Criminal cases review rules reformation bill passed by the Upper House of Parliament

Yesterday, the Dutch Upper House passed the criminal cases review rules reformation bill submitted by Mr Opstelten, the Dutch Minister of Security and Justice. As a result, the process to review criminal sentences that have become final and conclusive will be quicker as of 1 October 2012. Moreover, investigations into grounds for review will also be possible in more cases. In that context, the input of experts may be used. With the findings of such an investigation, a review petition can be better substantiated.

The current review rules are obsolete and are considered too limited in legal practice, in particular because of the definition of the “fresh evidence” concept (called ‘a novum’) which is needed to have a criminal case reviewed. At present, it appears from case law that there is only a novum if there are new actual circumstances of which the court was unaware at the time of the trial. As a result, new insights of experts rarely result in reviews. This is challenging, because courts, not least because of developments in modern technology, have become more dependent on the expertise of such experts.

In future, new expert evidence will more easily result in allowing a review petition. However, the opinion of an expert is in itself not a novum. A new fact has to be presented. Moreover, such fact must give rise to a 'strong suspicion' that the court would have reached a different conclusion if it had known about this at the trial. That means that the expert opinion can only result in the review of a criminal case if it sheds new light on the case.

Moreover, the options for investigations into fresh facts will be widened. Someone who has been wrongly convicted does not always have the resources to make a plausible case for the novum. In the near future, anyone convicted of a serious crime will be given the opportunity to apply for an additional investigation with the procurator general of the Supreme Court in preparation of a review petition. Usually, this will concern cases where there is serious doubt about the soundness of the conviction and where there is still insufficient evidence available to enable a proper assessment as to whether or not there are grounds for a review.