Throughout the process, the public prosecutor ensures that the police follow all the rules and procedures laid down by law
The police carry out criminal investigations. They collect evidence, interview witnesses and victims, and arrest and question suspects. The police are required to keep a complete record of each case in the form of an official report.
The prosecutors at the Public Prosecution Service have ultimate responsibility for investigations and – especially where serious offences are concerned – they supervise the police during the investigation. Throughout the process the public prosecutor ensures that the police follow all the rules and procedures laid down by law and take account of all relevant information.
Public prosecutors can issue instructions to the police. In some cases they must first obtain permission from the court, for example to tap a phone or search a home or computer. The methods the police and Public Prosecution Service use when investigating criminal offences must be proportionate to the offence and therefore may not be too heavy-handed. This too is a matter of justice.
The Public Prosecution Service is also responsible for supervising criminal investigations carried out by other authorities, such as the municipal social services, the Fiscal Intelligence and Investigation Service and the Food and Consumer Product Safety Authority.
The prosecutor selects an appropriate penalty which minimises the chance of the perpetrator reoffending
The Public Prosecution Service may decide to bring a case before the court, but it also has various options for disposing of a criminal case itself: the so-called opportunity principle.
Imposing a sanction
The public prosecutor can dispose of minor criminal cases, such as criminal damage, vandalism, shoplifting and traffic violations, by imposing a sanction (strafbeschikking). In this situation the case is not brought before the court. The Public Prosecution Service itself decides on the sanction imposed once it has been established that the suspect is guilty of the offence in question. The sanction could be a fine, a driving ban (for up to six months), an alternative sanction (e.g. up to 180 hours’ community service) or a compensation order. The Public Prosecution Service may not impose a prison sentence; only a court may do that. Suspects who accept the sanction thereby admit their guilt. And if they decide to reject the sanction, they can have their case brought before the court.
Payment in lieu of prosecution
The public prosecutor may also decide to allow the offender to make a payment in lieu of prosecution (transactie). If the person agrees and pays, the prosecution will not proceed any further. Failure to pay means the person will have to appear in court after all.
Decision not to prosecute
Sometimes, the public prosecutor decides not to prosecute a case (sepot). This may occur if there is, for instance, insufficient evidence to achieve a conviction or if the suspect has not been identified. A prosecution may not go ahead if the evidence was obtained unlawfully, or if the suspect cannot be held accountable because they have psychiatric problems or because they acted in self-defence. The public prosecutor may reason, on public interest grounds, not to initiate or not to continue prosecution proceedings. He is allowed to take that decision because of the fact that the Dutch system is based on the opportunity principle.
A victim 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 start a prosecution.
Conditional decision not to prosecute
The public prosecutor may also attach conditions to the decision not to prosecute, and the perpetrator must abide by these conditions. A person may, for example, agree not to enter the street where his victim lives. If they do not stick to the agreement a sanction will be imposed after all.
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. Relatively minor offences are heard in a court presided over by a single judge. More serious or complicated cases are heard by three judges.
The case against a defendant is presented in court by the public prosecutor on behalf of society as a whole. After the public prosecutor has explained the charges that have been filed, the court questions the defendant. The prosecutor and the defence counsel are also given an opportunity to question the defendant. The prosecutor gives his opinion of the case and recommends that the court impose an appropriate sanction. The defence counsel then speaks in the defendant’s defence, and the defendant has the last word.
When recommending a sentence the public prosecutor must consider the interests of all parties: those of the defendant, who has the right to an appropriate punishment and consideration of his personal circumstances; those of the victims and next of kin or the next of kin if the victim has died, who want justice and may want compensation for any damages suffered; and those of society as a whole: public safety, public trust and justice.
In many cases psychiatric and emotional problems or intellectual impairment play a role. In such cases the public prosecutor seeks advice from for instance a psychiatrist, the probation service, the child protection board or a care institution.
The public prosecutor must keep all these various interests and factors in mind when recommending a sentence they consider appropriate and just. However, if the prosecutor is not convinced by the evidence, he will propose the acquittal of the defendant.
The public prosecutor always stands when addressing the court. The judge, who sits directly opposite the defendant, remains seated. For this reason, in the Netherlands the Public Prosecution Service is also known as the staande magistratuur, while the judges are known as the zittende magistratuur.
Under Dutch criminal law, an offender can be punished by the principal sentences: imprisonment, a fine or an alternative sanction.
Alternative sanctions can take the form of community service (werkstraf), which means working without pay for a municipality, a hospital, the state forest service or some other non-commercial institution. Minors may be given a training order (leerstraf), requiring them, for example, to follow a social skills training programme. In addition to the principal sentence, a court may also impose an additional sanction, such as a driving ban. A sentence may also be suspended. That means that it is put on hold for a certain period, but it will be enforced if the convicted person commits another offence.
Besides the penalties described above, the public prosecutor may ask the court to issue an order aimed at restitution (for example, an order requiring payment of compensation to the victim) or at confiscating the proceeds of crime.
An order may also entail that an offender with a psychiatric disorder is to be placed in a secure hospital.
