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Kermit
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« Reply #306 on: August 13, 2007, 07:14:09 PM » |
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Rammstein
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Dutch Law explained / dutch legal system explained
« on: January 16, 2006, 03:42:27 PM »
Where does the dutch law come from?
If we want to know where our legal rules come from, we are in fact asking about
the sources of law.
Legislation
The first source is legislation. Many laws are drafted by the government, but they always have to be passed by parliament. Such laws are known as acts of parliament or statutes. We live in a parliamentary democracy. This means that the Dutch people themselves elect the members of parliament. So you could say that in a roundabout way we make our laws ourselves. In addition to parliament, we have legislative authorities at lower levels, for example the provincial and municipal councils. Many of the laws enacted by parliament give a municipality or province the power or impose on them a duty to introduce delegated legislation regulating certain matters in more detail. Such laws are known as bye-laws.
Case law
The second source is case law. This is the entire body of judicial decisions given in comparable cases in the past. These decisions are a guideline from which a court will deviate only if the prevailing views in society on problems of this kind have changed since the previous court judgment. Case law is therefore not binding. A court may deviate from precedent and give an entirely different judgment. This creates new case law and means that the law remains up-to-date and adapts to changing circumstances.
Custom and usage
The third source is the entire body of customs and usage in a community. In times past the law was not formally regulated and each community, large or small, had its own customs, usage, punishments and ways of resolving disputes. Even today customs and usage tend to vary from region to region and trade to trade. For example, the customs of the banking industry differ from those of a port. A court takes account of this when adjudicating in a dispute.
International treaties
The last source of law is international treaties and conventions, in other words agreements between two or more countries. Agreements made in a treaty must be translated into national legislation within a given period. National laws may not therefore conflict with agreements under a treaty. If a court discovers an inconsistency between a treaty provision and national law or if the agreements were incorporated too late into national legislation, the court must give precedence to the rules from the treaty and not apply the national legislation. A well-known treaty often invoked in court cases is the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Transposing international agreements into national legislation in fact often gives rise to questions about the interpretation of treaties. These questions can be referred to international judicial bodies such as the European Court of Justice in Luxembourg. Usually, the national courts refer these general questions (references for preliminary rulings), but sometimes a private individual too can apply to an international court.
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Rammstein
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Re: Dutch Law explained / dutch legal system explained
« Reply #1 on: January 16, 2006, 03:46:48 PM »
The different courts and judges
There are hundreds of judges in the Netherlands. Some sit in the higher courts, others in the lower courts, some in specialised courts and so forth. All of them dispense justice in a particular field. The organisation of the courts and judiciary is outlined in the Constitution and the Judiciary (Organisation) Act. The independence of the judges is guaranteed by the fact that they are appointed for life. Only in exceptional cases, for example if they become physically or mentally unsuitable, can they be suspended or dismissed by the Supreme Court.
The organisation of the civil and the criminal courts is virtually the same. It is based on the administration of justice in three steps. A case is heard first by a lower court. If a party does not agree with the judgment, he may refer the matter to a higher court. This is called entering an appeal. Thereafter it is possible in certain circumstances to refer a dispute to the highest court - the Supreme Court. This is known as appealing in cassation. The main civil and criminal courts are as follows:
District Court
The lowest court is the District Court. There are 19 of these in the Netherlands. They are divided into sectors: the subdistrict sector, the civil law sector, the criminal law sector and the administrative law sector. Within the last three sectors, judges sit alone (single-judge division) or in panels of three (full-bench division) to hear cases. Judges in the subdistrict sector always sit alone. Other judges who sit alone are the children’s judge, the judge who hears applications for provisional relief and judges in the criminal
law sector trying cases carrying a sentence of less than six months. It is important for everyone to have access to a court in their vicinity. Hearings at subdistrict level, in any event, are therefore held in locations other than the main buildings of the District Courts.
Court of Appeal
The second-tier judicial body is the Court of Appeal. The justices of the Court of Appeal generally sit in panels of three to hear cases.
