The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
Organisation of the prosecution service
The prosecution service is a nation-wide organisation of prosecutors. It is organised hierarchically. At the top is the Board of Prosecutors-General. The service functions under responsibility of the Minister of Justice, but it is not an agency of the Ministry of Justice. The service is part of the judiciary.
The organisation of the prosecution service is regulated by the 1827 Judicial Organisation Act. In 1999, the prosecution service has been profoundly reformed.
The total number of prosecutors stands at around 500. One quarter of all prosecutors is female. Prosecutors are recruited in the same way as judges. They belong to the judiciary but, unlike judges, they are not appointed for life. Public prosecutors are appointed by the Crown and retire at the age of 65.
The prosecution service is organised in two layers, corresponding to courts of first instance and courts of appeal.
At the nineteen district courts, the prosecution service (arrondissementsparket) consists of prosecutors with the rank of chief prosecutor, deputy chief prosecutor, senior prosecutor, prosecutor, substitute prosecutor and prosecutor acting in single court sessions. The latter is vested with all powers of a prosecutor, with one exception. He may only act as prosecutor in single judge court sessions. In these sessions simple criminal cases are tried. The single judge is vested with the power to impose prison sentences of one year maximum.
Public prosecutors are supported by staff members (parketsecretaris) who may hold a mandate to summon a suspect in simple cases. They assist the prosecutor in preparing prosecutorial decisions. As a rule, these parketsecretaries check the police files to see whether there is sufficient evidence for a prosecution, and draft the charge and wit of summons. Parketsecretaries may hold a mandate to summon an arrested suspect prior to his release. The mandate is restricted to criminal cases to be tried in single judge court sessions. A mandate, according to Dutch law, means that the public prosecutor remains competent to withdraw the summon issued by the parketsecretary at all times.
At the five courts of appeal, the service consists of the chief advocate-general and the advocates-general. The main task of the service at the court of appeal level is to deal with charges in appellate cases.
National prosecution office
Additional to the nineteen prosecution services at district court level, there also exists a national prosecution office located in Rotterdam, which is not linked to a particular district court. The public prosecutors of the national prosecution office are vested with the same powers as the prosecutor at district court level. Their main task is to investigate and prosecute serious (organised) crimes – crimes which due to seriousness or frequency cause serious threat of legal order and for the fight of which financial or tax expertise is deemed necessary – and nation-wide or international crime for the detection of which the national crime squad is competent.
This office supervises the national crime squad (LRT). The national crime squad mainly investigates international crimes like human trafficking, terrorism, money-laundering and fraud. The national prosecution office prosecutes cases investigated by this unit. Furthermore, the national prosecution office develops investigation and prosecution policy with regard to (international) organised crime. An operational task of the office is the co-ordination and handling of foreign requests for legal assistance.
The structure of the national prosecution office is similar to the prosecution office at district court level.
The Board of Prosecutors-General
There is no hierarchical relation between prosecution services of the courts of first instance or the national prosecution office and the prosecution services of the courts of appeal. All are subordinated to the Board of Prosecutors-General. The board directs the prosecution service as one organisation.
The prosecution service is headed by a Board of three to five Prosecutors-General (College van procureurs-generaal). The Crown appoints the chairman of the Board. The Board has its office (het parket generaal) in The Hague. The Board of Prosecutors-General may give instructions to the members of the prosecution service concerning their tasks and powers in relation to the administration of criminal justice and other statutory powers, e.g. supervision of the police. Such an instruction may be of a general policy nature or of specific nature. Prosecutors are legally bound by these instructions.
The highest authority over investigation and prosecution rests with the Board. The Board ultimately supervises the implementation of a proper prosecution policy by the prosecution service, and a proper investigation policy by the police. The Board meets on a regular basis with the Minister of Justice.
The Board of Prosecutors-General is advised by a number of advisory bodies, consisting of public prosecutors and high ranking police officers. One of these bodies is the serious crime committee, which functions as policy making body concerning organised crime, and which filters recommendations about organised crime control. The advisory bodies initiate the issuing of national prosecution guidelines.
A significant number of guidelines issued by the Board of Prosecutors-General concern the investigation and prosecution policy in relation to the enforcement of the Opium Act, e.g. the guideline investigation and prosecution policy September 10, 1996 (State Journal 1996, 187), which tolerates certain drugs offences provided that the requirements expressed in the guideline are complied with. So-called coffeeshop owners who sell cannabis to customers are not prosecuted provided that:
- no more than five grams of cannabis per customer per time are sold;
- no hard drugs are sold;
- no advertising that drugs are sold takes place;
- no nuisance is caused; and
- no drugs are sold to persons aged under 18, and minors are banned from the premises.
Under the guidelines coffeeshop owners who comply with these conditions may stock up to 500 grams of cannabis.
