#80: Getting your right

Being right and getting your right are different things. Especially in law. In criminal investigations, the defendant who is convinced of his innocence obviously wants to get his right. And that makes sense in society nowadays, in which a wrongful accusation impacts so many other factors in life. A criminal investigation or prosecution has quite some consequences for which “collateral damage” is a euphemism. Of course there is an interest in not being wrongly convicted by a court, but there is also an interest in getting your right in case of an out of court dismissal. In the Netherlands, this often results in a discussion for dismissal code “01” – unjustified suspicion – and dismissal code “02” – insufficient evidence. This usually is the final battle to fight.

In practice in the Netherlands the accused who is convinced of his innocence cannot or will not simply accept dismissal code “02,” which implies insufficient evidence. Dismissal code “01” means that there is an unjustified suspicion and in a lot of cases does more justice to the situation. For some suspects, this has (mainly) to do with a sense of honor and justice. From a negative approach, the label “insufficient evidence” might imply that the evidence of a criminal act should be there, but that the evidence was not discovered. For others, the main issue is the effect of the wrongful decision. This is especially relevant for the suspect who is repeatedly facing problems with various institutions to be granted financial credit or, for instance, a statement of good conduct (“VOG”).

If a former suspect disagrees with the dismissal code, a complaint can be filed with the chief public prosecutor via the route of Chapter 9 of the General Administrative Law (Awb). And if the former suspect disagrees with the chief officer’s judgment, a complaint can be filed with the National Ombudsman. If the case prosecutor appears unwilling – after substantiated request – to adjust the dismissal code from “02” to “01”, experience shows that chances are that the chief prosecutor is also unwilling to do so. Going to the National Ombudsman is then the last resort.

This route however usually takes a lot of time. And practice shows that there are various other – creative – ways to getting your right. For instance there are examples of persons starting a procedure after a dismissal with code “02”, to request the court to order the prosecutors office to prosecute. The goal then is to receive an acquittal from the criminal court judge. Other examples are those of persons who try to obtain to get their right through the cost reimbursement procedure and request this judge to grant a reimbursement of costs as if the case would be dismissed with code “01″.

This discussion is also taking place in the Caribbean parts of the Dutch Kingdom, such as Curaçao. The administrative route to file a complaint at the chief prosecutors office against a specific dismissal code does not apply there. The Code of Criminal Procedure, however, does provide there the entrance to summary criminal proceedings. Article 43 of the Code of Criminal Procedure offers the following possibility: “In all cases, in which the interest of the proper administration of criminal justice makes a remedy urgently necessary and the Code itself does not contain any regulation in this regard, a request for such a remedy may be made by the accused or the person who has a direct interest therein that directly affects him specifically.”

If the dismissal decision was made during the preliminary investigation then, according to article 43, paragraph 3, Code of Criminal Procedure on the islands, the investigating judge is authorized to decide on the request to change the dismissal code from “02” to ” 01″. Based on (unpublished) rulings, it appears that this route can successfully solve the problem. In a specific case, a former suspect whose case was dismissed with a tremendous amount of determination got his right in the end. And that is what counts.

Do you have any questions about the above or would you like to exchange views with us? Please contact boezelman@hertoghsadvocaten.nl or boer@hertoghsadvocaten.nl.