There are five Courts of Appeal: in Amsterdam, The Hague, Den Bosch, Leeuwarden and Arnhem.
Supreme Court
The highest judicial body in the Netherlands is the Supreme Court. There is only one such court, and it sits in The Hague. Cases in the Supreme Court are heard by a panel of five justices. Three steps There are thus three tiers of courts (instances), because justice is administered in three steps. A case which starts before the District Court may be appealed to the Court of Appeal and finally to the Supreme Court in cassation proceedings.
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Rammstein
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Re: Dutch Law explained / dutch legal system explained
« Reply #2 on: January 16, 2006, 04:08:18 PM »
CRIMINAL LAW
What is criminal law?
The law states that certain acts are criminal. The provisions on this subject and the process of prosecution and punishment together make up the criminal law. The legislature considers that the acts in question affect not only the two or more persons directly concerned (the offender and the victim) but also society at large. Measures must be taken in public against such acts so that not only the offender but society in its entirety knows that they will not be tolerated. This public action is taken by the State, and the victim must call on the police, representing the State, as quickly as possible for assistance. The police investigate what has happened and if necessary arrest the offender. They then prepare a report (the official report or proces-verbaal) which is presented to the public prosecutor. He decides whether he wishes to submit the case to the criminal courts. Victims themselves cannot refer their case to the court. A distinction is made in criminal law between serious and minor offences. Minor offences are heard by the subdistrict sector of the district court. Examples are infringements of municipal bye-laws, for example being drunk and disorderly in a public place, and traffic offences. Serious offences, such as drug trafficking, theft or murder, are dealt with by the criminal law sector of the district court.
Criminal procedure and coercive measures
The criminal law takes effect as soon as the State becomes involved.
For example,
- when the victim reports the offence to the police or
- when the police catch someone in the act or discover a criminal offence in
- some other way.
Unlike in civil law matters, the victim has no influence over the course of criminal proceedings. It is the State which has the power and the duty to investigate criminal offences and prosecute suspects. Naturally, the authorities need information for this purpose.
This is why it is so important that the victim reports any offence to the police.The victim of a crime can apply for help or assistance to a Victim Support Centre.
When is someone suspected of a criminal offence?
A person is obviously a suspect if he is caught in the act. Other cases are more complicated. There must be a reasonable suspicion of guilt. For example, even if the police suspect that heroin is being sold in a particular café, they may not treat everyone in the café as a suspect. They will keep the café and its customers under regular surveillance in order to obtain a reasonable idea of who is involved. A person cannot therefore be treated as a suspect merely because he ‘may possibly have something to do with the matter’.
Nor can the police simply treat someone whom they do not like as a suspect. There must have been a criminal offence. Everyone must be able to ascertain in advance whether a particular act is an offence. The police must also state what offence the person concerned is suspected of having committed. No one can be prosecuted for something that was not an offence at the time they
committed it. Offences are listed in the Criminal Code and a number of specific statutes such as the Economic Offences Act and the Opium Act. The Compulsory Education Act is also enforced under the criminal law.
Coercive measures
Before a criminal case comes before the courts, the police and public prosecutors have a good many powers which can have a
radical impact on the private life and fundamental rights of the suspect. They are necessary in order to be able to investigate offences as effectively as possible.
The best known coercive measures are the right to stop and search a suspect, to confiscate goods, to detain a suspect for questioning at a police station (maximum of six hours) and to remand a suspect in police custody (i.e. to keep a suspect at a police station for further investigation for a maximum of 3 times 24 hours). Subsequently, the investigating judge has the power to remand a person in custody pending trial. The law indicates precisely when each of these measures may be used. The more serious the measure, the stricter the conditions for its application.