Main duties and power of the service
The main task of the prosecution service is to administer the legal order, by means of criminal law. The prosecution service plays a pivotal role in the administration of criminal justice. The decisions made by the public prosecutor have profound consequences for the offender, and repeated refusals to prosecute certain crimes may also lead to a decline in the detection and investigation of offences by the police. In turn, the charges laid against the accused largely delineate the adjudicatory functions of the courts.
It is no exaggeration to say that the Dutch prosecution service has enormous powers, at least in dealing with criminal cases. It has a monopoly over prosecutions, and employs the expediency principle in this connection. Furthermore, it makes use of its hierarchical structure to pursue a co-ordinated policy. In this way, the prosecution service is able to determine systematically what cases should be brought to trial, and what sentences the courts should be asked to impose.
Since the introduction of the present Code of Criminal Procedure in 1926, the decision to institute criminal proceedings has been reserved exclusively to the prosecution service. Approximately one-half of the crimes, which reach the public prosecutor’s office through the intermediary of the police, are not brought to trial, but are disposed of by the prosecution service itself. Usually, this involves a decision not to prosecute through a dismissal due to technicalities, or through a dismissal due to the exercises of the expediency principle, or by a settlement out of court by means of a transaction.
Prosecutorial decisions
When the police investigation or the judicial preliminary investigation is terminated, the files are forwarded to the prosecutor who has to take a decision. He can decide:
- to drop the case;
- to settle the case by means of a transaction; or
- to issue a writ of summons on the offender.
Non-prosecution
The power to prosecute resides exclusively with the prosecution service. No prosecutorial power is granted to private persons or bodies, not even when the prosecution service declines to prosecute.
This prosecution monopoly does not require the prosecution service to prosecute every crime brought to its notice.
The prosecution service may decide not to prosecute in case a prosecution would probably not lead to a conviction, due to lack of evidence, or for technical considerations (technical or procedural waiver).
The prosecution may also decide not to prosecute under the expediency principle. The expediency principle laid down in Sect. 167 CCP authorises the prosecution service to waive (further) prosecution ‘for reasons of public interest’.
In appropriate cases, the prosecutor can decide to suspend prosecution conditionally. The suspended non-prosecution has no statutory footing, and is therefore theoretically dubious, but it is generally accepted that the prosecution service is allowed to suspend a prosecution. Explicit general or special conditions for a suspended prosecution do not exist, but in practice the prosecutor imposes conditions similar to the conditions attached to a suspended sentence.
Prior to the late 1960s, the discretionary power to waive (further) prosecution was exercised on a very restricted scale.
Thereafter, however, a remarkable change in prosecution policy took place. Research on the effects of law enforcement coupled with the limited resources of law enforcement agencies revealed that it was impossible, undesirable, and in some circumstances even counter-productive to prosecute all offences investigated.
Gradually, the discretionary power not to prosecute for policy considerations began to be exercised more widely.
To harmonise utilisation of this discretionary power, the top of the prosecution service, the Board of Prosecutors-General, issues national prosecution guidelines. Public prosecutors are directed to follow these guidelines, except when special circumstances in an individual case are spelled out.
Under these guidelines, a public prosecutor could waive prosecution for reasons of public interest if, for example:
- measures other than penal sanctions are preferable, or would be more effective (e.g. disciplinary, administrative or civil measures);
- prosecution would be disproportionate, unjust or ineffective in relation to the nature of the offence (e.g. if the offence caused no harm and it was inexpedient to inflict punishment);
- prosecution would be disproportionate, unjust or ineffective for reasons related to the offender (e.g. his age or health, rehabilitation prospects, first offender);
- prosecution would be contrary to the interests of the state (e.g. for reasons of security, peace and order, or if new applicable legislation has been introduced);
- prosecution would be contrary to the interests of the victim (e.g. compensation has already been paid).
The grounds for non-prosecution due to technicalities may be:
- wrongly registered as suspect by the police;
- insufficient legal evidence for a prosecution;
- inadmissibility of a prosecution;
- the court does not have legal competence over the case;
- the act does not constitute a criminal offence; and
- the offender is not criminally liable due to a justification or excuse defense.
Public prosecutors are not obliged to motivate their decisions not to prosecute due to technicalities or due to policy considerations. They are, however, obliged to categorise their decisions under one of the reasons or grounds for non-prosecution previously mentioned. This categorisation is no guarantee for a uniform application of the reasons for non-prosecution. However, it provides information on the prosecution policy pursued in each of the nineteen prosecutorial jurisdictions, and provides insight in the difference in these prosecution policies. It is one of the means to harmonise these prosecution policies.
In the early 1980s, the proportion of unconditional waivers on policy considerations was relatively high. Approximately one quarter of all crimes cleared were not further prosecuted for policy reasons. The rationale was that prosecution should not be automatic, but should serve a concrete social objective. Such a high proportion of waivers on policy grounds was seriously criticised. The prosecution service was instructed to reduce the number of unconditional waivers by making more frequent use of conditional waivers, reprimands or transactions.
