An irrevocable conviction can in principle no longer be appealed. The legislator did not want to encourage convicted persons to keep contesting an accusation/conviction ad infinitum. 'It stops somewhere,' is the thought. Convicted and/or aggrieved persons would at some point benefit most from an acceptance of the verdict.

Nevertheless, in exceptional cases, an irrevocable sentencing decision by the Dutch criminal court can be reopened and heard again by a Court of Appeal. This is called a review. The bar for a review is very high. Under no circumstances should it be seen as a disguised appeal. A review may be carried out in the following situations: 

• Conflicting case law, which must involve a conflict between two irrevocable Dutch criminal judgements or rulings;
• A successful complaint to the European Court of Human Rights;
• A new circumstance that was not known at the time of your trial. Also called a 'novum'. 

The first two situations refer to developments in case law. The third situation occurs if a new fact or circumstance, or 'novum', comes to light. There is a 'novum' if new information has raised serious doubts as to whether the judge would have reached the same verdict if this information had been known during the trial. Think of new DNA research, new insights from an expert or a new investigation method. The new circumstance will then have to be considered in the totality of the evidence construction. If it only concerns a minor part of it, there will be no question of a novum. However, there may be a novum if the new circumstance affects the core of the evidence. 

To properly substantiate a review request or a new expert opinion, a very close examination of the case file is necessary. In practice, however, it sometimes happens that the criminal file is no longer kept. Your lawyer is obliged to keep your file for five years, but may destroy it after that. After your case becomes final, you no longer have a legal right to receive a copy of your file from the prosecution. 

Nevertheless, the public prosecutor can be forced -in summary proceedings, if necessary- to grant access to the file. To make a successful request for inspection, it must be shown that there is a 'reasonable likelihood that the proposed investigation will be able to lead to a novelty that will prevent the final conviction from being upheld'.This is another strict criterion. This will not bother you if your lawyer has stored the file (digitally) or if you have kept a copy of the entire file yourself. But even if the file has not been saved by you or your lawyer, you therefore need not be discouraged from exploring the possibilities of a review. It may be worthwhile. Miscarriages of justice unfortunately still happen. 

Mr M.F.M. Ortner

Penn Lawyers