Main protagonists in criminal proceedings
The police
The police investigate offences and find the offenders. In addition, they provide assistance to members of the public and maintain public order. Investigations are conducted by the police for the public prosecutor. The public prosecutor brings people who have committed an offence before the courts. To be able to convince the courts of the suspect’s guilt he needs evidence. The police are responsible for collecting evidence and can, if necessary, use coercive measures for this purpose. In certain circumstances the police may offer to settle a matter out of court. The suspect then pays a given sum and is discharged immediately. In such circumstances, the criminal case ends at the police investigation stage. The same also happens if the police cannot make their case, for example
because they cannot find witnesses or evidence. If the police do solve the case, the public prosecutor receives a report of their investigation (the official report or proces-verbaal). On this basis the public prosecutor decides whether to bring the case before the courts.
The public prosecutor
The public prosecutor is a representative of the Public Prosecution Service, which is part of the Ministry of Justice. The Public Prosecution Service is responsible for the investigation and prosecution of criminal offences. It also has authority over the police, the military constabulary and certain surveillance and investigation services in the performance of their investigative duties. The public prosecutor decides whether or not suspects should be prosecuted and is responsible for executing all criminal judgments.
Decision not to prosecute
If the public prosecutor decides to drop charges or not to prosecute, the case is treated as closed. The public prosecutor may set certain conditions for such a decision, for example that the suspect pays compensation for the damage or submits to medical treatment. The public prosecutor may decide not to prosecute if there is insufficient evidence in a case or if the importance of imposing punishment is outweighed by the importance of not doing so. He also examines to what extent the victim him/herself was guilty. If someone hits his neighbour, this is not acceptable behaviour. But if the neighbour has been tormenting the suspect for many years, the public prosecutor may decide not to prosecute. Other factors taken into account by the public prosecutor are
whether compensation has already been paid, whether the suspect has submitted to medical treatment and whether the suspect acted in self-defence or was forced to commit the offence. The public prosecutor may also make an offer to the suspect to settle out of court. The suspect must then pay a fine to the State. If he refuses to do so, the case will be tried by the courts after all.
Prosecution
If the public prosecutor decides to prosecute, he brings the case before the court. He may send a summons to the suspect immediately after the police complete their investigation if all the facts are clear at this stage. The public prosecutor may also ask the investigating judge, sometimes known as the examining magistrate, to remand the suspect in custody. The investigation then continues while the suspect is in custody. After termination of the investigation, the public prosecutor may decide not to prosecute after all.
The investigating judge
Sometimes the public prosecutor may not have been able to gather sufficient evidence during the police investigation. He may then ask the investigating judge to take more far-reaching coercive measures. The investigating judge hears any witnesses and may give the police and public prosecutor far-reaching powers, for example to open a suspect’s mail, tap his telephone and search his home. Suspects may also be admitted to a psychiatric clinic for observation. The investigation then passes into the next stage - a preliminary
judicial investigation. This is in preparation for the trial. Even during this stage of the investigation, the public prosecutor may decide not to prosecute. The investigating judge and the trial judge may never be the same person.
The trial judge
Once the investigation has been completed, the case comes to trial before the criminal court. The public prosecutor states the charges against the defendant and asks the judge to impose a specific sentence. The judge allows the public prosecutor and the defence counsel an equal say in court. This is a principle which also applies in civil law.
The trial judge plays a more active role in guiding the proceedings than a judge in civil cases does, and the defendant himself is often questioned by the judge. At the trial the judge therefore examines what has happened. This was also done by the police and the public prosecutor during the investigation, but it was not done in public. However, the trial is public because the public must be
able to see, either directly or through the media, how justice is done. The criminal law is of concern to everyone and we must all therefore be able to see whether the courts administer the law properly. Sometimes a hearing may be held in camera (i.e. not in public), for example in order to discuss a psychiatric report. Criminal cases involving children are hardly ever heard in public because the interests of privacy outweigh the interests of having a public hearing.
At the trial the judge examines:
- whether there is sufficient evidence: the judge has a file containing all the reports drawn up by the police, psychiatrists and other experts and the statements made by witnesses. He may question the defendant and the victim and call witnesses and experts;
- whether the act in question is indeed a criminal offence: as explained earlier, a person can be convicted only of an offence that is defined as such by law;
- whether, if a criminal offence has indeed been committed, there are special circumstances: there may be all kinds of aggravating or mitigating circumstances, which may also affect the type and severity of the sentence.