Today, the percentage of unconditional policy waivers has dropped to around 5%.
The decrease in the percentage of unconditional waivers did not lead to an increase in the number of cases tried by a criminal court. This is, because an increasing number of cases was either waived conditionally or settled out of court with a transaction.
Transaction
Transaction can be considered as a form of diversion in which the offender voluntarily pays a sum of money to the Treasury, or fulfils one or more (financial) conditions laid down by the prosecution service, in order to avoid further criminal prosecution and a public trial.
The possibility to settle criminal cases by way of a transaction has long existed. The first possibility to settle a case financially was created in 1838, for offences which carry no other statutory sentence than a fine. The offender who offers the prosecution service to pay the maximum statutory fine may settle his criminal case by paying (Sect. 74a CC). The second possibility to settle a case was adopted in 1921. Since then, the public prosecutor may, before trial, propose one or more conditions in lieu of criminal proceedings.
Prosecution is in effect suspended until such time as the conditions are met, after which the right to prosecute lapses.
However, until 1983, this opportunity to settle a case financially was exclusively reserved for misdemeanours in principle punishable with a fine only. Following the recommendations of the Financial Penalties Committee, the Financial Penalties Act of 1983 expanded the scope of transactions to include crimes which carry a statutory prison sentence of less than six years (Sect. 74 CC).
The restriction that transaction is excluded for crimes carrying a statutory prison sentence exceeding six years has a limited impact. The overwhelming majority of crimes carry a statutory prison sentence of less than six years.
The following conditions may be set for a transaction:
a. the payment of a sum of money to the State, the amount being not less than € 2,- and not more than the maximum of the statutory fine;
b. renunciation of title to objects that have been seized and that are subject to forfeiture or confiscation;
c. the surrender of objects subject to forfeiture or confiscation, or payment to the State of their assessed value;
d. the payment in full to the State of a sum of money or transfer of objects seized to deprive the accused, in whole or in part, of the estimated gains acquired by means of or derived from the criminal offence, including the saving of costs;
e. full or partial compensation for the damage caused by the criminal offence;
f. the performance of non-remunerated work or taking part in a training course during 120 hours.
Compliance in due time, with the conditions set by the prosecution service, does not imply that the offender admits that he has committed a criminal offence.
Acceptance of the public prosecutor’s offer to settle a case is as a rule beneficial to the offender: he avoids a public trial, the transaction is not registered in his criminal record, and he is no longer uncertain about the sentence. On the other hand, by accepting the transaction he gives up the right to be sentenced by an independent court with all associated legal guarantees (Sect. 6 ECHR). The acceptance must be made in free will without constraint.
The almost unlimited power given to the prosecution service in 1983, to settle criminal cases by a transaction without the intervention of a court has been strongly criticised. The most important criticism was that the increased transaction opportunities introduced a plea-bargaining system, represented a real breach of the theory of the separation of powers, undermined the legal protection of the accused, favoured certain social groups, and entrusted the prosecution service with powers which should remain reserved to the judiciary. Furthermore, it was feared that with nearly ninety percent of all crimes brought within the sphere of the transaction, the public criminal trial, with its safeguards for the accused, would become the exception, and not the rule.
Despite this criticism, the introduction of the broadened transaction was a great success. More than one third of all crimes dealt with by the prosecution service are now settled out of court by a transaction. This is in line with the national criminal policy plan, which formulated the target that one-third of all prosecuted crimes be settled by way of a transaction.
Transactions for crimes seem to be very popular, both for the prosecution service and the offender. They save the prosecution service and the offender time, energy and expenses, and furthermore protect the offender against stigmatisation. Quite often, high transaction sums for crimes committed by corporations, e.g. environmental crimes and frauds, are accepted in order to avoid negative publicity.
To minimise the risk of arbitrariness and lack of uniformity in the application of transactions, the Board of Prosecutors-General has over the years issued guidelines for common crimes for which transaction is most frequently used, relating to the principles to be taken into consideration regarding transaction and prosecution.
Since 1993, the police may offer transactions for certain categories of crimes. Shoplifting and drunk-driving have been designated as offences for which the police may offer a transaction.
The maximum amount of a police transaction for crimes is € 350,- (Sect. 74c CC). By contrast, the maximum amount of a prosecutorial transaction for crimes is € 450.000,-.
A weak point of the transaction is, that non-acceptance automatically leads to the issuing of a writ of summons and a trial. That automatism brings a lot of work for the prosecution service and the court. At present a Bill is pending to vest the public prosecutor with the power to impose all sanctions except a deprivation of liberty. The sanction will be implemented unless the offender lodges an appeal with the court. It is estimated that the number of appeals will be significantly lower than the number of non-accepted transactions.
