HOW DOES THE CRIMINAL JUDGE REACH HIS DECISION?

The criminal court, therefore, has the task of assessing whether or not you committed the offense. The judge does not do this off the cuff. According to the law, the judge must follow a fixed procedure. For each case, the judge, therefore, uses the so-called decision model. This is a standard model with eight questions that the judge must answer in a fixed order.

This model consists of four so-called preliminary questions and four main questions.

The preliminary questions (in specialist language: the formal questions) that the judge must first answer for himself are as follows:

1. Is the summons valid?
2. Is the judge competent?
3. Is the Public Prosecution Service admissible?
4. Can the prosecution continue without suspension?

 1. Is the summons valid?

Whether the summons is valid, for example, is very important when dealing with a case in absentia. A case in absentia is a case where the suspect has not appeared. You can imagine that the suspect can only appear at the right time in the appropriate court if he was informed of the hearing. The judge will then check in the file whether the summons has been correctly issued or sent to the suspect.

The law also stipulates that the summons must meet certain conditions. It is going too far to discuss this in detail here. In short, the summons has two important functions. On the one hand, the subpoena gives you the information where, when and before which judge you should appear and the subpoena works like a summons.

On the other hand, the summons states which offense you are suspected of, the charge. The indictment must in turn also meet certain requirements.

If there are defects in the summons, your lawyer will plead the nullity of the summons. If the judge also finds that the writ of summons is null and void (that is, the summons does not meet the legal requirements), the public prosecutor will generally issue a new, improved summons.

If the court rules that the summons is indeed null and void, the public prosecutor will issue a new, improved summons. A nullity of the summons does not, therefore, mean that your criminal case is over.

Depending on the type of error in the summons, the public prosecutor can sometimes change the summons at the hearing.

 2. Does the court have jurisdiction?

If the subpoena is clear and straightforward, whether the offense has been brought before the right kind of judge can be assessed. This concerns absolute and relative competence.

The rules of absolute competence determine which type of judge is competent. This may concern the Subdistrict Court, the Juvenile Judge, the Police Judge, or the Multiple Judge. The main rules are that for crimes the court is competent and for violations the subdistrict court.

If the public prosecutor wants to file a sentence of up to 12 months in prison, he will present your case to the police judge. If the public prosecutor demands a sentence of more than 12 months, the case will be brought before the multiple criminal chambers. Three judges will then judge your case.

The rules of relative competence say something about the jurisdiction of the judge in a particular area of ​​law. These rules, therefore, indicate in which place (in professional language: district) your case must be brought to court. The Netherlands is divided into 19 arrondissements. The rule of thumb is that the court in whose district the criminal offense was committed has jurisdiction to hear the case.

If the prosecutor has chosen the wrong judge or the judge in the wrong district, your attorney will argue for the judge's lack of jurisdiction. The public prosecutor must then summon you again before the correct judge and/or the court within the correct district.

 3. Is the Public Prosecution Service (OM) admissible?

If it appears that the summons meets the requirements and the case is brought before the correct judge, the question is whether the Public Prosecution Service is allowed to prosecute you. The right of the Public Prosecution Service to prosecute you may be lacking in many cases. The Public Prosecution Service is not admissible if it does not yet, does not, or no longer have the so-called right to prosecute.

A few examples in which the Public Prosecution Service does not have the right to prosecute you:

• If the Dutch court has no jurisdiction over you. This is the case; for example, if you have a nationality other than the Dutch and have not committed the offense in the Netherlands, the Netherlands can only take over the criminal prosecution if agreements have been made about this (treaty) with that other country.
• If you have already been prosecuted for the same fact once.
• If the offense is time-barred.
• If you are under 12 years old.
• If you have already paid a transaction (fine) for the offense.
• If your prosecution has been transferred to another (member) state.
• If you are deceased.
• Based on special articles from the Code of Criminal Procedure.
• Based on special laws / European legislation.
• Based on the principles of due process.

 4. Can the prosecution continue without suspension?

The last formal preliminary question is whether there are any grounds for suspension. The suspension of the prosecution is very rare. You should consider, for example, a situation where the decision in your criminal case depends on civil proceedings. If this is the case, the criminal hearing will be suspended.

An example.

Pieter is suspected of assaulting his neighbor. In a neighborly quarrel that got out of hand, he would have hit his neighbor several times in the head with a shovel. Pieter had psychological problems for a long time.

Now that the police investigation is underway, this causes so much stress for Pieter that he has completely lost his grip on normal life. Pieter's psychiatrist diagnoses a psychosis. Then Pieter receives the summons that he must appear before the criminal court.

Pieter temporarily suffers from a morbid mental disorder, unable to understand the scope of the persecution against him. The criminal court may then suspend the prosecution. The prosecution will then continue as soon as Pieter has been declared cured.

