#02: ‘You have to learn the rules of the game…’
‘…and then you have to play better than anyone else.’
These famous words of Albert Einstein seem to be key in many legal disputes and procedures. The criminal procedural code of a country provides the rules for conducting a criminal investigation and the – potential – criminal case afterwards. These rules do not only have to be obeyed in the courtroom, obeying the rules during the criminal investigation is just as important. If the investigation authorities in the Netherlands do not play by the rules, this could (or should) lead to (serious) consequences. Not only should the party involved be compensated for disadvantages in the investigation against him, in our opinion this is also an effective way to control and improve the system. If errors can be made by the authorities without any consequences, there is no reason for them to try to avoid such errors in the future.
In the Netherlands for instance evidence can be excluded from the case file or the prosecution could be inadmissible – under specific circumstances – when errors have been made. As an example evidence might not be valid if during the criminal investigation evidence is gathered in a manner which is not justified by the law. Other examples are that information is seized during an unauthorized house search or a statement that has been requested from and given by the suspect under unlawful circumstances. The evidence gathered under these circumstances could be excluded from the case file.
If the defense in the Netherlands wants to achieve any kind of ‘compensation’ for errors made during the investigation phase, it has to take action. The defense has to plead before the Court why the procedural errors that have been made should lead to compensation based on article 359a of the Criminal Procedural Code. The defense has to identify the procedural errors – in the Netherlands referred to as ‘omissions’ – that have been made during the criminal investigation and the defense has to explain to the judge why these omissions have to be compensated and how. In addressing the question of the legal consequences of a procedural omission during the investigation, the judge can decide to i) reduce the sentence, ii)exclude evidence from the casefile or iii) conclude that the prosecution is inadmissible. However if the standards of article 359a of the Procedural Code are not met the judge can suffice with the single notification of the omission that has been made.
In order to activate article 359a of the Criminal Procedural Code the defense has to explain to the Court which omissions have been made in the criminal investigation and that these omissions are irreparable. The consequence of such an irreparable procedural error – reduce of sentence, exclusion of gathered evidence or inadmissibility of the prosecution – depends on three factors. The first factor is the interest of the damaged ‘rule’ aims to protect, the second factor is the seriousness of the infringement and last the defense has to specify how the suspect is disadvantaged by the omission. The disadvantage is assessed in such a way that the omission should actually prejudice the defendants right to defend himself. It needs to be noted that the Supreme Court of the Netherlands judged that the mere fact that the ‘crime’ has been detected cannot qualify as a ‘disadvantage’ to the suspect. The rights of a defense are mostly explained as a right to a fair trial of article 6 ECHR.
The prosecution can only be declared inadmissible based on article 359a Criminal Procedural Code – based on the jurisprudence of the Supreme Court – when the investigation authorities are responsible of a serious violation of the principles of due process which are made intentionally or with gross neglect of the interests of the accused’s right to a fair trial. This burden of proof for the defense makes it almost impossible to challenge the admissibility of the prosecution. The Supreme Court decided that when the procedural omissions are made in a structural way this could lead to exclusion of evidence from the case file. However this does not help the suspect if the excluded evidence is not crucial in his case. If there would be other evidence – gathered in a rightful way, not as fruit of the poisonous evidence gathered based on the omission – this could still lead to a conviction.
An omission that could lead to reducing a sentence could be for instance the way the suspect is treated during his arrest. However, Courts mostly just take notice that an omission has been made and move on without any consequences for these flaws. Luckily there are some lower court judges who are not charmed by this reluctant attitude of the Supreme Court and – if too many faults have been made during the investigation – they are not as hesitant to declare the prosecution inadmissible.
In the Netherlands the jurisprudence and professional literature currently is dominated by the right of the suspect to have a lawyer present during a police interrogation. Until now there were no consequences if this right would not be effected during the investigation phase, as this right was not accepted as a right of the defendant. In hindsight the Salduz jurisprudence – which in the Netherlands ultimately set the norm that is was a procedural right of a suspect that he could consult a lawyer before his police interrogation – of the ECHR in 2009 has set this development in motion. In our opinion this right derives from article 6 ECHR and was violated all along just without any consequences. However the Salduz jurisprudence of the ECHR resulted – after a few years of challenging the interpretation of the Dutch lower courts – in the decision of the Supreme Court in the Netherlands that if a suspect did not get the opportunity to consult a lawyer before a police interrogation the consequence should be that the statement of that interrogation should be excluded from the evidence in the case file based on article 359a Criminal Procedural Code.
Just before last Christmas the Supreme Court in the Netherlands took this further and decided that as of 1 March 2016 every suspect also has the right to have a lawyer present during the police interrogation. The Supreme Court states that the right of a suspect to the presence of a lawyer during the police interrogation cannot directly be withdrawn from the jurisprudence of the ECHR – Navone v. Monaco – nor from the Directive from the European Parlement and the European Union of 22 October 2013 as this Directive has not yet been implemented in the Dutch law. The Directive prescribes that a suspect has the right to a lawyer during the police interrogation in criminal procedures and during procedures concerning the European arrest warrant. The Supreme Court earlier has summoned the legislator to implement this Directive in the national law. The Supreme Court now concludes that the Directive has to be implemented in the national law in November 2016 at the latest. Because of these developments the Supreme Court assumes that various measures already have been taken by the investigation authorities in the Netherlands and therefore as of 1 March 2016 the right to a lawyer during an interrogation has to be effected.  If per this date suspects are not granted the right of legal aid during an interrogation this qualifies as an omission in the investigation. The consequence of that omission should be determined based on the severity of the omission in the specific case. Until November 2016 the consequence not necessarily has to be exclusion of the statement of the suspect from the casefile. However this is a possible consequence. This example shows that, in the first place, The Netherlands needs Europe to set the norms of some basic fair trial rights. Second, it shows that the Supreme Court continues to be cautious to connect consequences to violations of these fundamental rights. This cautiousness in our opinion paves the way to more violations.
Luckily our lower courts stay critical. There already is an example of a lower court which used this Supreme Court decision to the advantage of the suspect in January of this year. In this case the suspect requests the police to have his lawyer present during the interrogation, but this was denied by the police. Following the pleadings of the defense based on the requirements as laid down by the Supreme Court in its decision of 19 February 2013 and article 359a of the Procedural Code, the court excluded the statements from the case file. It seems that the Dutch courts are starting to embrace the rights as provided in the European Treaty of Human Rights and are not afraid to have a violation of these rights followed by a consequence. Let’s hope the investigative powers will learn from this.
What are the consequences of not ‘playing by the rules’ during a criminal investigation in your Country? Do suspects have the right to a lawyer during an interrogation? And what is the consequence if this right is violated?
 Supreme Court of the Netherlands, 4 January 2011, ECLI:NL:HR:2011:BM6673.
 Supreme Court of the Netherlands, 19 February 2013, ECLI:NL:HR:2013:BY5322.
 Supreme Court of the Netherlands, 30 June 2009, ECLI:NL:HR:2009:BH3079.
 Supreme Court of the Netherlands, 22 December 2015, ECLI:NL:HR:2015:3608.
 Supreme Court of the Netherlands, 1 April 2014, ECLI:NL:HR:2014:770.
 Even though this is a very welcome development in Dutch law, this development raises issues in the state funded legal aid cases. Lawyers will have to spend more time on individual cases by attending the interrogations. In that respect a summary procedure was announced to the state by the Dutch society of criminal procedure lawyers in order to raise the funds for this type of legal aid in State funded cases.
 Court ‘Midden-Nederland’, 28 January 2016, ECLI:NL:RBMNE:2016:440.