In legal proceedings, parties can litigate until the (highest) court has rendered a judgment. This, of course, has all kinds of disadvantages. As long as proceedings are ongoing, parties remain uncertain for a long time. And even with an eventual win, there may be irreversible damage, such as loss of relationships, work or home. Therefore, in civil proceedings, settlements are often made. Since endless litigation can be detrimental to both parties, a settlement is reached and both parties do some watering down. 

In criminal cases, settlements also occur. Especially when it comes to deprivation cases and white-collar crime. For example, companies or their employees suspected of bribery, corruption or money laundering enter into a settlement with the judiciary to avoid endless litigation. In the case of a settlement, a fine is often paid to end uncertainty. Companies are more inclined to settle than to litigate (at length), because uncertainty in itself is very damaging to the company. 

But uncertainty also harms individuals. Recently, there have been noises to try settlement options in long-running drug cases as well. These include cases in which evidence was gathered by hacking crypto phones. Everyone is familiar with the Encrochat or Sky investigations. In these cases, the prosecution's conduct is put under a magnifying glass by the defence. These cases take a long time because the prosecution constantly denies responsibility for the hack and the defence keeps coming up with new investigation requests. The Netherlands Forensic Institute (NFI) can hardly cope with deciphering a deluge of messages. Increasingly, suspects' pre-trial detention is suspended because a date for a substantive hearing is (still) not in sight. 

Several courts have therefore suggested to the prosecution and the defence/accused to just make a deal on sentencing themselves. Mainly to shorten the time of proceedings. But perhaps also to clear other backlogs faster. For a suspect, a deal would be particularly interesting if the (prison) sentence were a lot lower than the judge would be expected to impose in the event of a conviction. Remarkably, in those cases, the prosecution did not immediately reject the courts' suggestion. Apparently, the prosecution is also uncertain of a good outcome. On the other hand, prosecution in other cases will also be liable to get bogged down by the many Encro and Sky cases. So the prosecution will also want to get rid of Encro cases.

The advantage for the accused could be that he could get rid of the case quickly, with, for example, the - without going into details - acknowledgement of a lighter offence on the summons and with a sentence he could live with. But there are also disadvantages. Perhaps the biggest disadvantage is that innocent defendants might agree to a settlement 'just to get rid of it'. Even though a subsequent acquittal would be a real possibility. There is also a need to guard against improper use. This could be the case if the prosecution charges far too serious offences in evidentiary cases, just to increase the defendant's willingness to settle. The defence could also increase the willingness of the prosecution to settle by presenting a laundry list of complicated investigation requests. 

Another major drawback is that no case law is formed. In cases where encrypted phones have been hacked, this could mean that it would not become clear whether the hack was lawful or not. On the other hand, given the volume of cases, there will be plenty of defendants willing to litigate to the highest court on this issue. The disadvantage is also that the court is not obliged to respect the settlement between the prosecution and the defendant and can impose a higher sentence than agreed in the deal. Although that is less likely to happen in cases where the judge himself has called for settlement. 

In short, in protracted proceedings, it can make sense for both the prosecution and the defendant to settle their own case. In the United States, this so-called 'plea bargaining' already very common. But given the increasing number of protracted proceedings, it is expected that settlement will also gain ground in the Netherlands. When determining strategy, litigants will have to keep an eye on this possibility, but also on the timing. If a case suddenly takes a particular direction due to certain developments, the willingness to settle on the part of the defendant or the prosecution may change drastically.

Mr. D.M. Penn