New Code of Criminal Procedure will be tested in practice

The bill for the new Dutch Code of Criminal Procedure was recently sent to the Council of State for its advice. The current Code is almost one hundred years old and in need of a comprehensive update. Organisations in the field of criminal law, such as the police and the judiciary, would like to test some parts of the new Code in practice before it is enacted. Therefore, Minister Grapperhaus of Justice and Security and Minister Dekker for Legal Protection are today submitting a bill for an Innovation Act to the House of Representatives that will enable gaining experience with these new options in five pilot projects.

The five pilot projects will involve gaining experience with innovations in criminal procedure ahead of the enactment of the new Code of Criminal Procedure. These pilot projects will run for up to three years. They will be set up jointly by the relevant organisations in the criminal justice system (the police, special investigative services, Royal Netherlands Military Constabulary, Public Prosecution Service, judiciary and legal profession), in consultation with the Ministry of Justice and Security. The pilot projects will be monitored and evaluated by the Scientific Research and Documentation Centre (WODC) while they are running.

The proposed Innovation Act provides for powers that will enable taking more effective action against cybercrime, for example. These include giving investigating officers the power to read messages on telephones or computers received after such devices have been seized. Under the bill, the police will also be allowed to conduct network searches from such devices after they have been seized, which means they may search the cloud environment of a smartphone from the police station. Such searches are currently not allowed but very much needed, as information that is critical to an investigation is often not stored on seized devices but elsewhere; in the cloud, for example.

The proposed Innovation Act will also enable using audiovisual recordings as an alternative to written official reports. For example, a police interview of a suspect or the contents of video footage of a shoplifting incident will no longer have to be written out in full. Instead, a recording of a suspect interview or criminal incident accompanied by a concise official report will be sufficient to serve as evidence.

In addition, the proposed Innovation Act will expand the powers of assistant public prosecutors. They will be empowered to exercise a number of less intrusive investigative powers currently reserved for public prosecutors. Furthermore, a district court or a court of appeal will be empowered to refer an important legal question (a so-called preliminary question) to the Supreme Court of the Netherlands while a case is pending before this district court or court of appeal. After receiving the answer of the Supreme Court, everyone will know the opinion of the Supreme Court, which will enable the district court or court of appeal to immediately make the right decision in the case. This will help to prevent situations where a legal question only reaches the Supreme Court after final judgments have been given by the relevant district court and court of appeal, meaning that the case may have to be reheard by a court of appeal.

Lastly , the bill introduces a set of rules on the manner in which mediation can take place after the start of a court hearing. Mediation between the accused and the victim under the supervision of a mediator already takes place in practice, but the bill elaborates and clarifies the consequences of mediation in such a situation.

The ministers will inform the House of Representatives and the Senate about the effects of these innovations within two years, so that the results of the pilot projects can be taken into account in the new Code of Criminal Procedure.