Use of force by investigating officers assessed in accordance with new legal framework
The Dutch Criminal Code will be updated with a separate offence for investigating officers who are guilty of contravening the rules governing the use of force, resulting in bodily harm or death. Today, the Senate approved Minister of Justice and Security Grapperhaus’ legislative proposal on the use of force by investigating officers, which introduces a legal framework for assessing the use of force by investigating officers such as police officers, members of the Royal Netherlands Military Constabulary and special investigating officers who are authorised to use force. In addition to creating a separate offence, the legislative proposal also introduces an investigation of the facts and the hearing by a single court of cases brought against investigating officers who have used force.
The current legal framework does not take sufficient account of the unique position of investigating officers. Unlike members of the public, the government expects investigating officers to use force under certain conditions in the course of their duties, for instance to make a situation safe again. For this reason, a new legal framework has been devised with a specific focus on the task and powers of an investigating officer. The basic principle of the actions of an investigating officer is, in all cases, de-escalation. As a last resort, and after having issued a warning, the investigating officer is authorised to use force. The officer must account for the use of any type of force. If the use of force has led to (grievous) bodily harm or death, the Dutch National Police Internal Investigations Department or the Security, Integrity and Complaints Unit will always conduct an investigation.
Creation of a separate offence
If investigating officers do not adhere to the rules governing the use of force, they risk being charged with an offence. This new offence is known as ‘contravening the rules governing the use of force’ (schenden van de geweldsinstructie). It is punishable with a maximum sentence of three years.
In addition, investigating officers can still be prosecuted for existing violent offences, such as assault and manslaughter. The maximum punishment for violent crimes is the same for everyone in the Netherlands, so if an officer is sentenced for assault or manslaughter, they can receive the same sentence as anyone else convicted of this by the criminal court.
Hearing by a single court
In addition, the legislative proposal stipulates that cases against investigating officers who have used force will in future be heard by the Central Netherlands District Court. This ensures that the judges involved can specialise in these types of cases.
Introduction of an investigation of the facts
Finally, an investigation of the facts is being introduced. An investigation of the facts allows for the assessment of the use of force by investigating officers without the investigating officer involved being treated as a suspect immediately. This is to allow sufficient account to be taken of the unique position of the investigating officer in the legal framework. Within this framework, use of force that has resulted in serious injury or where a firearm has been used will be investigated by the Dutch National Police Internal Investigations Department. If the investigation reveals that the investigating officer has not adhered to the rules governing the use of force, the Public Prosecution Service can initiate a normal criminal investigation. In this case, the investigating officer involved will be treated as a suspect.
The legislative proposal will become law once all investigating officers have been trained in accordance with the new rules governing the use of force. As thing stand, this will be on 1 July 2022.