Remedies of the suspect during pre-trial detention. If a suspect believes that he is being wrongfully detained, he can request release or appeal. When must the suspect turn to the examining magistrate and when to the chamber? What is the difference between custody and detention? And when can the police or public prosecutor reach a settlement or transaction with the suspect? You will find answers to these questions and more in this article.
Suspect and Preliminary Detention
Temporary custody . The article Criminal Law & Judicial Preliminary Investigation discusses the course of events or procedure during the pre-trial detention process of the suspect of a criminal offense. A number of points are briefly listed here.
In the process from the police investigation and in a later phase before the public prosecutor and the examining magistrate (judicial for investigation and arraignment), it may happen that not enough evidence or reasons emerge to detain the suspect any longer. . As stated in the above-mentioned articles, there is a maximum number of days of pre-trial detention. This period can last a maximum of 106 days, namely:
- a maximum of 4 days in custody (see Police)
- two times 6 days of custody (Commissioner’s Judge)
- three times 30 days’ detention (Council Chamber)
After these 106 days, the suspect must be summoned to court or otherwise released. The only exception to the violation of these 106 days is if the public prosecutor submits a request and can properly substantiate that there are very extraordinary and serious reasons to extend this period.
Legal remedies Suspect – Request release from examining magistrate
Remedies suspect . If the suspect has not been able to convince either the police or the public prosecutor of his innocence or the interest in no longer being held, the first option is to expressly plead for release to the examining magistrate.
Free for the time being. The examining magistrate is not only authorized to release the suspect, but can also attach conditions to this release. In concrete terms, this means that the suspect is formally placed in custody, but that suspension of custody is ordered at the same time as this order. The conditions attached to this suspension may be:
- providing a (financial) security or guarantee
- being unable to avoid the enforcement of pre-trial detention if the suspension is lifted. The examining magistrate can, for example, oblige the suspect to regularly report to the police station
- not going into a certain residential area or near certain people
- and (obviously) refraining from committing new criminal offences
Defendant’s Request and Appeal
Request suspect . The suspect’s first option to no longer be detained is therefore to express his or her plea to the examining magistrate. If such a request by the suspect is rejected, he or she may repeat the request at the arraignment before the presiding chamber of the court. The same options are available to the council chamber as the conditions of the examining magistrate mentioned above. The suspect can also submit a request for release during his detention (30 days) if he believes that the factual circumstances give reason to do so.
Suspect’s occupation. In addition to the above options, the suspect also has the option to appeal to:
- The court against the detention order of the examining magistrate. The suspect has only one option of appeal
- The court against the detention order of the council chamber. The suspect can repeatedly request the lifting or suspension of detention from the council chamber.
- The Supreme Court in The Hague (also called cassation); here the suspect can appeal against the court’s decision. This appeal is only possible if the court of appeal has not properly applied the law, as the Supreme Court is not concerned with the facts and circumstances regarding the suspect and the interpretation thereof by the court of appeal (the Court).
If the suspect is not eligible for provisional release or there are indications or evidence of guilt of criminal offenses, the next phase will be a public hearing (trial). This will be discussed in more detail in a follow-up article (will follow soon).
In some cases, for less serious criminal offences, a settlement or transaction can be decided on instead of a court hearing.
Settlement or Transaction
Settlement between police and public prosecutor. If a criminal offense is established in which the suspect immediately admits guilt, the police may act as their own judge in the first phase (see Criminal law & Police) and the public prosecutor. This mainly concerns very simple cases that can be completed immediately, because the suspect acknowledges. Consider, for example, cycling in the dark without lights, violating a parking ban, speeding with a moped or car. Formally, the case should be submitted to the judge after an official report has been drawn up (see Official report).
Settlement Transaction . Since the public prosecutor works according to the same fixed guidelines for fines as a judge, the amount of the fine is known and the officer can already offer the suspect to pay a fine. The advantage of this procedure is that an entire legal process is avoided, the judge has less workload and the suspect immediately knows where he stands. In this case, paying a fine is also called a settlement or transaction.
The suspect is free to refuse this settlement and have the case brought before the judge to hear his judgment.
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- Criminal Judge & Trial
- Criminal Cases & Punishments
- Appeal & Compensation
- Criminal Law & Judicial Preliminary Investigation