Complaints by the victim against non-prosecution
The Dutch Code of Criminal Procedure grants the right of prosecution exclusively to the prosecution service. The State thus has a full monopoly on prosecution without any restriction. The victim does not have the right to private prosecution.
Anybody with an interest in the prosecution of an offence can file a protest against a decision to waive a case, by lodging a complaint with a court of appeal. The court examines the manner in which discretionary power was utilised by the public prosecutor. This examination extends both to the legality of the decision (the issue being the proper application of the law), and to the use of discretion (a study of the extent to which this decision is in line with the general prosecution policy). The complainant has the right to be heard by the court, and may be assisted by his counsel. The court of appeal may order the public prosecutor to initiate a prosecution if it finds that the prosecutor has misused his discretionary power. However, in practice the court of appeal seldom orders prosecution. Annually, around 1,200 complaints are filed.
In addition to judicial control over prosecution, administrative control over prosecution can take place at the request of a person with an interest in prosecution. An individual can request a public prosecutor to review a prosecution decision or, should he refuse to do so, write a letter to a higher official in the hierarchy of the prosecution authority, requesting to review the decision of the subordinate prosecutor.
Complaints of the accused against a decision to prosecute
If the prosecution service decides to refer a matter to a criminal court, suspects in simple, less serious kinds of crimes will generally be summoned by the public prosecutor exclusively on the basis of the information obtained in the police investigation. In cases of a more complicated nature and serious crime, the public prosecutor may apply to the investigating judge for a preliminary judicial investigation. When the preliminary investigation, conducted either by the police or by the investigating judge, is completed, it is once again the public prosecutor who must decide whether or not to continue the prosecution.
If the suspect is notified by the public prosecutor that no charges will be brought (either conditionally or otherwise), the case is terminated, unless fresh incriminating evidence is subsequently discovered.
If the public prosecutor decides to prosecute, (i.e. if a notification of further prosecution or a summons is issued), the accused can lodge a written notice of objection with the district court. The objection procedure enables the suspect to challenge in a non-public setting (i.e. in chambers) what may be a rash or unjust prosecution, and thereby avoid being exposed to a public trial.
This judicial review of the decision to prosecute is fairly limited. In the great majority of cases, the notice of objection procedure results, after a brief investigation, in a decision by the judge in chambers that the case should go to trial after all. Should the court find that a prosecution is unjustified, the case will be dismissed. Otherwise, the case is prepared for trial. The grounds on which the prosecution may be dismissed are limited to four:
- where the case is to be dismissed because the prosecutor does no longer have the right to prosecute, e.g. due to the statute of limitations;
- where the evidence against the accused is manifestly insufficient;
- where the act does not constitute a criminal offence; and
- where the accused is not liable, e.g. due to self-defense.
Political accountability
The prosecution service is not an independent body, in the sense that the Minister of Justice is politically accountable for the policy of the prosecution service and can be held to account in Parliament for intervening, or failing to intervene, in this policy. He can be questioned by Parliament both for the prosecution policy at large, and for individual prosecutorial decisions. This political accountability is one of the core elements of the Dutch Rule of Law State.
The Minister of Justice is hence involved in the formulation of prosecution policy at large. There are regular contacts between the Minister and the Board of Prosecutors-General in this respect. The Board of Prosecutors-General is responsible for the proper realisation of the prosecution policy, as agreed with the Minister of Justice. The Board issues instructions in this respect. The Minister may be involved in the decision making in individual cases as well. He may be consulted by individual prosecutors in cases where the prosecutorial decision may have an impact on the general prosecution policy, or where his political accountability is at stake. The final responsibility rests with the Minister of Justice.
Section 127 of the Judicial Organisation Act therefore vests the Minister of Justice with the power to give general or specific instructions on the exercise of tasks and powers of the prosecution service.
The Minister may give instructions concerning investigation and prosecution in individual cases as well. Before the Minister can issue such an instruction, the Board of Prosecutors-General has to be consulted. The instruction must be reasoned and issued in written form.
Officials of the prosecution service are required to follow those instructions. As a rule, such an instruction has to be added to the files, together with the views of the Board of Prosecutors-General in order to give the court full information. A ministerial instruction not to prosecute or not to investigate a criminal offence has to be notified to Parliament, together with the view of the Board.
The need for democratic control has increased over the last decades, as the prosecution service acquired more adjudicatory powers and only a restricted number of criminal cases were brought to trial.
Although the power of the Minister of Justice to issue instructions under Sect. 127 JOA is unrestricted, the Minister will rarely exercise this power. In most cases, consultation with the Board of Prosecutors-General will have the effect that the Board will issue such an instruction. Only in rare cases, where the Board disagrees with the opinion of the Minister, is he likely to use this power.