You should not confuse this form of suspension with the suspension of the examination at the hearing. For example, the judge may order the hearing to be suspended for a definite or indefinite period pending an expert report.

Only after the judge has answered all four preliminary questions in the affirmative, does he come to answer the four main questions. Called the "material questions" in jargon. The judge has then concluded that the summons is valid, the court has jurisdiction, the public prosecution service is admissible and your prosecution can be continued without suspension.

 

The main questions are in chronological order, as follows:

1. Can the charge be proven?
2. Is it a criminal offense?
3. Is the offender punishable?
4. Which penalty or measure should be imposed?

 

1. Can the charge be proven?

The key question is, of course, whether the criminal offense charged can be legally and convincingly proven. For this question, the judge uses two instruments. First, legal evidence. Here is an exhaustive list, so no other legal evidence is possible:

• The judge's perception (photo, film material, external features such as hairdressing, tattoos, scars, etc.)
• The statement of the suspect in court.
• Testimonials.
• Expert statements.
• Other written documents. Written documents including, for example, police reports.

 

The judge uses his conviction as a second instrument. So he must be convinced that you did or did not commit the offense. Legal evidence can quickly be available. But if the judge is not convinced that you committed the offense, he will have to acquit you.

Incidentally, a judge can never sentence you to punishment or measure solely on your statement that you have committed the offense. There must always be evidence of support. Also, the judge can never convict you if there is only one testimony as to the only evidence

If the judge finds the fact not to be lawful and convincingly proven, he will acquit you.

 

2. Is the act punishable?

All offenses are laid down in law. Not only in the criminal code but also special laws, such as the Opium Act, the Weapons and Ammunition Act, the Road Traffic Act, etc. The legislator has carefully described all criminal offenses. Only if the entire description of the criminal offense is included in the indictment is it a criminal offense.

An example.

You are charged with the following: 'That on or about 24 August 2008 on the Neude, at least in the district of Utrecht, you took away a bicycle, brand Batavia, the color green, in any case, any good, wholly or partly belonging to J. Owner, at least someone other than you. '

But the correct legal definition of theft (Section 310 of the Criminal Code) is as follows:

"He who takes away any property that belongs in whole or in part to another, with the intent of appropriating it unlawfully, is punished as guilty of theft ... (etc.)".

If you compare the charge and the article as described in the law, you will immediately notice that the same words have not been used. The indictment states 'has taken away a bicycle', while the description of the offense (the statutory provision) describes 'taking away, to misappropriate it'. That may seem like a detail, but it is not.

The offense as charged is not a criminal offense in this case. The judge will then release you from all prosecution for non-punishability of the offense. The fact has been proven, but it does not constitute a criminal offense. After all, the fact does not correspond to the article of the law.

Please note: the public prosecutor has the authority, even in court, to adjust the summons and thus the charges, so that a criminal offense is charged.

If the judge finds that the charged offense does not constitute a criminal offense because the offense committed is not covered by any article of law, then he will release you from all legal proceedings. You cannot then be prosecuted again.

Even if there are so-called justifications, the judge will not find your act punishable. In special circumstances, the criminal court finds it understandable that you do not strictly observe the law. These grounds of justification can be summarized as follows:

• Force of the majority
• Severe weather
• An assignment that you received from an official
• Absence of material unlawfulness

 

Force of the majority

An example.

Willem is an ambulance driver; he rips to hospital with a patient. He has his alarm light and siren on. On the pedestrian crossing, he hits a pedestrian who wants to cross. The pedestrian falls and breaks his ankle.

At the hearing, Willem's lawyer argues that Willem cannot stop for every pedestrian because otherwise, he will not get to the hospital on time. Willem acted out of force majeure. His goal was to get the patient who was in a life-threatening condition to the hospital as soon as possible.

Severe weather

Mike walks home after going out. Two drunk boys overtake him. The boys start to threaten and push. At one point, one of the guys lashes out and punches Mike. Mike gives the boy a hard shove, causing this boy to fall and break his wrist.

Mike's behavior is not a criminal offense, in this case, there is no criminal act because Mike was acting in self-defense.

Order of an official

Road workers have broken up the road because the asphalt needs to be replaced. The police divert traffic on the nearby cycle path. A little further on, an unwitting colleague is handing out fines for driving on the bicycle path. In this case, your act is not punishable because you did it under the direction of the police.

Acting based on a legal regulation

Paul is caught red-handed stealing a flat-screen from a home by the police officers on duty. A local police officer tells Paul to stop, but Paul makes him run. The police officers ran after it and caught up with Paul. Paul fiercely resists, causing the community police to knock Paul down. Paul reports an assault.

The police have the power to arrest people by law. This may be accompanied by some degree of violence. The police are therefore not punishable in this case.