The judge assesses how serious the offence was, how much blame attaches to the defendant (whether he was legally responsible for his actions and whether he acted out of necessity) and whether the judge expects the defendant to re-offend in the future.
The judge asks these questions because under Dutch sentencing policy account is taken of the personal circumstances of the defendant. This is rather different from a system in which the only criterion is the offence, i.e. a system in which everyone who commits the same offence receives the same sentence.
Judgment
At the end of the trial, the judge delivers judgment. In doing so he must take account of everything he knows about the defendant. Determining the type and severity of the punishment is one of the most difficult duties of the judge. He has to weigh different interests - the interests of the offender and the interests of society.
The aim of the punishment should be not only to discourage the offender from ever committing the offence again but also to set an example to society as a whole. This is why the judge has a large measure of discretion in choosing between the sentences that the law permits him to impose. However, he may never impose an unduly harsh sentence simply in order to deter others.
If the judge imposes a sentence, for example a fine or a term of imprisonment, the public prosecutor ensures that the sentence is carried out. The judge may also pass a suspended sentence. This means that a sentence is imposed, but is not enforced if the offender observes certain conditions. Such a condition may be that the offender undergoes psychiatric treatment. The public prosecutor must ensure that the offender observes the conditions.
The defendant and his counsel
In criminal proceedings the defendant is faced with a criminal justice organisation staffed by people with more knowledge of the system than he possesses. This is why it is advisable for him to retain an attorney (counsel), particularly if he is charged with a serious
offence. If a defendant is not in custody during the preliminary judicial investigation, he may himself appoint an attorney. If he does not have the means to pay for this, he is eligible for an attorney through one of the Legal Aid Councils. He does have to contribute to the costs of this. If a defendant is in custody pending trial, he is assigned counsel automatically and this is free of charge. The defendant may request another attorney, but he must then pay a contribution or, if he has sufficient money, the entire costs of the attorney.
The attorney checks to ensure that the police and prosecution service have not exceeded their powers, prepares the defendant for questioning, may be present during questioning (this may be refused only during the police interviews), explains what is happening at the trial and discusses the consequences of pleading guilty or otherwise.
At the trial the attorney speaks for the defendant after the public prosecutor has demanded a particular sentence. The defendant always has the last word at the trial. If the defendant does not appear he may be convicted in his absence, just as in civil law proceedings.
The witness
Usually witnesses are interviewed by the police, or in the course of the preliminary judicial investigation by the investigating judge. If the judge nonetheless wishes to hear a witness at the trial, the latter is obliged to attend and tell the truth. He has to swear on oath that he will do this.
Witnesses may be called by the prosecution or the defence. A witness for the prosecution is interviewed at the request of the public prosecutor and generally provides testimony that incriminates the defendant. The most obvious example of such a witness is the victim. The defendant and his attorney may arrange for witnesses to be interviewed whose evidence helps to prove his innocence. These are witnesses for the defence. It should be noted that a witness who has not yet given evidence must never hear what another witness tells the court. This is why witnesses are not allowed to be present in chambers or the courtroom beforehand.
The victim
The victim of a criminal offence often suffers damage. This may consist of pecuniary damage, for example the costs of destroyed goods or of medical treatment. In addition, there is non-pecuniary damage, for example pain and suffering or loss of enjoyment of life.
In some cases, the person who has committed a criminal offence may offer to pay compensation and, as a result, charges against him are dropped. If no such offer is made, the victim may ask the court through the public prosecutor to order the offender to pay compensation. A claim is then included in the proceedings against the defendant. This does not involve any costs. In addition, there are other ways in which a victim can obtain compensation for criminal damage. For example, a victim can request a one-off financial
payment from the Criminal Injuries Compensation Fund or the Motor Traffic Guarantee Fund. However, a victim may also start a civil action in which the offender is sued for compensation. Anyone who has been the victim of a criminal offence can obtain assistance from a Victim Support Centre in obtaining compensation for pecuniary and non-pecuniary damage.