The Minister cannot give orders to the Procurator-General and the advocates-general of the Supreme Court, who hold an independent position. Otherwise, conflicting interests might occur between their powers and those of the Minister of Justice
The Relation between the Public Prosecutor and the Minister of Justice
Organisation of the prosecution service
The prosecution service is a nation-wide organisation of prosecutors. It is organised hierarchically. At the top is the Board of Prosecutors-General. The service functions under responsibility of the Minister of Justice, but it is not an agency of the Ministry of Justice. The service is part of the judiciary.
The organisation of the prosecution service is regulated by the 1827 Judicial Organisation Act. In 1999, the prosecution service has been profoundly reformed.
The total number of prosecutors stands at around 500. One quarter of all prosecutors is female. Prosecutors are recruited in the same way as judges. They belong to the judiciary but, unlike judges, they are not appointed for life. Public prosecutors are appointed by the Crown and retire at the age of 65.
The prosecution service is organised in two layers, corresponding to courts of first instance and courts of appeal.
At the nineteen district courts, the prosecution service (arrondissementsparket) consists of prosecutors with the rank of chief prosecutor, deputy chief prosecutor, senior prosecutor, prosecutor, substitute prosecutor and prosecutor acting in single court sessions. The latter is vested with all powers of a prosecutor, with one exception. He may only act as prosecutor in single judge court sessions. In these sessions simple criminal cases are tried. The single judge is vested with the power to impose prison sentences of one year maximum.
Public prosecutors are supported by staff members (parketsecretaris) who may hold a mandate to summon a suspect in simple cases. They assist the prosecutor in preparing prosecutorial decisions. As a rule, these parketsecretaries check the police files to see whether there is sufficient evidence for a prosecution, and draft the charge and wit of summons. Parketsecretaries may hold a mandate to summon an arrested suspect prior to his release. The mandate is restricted to criminal cases to be tried in single judge court sessions. A mandate, according to Dutch law, means that the public prosecutor remains competent to withdraw the summon issued by the parketsecretary at all times.
At the five courts of appeal, the service consists of the chief advocate-general and the advocates-general. The main task of the service at the court of appeal level is to deal with charges in appellate cases.
National prosecution office
Additional to the nineteen prosecution services at district court level, there also exists a national prosecution office located in Rotterdam, which is not linked to a particular district court. The public prosecutors of the national prosecution office are vested with the same powers as the prosecutor at district court level. Their main task is to investigate and prosecute serious (organised) crimes – crimes which due to seriousness or frequency cause serious threat of legal order and for the fight of which financial or tax expertise is deemed necessary – and nation-wide or international crime for the detection of which the national crime squad is competent.
This office supervises the national crime squad (LRT). The national crime squad mainly investigates international crimes like human trafficking, terrorism, money-laundering and fraud. The national prosecution office prosecutes cases investigated by this unit. Furthermore, the national prosecution office develops investigation and prosecution policy with regard to (international) organised crime. An operational task of the office is the co-ordination and handling of foreign requests for legal assistance.
The structure of the national prosecution office is similar to the prosecution office at district court level.
The Board of Prosecutors-General
There is no hierarchical relation between prosecution services of the courts of first instance or the national prosecution office and the prosecution services of the courts of appeal. All are subordinated to the Board of Prosecutors-General. The board directs the prosecution service as one organisation.
The prosecution service is headed by a Board of three to five Prosecutors-General (College van procureurs-generaal). The Crown appoints the chairman of the Board. The Board has its office (het parket generaal) in The Hague. The Board of Prosecutors-General may give instructions to the members of the prosecution service concerning their tasks and powers in relation to the administration of criminal justice and other statutory powers, e.g. supervision of the police. Such an instruction may be of a general policy nature or of specific nature. Prosecutors are legally bound by these instructions.
The highest authority over investigation and prosecution rests with the Board. The Board ultimately supervises the implementation of a proper prosecution policy by the prosecution service, and a proper investigation policy by the police. The Board meets on a regular basis with the Minister of Justice.
The Board of Prosecutors-General is advised by a number of advisory bodies, consisting of public prosecutors and high ranking police officers. One of these bodies is the serious crime committee, which functions as policy making body concerning organised crime, and which filters recommendations about organised crime control. The advisory bodies initiate the issuing of national prosecution guidelines.
A significant number of guidelines issued by the Board of Prosecutors-General concern the investigation and prosecution policy in relation to the enforcement of the Opium Act, e.g. the guideline investigation and prosecution policy September 10, 1996 (State Journal 1996, 187), which tolerates certain drugs offences provided that the requirements expressed in the guideline are complied with. So-called coffeeshop owners who sell cannabis to customers are not prosecuted provided that:
- no more than five grams of cannabis per customer per time are sold;
- no hard drugs are sold;
- no advertising that drugs are sold takes place;
- no nuisance is caused; and
- no drugs are sold to persons aged under 18, and minors are banned from the premises.
Under the guidelines coffeeshop owners who comply with these conditions may stock up to 500 grams of cannabis.
