#05: Impunity for procedural errors
Every criminal defence lawyer will recognize the frequently asked question; how can you argue that a suspect should be set free based on procedural errors while you know he is guilty? A plea on the importance of the rule of law can be the logical response. However, the easy answer in the Netherlands is: “Well my friend, those days are gone.” We will first explain why this is and second what the risks are of this development.
The Supreme Court in the Netherlands has set out strict rules in its case law which make it next to impossible for judges to sanction a procedural error with inadmissibility of the public prosecutor. Even exclusion of evidence is starting to become a rare phenomenon in Dutch procedural law. While we understand that a sanction for a procedural error should be proportionate, we fear that the case law of the Dutch Supreme Court has created a feeling of impunity for procedural errors for the investigating authorities. There seems to be or there is no serious reprimand when the procedural rules are not obeyed. This comes with serious consequences for our rule of law.
In article #02 we explained (in short) how the system for compensation due to procedural errors works. Article 359a of the Dutch Criminal Procedural Code (DPC) provides the basis to decide what kind of implications a procedural error should have. This article came into the law in 1995 to codify the existing case law at that time. The Court can decide that an irreparable procedural error during the criminal investigations of the proceedings should result in the inadmissibility of the prosecution, exclusion of evidence or a reduction of the sentence. To decide upon one of these consequences the Court has to weigh three factors. The first factor is the interest they violated ‘rule’ aims to protect. The second factor is the seriousness of the infringement and the third factor is what disadvantage the omission has for the suspect. As the implications provided by article 359a DPC are discretionary, the Court can also suffice with the mere observation that the procedural error occurred. Accordingly, the error could also stay without any consequences at all.
The term procedural error is interpreted in a broad sense. This means that procedural errors of the police and the public prosecution are taken into consideration by the Court. The second requirement is that the procedural error is irreparable. In the explanatory memorandum of parliament it is explained that if a procedural error is still reparable no sanction has to be provided. The examples given in the explanatory memorandum are for instance that when an expert did not take an oath this procedural error can be restored by having the expert still take the oath. We understand that this ‘minor’ error can still be repaired by an expert. However, we see a worrying development in which serious procedural errors are considered to be ‘repaired’. We will explain this by a common example. In our law system a report based on an oath of office – for instance from a police officer – has a higher probative status than other evidence. In general a verdict needs to be based on more than one piece of evidence. This does not count for a police report. Based on article 344 DPC a conviction can be based only on such a report. The reasoning behind it is that the observation of a police officer is correct since he has a trained eye and is considered as truthful. But is he?
We see more and more cases in which the defence detects serious errors in police reports. For instance, in a recent case the police intentionally masked the reason of the start of the criminal investigation with an incorrect police report. Another situation that we see in the case law is that taped telephone conversations are wrongfully transcribed in a police report. Words are intentionally twisted and turned. However, if the defence detects such errors after hard work most Courts regard these errors as repaired.
We are of the opinion that errors in police reports cannot be restored by the defence. What if the defence did not unravel all errors in the police reports? If one error has been made in a report, who can then guarantee that the other reports are correct? The fact that errors have been made results in the distrust of the other reports. We are of the opinion that the investigating authorities should be triggered to avoid such errors. Using the detection of errors by the defence as reparation of the error does not give the authorities any reason to work on the quality of their reports.
However, if an irreparable procedural error is noticed the defence is not done, it has to explain what consequences should be linked to the procedural error based on the aforementioned three factors. For every consequence described in article 359a DPC the Supreme Court has developed its own standards. We will go into the standards that have to be met to have the public prosecutor declared inadmissible or have the evidence excluded.
First, the Supreme Court decided that the prosecution can only be declared inadmissible if the three factors that have to be weighed, result in the conclusion that the investigation authorities are responsible for 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. The burden of proof lays with the defence and is hard to meet.
If a procedural error results in an infringement of the three factors this can also result in the exclusion of evidence. We see that arguments of the defence to exclude evidence most often fall short on the third factor; the disadvantage the omission has for the suspect. First of all, the Supreme Court has decided that the interest of a defendant that the crime is not revealed is not regarded as an interest of the defendant. Furthermore, an infringement of the right to privacy does not have to resort into any legal effect as long as the right to a fair trial is guaranteed. This means that the measure of exclusion of evidence is in principle only applied in case where an infringement of the right to a fair trial occurred.
One other reason set out by the Supreme Court which could lead to the decision of the Court to exclude evidence is the violation of rules of due process or a principle of law in a significant way. Also is has to be deemed necessary to prevent similar procedural irregularities in the future. This reason is described by the Supreme Court as a constitutional guarantee to prevent procedural errors with regard to important constitutional rules. For instance, this can be the case when procedural errors are made with regard to professional secrecy. To come to this conclusion the Court has to weigh the consequences of the exclusion of evidence against the negative effects of this decision. Such effects for instance can relate to society’s interest to punish serious offences or the rights of victims of an offence.
This very strict case law of the Supreme Court has led – in our view – to the impunity of procedural errors. This is probably the reason why the Supreme Court has added another reason to the possibilities of the Court to exclude evidence due to a procedural error. In very limited situations the Court can exclude evidence if the procedural error has a structural character based on objective information and the authorities did not do enough to prevent these procedural errors for the future. This means that the Supreme Court acknowledges the importance that procedural errors do not remain with impunity. However, the burden of proof (again) is on the defence. No examples are known to us in which a structural procedural error resulted in the exclusion of evidence.
We believe that this – complicated – set of rules regarding procedural errors create an infringement on our rule of law. Police officers could deem themselves above the law as their actions do not have consequences. We believe that this case law of the Supreme Court can only be legitimate if the investigative powers are sanctioned in an alternative way. That the Supreme Court does not want a defendant to benefit from a procedural error suits the public opinion nowadays. However, as of right now this is the only effective tool to protect the rule of law. In the Netherlands there is a possibility to file a complaint against the actions of a police officer of a public prosecutor. However in this complaint procedure no specific consequences are set out by the law if a procedural error is made. And a recent report shows that the complaint procedure is not used very often nor does it have the effect that is aimed for.
Several guarantees could protect the rule of law. For instance, an intentional procedural error could – or should? – be an offence in our Criminal Code. Also the legislator could create clear disciplinary sanctions. Such a system also has an advantage compared to the system of article 359a DPC since not every case in which procedural errors are made lead to criminal prosecution. This could be an effective trigger for the investigative authorities to comply with the procedural code. Although the literature has pleaded in great favour for such initiatives the legislator had not picked up on those initiatives or does not want to.
We are curious how procedural errors are sanctioned in your country and thus how the rule of law is protected.
 Explenatory Memorandum of the Parliament’s second chamber, case number 23 705, year 1993-194, number 3.
 Report Ministry of Justice on the complaint procedure by the police, ‘Klachtbehandeling door de politie’.
 M.J. Borgers, De toekomst van artikel 359a Sv (free translated: The future of article 359a CPC), DD 2012, 25.