Absence of material unlawfulness

A boxer can never successfully report assault against his opponent because he has more or less agreed to take the fight against him that he can be hit. The opponent is not acting unlawfully by slapping the boxer. So the boxer does not violate the prohibition of abuse.

Neither can a surgeon be prosecuted for murder or manslaughter if his patient dies on the operating table when the surgeon has done his best and has not failed in any way. After all, by properly operating, the surgeon has not acted in contravention of the law.

These grounds are often called justifications. After all, they justify behavior that would be punishable in other circumstances. There are still two conditions attached to this:

• The judge will also check whether you have not reacted excessively. This is the case, for example, if you are threatened with the words "I will beat you to death" and you then attack your threatener with a baseball bat.
• Also, the judge will check whether you could have opted for another option. For example, could you flee or run away from the situation.

In professional language, these conditions are called the proportionality test and the subsidiarity test.

 

3. Is the offender punishable?

If the judge believes that the act can be legally and convincingly proven and that it is also a criminal offense, then he will consider whether you are also a criminal offender. You are not a criminal offense if your actions (committing the criminal act) cannot be attributed to you or if you could not be expected to act differently than you did. This is the case with:

• Insanity Defense
• Psychological force majeure
• Heavy weather excess
• Following unauthorized official orders
• Absence of all guilt

Insanity Defense

An example.

A psychiatric patient is in psychosis and in that condition mistreats a person because in his delusions he believes that a person is an alien who follows him all day long and wants to take him on the spaceship. This patient cannot be punished by law because the fact cannot be imputed to him by the psychosis.

Incidentally, you cannot appeal to insanity if you have caused that condition yourself by, for example, excessive alcohol consumption, swallowing hallucinatory pills such as XTC or LSD, taking magic mushrooms, and other substances that influence your perception. Some medication use is also included.

Psychological force majeure

An example.

Marijke and Erik have been happily married for 40 years. However, marital happiness is now overshadowed by the fact that cancer has been diagnosed with Marijke. Marijke has to sleep a lot on the advice of her doctor. However, Marijke cannot fall asleep because the neighbor's parakeet keeps her awake with flute concerts.

Erik has been at the door several times with the request to put the bird somewhere else so that Marijke can sleep well.

The neighbor ignores Erik and does not care about Marijke's well-being. It goes downhill with Marijke. The doctor says she probably won't make it. After this news, Erik hears the bird again. He storms outside, the bird sits in front of the window on a whim and under the influence of intense emotions, Erik kills the bird.

Heavy weather excess

In case of severe weather, it is a matter of responding appropriately, in case of severe weather you have passed that limit. A severe weather excess is, for example, when you hit back harder than necessary to ward off the attack or where you use an object (stick, bar stool, bicycle pump) while you were also able to finish it with your bare hands. Or when you knock longer than was necessary. In some circumstances, it is understandable that you are reacting more extreme than was appropriate.

Your reaction more strongly than was appropriate must be the result of a violent mood movement caused by sexual assault.

An example.

Hendrik is Jasper's older brother. Jasper has been bullied, bullied, and belittled by his brother all his life. Hendrik is known to the police and is not a sweetheart. Because of all those years of psychological abuse, Jasper is not as afraid of anyone as his brother. Jasper is told by a friend that his brother is looking for him to teach Jasper a lesson and that he is coming.

In a panic, Jasper calls the police and takes the baseball bat from the attic. Before the police have arrived, Hendrik is at the door. Jasper knocks his brother down in fear and panic.

Following an unauthorized official order

The carnival is going on again in Brabant. Gerrit wants to dress up as a police officer. Coincidentally, his cousin works for the police. Gerrit can borrow the uniform for a day. Gerrit goes out with his friends Maarten and Pepijn. After a few beers, the trio thinks it is a good joke to turn things upside down. Gerrit pretends that the cycle path has been closed and lets all cyclists ride on the sidewalk. Unsuspecting cyclists have an appeal to obey an unauthorized official order.

Absence of all guilt

This is a collective term for all cases that cannot be categorized under the other grounds for exclusion of guilt, but in which the offender cannot be blamed.

For example, you are going to renovate your house and before this renovation, you can ask the municipality whether you need permits for this. You will be told by an employee that this is not the case. Afterward, it turns out that you should have owned a specific permit.

The above circumstances are commonly referred to as grounds for exclusion of debt. If a ground for exclusion of guilt is assumed, the judge will release you from all prosecution for non-criminality of the offender. You cannot then be prosecuted again.

4. What penalty or measure should be imposed?

If the judge has answered all three questions in the affirmative, he will come to the question of the punishment or measure to be imposed. An exception to this is the judicial amnesty. The judge can also determine that you will not be punished or ordered although all three of the previous questions have been answered in the affirmative.

The judge is therefore not obliged to impose a sentence on you. In practice, however, the judicial amnesty scheme is only applied by the judge in very exceptional cases.