The Probation and After-Care Service
People who have committed offences often have a variety of problems: with housing or income, or problems of a personal nature. The Probation and After-Care Service helps people who come into contact with the criminal justice system. It also provides services to the criminal justice authorities. For example, it may be asked to write a social inquiry report for the court, i.e. a report about the personal circumstances of the defendant. The Probation and After-Care Service also supervises people who have been released on licence and people who are doing community service. In such cases, the judge normally stipulates that the offender should report regularly to the Probation and After-Care Service. These matters are dealt with in more detail in the section below on sentences
and non-punitive orders. Finally, the Probation and After-Care Service can mediate between offender and victim in order to resolve the dispute or arrange compensation.
The Probation and After-Care Service is subsidised by the Ministry of Justice, but is not a branch of the Ministry. For example, the Ministry and the Service may sometimes disagree about the criminal law and how offenders should be punished.
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Rammstein
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Re: Dutch Law explained / dutch legal system explained
« Reply #3 on: January 16, 2006, 04:47:06 PM »
Arrest and questioning
You have been arrested by the police on suspicion of committing a criminal offence. You will be taken to the police station for questioning. You may be held there for up to six hours, not counting the hours from midnight to 09.00. This means that if you are taken to the police station at 21.00, you can be kept there until noon of the following day.
Remand in police custody
The police may need more than six hours to question you and get the facts straight. An assistant public prosecutor (hulpofficier van justitie) – generally a senior police officer – has to decide whether you can be held longer for questioning. If so, he will issue an order for your remand in police custody. This allows the police to detain you at the police station for a further 3 x 24 hours (including nights). You will receive a copy of the order.
When can you be remanded in police custody?
– Extending your detention at the police station for questioning must be necessary for the investigation
– An assistant public prosecutor must decide whether to remand you in police custody
– He can only take that decision after questioning you
– You can only be remanded in police custody on certain charges specified by law. The charge against you must belong to that category. Theft and drug offences are two examples.
Review of the remand order by the examining magistrate (rechter-commissaris)
You are brought before the examining magistrate for questioning no more than three days and 15 hours after your arrest. The examining magistrate works for the court. He decides whether your remand in police custody was justified. He may also extend the remand order. During the interview, you may ask him to release you. He will do so if he considers your remand unlawful.
Your lawyer
Once you have been remanded, you will be assigned an independent lawyer who will provide free legal assistance. You may also choose your own lawyer who, depending on your income and assets, may also provide free legal assistance. You should discuss this matter with him the first time you meet.
Probation and aftercare
The police will also notify the Probation Service that you have been remanded. The Service assists people who are suspected or have been convicted of an offence to deal with any problems they may have. They help in the process of rehabilitation and try to prevent people from re-offending. They offer individual attention and draw up a plan to deal with any problems. For people who have been sentenced for an offence, the plan includes activities such as alternative sanctions, which the Service or other agencies supervise.*
A probation and aftercare officer will contact you to prepare a plan. You can discuss your problems with him and he will help you find solutions. He can also explain your personal circumstances to the public prosecutor at an early stage. This may be important when your case is assessed to see whether your remand order can be extended.
Extension of your remand in police custody
You are initially remanded in police custody for three days. During this time, the police and a public prosecutor consider what further action to take. Thereare three possibilities:
– The public prosecutor may want to keep you in custody in the interests of theinvestigation. He can extend your detention at the police station for a total of 3 x 24 hours. If so, you will receive copies of the extension orders.
– The public prosecutor may consider it unnecessary to keep you in custody in the interests of the investigation. If so, he will order your release.
– The public prosecutor may feel that the investigation has yielded sufficient information to decide on the following course of action. In that case, you will be brought before him for questioning (see below).
