave to appeal. The HRC also accepts leave to appeal systems as a method of review, provided that examination of an application for leave to appeal entails a full review, that is, both on the basis of the evidence and of the law, of the conviction and sentence and, as long as the procedure allows, for due consideration of the nature of the case. The fact that such intensive control has taken place must also be clearly substantiated. However, as well as cassation and other restrictions on appeal, the ECtHR accepts all forms of leave to appeal. The ECtHR thus allows discretionary leave to appeal as well, as this form of leave to appeal is plainly considered to be a review within the meaning of Article 2 Seventh Protocol to the ECHR.

Chapter 4 concerns the question of whether leave to appeal systems are acceptable under the right to a fair trial in Article 6 ECHR. This provision appears to be applicable to leave to appeal systems, in spite of contradictory jurisprudence in the past.

For the permissibility of admissibility requirements, the ECtHR has developed a framework under Article 6 ECHR. Since the Golder/United Kingdom case, the Court reads Article 6 ECHR as a right of access to court. Like the other elements of Article 6 ECHR, this right also applies on appeal and cassation. That is to say, if an ordinary legal remedy is available under national law, that remedy must also be accessible, although restrictions are permissible. Restrictions on access to appeal or cassation must, however, meet certain requirements (i.e. legitimacy, proportionality, legality). In practice, this framework is rather flexible. If the legality requirement is met, the Court often applies a fairly open and muted reasonableness test. Thus, admissibility requirements regarding the submission of objections to the verdict of the lower court, time limits, court fees and mandatory legal representation are in principle acceptable, except for illegal or completely unreasonable applications. In particular, the jurisprudence of the ECtHR also shows approval of substantive and discretionary admissibility assessment. Only in some cases does the Court consider it important that the admissibility criteria are clarified in case law, that the rejection of access is properly substantiated or that the refusal of access to cassation has been preceded by two judgments.

With regard to the procedure for examination of the admissibility of appeal or cassation the ECtHR sets out some requirements under Article 6 ECHR as well. Because of the requirement of impartiality, it may be problematic if a judge from an appeal court first makes a substantive leave to appeal assessment and later participates in the actual hearing of the appeal. The same applies to substantive admissibility examination considered by the judge a quo, when he decides on whether his judgment is to be open to appeal.

Whether the verdict and minutes of a previous instance must be made available to the defendant to prepare for the appeal is subject to a set of five factors, including the possibility to present supplementary grounds of appeal during the hearing. The meaning of this right for leave to appeal systems depends on how the examination of the request for leave is implemented. Further, a fundamental difference between the right to review and the right to a fair trial is that Article 6 ECHR barely regulates the character or scope of the examination on appeal. However, Article 6 ECHR places a tribunal under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant. What this requirement means exactly is not clear, not just because the case law on the requirement of proper examination is very dependant upon the circumstances of the case concerned, but also because the ECtHR sometimes assumes the role of a fourth instance court in assessing this requirement.

Furthermore, the ECtHR does not require a public hearing for leave to appeal proceedings, regardless of the exact nature of the leave to appeal system. Also, the ECtHR makes no strong demands on the reasons being given for a decision on leave to appeal. Again and again, complaints about the reasoning for rejecting a leave to appeal are rejected by the Strasbourg Court. Exceptionally, however, in the cases of Hansen/Norway and Bar-Bau/Poland, the right to a fair trial has been infringed in this regard. However, there are doubts about the general meaning in both cases.

Put in general terms, the ECtHR applies relatively restrained tests regarding leave to appeal systems. That restraint has a downside concerning the possibility to remedy a defect at first instance. In general, a defect can be remedied on appeal or cassation, either by observing the violated right, by exercising full jurisdiction on appeal, or by executing or ordering a retrial or fresh determination of the case. However, in the few judgments on leave to appeal on this subject, the ECtHR has always found a violation. Without referring to the exact characteristics of the relevant leave to appeal system – substantive or discretionary – the Court finds that a leave to appeal system as such cannot remedy an infringement of Article 6 ECHR made by a lower court.

