Under international conventions, defendants in criminal cases are entitled to have their cases heard in two factual instances. In the Netherlands, those factual instances are the district court and the court of appeal. At these instances, the facts can be thoroughly examined for correctness and legality. Afterwards, an appeal in cassation can be lodged with the Supreme Court. The Supreme Court does not investigate the facts, but checks whether the conclusions of the judge/court of appeal on the evidence are comprehensible and adequately motivated. In addition, the Supreme Court may assess whether the judge of facts has adequately responded to explicit positions taken by the accused on the evidence decision.

The Supreme Court faces a large number of cassation complaints every year. The law therefore provides the Supreme Court with the option, in cases which, after assessment, prove to be clearly hopeless, of either declaring them inadmissible or dismissing the cassation appeal with an abbreviated statement of reasons. This possibility is there to keep the workload of the Supreme Court manageable and to enable the Supreme Court, as a cassation court, to concentrate on its core tasks: monitoring legal uniformity, promoting legal development and providing legal protection.

However, the Supreme Court sometimes overshoots this and is then short-handed in cases where it should not be. This was recently revealed by a finger pointing by the United Nations Human Rights Committee to the Supreme Court of the Netherlands. Under the International Covenant on Civil and Political Rights (ICCPR), a convicted citizen has the right to have his sentence reviewed by a higher court. However, a situation arose in a Dutch case where a person was acquitted at first instance and later convicted at the court of appeal. However, the cassation appeal was dismissed with an abbreviated reasoning, as the pleas would not 'require answering legal questions in the interest of legal unity or legal development'. A complaint was then lodged with the United Nations Human Rights Committee on the grounds that the Netherlands (in this case the Supreme Court) had violated the relevant treaty provision (Article 14(5) ICCPR) now that the conviction had not been reassessed in substance by a higher court.

Thus, the Human Rights Committee late last year n indeed found a violation of the ICCPR Convention. A review limited to 'formal or legal aspects of the case' without any 'review of the fact and evidence' cannot, in the Committee's view, be regarded as a 'review' within the meaning of Article 14(5) ICCPR. In cases where there is no guilty verdict and conviction at first instance and there is on appeal, the Committee requires the Supreme Court, as an appellate court, to give a reasoned response to the evidence complaints. Although the opinion of the Human Rights Committee is not binding and the Supreme Court is not going to reopen the case in which the complaint was filed, the Supreme Court did announce on 24 January last that cases in which a conviction has been rendered on appeal for an offence for which the accused was acquitted at first instance and a complaint is made in cassation about the evidence of the fact, will more often be disposed of with a reasoning more tailored to the concrete case instead of the standard abbreviated reasoning.

Once again, the Dutch legal system is being singled out for treaty violations due to substandard reasoning of decisions. In 2021, the European Court of Human Rights had already ruled that Dutch judges in criminal cases must better motivate why pre-trial detention is necessary and cannot suffice with standard texts. Reasoning is important because it forces judges to think about their decisions. If a judge cannot get a justification out of his pen, there may also be no good reason. That ruling contributed to an increase in the number of suspensions of pre-trial detention.

In any case, the Supreme Court's announcement to dismiss cases less often with a standard triad is a good intention for 2023.

Mr. D.M. Penn