The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
When a criminal case has not been waived or settled out of court, the prosecutor will summon the suspect to appear in court. The summons comprises the charge (tenlastelegging) and a list of witnesses to be sub-poenaed.
The public prosecutor is truly dominus litis. The trial judge has no control over the content of the charge. The prosecutor may decide to charge the suspect with a less serious offence (e.g. by disregarding aggravating circumstances) despite the existence of sufficient evidence to charge the suspect with a more serious crime, or may limit the charge to some offences committed by the suspect. The court is informed in an informal way about the other offences committed (voeging ad informandum). For the sentence to be imposed, the court may consider these non-charged offences, provided that the suspect does not deny and the offence can be proved.
The trial stage begins, as soon as the prosecutor has issued a summons.
A court hearing commences with the identification of the accused by the president of the court and the reading of the charge by the public prosecutor. The accused is reminded by the court of his right not to answer questions.
The charge is the subject of the court session. It consists of a description of the alleged criminal offence, and closely follows the statutory definition of the offence.
The court does not have the power to modify the charge if it deems this necessary. The public prosecutor is vested with the power to do so, since he is master of the trial. This power, however, is very limited. This is due to what is called 'the tyranny of the charge', i.e. the court may only convict the accused on the basis of the charge.
After the reading of the charge, the court examines the accused and the witnesses (either called by the prosecutor or by the defendant or his defense counsel) and the experts. Afterwards, the public prosecutor and the defense counsel may ask additional questions of the accused and the witnesses. Unlike the accused, witnesses are obliged to answer the questions put by the court, the prosecutor and the defense counsel. Cross-examination, however, is unknown under Dutch law. The examination of the accused and the witnesses by the court is usually combined with the reading by the presiding judge of their statements made to the police or the investigating judge. Witnesses are examined after having taken the oath. The defendant may not be questioned under oath. He has the right to remain silent, and cannot be obliged to tell the truth and nothing but the truth.
Although the Code of Criminal Procedure embodies the immediacy principle, obliging witnesses to be questioned in court, witnesses are as a rule not questioned, since the Supreme Court accepts hearsay evidence. In fact, criminal court sessions to a large extent deal with written statements of witnesses, filed by the police or the investigating judge. Their written statements may be used as evidence provided that these have been discussed in court. This restriction of the immediacy principle has as effect, that court trials do not take very long if the accused confess and do not contradict the written statements of the witnesses. It is rare that a trial lasts more than a couple of hours, even in serious cases.
After the evidence has been presented and discussed, the public prosecutor makes his closing speech (requisitoir). In his closing speech, he gives a summing up of the evidence, recommends what offence the defendant is to be sentenced for and requests the sentence to be imposed.
For certain types of offences the prosecution service has issued directives on what sentence is to be requested at trial in the closing speech. This holds good for drunk-driving, social security fraud, tax fraud, drug crimes, and so on. The directives have been issued by the Board of the Prosecutors-General, and are in line with the sentencing policy of individual courts.
An individual member of the prosecution service is bound by these directives in principle. This obligation stems from the hierarchical structure of the prosecution service, in which someone lower in the hierarchy is committed to instructions emanating from his superior. This commitment is expressed in the law (Sect. 139 Judicial Organisation Act, and Sect. 140 CCP). The judge is not bound by this request.
It appears that in practice the court considers the sanction requested by the prosecutor in his closing speech as a guideline for sanctioning.
Finally, the defense counsel addresses the court with his plea. Before the presiding judge closes the trial, the last word is given to the accused.
Prosecutorial sentencing guidelines
Since 1999, within the prosecution service more than 35 national guidelines for sentencing have been formulated, which should lead to equality in sentencing for the majority of crimes, the so-called Polaris-guidelines. The structure of these prosecutorial sentencing guidelines is very clear and is based on the ‘Framework for prosecutorial sentencing guidelines’ published by the Board of Prosecutors-General (State Journal 2001, 28). For each crime a number of sentencing points is set, e.g. bicycle theft 10 points; burglary 60 points; motorcar theft 20 points; shop lifting 4 points; destruction 6 points; bodily harm 7 points; threat 8 points; insult 10 points; open or overt use of violence 15 points; import or export of hard drugs 30 points; burglary in a factory 42 points.
Due to special circumstances, the number of points can be higher or lower, e.g. the use of weapons or causing injury to the victim leads to extra points. An attempt to commit a crime leads to a reduction of points. Recidivism makes that half of the points are added, multiple recidivism doubles the points.
Finally, the points are converted into a sentence. Not all the points count fully in calculating the sentence. A conversion method has been elaborated. Up to 180 points, every sentencing point counts. Between 181 to 540 points, each point counts as half a point and above 541 points each point counts as a quarter of a point.
Every point may lead to a fine of € 22, or to one day of imprisonment or to two hours task penalty. Below 30 points, the public prosecutor can avoid a public trial and use the fine or the task penalty transaction. Between 30 and 60, points the prosecutor may only use the task penalty transaction. Above 61 points, there will be an indictment and the public prosecutor will request a task penalty (< 120 points) or a prison sentence (> 120 points).
An individual public prosecutor is allowed to deviate from these guidelines, but always has to give an explicit reason for doing so. The advantage of this system is, that review can take place in all 19 regional prosecution services. In case one of the prosecutors deviates considerably from national policy, a discussion has to take place between the chief public prosecutor and the individual prosecutor involved.
