Van der Steur: new Code is given form
The plans for the new Code of Criminal Procedure are ready. This is evident from a letter written by Minister Van der Steur (Security and Justice) to the House of Representatives. With this letter, an initial, formal step was taken to achieve a Code that is in line with the modern, digital society and one that is more accessible for legal practitioners and citizens. A Code that is easier in terms of use, one that increases the quality of the administration of criminal justice and improves the performance of the criminal justice system.
The revised legislation must enable the police and justice system to fight crime effectively and responsibly. At the same time, this legislation must also comply with quality requirements in a constitutional and administrative sense. The Code is technology-neutral, so it will not have to be amended to keep up with technological advancements. Furthermore, the Code will offer some room to anticipate national and international (European) developments. Both legal practice and science have argued in favour of a revision for quite some time.
Quality of the administration of criminal justice
In particular, the new Code must promote an adequate judicial response to criminal behaviour. This would require unequivocal proceedings that are properly aligned with each other, and which enable the police, the Public Prosecution Service and the courts to work together successfully.
Modern, effective criminal proceedings ensure a higher degree of quality in the administration of criminal justice and support the implementation of the 'Strengthening the Performance of the Criminal Justice System' policy programme (Versterking prestaties in de strafrechtketen, VPS) which was launched in 2011. By concluding criminal cases faster and more efficiently, preventing unwanted outflow and improving the provision of information, the criminal justice system as a whole will perform better.
This explains the increased emphasis on the preparatory investigation which will largely determines the outcome and quality of the overall proceedings. This can be achieved by already doing as much as possible during this phase, such as carrying out the expert investigation, preparing a reintegration report or examining witnesses.
A sound preparatory investigation enhances the quality of the trial: files that are more complete, fewer witness examinations at the hearing and a decrease in the number of detentions for further investigation. Moreover, all involved parties are informed at an earlier stage about the outcome of the case. This working method also requires an active approach from the Public Prosecution Service as well as the defence. In order to be able to formulate the investigative needs in a timely fashion, both parties will have to have access to and be informed of evidence and documents at an earlier stage. In connection with this, the examining judge will be given more freedom to assess investigative needs. The examining judge will also be monitoring the progress and completion of the preparatory investigation more closely. Quite often nowadays, criminal cases make it to trial before the file has even been completed.
The new Code will also allow for better weighing up of the interests between the various participants in the proceedings and will provide them with more legal certainty and legal protection. A separate regulation will be introduced for the rights and obligations of the witness, with attention for the individual's interests as a participant in the proceedings. The rules are now scattered within the Code and the position of the witness is described briefly. The victim's position will be strengthened in the appeal proceedings: he (she) will have the option of submitting his (her) claim for compensation of damages to the Supreme Court himself (herself).
The suspect will also have more options for exerting a more active influence over the preparatory investigation, and the number of cases in which he (she) will be entitled to notification of the decision not to prosecute (further), will be expanded. The examining judge will further investigate whether or not the suspect will be given more options to be present during the hearing of the witness.
Also, the regulations regarding special investigative powers (bijzondere opsporingsbevoegdheden, BOB) will be simplified. The Public Prosecutor will be able to include the applicability of numerous powers in one order, for example, instead of having to issue numerous orders. Examples include infiltration or observation. The same applies for tapping. According to the current rules, the Public Prosecutor must still claim the recorded conversation and the traffic information separately from the telecommunications provider. Soon this will be possible with just one order.
Improvements in proceedings must prevent valuable session capacity from going to waste, such as when an appeal is withdrawn at the last minute. A term of several weeks before the hearing, in which an appeal can be withdrawn, will soon apply. Only in exceptional cases will the judge be able to decide that a case can be heard even if this term has been exceeded.
The so-called continuous character of the appeal will be tightened. The appeal judge will focus more on the objections that were submitted - even more than now - with regard to his or her verdict. This implies that an appeal in a criminal case will no longer be subject to new proceedings all together. The activities of the district court and court of appeal will therefore be better aligned and the lead times will be shorter.
Improving the enforcement of sentences is a necessary precondition for strengthening the performance of the criminal justice system. In the new structure the Public Prosecution Service will forward all criminal sentences to the Administration and Information Centre for theExecution of Judgements (AICE), which is responsible for the administrative logistics. The AICE is encompassed within the CJIB and ensures that all those involved in the chain for enforcement of the sentence are provided with all necessary and specific information, in a timely and correct fashion.
The AICE also coordinates the process for the service of summonses and roll calls. It is expected that this will result in fewer errors. In addition, notices will be served by electronic means more frequently, which implies that cases will not be delayed as often, because of suspects who failed to appear, yet were sufficiently informed regarding the time and date of the relevant hearing.
Digital society
Modernisation is also needed because society has changed drastically due to new technology and the emergence of other types of crime (cybercrime). The current Code is based on the assumption of a criminal file made up of paper documents. It does not take digital communication and the exchange of information by digital means into account to a sufficient extent. This does cause delays, which means that it takes long before the judge can hand down a verdict. Participants in criminal proceedings will soon work with digital documents, which will speed up and improve the investigative process. This will result in shorter lead times and more effective enforcement of sentences. Not just the criminal file, but also the actual signing of documents and the documents that are served, will soon take place (and be stored) electronically.
Digital communication also has an impact on the rules for the investigation of criminal offences. Stricter rules will apply, for example, for the investigation of seized electronic data carriers, such as laptops, mobile phones and tablets. It is already possible to store large volumes of (personal) data and this ability will only increase in the future. This warrants more guarantees for citizens. Investigation of a mobile phone is no longer comparable to investigation of a simple business agenda. New IT systems and adjustments to work processes with the police, for example, can also lower the administrative burdens.
Overdue maintenance
The current Code of Criminal Procedure - which governs criminal proceedings from the investigative process up to actual enforcement of the sentence - is suffering from 'overdue maintenance'. Not only does it contain outdated or complex procedures, but the numerous amendments in the past imply that old and new rules are no longer aligned. Moreover, European directives are difficult to amend. This makes it necessary to elaborate on existing rules in a way that is clearer, or even to strike them out.
Doing so will take away the complicated numbering system for sections of the law, like numbers such as 126zq or 552iid. The structure of the regulations regarding special investigative powers will also be simplified, whereby the number of sections of the law will drop from 74 to 20. In addition, more streamlined editing of the legal text will make the regulations more accessible. This can be achieved by striking out repeats and elaborating on the same investigative powers only once. The number of different legal procedures involved in the enforcement of sentences will be reduced from roughly 45 to 9. Moreover, the new Code will be classified differently, in a manner that is better organised, and will consist of 8 books.
Planning
The bills will be introduced in four difference tranches. Based on the planning, the last of these bills will be publicised in the Bulletin of Acts and Decrees (Staatsblad) in December 2018. The modernisation will have major practical consequences for all organisations involved in and around the criminal justice system. Prudent implementation will therefore likely take place over the course of several years.
The plans (Outline Document) were adopted in intensive discussions with the police, the Public Prosecution Service, the courts, the legal profession and representatives from the scientific community. The progress of the plans will be discussed further with the involved parties during the second Conference on Modernisation, which will take place on 15 October.