The police are responsible for the practical side of criminal investigations. They collect evidence, interview witnesses and victims, and arrest suspects. And they are required to keep a complete record of the case in the form of an official report.
However, the Public Prosecution Service has ultimate responsibility for investigations. The police have to render account for their actions to one of the officers of the Public Prosecution service, known as the public prosecutor. Every investigation is carried out under the authority of a public prosecutor, who ensures that the police observe all the rules and procedures laid down by law. This is of particular importance in the case of a serious offence, where the public prosecutor will be in direct charge.
The Public Prosecution Service is also responsible for supervising investigations carried out by other authorities, such as the municipal social services, the Fiscal Intelligence and Investigation Service and Economic Investigation Service (FIOD-ECD) and the Investigation Department of the General Inspection Service (AID).
If necessary, the public prosecutor may authorise the police to apply certain coercive measures. For example, they may be instructed to confiscate stolen goods or arrest a suspect if he was not caught red-handed.
The Public Prosecution service does not have unlimited powers, and certain measures may only be taken with permission from the courts. Two examples are house searches and telephone-tapping.
Prosecution begins as soon as the courts become involved in a case, even if no-one has actually appeared in court. For instance, the courts may be asked to issue an order remanding a person in custody if he is suspected of having committed a serious offence. He can then be detained for a certain period of time. This is known as pre-trial detention.
The Public Prosecution Service may respond in a number of ways if it suspects that an offence has been committed. The public prosecutor may decide not to prosecute a case (sepot), if for example the police have not managed to collect sufficient evidence.
But a prosecution may not go ahead for other reasons, as a matter of policy. Even when the police do have sufficient evidence, if the offence was a minor one, for instance, and if the offender has made good the damage suffered by the victim, the public prosecutor may decide not to bring the matter to court.
Anyone who has a direct interest in a case may object to a decision not to prosecute by lodging a complaint with the court of Appeal. If the court says the complaint is well founded, the Public Prosecution service has to bring a prosecution.
The public prosecutor may, at his own discretion, decide to ask for payment in lieu of prosecution (transactie) instead of taking the case to court. This often happens in the case of relatively minor offences such as shoplifting or minor damage to property. The revenue goes to the state. Failure to pay means the person will have to appear in court after all.
The Public Prosecution Service aims to settle straightforward criminal cases as quickly as possible. Nowadays the public prosecutor can impose what is becoming an increasingly common form of sanction, in which he both prosecutes the crime and imposes a sanction (strafbeschikking). The courts are not involved.
Suspects who accept the sanction thereby admit their guilt. And if they decide to reject it, they can have their case brought before the court. The sanction might be a fine, disqualification from driving (for up to six months), an alternative sanction (e.g. up to 180 hours’ community service) or a compensation order, but not a prison sentence. This type of sanction is therefore more like a court judgment than payment in lieu of prosecution and will eventually replace it.
If the public prosecutor decides that none of these options are appropriate, the suspect has to appear before a criminal court. He is sent a summons: a letter stating when the case is to be heard and giving a description of the offence or offences with which he is charged. The defendant may only be tried on those counts. Relatively minor offences are heard in a court presided over by a single judge. More serious cases are heard by three judges.
The case against a defendant is presented in court by the public prosecutor. After he has explained in full the charges that have been filed, the court questions the defendant. The public prosecutor is also given an opportunity to question the defendant. He then gives his opinion of the case and recommends that the court impose what he considers an appropriate sanction. This may be a fine, an alternative sanction or a prison sentence. The defendant’s counsel then speaks in his defence, and the defendant himself has the last word.
The public prosecutor always rises to his feet when addressing the court. The judge, who sits directly opposite the defendant, remains seated.
Under Dutch criminal law, an offender can be punished by imprisonment, a fine or an alternative sanction. Alternative sanctions can take the form of community service (werkstraf), which means working for a certain number of hours, without pay, for the municipality, a hospital, the Forestry Department or some other public institution. Young offenders can be sentenced to a training order (leerstraf). They are often required to undergo social skills training. In addition to the principal sentence, a court may also impose an additional sentence, such as disqualification from driving.