By law, there are four main penalties and three so-called additional penalties. The main penalties are:

• imprisonment (for crimes, is generally served in prison)
• detention (for offenses, is generally served in a detention center)
• community service
• fine

Additional punishments are:

• disqualification from certain rights
• confiscation
• publication of the court decision

All punishments can also be conditionally imposed. A (partial) conditional conviction means that you do not have to serve or perform that part of the sentence. The judge imposes a probationary period on the conditional part. If you commit an offense again during the probationary period, in other words, you commit a criminal offense; the conditional part can still be enforced.

The suspended sentence is a big hindrance to keep you on the right path.
In addition to punishments, criminal law also contains measures. A judge can impose a sentence or a measure or a combination of both. Measures are:

• TBS
• placement in a psychiatric hospital
• placement in an institution for systematic offenders
• withdrawal from traffic
• confiscation of the unlawfully obtained advantage
• compensation measure

The juvenile justice funds other criminal sanctions.

If you do not agree with the court's decision, you have 14 days to appeal against it. You can do this at the information desk (registry) of the court that issued the judgment. Your lawyer can appeal on your behalf. You can also authorize a third party to do this on your behalf. The public prosecutor also has 14 days to file an appeal.

 

LAW PRACTICE: YOU MUST APPEAR IN COURT? 5 PRACTICAL TIPS

YOU MUST APPEAR IN COURT? 5 PRACTICAL TIPS

The chance that you will end up in legal proceedings at any time is not inconceivable. If you have to appear in court as a plaintiff or defendant, you better be well prepared. Five practical tips to be well prepared.

1. Provide Good Legal Assistance

You are not obliged to engage a lawyer or other legal adviser for most proceedings, but it is certainly not an unnecessary luxury to do so. Every legal procedure has its own rules and customs, if this is not your daily work you are already 1-0 behind.

Also, a good legal adviser will be able to assess your opportunities and risks and will know exactly which previous judgments of judges (in specialist language: case law) confirm your views and should be brought to the attention of the judge.

2. Prepare Well

As with many cases, it also applies to legal proceedings: good preparation is half the battle. Even if you have provided yourself with excellent legal assistance, you can increase your chances by properly preparing for a hearing yourself. There is a good chance that the judge will also ask you many questions.

Think carefully about the common thread of your story. What's important? Which points of view would you like to emphasize when you are given the floor? What are the weaknesses in your case? What questions could the judge ask you and how would you answer them? In any case, make an appointment with your legal adviser shortly before the hearing to discuss your case thoroughly and to hear from your adviser how the hearing is expected to proceed.

3. Be Consistent

You probably know it from television: a witness who appears in court must swear before he gets the word that he will speak the truth. In the Netherlands, official witnesses are also asked to take an oath ("So truly help me, God Almighty") or a promise ("That I promise").

However, contrary to popular belief, many lawsuits are settled without the involvement of a witness. It is often simply about your word against that of the other party. You are also not under oath in most proceedings. Strictly speaking, this means that you are under no obligation, to tell the truth, even though it is generally sensible, of course.

The problem is that the opposing party is also not under oath and everyone can say what he or she wants. The judge will then have to carefully determine who appears the most credible, regardless of any written evidence that someone can provide.

Therefore, be consistent in your standpoints, if you have taken position A in the procedural documents and you argue before the judge B, this will not do your legal position any good.

4. Evidence, Evidence, and evidence

It has been said that it takes three things to win legal action: evidence, evidence, and evidence. Perhaps silly, but there is some truth in it. The more evidence you can provide, the more likely you are to win the procedure.

Therefore, collect as much documentary evidence as possible before the procedure and discuss with your lawyer or lawyer which documents are important and which must be presented to the court. This may concern letters, memos, e-mails, reports, statements, receipts, drawings, etc.

An important rule in procedures is the rule "who states, proves." In other words, the person who claims something must also prove it. For example, if you start a procedure because you have lent 5,000 euros to a good friend, then you are the one who will have to prove that this amount has indeed been lent to the friend in question. If this friend disputes in the proceedings that he ever received money from you, then there is a good chance that you will lose these proceedings.

5. Settlement is better than losing

Keep in mind that there is a good chance that the judge will discuss the possibility of a settlement during the hearing. The judge will then literally invite both parties, whether or not while making many suggestions, to go into the hallway to try to resolve the issue jointly.

Before the hearing, discuss with your attorney or lawyer how you will respond to such a suggestion from the judge. And try to get a picture of his opinion from the posture and judgments of the judge during the session. He (or she) is the one who will decide on your case if you cannot reach an agreement in mutual consultation with the other party.

Realize that if no settlement is reached, it is often all or not. Either you will be (partially) vindicated, or you will be deeply disappointed. It is not without reason that lawyers are told during their training: a bad settlement is better than a good trial.