The procedure

The cassation procedure, step by step.

From lodging the appeal at the registry of the court of appeal to the judgment of the Supreme Court: the seven stages of cassation proceedings in criminal cases, including time limits, the role of the Procurator General, duration and costs.

Exterior of the Supreme Court of the Netherlands in The Hague

Cassation

What cassation is.

Cassation is the procedure before the Supreme Court of the Netherlands. The Court is not a third instance that re-examines the facts: it reviews the application of the law and the observance of procedural rules by the district court and the court of appeal.

Representation is compulsory. After the Supreme Court's notice, only a lawyer can file the written grounds of appeal, and the Court sets strict requirements for that document.

Seven stages

From the time limit to the judgment.

Lodging an appeal in cassation

An appeal in cassation against a judgment of a court of appeal must be lodged by making a declaration at the registry of the court of appeal that gave the judgment. In criminal cases the defendant may lodge the appeal personally, but it is always wiser to have a lawyer do so. As a rule the appeal must be lodged within fourteen days of the judgment. If you are unsure about the time limit, ask a lawyer for advice: if you were unaware of the hearing or of the judgment, an appeal may still be possible.

The notice from the Supreme Court

Once the Supreme Court has received the case file from the lower court, the defendant receives a letter stating that a lawyer is needed to file the written grounds of appeal (the 'schriftuur'). This letter is called the 'aanzegging'. The defendant cannot conduct the proceedings before the Supreme Court in person.

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Filing the grounds of appeal

The cassation lawyer then normally has sixty days to file the written grounds of appeal (other time limits apply in some cases). The document sets out the grounds of cassation: the complaints the lawyer has identified against the judgment of the lower court. Those complaints may only concern questions of law and procedural rules, not the findings of fact made by the lower court. No new facts may be raised in cassation. A complaint that the defendant is innocent because he did not commit the offence is therefore not one the Supreme Court can rule on; a complaint that the lower court failed to respond to a request made by the defence is.

The cassation lawyer

Cassation proceedings in criminal cases are highly technical. Although every lawyer registered in the Netherlands may litigate before the Supreme Court, it is advisable to instruct a cassation specialist. The Supreme Court has repeatedly refused to consider grounds of appeal because they did not meet the applicable requirements — with the result that the defendant lost the case simply because the document was not filed as it should have been.

Opinion of the Procurator General

After the grounds have been filed it is the turn of the Procurator General, an independent adviser to the Supreme Court who is not part of the public prosecution service. Partly on the basis of the grounds of appeal, he writes an advisory opinion to the Court, known as the 'conclusie'. If he identifies errors other than those raised by the lawyer, he will advise on those as well. The Supreme Court is not bound by the opinion: although it is often followed, the Court departs from it with some regularity, either to the advantage or to the disadvantage of the defendant. Within two weeks of receiving the opinion the lawyer may respond to it.

Duration of the proceedings

No statutory time limit applies to the cassation proceedings themselves. Because of the volume of cases before the Supreme Court, the proceedings take a considerable time. The starting point is that the case is dealt with within the so-called reasonable time; if it takes longer, the Court may reduce the sentence, depending on the total duration of the proceedings. The reasonable time is sixteen months where the defendant is in pre-trial detention or is a minor, and two years in other cases, counted from the date the appeal in cassation was lodged. In criminal cases the average processing time is approximately 250 calendar days from receipt of the file to the date of judgment.

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Costs

Depending on your income you may qualify for legal aid through the Dutch Legal Aid Board (Raad voor Rechtsbijstand), which means the State pays the lawyer, usually subject to a personal contribution. If your income is too high, or the specialist acts on a paying basis only, you pay the lawyer yourself, either at an hourly rate or for a fixed fee agreed for the case. No court registry fee is payable in criminal cases.

Legislation

The statutory framework.

Article 427 of the Dutch Code of Criminal Procedure opens an appeal in cassation against judgments of the courts of appeal concerning indictable offences, both for the public prosecution service and for the defendant.

Article 431 provides that non-compliance with formal requirements laid down on pain of nullity is a ground for quashing the judgment, whether that non-compliance occurred in the judgment itself or in the course of the proceedings.

Article 432 sets the fourteen-day period for lodging the appeal after the final judgment; Article 437 requires the defendant to have counsel file the grounds of appeal within two months of service of the notice, on pain of the appeal being declared inadmissible.

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