The Use Of Pre-Trial Detention In The Dutch Legal System

The Use Of Pre-Trial Detention In The Dutch Legal System Presented by: Mr. Crijns Date: 31 March 2023 Introduction - PTD quite heavily debated in the Netherlands - Difficult relation with case law of the ECtHR - Focus on three problems: • Extensive interpretation of the legitimate grounds for pre-trial detention • (Lack of) reasoning of PTD decisions • (Lack of) attention for alternatives to pre-trial detention Research project - Fair Trials, A Measure of Last Resort? The practice of pre-trial detention decision making in the EU, 2016. - J.H. Crijns, B.J.G. Leeuw en H.T. Wermink, Pre-trial detention in the Netherlands: legal principles versus practical reality, The Hague: Eleven International Publishing 2016. Dutch legal framework - Article 67 and 67a CCP • Only available when the offence is punishable by a minimum term of imprisonment (maximum of four years or more) • Strong suspicion needed (ernstige bezwaren) • Legitimate grounds  Risk of reoffending  Risk of causing public disorder  Risk of absconding  Risk of danger to the investigation Grounds - Risk of reoffending: easily accepted on the basis of a criminal record - Risk of causing public disorder: 'suspicion of a crime which may be punished with a maximum sentence of at least twelve years imprisonment and which has seriously upset the legal order' - Risk of absconding: easily accepted when the accused does not have an official fixed residence - Risk of danger to the investigation: especially in the early stages of PTD easily accepted Statements - Statement 1 • Pre-trial detention is mostly a measure geared to secure the presence of defendants at trial. Other grounds of detention are marginal in the law and/or in practice in your jurisdiction. • - X (FALSE) Statement 2 • Grounds for detention aimed at preventing re-offending and/or protecting victims (and the general public) are the main cause of the over-use of pre-trial detention in your jurisdiction. • V (TRUE) Reasoning of PTD decisions - Article 78 CCP contains an explicit obligation to give reasons - In practice PTD decisions often reasoned quite briefly and in general and abstract terms - ECtHR 9 February 2021, appl. no. 73329/16, Hasselbaink v. the Netherlands - ECtHR 9 February 2021, appl. no. 10982/15, Maassen v. the Netherlands - ECtHR 9 February 2021, appl. no. 69491/16, Zohlandt v. the Netherlands - Violation of Article 5 § 3 ECHR: reasoning of PTD decisions not sufficient Alternatives to PTD - Electronic monitoring, parole supervision, bail etc. - Substitution model: alternatives for PTD are shaped as conditions to the suspension of the execution of PTD - Prevents net-widening - But also somewhat hides the alternatives for PTD The way forward - How to improve the PTD practice in the Netherlands? - Strong strive for efficiency in Dutch criminal justice - Reasons to amend the legal framework? - Or more a question of changing judicial culture? Statements - Statement 3 • Current procedural rules allow judges too much discretion to order or extend pre-trial detention. This can be solved by amending the statutory framework, e.g. by posing more constraints on judicial discretion. • True or False? To conclude - Concerns regarding PTD practice somewhat underestimated - Recent Article 5 violations a wake-up call? - Practice needs to invest in the reasoning of PTD decisions - Possibly also a positive effect on other concerns and weaknesses