Law reform reform for the benefit entered into force

As of 1 October 2012, the reform reform law for the benefit has entered into force.

Revision is an extraordinary legal remedy. Only the Supreme Court adjudicates on an application for review and examines whether there are grounds for a review.

Novum

The most important ground for a revision is a so-called novum. According to the old legislation, a novum was considered to be present when there was a new factual circumstance. As a result, changed expert insights did not, in principle, result in a novum. This was seen as problematic since judges, partly due to the development of new forensic techniques, have become increasingly dependent on the expertise of experts.

This has led to a new regulation. As a result, it is possible that, in addition to a factual circumstance, other data, such as new expert insights, may also yield a novelty. The exact interpretation of the new novel concept is up to the judiciary. However, it is obvious for the legislator to consider a novelty in the following situations:

• the matter in question had not yet been referred to an expert's opinion during the criminal proceedings;
• the criminal case in question had already been investigated by an expert, but there was a new expert who came to new conclusions, either from a different field or on the basis of different investigative methods;
• a new expert arrives at a different conclusion on the basis of the same facts because the previous expert opinion was based on incorrect or incomplete factual assumptions or because there are new scientific developments in the field in question;
• when, during the review procedure, an expert returns to his previous expert opinion because he did not have the correct starting information.

Successful complaint to the ECtHR

Another ground for review is a successful complaint to the European Court of Human Rights. According to the old legislation, this ground for review was only reserved for:

• those who had made a successful complaint to the ECtHR;
• the co-defendants of those complainants who had been convicted of the same act as the complainant and for which, moreover, the same means of evidence had been used.

Under the new rules, the requirement 'that the same means of evidence must have been used' has been abolished for the complainant's co-perpetrators. This widens somewhat the circle of co-perpetrators who can successfully apply for a review. However, it should still refer to "the same fact".

In-depth investigation prior to review application

Another new feature is that, before submitting an application for review, the former suspect may request the Procurator General to the Supreme Court to conduct a further investigation in cases where there are reasonable doubts as to the correctness of the substantive decision in a closed criminal case, but there is not yet sufficient material available to assess whether the application for review is well-founded. Such a request for further investigation can only be made by the legal counsel of the former suspect if the former suspect has been convicted of an offence punishable by at least 12 years imprisonment and which has seriously shaken the legal order.

An investigation that precedes a review investigation is an in-depth fact-finding investigation. In this in-depth fact-finding investigation, the Procurator General can call in an advisory committee, an investigation team and/or a supervisory judge. Incidentally, the Procurator General is obliged to seek advice from the committee if the former suspect has been sentenced to a term of imprisonment of six years or more.