When the preliminary criminal investigation proceeds to the final investigation, the public prosecutor (OM) proceeds to draw up the summons. This summons will also have to describe the offences for which the suspect has to answer. This information function of the indictment aims to enable the accused (together with his lawyer) to defend himself as well as possible against the charges.<\/p>\n
However, many indictments are full of long sentences, old-fashioned words and legal jargon. Often, indictments are written so inaccessibly that and defendant cannot make sense of them. Although the informative function of the summons also derives from the European Convention on Human Rights (ECHR), it does not matter to the Supreme Court whether the indictment is actually worded in a way that the defendant can understand. From the Supreme Court, the indictment must above all be comprehensible and workable for the judge. This has to do with the so-called foundation doctrine.<\/p>\n
Unlike in surrounding countries, the Netherlands has a strict doctrine of foundation. This means that the indictment forms the basis for the judicial decision. The judge is bound by the offences chosen by the public prosecutor to be included in the indictment. The judge may not amend the indictment. Not even if it turns out during the hearing that an entirely different offence is involved. In such a case, if the public prosecutor does not request amendment of the indictment in time, the judge will have to acquit.<\/p>\n
An acquittal or dismissal of all charges due to a defective indictment can cause a lot of commotion in society, and the prosecution is therefore extremely careful when drafting the indictment. Rather too many words than one crucial word too few, resulting in an acquittal or dismissal of all charges. Hence, the prosecution makes frequent use of words such as and\/or, at least, on or about, at least, because of, and so on.<\/p>\n
Despite the caution with which indictments are drawn up, things still go wrong for the prosecution. For example, if the prosecution has only charged (co-)perpetration, but fails to also charge the lighter variant 'aiding and abetting', the court has to acquit if it finds (co-)perpetration not proven. Even if the case file provides sufficient support to assume complicity. Mistakes are also more often made in the case of conduct that, for example, has both characteristics of embezzlement and theft.<\/p>\n
Although the courts are given more leeway these days to correct mistakes in indictments, this correction should not put the accused at a disadvantage by, for example, declaring a more serious offence proven. Nor should the judge's independence be compromised, so the judge will not be allowed to simply give the public prosecutor the idea of filing a claim to amend the indictment.<\/p>\n
Although this formalistic approach leads to indictments that are difficult for the accused to read, this application of the theory of principles will not change for the time being. Not even if flaws in the indictment lead to acquittals resulting in a public outcry. The alternative, namely that the indictment can be expanded or substantially changed during the session with new facts, is not only undesirable for the suspect and his lawyer, it would also demand more time and session capacity from the judiciary. This is because the file would have to be examined by the judge not only for facts in the indictment, but also for any other facts. Extra time and extra judges would cost the government a lot of money, which -certainly at the moment- is not politically feasible.<\/p>\n
Mr. D.M. Penn<\/p>\n
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Als het voorbereidend strafrechtelijk onderzoek overgaat naar het eindonderzoek gaat het openbaar ministerie (OM) over tot het opstellen van de dagvaarding. In deze dagvaarding zal ook omschreven moeten worden voor welke strafbare feiten de verdachte zich dient te verantwoorden. Deze informatiefunctie van de tenlastelegging strekt ertoe dat de verdachte zich (samen met zijn advocaat) zo […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,11],"tags":[],"class_list":["post-6880","post","type-post","status-publish","format-standard","hentry","category-homepage","category-strafrecht"],"_links":{"self":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts\/6880","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/comments?post=6880"}],"version-history":[{"count":0,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/posts\/6880\/revisions"}],"wp:attachment":[{"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/media?parent=6880"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/categories?post=6880"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/penn.nl\/en\/wp-json\/wp\/v2\/tags?post=6880"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}