The more difficult it becomes to solve crimes, the more the public prosecutor is pushing the boundaries of what is permissible. Whether the prosecution does not exceed the limits - as with following non-suspect lawyers or live monitoring of chat traffic between people who have not yet committed a crime - remains to be seen, but in any case, these actions are not very magisterial. 

Of course it is good if crimes are solved, but not at any cost. The government should also play by the rules. Not only to protect citizens' rights, for example in the area of privacy, but also because of a role model function towards citizens. 

In recent years, the Supreme Court has given the prosecution a lot of leeway in investigating criminal offences. Also because it raised a lot of misunderstanding in society when suspects of serious crimes got off scot-free due to a formal error. However, the legislator now wants the public prosecutor to follow the rules more strictly and has drawn up a draft bill. With this bill, the legislator aims to reduce irregularities in the preliminary criminal investigation. 

Current section 359a Sv (Formal Defaults Act) 

The current article on breaches of form came into force in 1996. The legal consequences of breaches of form laid down in the law are: reduction of sentence, exclusion of evidence and inadmissibility of prosecution. Over the years, the Supreme Court has guided the application of this article. Case law has formed threshold conditions for applying the article. Furthermore, detailed conditions have been set by the Supreme Court - for each of the legal consequences mentioned in the law. Once the conditions for a legal consequence have been met, the court must still weigh a number of factors such as the interest that has been violated, the seriousness of the default and the harm caused by it. Thus, if there is no serious default or prejudice in the eyes of the court, the judge will turn a blind eye to the formal default. This development has meant that appeals for exclusion of evidence or inadmissibility, are hardly ever granted anymore. 

Criticism 

The practice has been increasingly criticised. The fact that hardly any legal consequences are attached to certain breaches of form could send a signal to investigating authorities that errors committed by them are not taken seriously. When it comes to breaches of privacy, this puts the authorities on a slippery slope. An even greater danger of breaches of form remaining without legal effect lies in damage to the integrity and authority of the government. This refers not only to impairment of the integrity and authority of the public prosecutor, but also of the criminal judge who is ultimately responsible for criminal proceedings. If investigating authorities can violate legal rules - without consequences - it does not send a signal to society that everyone should abide by the rules of criminal law. 

Draft bill 

The proposed amendments to Article 359a of the Code of Criminal Procedure therefore give the court more scope to actually attach a legal consequence to a procedural violation. This would also make it easier to successfully invoke exclusion of evidence or inadmissibility of the prosecution. 

Characteristic of the draft proposal is 'all interests and arguments in favour of exclusion of evidence are balanced against all interests and arguments against exclusion of evidence'. As a result, 'exclusion of evidence in cases of violation of minor criminal procedural 

regulations or legal principles is not a priori excluded'.1 In other words, even if there are no serious formal defects, the court can proceed to exclude evidence. 

Another difference concerns the scope offered for the inadmissibility of the prosecution. According to current case-law, the extent to which investigating officers acted 'deliberately or with gross disregard' is particularly important. This should include violations of the right to a fair trial. In the draft proposal, the possibility of inadmissibility of the public prosecutor is limited to exceptional cases, but a broader approach is taken: inadmissibility also follows if the prosecution, as a result of unlawful conduct on another ground, is not compatible with due process. Because of this broader approach, appeals to the inadmissibility of the prosecution could be more likely to succeed. 

Furthermore, the draft proposal abandons the mandatory weighing of the factors (importance of violated standard, seriousness of default, disadvantage). This means that the court is no longer obliged to go through these factors step by step, but can assess in each case to what extent a certain legal consequence is appropriate. 

Conclusion 

Whether the draft bill will reach the finish line is uncertain. A law that better safeguards the rights of suspects will meet some social resistance. But the European Court of Human Rights holds citizens' fundamental rights in higher regard, so perhaps it is just a matter of time. In any case, this development is an important confirmation that procedural defences must continue to be pursued to bring about change. 

Ms M.F.M. Ortner