To sum up, Article 6 ECHR allows for substantive or discretionary leave to appeal systems in principle. Infringement of Article 6 ECHR by applying a leave to appeal system is indeed possible under certain (exceptional) circumstances. An illustration of this conclusion is the ECtHR ruling in the Lalmahomed/Netherlands case from 2011. In this ruling, the ECtHR does not rule generally on the leave to appeal system of Article 410a WvSv. Neither does the Court rule against its specific aspects, such as the admissibility requirement, the impossibility of an oral hearing or the summary reasoning. In my view, the ECtHR is particularly responsible for the unreasonable outcome of the case because of serious doubts concerning the correctness or validity of the conviction. The general significance of the judgment of the ECtHR in this Dutch case therefore appears to be limited.

Chapter 5 deals with the rules regarding the submission of objections against the judgment of the lower court as an admissibility requirement on appeal or cassation. In the past, the Dutch legislature has demanded the submission of objections against the contested verdict of the party bringing the appeal or the cassation appeal. In summary, today, objections to the contested verdict must be given either prior to or during the appeal hearing or examination of the cassation appeal (Articles 410, 416, and 437 WvSv). The failure to state objections against the contested verdict must or may result in the inadmissibility of the appeal. It is expected that this requirement will play an even more important role in the future for both appeal and cassation.

Potentially, the obligation to state objections can result in substantive admissibility examination, namely if the appellant is not merely obligated to state objections but the appeal court also sets standards for the objections as such (sound, motivated, prima facie well-founded). This is for example the case in the procedure at the ECtHR, where manifestly ill-founded complaints can be rendered inadmissible instead of them being rejected. However, this is now the case neither on appeal proceedings nor on cassation. Dutch practice regarding the submission of objections against the judgment of the lower court is therefore acceptable under human rights law. Article 6 ECHR allows for national law to require that objections be sufficiently precise, include an explanation of the relevant facts, refer to allegedly infringed rules and include a request for a desirable outcome.

Discretionary leave to appeal is made possible by Article 416 WvSv, as the appeal court ‘can’ declare the appeal inadmissible if no objections have been given in writing or at the hearing. The scope of this discretionary competence is therefore limited to cases in which no complaints have been submitted, but within that limited scope the freedom for the appeal court is virtually unlimited. The latitude of Article 416 WvSv is in practice sometimes used to apply substantive admissibility assessment, but this does not happen uniformly. If Article 416 WvSv is considered in terms of leave to appeal, the acceptability of this provision is uncertain. After all, in appeal proceedings Article 14 (5) ICCPR requires substantive leave assessment if there is a leave to appeal provision. In my view, however, Article 416 WvSv is better viewed as a favourable exception available to the appellant to an otherwise acceptable requirement to state objections on appeal, within which perspective a breach of the Convention is not likely.

In addition, in appeal proceedings, the examination at a hearing may be very short and non-substantive if no complaints have been submitted. This does not violate the right to a fair trial. This applies equally to the possibility of rejecting an appeal on cassation as inadmissible by a single judge if a written statement of objections has not been submitted in time. Although discussion of the scope of the competence of the single judge in cassation is possible, violation of human rights law is very unlikely.

Chapter 6 focuses on the leave to appeal system of Article 410a WvSv. This leave to appeal system provides written leave assessment by a single appeal judge for a category of criminal cases within a limited scope of application. Within this leave to appeal system a single judge must decide whether admissibility of an appeal is required in the interests of proper administration of justice (in het belang van de goede rechtsbedeling is vereist). The judge may refuse or grant access to an appeal based on this criterion after a summary and written inquiry. Refusal of leave results in a final judgment of the criminal case.

The vague criterion of the proper administration of justice qualifies, at first sight, as discretionary leave to appeal. However, according to legislative history, the single judge must essentially determine whether the judgment in the first instance would probably be upheld on appeal or be overruled. If he decides the judgment of the lower court would be overruled, leave must be granted. If the appeal would not result in a different judgment, then leave must normally be refused. In addition however, the chairman has the opportunity to grant leave on the basis of other characteristics of the case, for example, if the case has received special attention from the media.