Besides the penalties described above, the public prosecutor may ask the court to impose a court order. For instance, the court can order the confiscation of certain items, such as narcotics, weapons or pirated compact discs. Or it can take away the proceeds of crime. This is often done in cases of theft, fraud or drug trafficking. The court can also order an offender to pay compensation to the victim of the crime.
A different kind of measure is the hospital order (Tbs). The public prosecutor can ask the court to impose a hospital order if he believes the offender has psychiatric problems and needs treatment. Offenders made subject to a hospital order are committed to special clinics or are treated on an out-patient basis. The Public Prosecution service is responsible for ensuring that all sanctions or orders imposed by the courts are enforced.
People between the ages of 12 and 18 are subject to different rules. Offences such as shoplifting or damage to property do not generally go to court, but are dealt with by the police (Halt-afdoening). Young offenders may be required to follow a course, work for a certain number of hours without pay, apologise to the victim and pay for whatever damage they have caused. Their parents are closely involved in this process.
More serious offences are reported to the public prosecutor, who can impose a fine or an alternative sanction. He can also put the case before a children’s judge (kinderrechter). The heaviest penalty the judge can impose is a term in a young offenders’ institution.
Millions of offences are committed in the Netherlands every year. Informed decisions therefore have to be made in the effort to combat crime. Which cases should be given priority and how can they best be dealt with?
To some extent these decisions are taken at national level, mainly by the board of Procurators General, the highest authority in the Public Prosecution service. Together with the Minister of security and Justice, the board sets the parameters for investigation and prosecution policy.
The Public Prosecution Service disposes of over 250,000 cases every year. Almost a third of these involve property offences, such as theft or burglary, almost a quarter involve violent crime and almost a fifth consist of traffic offences. The number of suspects under the age of 18 has been declining in recent years.
Individual public prosecutors also have to make choices. They have to comply with national policy, but they can take local circumstances into account. They can decide, for instance, whether to use police resources for increasing patrols during evening shopping hours or for tracking down farmers who contravene the manure regulations, whether to give priority to drug abuse or to improving road safety.
The Public Prosecution Service does not take these decisions alone. One of its tasks is to take part in tripartite consultations with local mayors and police representatives to discuss matters relating to crime, public safety and the use of police resources.
The Public Prosecution Service also works with various other groups: local authorities, the probation service, prison authorities, the child protection board and road safety groups, and with lawyers and the business sector.
The Public Prosecution Service is encouraging the establishment of community safety partnerships in which municipalities, criminal justice authorities and welfare services work together to reduce or prevent crime and anti-social behaviour. The emphasis is on taking a person-specific approach to habitual offenders, young offenders, perpetrators of domestic violence and ex-prisoners. The partners involved make sure, for example, that those who have served their sentences have somewhere to live and receive benefit. These partnerships are organised by the municipalities.
The position of the victim is a major issue. Victims’ rights are guaranteed by law. In the case of minor offences victims are entitled to information, access to documents in the case file and to claim compensation. In serious cases such as rape and murder, victims have a right to a meeting with the public prosecutor responsible for the case and to be represented by counsel, as well as being entitled to speak during the trial and to be informed when the offender is released. In addition, victims who are awarded compensation will receive the full amount from public funds if the offender does not pay up within eight months.
All victims of crime can contact the victim support desk set up by the police, the Public Prosecution service and the Dutch victim support organisation for assistance and information about legal proceedings. Victims of serious offences are approached by the case coordinator at the Public Prosecution Service.
The Public Prosecution Service has other, less well-known, statutory duties. For instance, it is responsible for supervising committals to psychiatric hospitals under the relevant Act. And if necessary, a public prosecutor can apply to the court for a order committing a person suffering from a mental disorder to an institution.
The Public Prosecution Service also has statutory duties under the burial and cremation Act. Any death other than by natural causes has to be investigated. In such cases, permission to dispose of the body must be obtained from a public prosecutor.