‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Wednesday, 17 July 2013

Cassation in criminal cases. A ‘due process’ perspective

On Wednesday 22 May 2013 (now Dr.) Annelies Röttgering, Justice in the Amsterdam Court of Appeal, defended her thesis 'Cassation in criminal cases A ‘due process’ perspective' at Tilburg University in the Netherlands. Her thesis inter alia describes the way the Supreme Court in the Netherlands reviews complaints in criminal cases in cassation. In this blog post she summarises the main findings of her research. 


The Dutch Supreme Court applies not only Dutch law, but also international Treaties like the European Convention on Human Rights. The European Court of Human Rights’ case law therefore also applies to the Dutch situation. The threefold aim of my research was to assess the tasks of the Supreme Court (with an emphasis on its task of safeguarding legal protection), to give a more extensive description of how cassation in criminal cases works than existed until now and, lastly, to find out which position the Supreme Court nowadays takes in the field of tension between due process and crime control.

To do the latter I have examined if its position in this field has changed over the last 25 years and if so, how. The point of view from which this book has been written, is essentially that of the criminal defence lawyer (which role I had when I started working on this thesis).

The Court’s case law between 1988 and 2012

The central issue in this chapter was whether the Supreme Court had, in the past 25 years, to put it roughly, mainly sided with the State or mainly with the defendant. To decide that, a number of themes in the case law were selected and examined.

In the sixties and seventies of the previous century, the Supreme Court had been slightly activist where the requirements of a due process were concerned. It gave more body to its task of safeguarding legal protection, by strengthening the defendant’s procedural rights and by accepting the possibility of procedural consequences of breaches of procedural rules in the pre-trial investigation. Materially, the principle of legality still played an important safeguarding role. On the other hand, the Supreme Court wasn’t much inclined to set limits to new investigative methods. An example is that it almost unconditionally allowed evidence produced by anonymous  witnesses.

Repressive trend

In the last 25 years the Supreme Court slowly followed the more repressive trend in society. It adopted a more reticent attitude regarding defence rights, however not regarding the whole range of themes in the case law that were examined in this thesis. The sanctioning of the breach of procedural rules played an important role in the case law of the past 25 years. On the one hand the Supreme Court safeguarded legal protection. Particularly in the early years, it set new requirements for judicial inquiry and reasoning, and gave a broad interpretation of the term ‘preliminary investigation’, to which various legal rules apply. Furthermore, it built a framework for the assessment thereof, that was later codified.

On the other hand, is has formulated ever more restrictive criteria for deciding the consequences of those breaches. Explicitly the extent to which the interests of the accused had been harmed became decisive. It seems the Supreme Court has distanced itself from the idea that a violation of legal order can in itself be a reason to attribute consequences to breaches of procedural rules, also when no harm was done to the interest of the defendant. All in all, it can be claimed that over the past 25 years the transparency of the criminal procedure has grown, but that the promise that was implied in the acceptance of the exclusionary rule was not fulfilled.

Fair trial

The guarantee of a fair trial was a second central theme in the Supreme Court’s jurisprudence. Here also the picture is not unambiguous. In this period the Supreme Court guarded the right of the defendant to be present at his trial, stressed the importance of the defence lawyers’ presence and revitalised the principle of immediacy. Judges were instructed to be generally less restrictive in granting requests for witnesses, although it seems that lately the defence has to give more reasons for its requests. Regarding internal disclosure, the Supreme Court has defined a broad criterion for documents to be added to the case file, but in practice it leaves the responsibility for the application of that criterion in good faith to the public prosecutor. His decisions can hardly be challenged. The equality of arms is at stake here.

The Supreme Court has always been very restrictive concerning legal assistance during police interrogation, legal assistance to the absent defendant and later (after a change of law), legal assistance of the absent defendant by an unauthorised lawyer. On the other hand, it has always been very indulgent towards the use as evidence of statements made by anonymous, and crown, witnesses. In the recent past only the ECtHR’s decisions could make it change its case law on these subjects.

Compared to the situation in1988, the most drastic change occurred in the sanctioning of violation of the right to be tried within a reasonable term. That case law evolved from inadmissibility after two years of inactivity to the abolishment altogether of inadmissibility as a possible sanction. Any compensation for the uncertainty the defendant had to cope with, is no longer self-evident. This signals the shift of focus that has taken place: no longer is it the State that is urged to keep the length of its procedures within a reasonable time, but the sanction is a mere compensation.

The conclusion is that indeed the case law regarding a fair trial on the whole offered more legal protection in 2012 than it did in 1988. Where procedural rights are concerned, it can be regarded as a continuation of the trend that started in the sixties. In all other respects this positive balance seems to be due to the fact that the Supreme Court reluctantly followed the ECtHR’s case law.

Civil approach

An important change in the Dutch criminal procedure of approximately the last ten years, is a more civil approach. This development started with the tightening of the requirements for judges to give reasons. It was followed by obligations for the defence to substantiate its defences, by lack of which the judge did not have to respond. From a point of view of safeguarding legal protection, the improved reasoning of judicial decisions is an important improvement compared to 1988. On the other hand, the limitation of the ex officio review by the factual judges, as well as the sharp decline of the ex officio review by the Supreme Court itself, which result from the more adversarial proceedings, are a deterioration compared to that year.

Here too a fundamental question comes up: if the goal of the criminal trial is, to reach an outcome that is as just as possible, then the current moderately inquisitorial system doesn’t relate very well to the shift of the responsibility for that outcome from the judge to the defence.