Main duties and power of the service
The main task of the prosecution service is to administer the legal order, by means of criminal law. The prosecution service plays a pivotal role in the administration of criminal justice. The decisions made by the public prosecutor have profound consequences for the offender, and repeated refusals to prosecute certain crimes may also lead to a decline in the detection and investigation of offences by the police. In turn, the charges laid against the accused largely delineate the adjudicatory functions of the courts.
It is no exaggeration to say that the Dutch prosecution service has enormous powers, at least in dealing with criminal cases. It has a monopoly over prosecutions, and employs the expediency principle in this connection. Furthermore, it makes use of its hierarchical structure to pursue a co-ordinated policy. In this way, the prosecution service is able to determine systematically what cases should be brought to trial, and what sentences the courts should be asked to impose.
Since the introduction of the present Code of Criminal Procedure in 1926, the decision to institute criminal proceedings has been reserved exclusively to the prosecution service. Approximately one-half of the crimes, which reach the public prosecutor’s office through the intermediary of the police, are not brought to trial, but are disposed of by the prosecution service itself. Usually, this involves a decision not to prosecute through a dismissal due to technicalities, or through a dismissal due to the exercises of the expediency principle, or by a settlement out of court by means of a transaction.
Prosecutorial decisions
When the police investigation or the judicial preliminary investigation is terminated, the files are forwarded to the prosecutor who has to take a decision. He can decide:
- to drop the case;
- to settle the case by means of a transaction; or
- to issue a writ of summons on the offender.
Non-prosecution
The power to prosecute resides exclusively with the prosecution service. No prosecutorial power is granted to private persons or bodies, not even when the prosecution service declines to prosecute.
This prosecution monopoly does not require the prosecution service to prosecute every crime brought to its notice.
The prosecution service may decide not to prosecute in case a prosecution would probably not lead to a conviction, due to lack of evidence, or for technical considerations (technical or procedural waiver).
The prosecution may also decide not to prosecute under the expediency principle. The expediency principle laid down in Sect. 167 CCP authorises the prosecution service to waive (further) prosecution ‘for reasons of public interest’.
In appropriate cases, the prosecutor can decide to suspend prosecution conditionally. The suspended non-prosecution has no statutory footing, and is therefore theoretically dubious, but it is generally accepted that the prosecution service is allowed to suspend a prosecution. Explicit general or special conditions for a suspended prosecution do not exist, but in practice the prosecutor imposes conditions similar to the conditions attached to a suspended sentence.
Prior to the late 1960s, the discretionary power to waive (further) prosecution was exercised on a very restricted scale.
Thereafter, however, a remarkable change in prosecution policy took place. Research on the effects of law enforcement coupled with the limited resources of law enforcement agencies revealed that it was impossible, undesirable, and in some circumstances even counter-productive to prosecute all offences investigated.
Gradually, the discretionary power not to prosecute for policy considerations began to be exercised more widely.
To harmonise utilisation of this discretionary power, the top of the prosecution service, the Board of Prosecutors-General, issues national prosecution guidelines. Public prosecutors are directed to follow these guidelines, except when special circumstances in an individual case are spelled out.
Under these guidelines, a public prosecutor could waive prosecution for reasons of public interest if, for example:
- measures other than penal sanctions are preferable, or would be more effective (e.g. disciplinary, administrative or civil measures);
- prosecution would be disproportionate, unjust or ineffective in relation to the nature of the offence (e.g. if the offence caused no harm and it was inexpedient to inflict punishment);
- prosecution would be disproportionate, unjust or ineffective for reasons related to the offender (e.g. his age or health, rehabilitation prospects, first offender);
- prosecution would be contrary to the interests of the state (e.g. for reasons of security, peace and order, or if new applicable legislation has been introduced);
- prosecution would be contrary to the interests of the victim (e.g. compensation has already been paid).
The grounds for non-prosecution due to technicalities may be:
- wrongly registered as suspect by the police;
- insufficient legal evidence for a prosecution;
- inadmissibility of a prosecution;
- the court does not have legal competence over the case;
- the act does not constitute a criminal offence; and
- the offender is not criminally liable due to a justification or excuse defense.
Public prosecutors are not obliged to motivate their decisions not to prosecute due to technicalities or due to policy considerations. They are, however, obliged to categorise their decisions under one of the reasons or grounds for non-prosecution previously mentioned. This categorisation is no guarantee for a uniform application of the reasons for non-prosecution. However, it provides information on the prosecution policy pursued in each of the nineteen prosecutorial jurisdictions, and provides insight in the difference in these prosecution policies. It is one of the means to harmonise these prosecution policies.
In the early 1980s, the proportion of unconditional waivers on policy considerations was relatively high. Approximately one quarter of all crimes cleared were not further prosecuted for policy reasons. The rationale was that prosecution should not be automatic, but should serve a concrete social objective. Such a high proportion of waivers on policy grounds was seriously criticised. The prosecution service was instructed to reduce the number of unconditional waivers by making more frequent use of conditional waivers, reprimands or transactions.