Under the right to review, the leave to appeal system of Article 410a WvSv is problematic because the assessment of leave to appeal has to be strictly substantive. According to Article 14 (5) ICCPR, leave to appeal systems are acceptable as a method of review, provided that examination of an application for leave to appeal entails a full review, that is, both on the basis of the evidence and of the law, of the conviction and sentence and, as long as the procedure allows, for due consideration of the nature of the case. Based upon the open admissibility criterion of Article 410a WvSv and the summary reasoning usually given by the leave to appeal judge, however, it is in principle not clear from leave to appeal decisions that the leave to appeal assessment has been of a substantive nature. Additional reasoning may remove doubts about this, but the leave to appeal criterion itself qualifies as discretionary, not as substantive. The judgments of the HRC in the cases Mennen/ Netherlands and Timmer/Netherlands are probably not exceptional cases, but touch on the core of the leave to appeal system of Article 410a WvSv.

Under the right to a fair trial, the leave to appeal system of Article 410a WvSv is also problematic. Although the ECtHR assesses leave to appeal systems abstractly and generally allows for them, leave assessment must be sufficiently thorough and provided with adequate reasoning. These are requirements are strongly dependant upon the circumstances of the case concerned, but the Lalmahomed/Netherlands case shows that the leave to appeal system on appeal is vulnerable in this regard.

Essentially, the leave to appeal system on appeal has been implemented the wrong way around: limited procedural safeguards are linked to a vague leave criterion, whilst strictly substantive leave examination combined with a careful and fair procedure is required.

Chapter 7 concerns Article 80a RO, introduced in 2012 in cassation. With the introduction of Article 80a RO, the legislature explicitly did not qualify the provision as a leave to appeal system. Instead, phrases such as ‘selection mechanism’ or ‘selection at the gate’ were used. According to the terminology of this book, however, Article 80a RO can be qualified as a leave to appeal system. The Article provides for the combination of a substantive and/or discretionary admissibility requirement combined with separate examination of the cassation appeal.

Article 80a RO gives the Supreme Court the power to declare a cassation appeal inadmissible if it does not justify examination in cassation because the party making the cassation appeal has manifestly insufficient interest (klaarblijkelijk onvoldoende belang) in the cassation appeal or because the complaints manifestly cannot lead to cassation (annulment) of the contested verdict (klaarblijkelijk niet tot cassatie leiden). On nature of these leave criteria, the legislative history is far from clear. Ultimately, this means that hardly any application of Article 80a RO will violate the legitimate goals sought by the legislature. This leeway left to the Supreme Court by law and legislative history also recognized by the Supreme Court in the 2012 and 2016 directional judgments. Cassation appeals are subject to Article 80a RO in practice if the complaints disregard the special characteristics of the remedy of cassation or if the complaints are ill-founded. There is insufficient interest in cassation if the cassation appeal is directed against a decision not detrimental to the person who brought the appeal, or when annulment of the contested verdict would not result in a substantially different judgment or sentence following referral to an appeal court. Relevant subcriteria appear to be the subsidiarity of the cassation appeal, whether there is a real disadvantage to the appellant, whether a substantial or significant other outcome would be achieved by new treatment (proportionality of the cassation) and whether the objections stated on cassation contain a sufficient explanation of the interests involved.

Examination under Article 80a RO differs in a number of ways from the regular cassation procedure. Normally, the Procurator General will not advise the Supreme Court in Article 80a cases with a so-called conclusion, which obviously precludes reaction to this conclusion by the parties. Furthermore, there is no incidental cassation appeal or examination of the written testimony of the injured party when leave is rejected on the basis of Article 80a RO. Additionally, mere consultation of the applicant’s objections to the verdict, and not the contested verdict itself, is sometimes sufficient. Finally, Article 80a RO allows for summarized reasoning.

The right to review under Article 14 (5) ICCPR and Article 2 Seventh Protocol ECHR is not relevant for most appeals on cassation. Both treaty provisions guarantee a one-time appeal against conviction, while most cases of cassation in the Netherlands are preceded by appeal. This is different if a conviction is pronounced for the first time on appeal, after acquittal in the first instance, because in these cases the Supreme Court acts as the first appeal court reviewing a conviction. And according to Article 14 (5) ICCPR an opportunity for review must be open to any first conviction, no matter whether it is given on appeal or not. An infringement of Article 6 ECHR could also take place in cases where the Supreme Court applies Article 80a RO when the reasonable time limit for the handling of a criminal case is seriously violated. Furthermore, if the ECtHR will consider the not-giving of a conclusion by the Procurator General as an implicit opinion on the cassation appeal – and there is some reason to believe it will – a violation of the principle of equality of arms cannot be excluded. Lastly, in cases where the merits of the contested verdict can be seriously doubted, it is conceivable that the ECtHR will find a breach of the requirement to provide reasons or the requirement of proper examination.