In the field of the substantial criminal law, the Supreme Court safeguarded legal protection on the subjects of conditional intent, self-defence and the use of excessive force in self-defence. It also continued its cautious course in cases of euthanasia. A characteristic of the defendants whom the Supreme Court protects, seems to be that they are usually not the ‘regular riminals’, but people who come into conflict with the criminal justice system only once. Would that be a weighing factor? One can only guess.

The jurisprudence about the other examined themes was more aimed at facilitating the fight against crime. The notion of complicity was broadened, especially in severe cases. The Supreme Court hardly set any limits to the increase in the number of prosecutions for those being a member of a criminal organisation. The same picture was seen in the case law about themes as preparatory acts, sexual acts and overt use of force. When interpreting the offence description in those subjects, the Supreme Court almost invariably referred to the legislative history. Its case law corresponded to the legislators’ wishes and also with what at that moment in time was the prevailing opinion, politically, and possibly also socially. So when the legislation was repressive, so was the Supreme Court’s jurisprudence. Concerning sexual crimes sometimes even a little more so. It seems the principle of legality is no longer used to limit the scope of the law.

Anonymous witnesses: the influence of the ECtHR

It can be presumed that the most embarrassing subject for the Supreme Court is that of the anonymous witnesses. No less than five times it was corrected by the ECtHR in the period under research. All in all, in the last 25 years in twelve cases in which the Supreme Court had taken the decision in the highest instance, the ECtHR found a violation of a human right protected in the Convention. The restrictive way in which the Supreme Court tends to interpret the ECtHR’s jurisprudence took its toll. Several times that decision was even contradictory to the ECtHR’s existing case law at the time of the Supreme Court’s decision, but apparently the Supreme Court took that in its stride. Possibly this stubbornness has to do with a difference of opinion. But it could also be that an effect of the Dutch judicial culture or of the inquisitory system is that the Supreme Court judges differently from the ECtHR. As Fokkens, the present Procurator General of the Supreme Court, pointed out, in the Dutch system the judge is supposed to be ultimately responsible for the finding of the truth. This means that it is more important that he, the judge, deems himself to be sufficiently informed to come to that decision, than that the defence has been able to exercise its right to question and challenge the witness. Moreover, the Dutch criminal justice starts from the premise that the investigative and prosecuting authorities are trustworthy. The ECtHR doesn’t. Finally, the characteristics of the cassation play a role. The Supreme Court is more limited in its review than the ECtHR.

Concluding remarks: the need for a ‘due process’ perspective

My conclusions are as follows: 
  1. The Supreme Court can be characterised as governmental and primarily oriented on crime control;
  2. In its law-developing judgments the Supreme Court should give more expression of its role as ‘highest legal safeguardian’;
  3. There is no room for further diminishing of legal protection at the individual level.
Not an activist Court

The Supreme Court is not an activist Court. Its jurisprudence fits mostly in the ‘crime control’ ideology. It is regrettable that the Supreme Court has attached the judge’s task of ‘policing the police’ to the legally justified interests of the defence. Only if those interests have been  harmed, breaches of procedural rules by the police can be sanctioned and even then the exclusionary rule doesn’t always have to be applied. With that, the judiciary has lost an element of safeguarding legal protection of fundamental and practical importance. Fundamental, because the monitoring of the exercise of state authority is an important aspect of the ‘due process’ ideology. Practical, because the exclusionary rule is the only sanction that can be expected to prevent breaches of procedural rules by the investigative and prosecuting authorities. This is the more so, since no other serious sanctions exist to date. Moreover, the Supreme Court has limited the definition of the ‘justified interests’ of the defence over the last 25 years. All of this has resulted in the fact that the legal limits to the exercise of coercive measures are no longer strict. In fact, they have been replaced by the weighing of interests by the judge. This often results in violations of rights under the Convention remaining without any (serious) consequences.

Highest legal safeguardian’

The Supreme Court seems to see itself mainly as an instructor and supervisor of the lower courts. As far as it does indeed place itself only in that (serving) position and isn’t activist when it should be, it does injustice to itself and to society. For the Supreme Court is more than an interpreter, it is also the highest legal authority where the legitimacy of government action and the legal protection of civilians is concerned.

No room for further diminishing of legal protection

The transition to a more adversary criminal process and the slow growth towards a leave of appeal system – that we are probably in – have contradictory effects. On the one hand the  obligation for judges to provide more reasons has caused an increase in the Supreme Court’s reviews of reasonings – and has thus led to more safeguarding of legal protection in individual cases. On the other hand, the requirements set to the defence caused a diminished obligation to respond and consequently a decrease in the judge’s responsibility for the outcome of the trial. This means a reduction of legal protection. The ongoing development towards the Supreme Court selecting the cases it wants to review, has the same effect. The question is how much further this reduction can go. The Courts of Appeal still seem to need the Supreme Court’s supervision. Errors are frequently made by the factual courts and sometimes they are serious. It would be a violation of the principles of a fair trial if these errors would not be corrected. That would also be a denial of the Supreme Court’s task as a guardian of the quality of justice. As things are, I see no room for further diminishing of that supervision.

Last observation

I would like to finish off with an observation. All my conclusions seem to be somehow related. How much legal protection should the Supreme Court offer? It is a question to which there is not one single correct answer. Many respectable views are possible. Defence lawyers will generally hold different views about it than public prosecutors. This will also apply to people working in the legal practice, who will have a different opinion than politicians or journalists. It is my sincere hope that I have contributed to the continuing debate on the role of the Supreme Court and possibly to some change in this field.

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