Today, the percentage of unconditional policy waivers has dropped to around 5%.
The decrease in the percentage of unconditional waivers did not lead to an increase in the number of cases tried by a criminal court. This is, because an increasing number of cases was either waived conditionally or settled out of court with a transaction.
Transaction
Transaction can be considered as a form of diversion in which the offender voluntarily pays a sum of money to the Treasury, or fulfils one or more (financial) conditions laid down by the prosecution service, in order to avoid further criminal prosecution and a public trial.
The possibility to settle criminal cases by way of a transaction has long existed. The first possibility to settle a case financially was created in 1838, for offences which carry no other statutory sentence than a fine. The offender who offers the prosecution service to pay the maximum statutory fine may settle his criminal case by paying (Sect. 74a CC). The second possibility to settle a case was adopted in 1921. Since then, the public prosecutor may, before trial, propose one or more conditions in lieu of criminal proceedings.
Prosecution is in effect suspended until such time as the conditions are met, after which the right to prosecute lapses.
However, until 1983, this opportunity to settle a case financially was exclusively reserved for misdemeanours in principle punishable with a fine only. Following the recommendations of the Financial Penalties Committee, the Financial Penalties Act of 1983 expanded the scope of transactions to include crimes which carry a statutory prison sentence of less than six years (Sect. 74 CC).
The restriction that transaction is excluded for crimes carrying a statutory prison sentence exceeding six years has a limited impact. The overwhelming majority of crimes carry a statutory prison sentence of less than six years.
The following conditions may be set for a transaction:
a. the payment of a sum of money to the State, the amount being not less than € 2,- and not more than the maximum of the statutory fine;
b. renunciation of title to objects that have been seized and that are subject to forfeiture or confiscation;
c. the surrender of objects subject to forfeiture or confiscation, or payment to the State of their assessed value;
d. the payment in full to the State of a sum of money or transfer of objects seized to deprive the accused, in whole or in part, of the estimated gains acquired by means of or derived from the criminal offence, including the saving of costs;
e. full or partial compensation for the damage caused by the criminal offence;
f. the performance of non-remunerated work or taking part in a training course during 120 hours.
Compliance in due time, with the conditions set by the prosecution service, does not imply that the offender admits that he has committed a criminal offence.
Acceptance of the public prosecutor’s offer to settle a case is as a rule beneficial to the offender: he avoids a public trial, the transaction is not registered in his criminal record, and he is no longer uncertain about the sentence. On the other hand, by accepting the transaction he gives up the right to be sentenced by an independent court with all associated legal guarantees (Sect. 6 ECHR). The acceptance must be made in free will without constraint.
The almost unlimited power given to the prosecution service in 1983, to settle criminal cases by a transaction without the intervention of a court has been strongly criticised. The most important criticism was that the increased transaction opportunities introduced a plea-bargaining system, represented a real breach of the theory of the separation of powers, undermined the legal protection of the accused, favoured certain social groups, and entrusted the prosecution service with powers which should remain reserved to the judiciary. Furthermore, it was feared that with nearly ninety percent of all crimes brought within the sphere of the transaction, the public criminal trial, with its safeguards for the accused, would become the exception, and not the rule.
Despite this criticism, the introduction of the broadened transaction was a great success. More than one third of all crimes dealt with by the prosecution service are now settled out of court by a transaction. This is in line with the national criminal policy plan, which formulated the target that one-third of all prosecuted crimes be settled by way of a transaction.
Transactions for crimes seem to be very popular, both for the prosecution service and the offender. They save the prosecution service and the offender time, energy and expenses, and furthermore protect the offender against stigmatisation. Quite often, high transaction sums for crimes committed by corporations, e.g. environmental crimes and frauds, are accepted in order to avoid negative publicity.
To minimise the risk of arbitrariness and lack of uniformity in the application of transactions, the Board of Prosecutors-General has over the years issued guidelines for common crimes for which transaction is most frequently used, relating to the principles to be taken into consideration regarding transaction and prosecution.
Since 1993, the police may offer transactions for certain categories of crimes. Shoplifting and drunk-driving have been designated as offences for which the police may offer a transaction.
The maximum amount of a police transaction for crimes is € 350,- (Sect. 74c CC). By contrast, the maximum amount of a prosecutorial transaction for crimes is € 450.000,-.
A weak point of the transaction is, that non-acceptance automatically leads to the issuing of a writ of summons and a trial. That automatism brings a lot of work for the prosecution service and the court. At present a Bill is pending to vest the public prosecutor with the power to impose all sanctions except a deprivation of liberty. The sanction will be implemented unless the offender lodges an appeal with the court. It is estimated that the number of appeals will be significantly lower than the number of non-accepted transactions.
