Both within penitentiary institutions (PIs) and outside, it is noticeable that the Dutch criminal justice system is bogged down. Due to understaffing in the police, the Public Prosecution Service (OM) and the judiciary, it takes a long time to get to the substantive hearing. Not to mention the duration of the appeal process. But besides understaffing, there are other causes for the bogging down of proceedings. On this subject, the Dutch Law Journal published in October an article which was written by three judges and provides solutions to this social problem.

Innovation and process agreements

There are several reasons for the stagnant judicial process. These include the inexhaustible flow of undermining cases, too high expectations of criminal law and too little innovativeness on the part of the judiciary. Although as far as the latter is concerned, improvements have been made with the now in vogue practice of procedural agreements. Agreeing an acceptable sentence with the defendant at an early stage saves a lot of time and session capacity.

Pro forma sessions

However, the article calls attention to the pretrial detention practice and the associated huge flow of pro forma hearings. These hearings are prescribed by law in case a suspect is in pretrial detention. In practice, these sessions are limited to discussing requests for lifting and suspension. These sessions put a huge strain on court capacity. At the Rotterdam District Court, 450 additional criminal cases per year could be dealt with substantively if there were no pro forma sessions. Nationwide, this would involve thousands of cases. These cases would not be necessary if suspects were allowed to wait for their trial at liberty earlier and more often. This is what these judges advocate.

The court agenda often appears to be the reason for allowing pre-trial detention to continue.

According to these judges, suspects are often held on remand for the wrong reasons. In many cases from the idea that this would prolong the trial even further and/or partially avoid eventual imprisonment. By keeping suspects in pre-trial detention, these cases at least remain priority cases when scheduling the court calendar. But by now, even that argument no longer fully applies and cases with suspects in pre-trial detention also have to join the back of the queue. Cases with social impact but with suspects at liberty have to wait even longer. For some this is pleasant, for others absolutely not.

Possible solution: putting the grounds for pre-trial detention into perspective

Suggested solutions include putting the grounds of pre-trial detention into perspective. These include in particular the '12-year and shock ground' in the case of serious offences and the recidivism ground in particular offences considered lucrative like drug offences.

These reasons are too often used as a 'stopgap' to prolong pre-trial detention. By no means always are there actually 'weighty reasons demanding the immediate deprivation of liberty'. The shock ground is often used because judges fear that a release to society 'cannot be explained'. Certainly when the interests of the rule of law as a whole are taken into account, it will be quite explainable more often than thought. The recidivism ground should also be less easily assumed. Not infrequently, the ground for recidivism is assumed when there are no concrete leads in the file. Moreover, a person is logically less likely to recidivate while awaiting trial than if someone has already been punished and has already lost a lot, for example.

Free, unless...

Not surprisingly, I very much agree with the authors of the article. Apart from the accused, the rule of law - and thus society - would also benefit greatly if the adage 'free, unless' was put into practice more generously. And not only because the freed up session space will allow criminal cases to be heard earlier. If suspects can await their trial at liberty as much as possible, it is expected that there will be less collateral damage on the home front and, consequently, less damage to be compensated by the State related to an acquittal after (a shorter) pre-trial detention.

Mr. D.M. Penn