The public prosecutor can ask the court to impose a hospital order if the offender has psychiatric problems and is not responsible for his (criminal) acts. If he is partially accountable for his acts because of a mental illness the Dutch system has a special order by which someone can be placed in a secured specialised clinic to receive treatment (TBS).
People between the ages of 12 and 18 are subject to juvenile criminal law
People between the ages of 12 and 18 are subject to juvenile criminal law. Less serious offences such as shoplifting or criminal damage are generally dealt with by the police (Halt-afdoening).
Young offenders may be required to follow a course (and sometimes to work for a certain number of hours without pay), apologise to the victim and pay for whatever damage they have caused. Their parents or guardians are closely involved in this process.
In certain cases young adults between the ages of 18 and 23 are also subject to juvenile criminal law, for example if the offender is intellectually impaired.
More serious offences are referred to the public prosecutor, who can impose a fine or an alternative sanction. If the prosecutor considers the offence serious, he or she may decide to put the case before a juvenile court (kinderrechter). In the most serious cases, the judge may sentence the minor to a term in a special custodial institution for young offenders.
In special cases, defendants aged 16 and over may be tried under adult criminal law.
Which cases should be given priority?
Millions of offences are committed in the Netherlands. Which cases should be given priority?
To some extent these decisions are taken at national level. The Board of Prosecutors General, the highest authority in the Public Prosecution Service, sets the parameters for investigation and prosecution policy.
A public prosecutor understands the local context and what is expected of the Public Prosecution Service in its efforts to combat crime
Individual public prosecutors also have to make choices. They have to comply with national policy, but they must also take local circumstances into account.
They understand the local context and what is expected of the Public Prosecution Service in its efforts to combat crime. Should the police spend more time on patrols during evening shopping hours or on tracking down farmers who contravene the manure regulations? Should they give priority to drug abuse in disadvantaged neighbourhoods, burglaries or traffic offences on high risk roads? The public prosecutor’s decisions need to make sense to local residents in the district.
In order to stay up to date on the local context the Public Prosecution Service takes part in regular tripartite consultations with local mayors and police representatives to discuss ways of tackling crime to promoting public safety and the use of police resources. The Public Prosecution Service is the authority for the police regarding criminal law enforcement and the mayors when maintaining public order is at stake.
Working with others
The Public Prosecution Service works with various other groups: local authorities, the probation service, prison authorities, the child protection board, victim support services and road safety groups, and with lawyers and the business sector.
When it comes to common crimes such as theft, vandalism and threatening behaviour, cooperation among these partners can be intensive. In order to make appropriate decisions as quickly as possible, all relevant parties are available for consultation 14 hours a day, 7 days a week. In making their decisions, they have to bear in mind the interests of everyone concerned: the suspect, the victim and society as a whole.
The Public Prosecution Service also works with other parties (such as the police, the probation service and victim support services) in ‘community safety partnerships’ led by the municipality. Here the partners discuss complex matters, such as how to deal with habitual offenders, young offenders, radicalised young people, psychologically disturbed individuals and perpetrators of domestic violence. They also discuss opportunities to do more than simply imposing penalties. After all, offenders are often dealing with multi-dimensional problems. Besides imposing a sanction, a public prosecutor can also set conditions which must be met, such as the completion of a treatment programme. This combination of punishment and rehabilitation is aimed at reducing criminal conduct as much as possible in the future.
The Public Prosecution Service deals with more than 250,000 cases every year. Over 30% of these involve property offences, such as theft or burglary, almost 20% involve violent offences and 15% involve traffic offences. In the past ten years the number of cases involving suspects under the age of 18 has declined from 38,000 to around 16,000.
Cooperation with foreign authorities in criminal matters
The Netherlands has established a network of coordination centres for mutual assistance in criminal matters to ensure quick handling of foreign requests: the Dutch International Legal Assistance Centres (or IRC’s), which are a partnership between the police and the Public Prosecution Service. IRC’s are connected with the ten District Court Public Prosecution Offices. The national IRC (LIRC) is connected with the National Office for International organised crime and the National Office for Serious Fraud, Environmental Crime and Asset Confiscation.
The Public Prosecution Service contributes to public safety and justice in society by dealing with offenders and ensuring that justice is done to victims. This is known as reparation. Reparation includes restoring the rights of victims of violence, sexual assault, traffic accidents, burglary and theft, and the rights of a victim’s next of kin.
Victims’ rights are laid down by law. Victims are always entitled to recognition, proper treatment and adequate information. In many cases victims are also entitled to compensation, protection and access to documents in the case file.
In addition, victims may speak during the trial or submit a written statement. The Public Prosecution Service provides victims with as much information as possible and always bears their interests in mind. Victims can obtain information about criminal proceedings via an online information portal (Slachtoffer Informatie Portaal) or one of eleven national victim support desks set up by the Public Prosecution Service, the police and Victim Support Netherlands. Victims of serious offences are contacted personally by the Public Prosecution Service.
The Public Prosecution Service has other, less well-known, statutory duties:
A public prosecutor can apply to the court for an order committing persons to an institution if they are suffering from a psychiatric disorder and pose a danger to themselves or those around them.
In the case of an unnatural death, permission to dispose of the body must be obtained from a public prosecutor.