Revision of the law to the detriment of

On 1 October 2013, the Act on the Revision at Deterioration (Bulletin of Acts and Decrees 2013, 138) entered into force.

The main lines of the proposed scheme of review to the detriment of the former defendant are as follows.

• Revision to the detriment of the former suspect can take place on two grounds.

• The first ground is that after the final verdict has become irrevocable, new evidence has come to light that gives rise to the serious suspicion that the accused would have been convicted (novum) had the judge been aware of it.

• The second ground is that there is one or more so-called "falsa"; when it has been established, for example, that there was false exculpatory evidence and there is a serious suspicion that if the falsification had been known to the judge, the investigation of the case would have led to a conviction of the former suspect.

• Revision to the detriment of a novelty is only possible if there is new technical evidence or a credible confession of the former suspect or his fellow suspect.

• Moreover, in order to prevent light prosecutions, it is required that there is very strong evidence against the former suspect that was not known to the judge during the trial of the suspect. The evidence must be such that there is a serious presumption that a conviction would have followed if the evidence had been known.

• An additional condition is that the review in each individual case is in the interest of the proper administration of justice. This makes it possible, for reasons of expediency, to refrain from pursuing the prosecution after all. For example, if the former suspect has fallen into a coma as a result of an accident and cannot be expected to wake up from this coma.

• Revision to the detriment is, in principle, only possible for an intentionally committed crime resulting in the death of another person. There is an exception to this main rule in the case of certain failures (procedural shortcomings). This may be the case, for example, in the case of a peremptory witness statement or a false document. In the case of this type of failure, there is an "infected" verdict, as it were, and revision is possible to the detriment of the offence, regardless of its seriousness, provided certain conditions are met.

• Offences that are already time-barred do not qualify for a review to the detriment.

• It must be a (final) judgment of the criminal court in the Netherlands. International (criminal) law does not allow for a review of decisions of a foreign court.

• The main rule is that a claim for revision to the detriment can only be made in the event of an acquittal or dismissal of all legal proceedings. A review of the penalty to the detriment of the former defendant is not possible. This is different in the case of a bribed judge, because the purpose of the bribery may be to obtain a lower penalty.

• DNA data and fingerprints can be retained after an acquittal, if the acquittal relates to a crime that resulted in the death of another person. Such acquittals may be reviewed on the basis of a novelty.

• Revision to the detriment is only possible on the initiative of the College of Procurators General of the Public Prosecution Service.

• As long as the final verdict or judgment has not been set aside, the application of coercive measures against the former suspect is strictly standardised. According to the legislator, it is not desirable that former suspects are repeatedly exposed to "fishing expeditions" even after a final acquittal or dismissal of all legal proceedings. For this reason, provision has been made for a review procedure that requires the prior consent of the College of Procurators General. Moreover, an investigation directed against the former suspect is only admissible if the examining magistrate starts a further investigation in the closed case.

• It should be prevented that persons who have been irrevocably acquitted (or dismissed from all legal proceedings) are exposed to unrestrained investigative activities (e.g. in connection with civil investigations). Therefore, results of investigations not carried out in accordance with the legal rules are, in principle, excluded from the evidence in the review case.

• If the application for review is found to be well founded, the case shall be referred to a court of law, with the possibility of appeal and cassation. A full retrial of the former defendant in two factual bodies will thus follow.

• In order to avoid endless litigation, revision of a previously revised judgment is generally excluded. Should the review process once again lead to an irrevocable acquittal or dismissal of all the proceedings, the main rule is that no further review to the detriment of the case can be demanded. However, this main rule does not apply in the case of certain failures.

• Revision to the detriment may also be made for cases that have ended with an irrevocable acquittal or dismissal of all legal proceedings prior to the entry into force of this Act, provided it is not time-barred.