#51: COVID-19, capacity problems and choices

In the Netherlands, courts and the Department of the Prosecutor’s Office (DPO), are facing severe capacity shortages. These capacity problems will not decrease the upcoming period. Due to the outbreak of the coronavirus, the Judiciary decided to close the courts, tribunals and special colleges as of Tuesday 17 March until at least 6 April 2020. This week it was decided that the closure will continue after 6 April 2020. Only urgent cases will continue. The DPO will postpone red-handed detentions. They are limited to urgent, serious cases. Each case will be weighed up; taking into account circumstances such as the fear of repetition and the safety of others.

This means that a lot of cases will have to be postponed until after this uncertain period will end. The courts and the DPO will then have a lot of catching up to do which will put even more pressure on the judiciary system. This situation calls for choices. But how do we make sure that those choices are equal and fair?

Article 167(1) of the Code of Criminal Procedure gives the Public Prosecution Service the power to decide independently whether or not prosecution should take place as a result of an investigation that has been initiated. The decision of the Public Prosecution Service to prosecute lends itself only to a very limited extent to a substantive judicial review. Pursuant to Article 12 of the Code of Criminal Procedure, an interested party can request the court to order the Public Prosecution Service to prosecute the facts after all. But what considerations are made in this respect and what are the grounds for prosecution or investigation? In a recent decision, the Court of Appeal of Amsterdam decided that the Public Prosecution Service does not need to proceed with a prosecution due to capacity problem. This was despite the fact that after a criminal investigation it could possibly be established that documents were forged. The Court of Appeal puts forward the following reasons:

• The Court observes that partly in connection with the increased need to deploy police officers for personal security, the police and the judiciary are struggling with considerable capacity shortages. In view of this, choices are inevitable, and this justifies a more limited capacity in criminal law;
• Furthermore, the Court finds that the alleged false document has not led to any financial disadvantage for the complainant.

In view of the above consideration the Court holds that a large-scale international investigation does not outweigh the interest of the complainant. In this respect the Court deems it necessary to place some blame on the complainant as well. After all, a quick search on the Internet would have made it clear that the defendant is associated with a large-scale fraud. The complainant had omitted this simple Internet investigation before she placed an order for millions with the defendant. Apparently, the court of appeal is holding this against the complainant.

Although we understand that capacity problems require certain choices to be made, we believe that these choices must be well substantiated. Why is one case prosecuted and why does the other ‘get away’? Policy choices should be clarified to the public so that everyone can appeal to this.

The Court of Appeal is now giving some substance to this. Apparently, forgery does not have to be prosecuted if the victim has not suffered any direct financial disadvantage as a result and if time-consuming and costly international investigations have to be carried out as well. One apparently does not outweigh the other. Whether these were actually the considerations of the Public Prosecution Service is unknown. We believe that the Public Prosecution Service should be transparent about this, so that the shortage of capacity does not lead to arbitrariness but to well-founded policy choices that are the same for everyone. Also a suspect should be given the opportunity to put forward arguments why his case should not be prosecuted given certain policies of the government.

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