Digital Procedure Documents Act Criminal Procedure (Bulletin of Acts and Decrees 2016, 90)

On 1 December 2016, the Digital Procedure Documents (Criminal Procedure) Act (Bulletin of Acts and Decrees 2016, 90) entered into force.

This new law makes it possible to facilitate and channel the use of digital process documents. It contains three regulations for this purpose:

1. an arrangement for the integrity of procedural documents in electronic form;
2. an arrangement for the electronic signing of procedural documents;
3. a system of electronic declaration, filing of applications, writing, complaints, appeals and access to procedural documents.

Under the new legislation, suspected or accused persons and victims will now be able to send reports, statements of complaint, documents or applications for judicial redress in electronic form by electronic means. An electronic facility is a web portal or other Internet service enabling the transmission of the aforementioned documents to the competent authorities.

Section 2(3) of the Digital Documents Criminal Procedure Decree of 6 October 2016 (Bulletin of Acts and Decrees 2016, 359) may lay down more detailed rules by ministerial regulation on the way in which documents are transferred by electronic means. Requirements may also be set for the documents transferred by the electronic means. However, this ministerial regulation has not yet been published. In anticipation of a ministerial regulation, (trial) regulations (the courts) or policy rules (the Public Prosecution Service) may prescribe which requirements electronic messages must meet.

It seems that the courts and the Public Prosecution Service have not yet responded to this. According to the Rules of Procedure of the Criminal Division of the Supreme Court 2013, for example, the requirement that a document submitted by means of cassation by electronic means (by e-mail) should not be processed still applies (VI.6).

However, according to its judgment of 22 November 2016 (ECLI:NL:HR:2016:2654), the Supreme Court has given a general framework in which a lawyer authorized by the defendant can institute cassation by granting a special written power of attorney to a clerk of the court by means of an electronic message. After all, according to the Supreme Court, a single e-mail message is not such a written power of attorney.

However, according to the Supreme Court, a letter attached as an attachment to an e-mail, containing a written power of attorney by means of which a lawyer authorises a clerk to lodge an appeal on behalf of the suspect, should be regarded as such a written power of attorney, provided that it is in writing:

(i) the e-mail message, together with an attachment, is sent to an e-mail address designated by the court or tribunal for communication with clerks of the court or tribunal concerning the use of remedies in criminal matters; and

(ii) the written power of attorney meets a number of formulated requirements.