The investigation into the downing of flight MH17 is particularly complex and unique. The same applies to a possible hearing and the defence that will possibly be conducted by lawyers in this case. The presence or absence of defendants in the court room and the question whether or not defendants will be represented by lawyers are important factors in the course of a criminal trial. It is now hardly possible to give a realistic picture of what a criminal case will look exactly like. In this article we explain how a Dutch criminal case proceeds in general.
No criminal case without a criminal investigation. If the Public Prosecution Service is of the opinion that the investigation has provided sufficient evidence to prosecute one or more defendants, the writ of summons of the defendant(s) will be drawn up.
The summons includes the crimes with which the accused person is charged (also called the indictment), and the date and time when that defendant must report to the court, as well as the address of the court. The criminal proceedings begin formally on this date and time.
If a defendant appears before the court on the correct date and time, this is proof that he was informed in time and therefore, the summons is valid. If the defendant does not appear, the court will check whether the defendant is or can be aware of the hearing.
By default or after trial
If the defendant is not present at the hearing, but the defendant is or can be aware of the hearing, the court can enter a ‘default’. This means that the hearing against the defendant may start, even if that defendant is not present. We then refer to a trial by default.
Because much value is attached to the presence of a defendant at the hearing, the court can decide not to proceed with the actual trial, but to continue later, to make sure that the defendant has been given the opportunity to be present at his criminal case.
If the defendant is present or does not appear but is duly represented by a lawyer, we refer to a defended action.
Hearing in court and adjournment of the proceedings
During the hearing, the court discusses the case file. This does not mean that the court will read the entire file, but that the most important findings of the investigation will be discussed in public. The lawyer of the defendant can ask questions about the investigation and the way in which the evidence was collected and will certainly do so in a case like this. Other defences may also be brought forward, for example on the admissibility of the Public Prosecution Service. These questions and defences may lead to the court deciding to conduct further investigations. These further investigations may, for example, consist of additional examinations of witnesses, questioning of experts or ordering additional investigation activities.
If this happens, the hearing of the case will be temporarily suspended. We call this an 'adjournment' of the case, something that occurs in almost every (medium) large criminal case. The court can then refer the case to the examining magistrate (the investigating judge), who then organises and conducts the examinations. Such examinations generally do not take place during the public hearing, but in the (private) office of the examining magistrate. The lawyer and the public prosecutor can attend these sessions and will also be able to ask questions to the witnesses or experts themselves. Aggrieved parties or next of kin cannot attend these examinations. This part of the criminal proceedings thus takes place behind closed doors. The findings of the examining magistrate and the statements of the witnesses and experts will be included in the file afterwards. This will make them part of the case file and the court will be able to discuss them at a subsequent public hearing. Then the public can also take note of what the witnesses and experts have testified.
Sometimes the court decides that they wish to examine the witness or the expert themselves, in which case such an examination does take place during the public hearing.
Position of the victims and the relatives
During the hearing, the court will also consider the consequences that the criminal offence has had for the victims or - as in this case - the relatives. If victims or relatives have prepared a written victim statement, it forms part of the file and such a statement will also be discussed at the hearing. If victims or relatives want to use their right to speak, this is taken into account in the planning. And if victims or next of kin ask for compensation, the so-called 'aggrieved party’s claim for compensation' will be discussed at the hearing and the defendant - if present - will be asked to respond.
Closing speech and pleadings
If the file has been sufficiently presented and all witnesses and experts have been heard, the Public Prosecution Service will give its view on the case and the evidence. The public prosecutor does this by way of his closing speech, in which he presents the means of evidence, draws conclusions about the evidence and announces the punishment or measure demanded by the Public Prosecution Service.
After the Public Prosecution Service, it is the lawyer's turn to give his view on the file and the evidence contained therein. He does so by way of making a plea.
The public prosecutor may then respond to the defence counsel's plea after which the defence counsel can respond once more to the public prosecutor. Finally, it is the defendant’s turn to say something.
After the defendant’s reaction, the court closes the hearing and determines the date on which the judgement will be rendered. The law stipulates that the court must give judgement within two weeks after the investigation has been closed at the hearing. Sometimes a court needs more time to draw up the judgement. For that reason, in major cases, the investigation is often not closed after the hearing, but an extra session is planned to still close the hearing on that later date. Two weeks after that postponed closure, the judgement will be pronounced.
If the public prosecutor and/or the defendant disagree with the judgement, they can (both) lodge an appeal. In case of an appeal, the Court of Appeal will re-examine the case. This hearing also takes place in public and principally takes place in a similar way as the previous hearing at the first instance court. The judgment of the Court of Appeal is called a ruling.
If the Public Prosecution Service and/or the defendant disagree with the ruling, they can lodge an appeal in cassation with the Supreme Court. The Supreme Court does not give an opinion on the criminal offence, but 'only' assesses whether the Court of Appeal correctly applied law and jurisprudence and whether the decisions in the judgment are sufficiently motivated and understandable.
If the Supreme Court is of the opinion that the judgement does not meet all legal requirements, it may refer the case to another Court of Appeal, which will then have to hear the case again.