Chapter 8 contains the conclusions of the research, supplemented with some recommendations and considerations. These take into account the concepts in in Chapter 2 of this book. Six central conclusions may be drawn concerning human rights law on leave to appeal systems: (1) On appeal, only substantive leave to appeal systems can be accepted; (2) In cassation, both substantive and a discretionary leave to appeal systems are acceptable, except when after acquittal at first instance the suspect is convicted on appeal, because Article 14 (5) ICCPR also applies after a first conviction on appeal; (3) If a substantive leave to appeal system is applicable, the substantive assessment of the leave request must be truly realized (availability of documents, reasoning etc.); (4) If a discretionary leave to appeal system is applicable, human rights law imposes only a few requirements; (5) Transfer of leave assessment to a special chamber of the higher court, the iudex a quo or non-judicial agency (separate admissibility examinatin) is acceptable only in certain conditions; (6) Leave to appeal must be granted when the lower court has not complied with the right to a fair trial.

It is submitted that ratification of the Seventh Protocol to the ECHR by the Kingdom of the Netherlands is desirable, although it may be subject to a reservation. Furthermore, I consider it desirable for the ECtHR to assess the application of leave to appeal systems less abstractly and, like the HRC, to distinguish between substantive and discretionary leave to appeal systems. ECtHR jurisprudence regarding the requirement of a public hearing in appeal shows that the ECtHR can safely assess the nature of a legal remedy more concretely, and this seems appropriate in view of the text and purpose of Article 2 P7 ECHR.

The leave to appeal systems on appeal in Dutch criminal law (Article 410a WvSv) is problematic in different respects in view of human rights law. Although it has been announced that the leave to appeal system of Article 410a WvSv will be abolished, it may be salvaged by the legislator. In addition, during discussions on the modernization of the Code of Criminal Proceedings, the possibility has been raised of allowing for the simplified settlement of appeals containing manifestly ill-founded complaints. In the eyes of the ECtHR and the HRC, such a provision probably qualifies as leave to appeal. On condition that sufficient guarantees are provided, simplified disposal of manifestly ill-founded objections is permissible under human rights law, including in serious criminal cases.

Unlike in appeals, the Supreme Court may itself solve potential problems under human rights law regarding the application of the leave to appeal system of Article 80a RO under human rights law to prevent or solve some obvious issues. However, amendment of legislation seems desirable in three instances. First, a system of optional council by the Procurator General on the recommendation of the Supreme Court should be implemented. Secondly, the legislator has to clarify the relationship between Article 80a RO and the regular handling of cassation appeals. Thirdly, is should be made clear in Article 80a RO what role certain public interests play in determining the admissibility of a cassation appeal. Because the applicability of human rights law on cassation can, in theory, be avoided, it is possible to significantly expand the leave to appeal system of Article 80a RO on cassation.

The question of whether such expansion is desirable, on appeal or cassation, has not been the focus of this book. Nevertheless, this question is given some consideration in the final chapter of the book, in particular regarding the effectiveness of leave to appeal systems. The idea behind leave to appeal systems in the Netherlands and abroad is that a leave to appeal system enables courts to distinguish between the simplified handling of ‘unworthy’ appeals by using a leave to appeal system, and the extensive handling of cases that really matter. Against this background, the question arises as to whether leave to appeal systems can contribute to relieving the workload. At first sight, it is likely that they can. This is because refusing leave to appeal simply takes less time and attention compared to the regular handling of an appeal. However, a leave to appeal system in which the procedure is considerably separated from the regular procedure involves the risk of doubling the total workload. Time spent on refusing a leave to appeal is short indeed, but after allowing the leave to appeal, the workload will in fact increase. Secondly, leave to appeal systems can put pressure on the didactic effect of appeal rulings, which may increase the inflow of appeals.