Complaints by the victim against non-prosecution
The Dutch Code of Criminal Procedure grants the right of prosecution exclusively to the prosecution service. The State thus has a full monopoly on prosecution without any restriction. The victim does not have the right to private prosecution.
Anybody with an interest in the prosecution of an offence can file a protest against a decision to waive a case, by lodging a complaint with a court of appeal. The court examines the manner in which discretionary power was utilised by the public prosecutor. This examination extends both to the legality of the decision (the issue being the proper application of the law), and to the use of discretion (a study of the extent to which this decision is in line with the general prosecution policy). The complainant has the right to be heard by the court, and may be assisted by his counsel. The court of appeal may order the public prosecutor to initiate a prosecution if it finds that the prosecutor has misused his discretionary power. However, in practice the court of appeal seldom orders prosecution. Annually, around 1,200 complaints are filed.
In addition to judicial control over prosecution, administrative control over prosecution can take place at the request of a person with an interest in prosecution. An individual can request a public prosecutor to review a prosecution decision or, should he refuse to do so, write a letter to a higher official in the hierarchy of the prosecution authority, requesting to review the decision of the subordinate prosecutor.
Complaints of the accused against a decision to prosecute
If the prosecution service decides to refer a matter to a criminal court, suspects in simple, less serious kinds of crimes will generally be summoned by the public prosecutor exclusively on the basis of the information obtained in the police investigation. In cases of a more complicated nature and serious crime, the public prosecutor may apply to the investigating judge for a preliminary judicial investigation. When the preliminary investigation, conducted either by the police or by the investigating judge, is completed, it is once again the public prosecutor who must decide whether or not to continue the prosecution.
If the suspect is notified by the public prosecutor that no charges will be brought (either conditionally or otherwise), the case is terminated, unless fresh incriminating evidence is subsequently discovered.
If the public prosecutor decides to prosecute, (i.e. if a notification of further prosecution or a summons is issued), the accused can lodge a written notice of objection with the district court. The objection procedure enables the suspect to challenge in a non-public setting (i.e. in chambers) what may be a rash or unjust prosecution, and thereby avoid being exposed to a public trial.
This judicial review of the decision to prosecute is fairly limited. In the great majority of cases, the notice of objection procedure results, after a brief investigation, in a decision by the judge in chambers that the case should go to trial after all. Should the court find that a prosecution is unjustified, the case will be dismissed. Otherwise, the case is prepared for trial. The grounds on which the prosecution may be dismissed are limited to four:
- where the case is to be dismissed because the prosecutor does no longer have the right to prosecute, e.g. due to the statute of limitations;
- where the evidence against the accused is manifestly insufficient;
- where the act does not constitute a criminal offence; and
- where the accused is not liable, e.g. due to self-defense.
Political accountability
The prosecution service is not an independent body, in the sense that the Minister of Justice is politically accountable for the policy of the prosecution service and can be held to account in Parliament for intervening, or failing to intervene, in this policy. He can be questioned by Parliament both for the prosecution policy at large, and for individual prosecutorial decisions. This political accountability is one of the core elements of the Dutch Rule of Law State.
The Minister of Justice is hence involved in the formulation of prosecution policy at large. There are regular contacts between the Minister and the Board of Prosecutors-General in this respect. The Board of Prosecutors-General is responsible for the proper realisation of the prosecution policy, as agreed with the Minister of Justice. The Board issues instructions in this respect. The Minister may be involved in the decision making in individual cases as well. He may be consulted by individual prosecutors in cases where the prosecutorial decision may have an impact on the general prosecution policy, or where his political accountability is at stake. The final responsibility rests with the Minister of Justice.
Section 127 of the Judicial Organisation Act therefore vests the Minister of Justice with the power to give general or specific instructions on the exercise of tasks and powers of the prosecution service.
The Minister may give instructions concerning investigation and prosecution in individual cases as well. Before the Minister can issue such an instruction, the Board of Prosecutors-General has to be consulted. The instruction must be reasoned and issued in written form.
Officials of the prosecution service are required to follow those instructions. As a rule, such an instruction has to be added to the files, together with the views of the Board of Prosecutors-General in order to give the court full information. A ministerial instruction not to prosecute or not to investigate a criminal offence has to be notified to Parliament, together with the view of the Board.
The need for democratic control has increased over the last decades, as the prosecution service acquired more adjudicatory powers and only a restricted number of criminal cases were brought to trial.
Although the power of the Minister of Justice to issue instructions under Sect. 127 JOA is unrestricted, the Minister will rarely exercise this power. In most cases, consultation with the Board of Prosecutors-General will have the effect that the Board will issue such an instruction. Only in rare cases, where the Board disagrees with the opinion of the Minister, is he likely to use this power.
The Minister cannot give orders to the Procurator-General and the advocates-general of the Supreme Court, who hold an independent position. Otherwise, conflicting interests might occur between their powers and those of the Minister of Justice
