Two new Acts were adopted by parliament on 29 November 2011 amending the Dutch Criminal Code and the Code of Criminal Procedure as part of a legislative process aimed at a complete revision of the preliminary investigation phase in criminal proceedings. The date on which both Acts enter into force has not yet been determined.

Act reinforcing the position of the examining judge

This Act responds to a trend in which the Public Prosecution Service has been granted more involvement and independent powers in criminal investigations. As a result, the examining judge has become considerably less involved in the preliminary investigation phase and the number of judicial preliminary investigations has decreased by 80% in a few years. Nonetheless, a balanced gathering of evidence remains crucial and for that reason legislators have decided to reinforce the position of the examining judge.

Under this new Act, the role of the examining judge is given a new structure and the relationship between the public prosecutor and the examining judge is more clearly expressed. The intention is that the examining judge no longer operates as an investigating judge but as a "judge in the preliminary investigation". The public prosecutor leads the preliminary investigation and the examining judge supervises how the investigation is conducted. In this regard, the examining judge ensures that:

  • the investigative powers are exercised in a lawful manner
  • the investigation's progress is monitored
  • the investigation is balanced and comprehensive

The examining judge may also take investigative action at the suspect's request or ex officio. To improve the investigation phase from the defence's point of view, a new regime will replace the existing provisions concerning preliminary defence inquiries ("mini-instructie"). One framework will be created: the preliminary investigation. The new regime will enable the defence to quickly and adequately involve the examining judge in the investigation.

Act revising rules concerning the criminal case file

This Act aims to increase the examining judge's involvement with the compilation of the criminal case file. The current rules on the compilation of the case file and the reporting duty of investigating officers date from 1926, when criminal investigation played a limited role. Accordingly the rules were relatively short and simple. Currently, however, the preliminary investigation is much more important. The new Act recognises this by bringing the statutory provisions on reporting by investigating officers and compiling the case file in line with more recent criminal law developments. The new Act:

  • specifies the reporting duty - the Public Prosecution Service can, within certain limits, allow the investigating officer to refrain from drawing up an official report
  • reinforces the legal position of the suspect in respect to the compilation of the case file – it is proposed to incorporate in the Act the option of an active involvement of the defendant in the compilation of the case file. To that end the defendant may request that certain documents be added to the case file
  • gives the public prosecutor the responsibility for compiling the case file during the preliminary investigation
  • defines the term 'case file'
  • introduces powers to leave certain information outside the case file and limit the provision of copies if important interests justify this

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