The Netherlands: Statutory balancing and a choice of remedies
The search for the truth has always dominated Dutch Criminal Procedure, as it has most continental European criminal justice systems. The Dutch Code of Criminal Procedure, however, contains a provision that allows for exclusion of illegally gathered evidence, whether in violation of statutory rules or constitutional commands, after the judge engages in balancing various interests laid out in the statute. The Dutch provision says that, if a violation cannot be “remedied”, a concept often applied to certain “nullities” which can be “purged” or remedied, then the judge, taking into account the importance of the interest the rule protected, the seriousness of the violation, and the harm it caused to the rights of the defendant. If the judge finds a remedy is merited, he or she has several options. The most severe is to dismiss the entire criminal action, a remedy that is also available theoretically for the most serious “nullities”. The second option would be to prevent use of the evidence at trial, and the third, would be to reduce the defendant’s punishment due to the violation, but allow the evidence to be used at trial. This chapter thoroughly explores how the statutory provision is applied in different kinds of cases involving violations of the right to privacy and the right to silence and other rules relating to interrogations.
Journal/Publisher: Springer
Co-author/s: Lonneke STEVENS in Stephen C. THAMAN (Ed.), "Exclusionary rules in comparative law"
Publication type: Book chapter
Number of pages/Page range: 183-207
Language/s (content): English
Date of publication: 02-01-13
Personal data
Full name Matthias J. BORGERS
Current occupation Member
University/Institution VU University Amsterdam
Address De Boelelaan 1105
Postal code 1081 HV
Telephone 0031 20 5986231
Fax 0031 20 5986230