Defending theHuman Rightto a Fair Trial
April 6, 2017
Between 2015 and 2016, Fair Trials carried out a regional research project on the use of pre-trial detention in 10 EU countries.
Together with his colleagues professor Jan Crijns and Dr Hilde Wermink, Dr Bas Leeuw, from Leiden University, wrote the Dutch report on pre-trial detention for this project. He recounts here the impact that their research is having on current discussions to reform the pre-trial detention regime in the Netherlands. As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials.
In 2014/2015, our team at Leiden University researched the practice of pre-trial detention (PTD) in the Netherlands using various empirical research methods. Our findings were published in our report ‘Pre-trial detention in the Netherlands: Legal principles versus practical reality’ and in Fair Trials’ regional report, which was presented to the European Parliament in May 2016.
The overarching conclusion of our national report is that the Dutch legislation on pre-trial detention is generally in compliance with ECHR-standards. The way in which this legislation is applied in practice however does raise some concerns. This is mainly seen with regard to three issues: the high amount of pre-trial detention orders, the limited reasoning of pre-trial detention decisions and the limited use of alternatives to pre-trial detention.
Due to the fact that a discussion on pre-trial detention was already going on in the Netherlands there was quite a bit of attention for our research report. Prof. Crijns was invited by the Council of the Judiciary to give a presentation of our report at the annual meeting of criminal law judges. Also, parliamentary questions were asked to the Minister of Security and Justice given the findings of the report. In response to these questions the Minister indicated that he does not agree with the finding that pre-trial detention is imposed far more than in other countries. However, he does agree that more attention should be paid to alternatives to pre-trial detention and that requests for pre-trial detention should always be assessed critically. The Minister stressed that this should primarily be done by the prosecution service and the judiciary, but also noted that this topic will be looked at in the ongoing project of modernization of the Code of Criminal Procedure.
In February 2017 draft proposals for the first two new books of the Code of Criminal Procedure were presented for consultation. In book two a revised pre-trial procedure can be found. One of the major changes is that alternatives for pre-trial detention can be ordered separately, replacing the current situation were alternatives are only available as conditions for the suspension of pre-trial detention.
The discussions in parliament and the judiciary show that the problematic aspects of the Dutch system on pre-trial detention are taken seriously. The proposed changes to the Code of Criminal Procedure are a step in the right direction. The real test however will be how judges apply these new rules in practice.
 Questionnaires filled in by defence lawyers, observing pre-trial detention hearings, conducting case file reviews and interviews with judges and prosecutors.
 Aanhangsel Handelingen 2015/2016, 2016Z10401, ingezonden 27 mei 2016.
 Aanhangsel Handelingen 2015/2016, 2887.
 Proposed article 18.104.22.168.1.
As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials.
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