#76: Trial agreements in the Netherlands

The desire for criminal proceedings to be more efficient is present among all those involved. Enforcement of criminal offences is more effective for society if proceedings do not take too long. In addition, suspects do not benefit from a long period of uncertainty and nor does the Prosecutor’s Office in terms of capacity. In February 2019, the Prosecutor’s Office in the Netherlands already expressed its desire to make trial agreements with the defense more often. The outlines of the possibilities and impossibilities slowly begin to unfold.

The desire to come to such agreements can be explained by the fact that once a case has gone to court, the Prosecutor’s Office cannot withdraw the case anymore. It is then up to the court to take a decision. Various developments in time could cause the Prosecutor’s Office to request a certain outcome of the case, however the court is not obliged to follow the Prosecutor’s Office. In this respect the Prosecutor’s Office expressed in 2019 that it wanted to start experimenting with trial agreements with the purpose of saving time and capacity. This would involve, for example, the public prosecutor limiting the scope of the investigation, followed by limited investigation requests  by the defense. There is no legal basis needed for trial agreements, but a draft instruction is being prepared by the Prosecutor’s Office that spells out the guidelines  under which trial agreements can be made.

The first experiences with trial agreements show that it depends on the court involved whether the Prosecutor’s Office and the suspect can count on support for their agreement. In addition, trial agreements seem to have the best chance of success if they help to “unclog” the criminal justice system. It is therefore preferable to make agreements with all parties and not, for example, with only some of the defendants.

In 2019 the Prosecutor’s Office also expressed a desire to come to agreements regarding a potential sanction, such as the duration of imprisonment: “A sentencing agreement is a joint request from the prosecutor and the lawyer of a confessing defendant to the judge.” The initial findings are a mix of positives and negatives. For example, also in 2019 agreements between the prosecution and the defense on the sentence in the so-called Cymbal case were submitted to the court. The court, however, disregarded these agreements and ordered a (much) higher duration of the imprisonment. In a recent case, the Arnhem-Leeuwarden Court of Appeal also did not follow the agreements made between the Prosecutor’s Office and the defense. The suspects in this case were accused of having defrauded the parties by promising them that they would be able to safely achieve high returns from investing in real estate in Poland. However, that money was lent to a Polish company without any security being obtained. The court emphasizes that a large number of victims are still experiencing the negative financial consequences of the defendants’ actions. The fact that the trial agreements would not lead to any certainty for the injured parties within a “very short period of time” played, among other things, a role in not accepting the trial agreements, as the defense indicated to be able to file an appeal at the supreme court with respect to the decision on the compensation of the victims.  

However there are also positive experiences. In another case, during a pre-trial hearing, it was the Rotterdam District Court who encouraged the Prosecutor’s Office and the defense to make agreements about the trial and the sentence. So they did and the court went along with their agreement after it had tested whether the trial agreements are fair, whether the suspect understands the trial agreements and whether they have been entered into voluntarily. This resulted in substantial save of time and money.

If you would like to know more about the case-law we refer to, please reach out to us at boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl. We are happy to share an English translation and discuss any questions you might have on the topic.