The Role of the Public Prosecutor in Court
When a criminal case has not been waived or settled out of court, the prosecutor will summon the suspect to appear in court. The summons comprises the charge (tenlastelegging) and a list of witnesses to be sub-poenaed.
The public prosecutor is truly dominus litis. The trial judge has no control over the content of the charge. The prosecutor may decide to charge the suspect with a less serious offence (e.g. by disregarding aggravating circumstances) despite the existence of sufficient evidence to charge the suspect with a more serious crime, or may limit the charge to some offences committed by the suspect. The court is informed in an informal way about the other offences committed (voeging ad informandum). For the sentence to be imposed, the court may consider these non-charged offences, provided that the suspect does not deny and the offence can be proved.
The trial stage begins, as soon as the prosecutor has issued a summons.
A court hearing commences with the identification of the accused by the president of the court and the reading of the charge by the public prosecutor. The accused is reminded by the court of his right not to answer questions.
The charge is the subject of the court session. It consists of a description of the alleged criminal offence, and closely follows the statutory definition of the offence.
The court does not have the power to modify the charge if it deems this necessary. The public prosecutor is vested with the power to do so, since he is master of the trial. This power, however, is very limited. This is due to what is called 'the tyranny of the charge', i.e. the court may only convict the accused on the basis of the charge.
After the reading of the charge, the court examines the accused and the witnesses (either called by the prosecutor or by the defendant or his defense counsel) and the experts. Afterwards, the public prosecutor and the defense counsel may ask additional questions of the accused and the witnesses. Unlike the accused, witnesses are obliged to answer the questions put by the court, the prosecutor and the defense counsel. Cross-examination, however, is unknown under Dutch law. The examination of the accused and the witnesses by the court is usually combined with the reading by the presiding judge of their statements made to the police or the investigating judge. Witnesses are examined after having taken the oath. The defendant may not be questioned under oath. He has the right to remain silent, and cannot be obliged to tell the truth and nothing but the truth.
Although the Code of Criminal Procedure embodies the immediacy principle, obliging witnesses to be questioned in court, witnesses are as a rule not questioned, since the Supreme Court accepts hearsay evidence. In fact, criminal court sessions to a large extent deal with written statements of witnesses, filed by the police or the investigating judge. Their written statements may be used as evidence provided that these have been discussed in court. This restriction of the immediacy principle has as effect, that court trials do not take very long if the accused confess and do not contradict the written statements of the witnesses. It is rare that a trial lasts more than a couple of hours, even in serious cases.
After the evidence has been presented and discussed, the public prosecutor makes his closing speech (requisitoir). In his closing speech, he gives a summing up of the evidence, recommends what offence the defendant is to be sentenced for and requests the sentence to be imposed.
For certain types of offences the prosecution service has issued directives on what sentence is to be requested at trial in the closing speech. This holds good for drunk-driving, social security fraud, tax fraud, drug crimes, and so on. The directives have been issued by the Board of the Prosecutors-General, and are in line with the sentencing policy of individual courts.
An individual member of the prosecution service is bound by these directives in principle. This obligation stems from the hierarchical structure of the prosecution service, in which someone lower in the hierarchy is committed to instructions emanating from his superior. This commitment is expressed in the law (Sect. 139 Judicial Organisation Act, and Sect. 140 CCP). The judge is not bound by this request.
It appears that in practice the court considers the sanction requested by the prosecutor in his closing speech as a guideline for sanctioning.
Finally, the defense counsel addresses the court with his plea. Before the presiding judge closes the trial, the last word is given to the accused.
Prosecutorial sentencing guidelines
Since 1999, within the prosecution service more than 35 national guidelines for sentencing have been formulated, which should lead to equality in sentencing for the majority of crimes, the so-called Polaris-guidelines. The structure of these prosecutorial sentencing guidelines is very clear and is based on the ‘Framework for prosecutorial sentencing guidelines’ published by the Board of Prosecutors-General (State Journal 2001, 28). For each crime a number of sentencing points is set, e.g. bicycle theft 10 points; burglary 60 points; motorcar theft 20 points; shop lifting 4 points; destruction 6 points; bodily harm 7 points; threat 8 points; insult 10 points; open or overt use of violence 15 points; import or export of hard drugs 30 points; burglary in a factory 42 points.
Due to special circumstances, the number of points can be higher or lower, e.g. the use of weapons or causing injury to the victim leads to extra points. An attempt to commit a crime leads to a reduction of points. Recidivism makes that half of the points are added, multiple recidivism doubles the points.
Finally, the points are converted into a sentence. Not all the points count fully in calculating the sentence. A conversion method has been elaborated. Up to 180 points, every sentencing point counts. Between 181 to 540 points, each point counts as half a point and above 541 points each point counts as a quarter of a point.
Every point may lead to a fine of € 22, or to one day of imprisonment or to two hours task penalty. Below 30 points, the public prosecutor can avoid a public trial and use the fine or the task penalty transaction. Between 30 and 60, points the prosecutor may only use the task penalty transaction. Above 61 points, there will be an indictment and the public prosecutor will request a task penalty (< 120 points) or a prison sentence (> 120 points).
An individual public prosecutor is allowed to deviate from these guidelines, but always has to give an explicit reason for doing so. The advantage of this system is, that review can take place in all 19 regional prosecution services. In case one of the prosecutors deviates considerably from national policy, a discussion has to take place between the chief public prosecutor and the individual prosecutor involved.