Restrictions and rights
The police may impose certain restrictions while you are in custody at thepolice station. For instance, you may not be allowed to use the phone or send post. They may search you or confiscate objects that might be needed for their investigation. If you object to their confiscating your possessions, you may filea complaint with the courts. For more information, consult your lawyer.
The police may also ban contact with certain individuals. They may temporarily confiscate certain objects or items of clothing. They may photograph you once you have been remanded in police custody and they may take your fingerprints. Please note that these are only examples. In practice, there are other restrictions they may impose on you.
You are entitled to go outdoors twice a day, if this is possible at the police station where you are being detained. You also have the right to order food at your own expense.
The right to assistance from your embassy
If you are not a Dutch national, you may notify your embassy or consulate in the Netherlands of your arrest, but only if you explicitly ask to do so. If you wish and if you are given permission, you may receive a visit from a consular representative.
Appearing before the public prosecutor
On termination of your remand, you are taken to the public prosecutor’s office and questioned by the public prosecutor. He will have received your case file, including the official report, from the police. He will therefore have read your statement and statements by any other witnesses, and he will know what evidence the police have obtained. If the probation and aftercare officer has drawn up a report on your case, it will also be in your case file. The public prosecutor will also know whether you have a criminal record. He will question you to hear your account.
After your appearance
The public prosecutor will come to one of two conclusions after questioning you:
– He may decide it is unnecessary to detain you any longer and you will be released. This does not mean that the case is closed. The prosecution may continue.If the public prosecutor decides to proceed with the case against you, which means bringing the case to court, you will either be handed a summons or it will be sent to you at home.
– The public prosecutor may decide that you should be kept in custody. In that event, he will ask the examining magistrate to order your remand in custody (bewaring). Please note that remand in custody by order of the examining magistrate is different from remand in police custody. At this stage, you will be questioned by the examining magistrate and you will have an opportunity to
express your views on the remand order.
The first stage of pre-trial detention: remand in custody
If the examining magistrate allows the public prosecutor’s request, he will order your remand in custody. This is the first stage of pre-trial detention. You will probably be transferred to a remand centre, but you may be taken back to the police station and held in ‘preventive detention’. You can be remanded in custody for up to ten days. This remand order cannot be renewed.
Detention by court order
Remand in custody ends after ten days. If the public prosecutor feels you should remain in pre-trial detention, he must obtain a detention order from the court. You will be summoned to appear in court and you will have another opportunity to express your views before the court takes a decision. A detention order is valid for up to 30 days. It can be renewed twice, each time for a maximum of 30 days, if the public prosecutor asks the court for an extension.
Termination of pre-trial detention
Pre-trial detention (the time you are remanded in custody by the examining magistrate, or detained by court order) may be terminated at any time, in which case you will be released unconditionally. However, if your pre-trial detention is suspended, you will be released on certain conditions. In other words, termination of pre-trial detention is the end of the line. But if it is suspended and you fail to observe the conditions, you may taken back into detention. You are free to request the termination or suspension of your
detention. Ask your lawyer’s advice.
If you object to detention by court order
You may appeal against a court order placing you in detention or extending your detention. You may also appeal if the court refuses your request for termination or suspension of your detention. If you wish to do so, you must file an appeal with the court of appeal (gerechtshof ) within three days. You can only appeal once. This means, for example, that if you appeal against a detention order, you may not appeal against an order extending your detention. Or, if you appeal against the first extension, you may not appeal if it is extended a second time. Ask your lawyer to explain the procedure in more detail.
Preliminary judicial investigation
The public prosecutor may order a judicial investigation when applying for remand in custody, or in some cases, even earlier. If he does so, responsibility for the investigation is transferred from the police to the examining magistrate, who may question witnesses. He may also authorise the police or the public prosecutor to perform certain tasks relating to the investigation, such as screening mail, tapping telephone conversations or conducting house searches.
The examining magistrate has wider powers than the police to inquire into your personal circumstances. For example, he may ask a psychiatrist or the probation service to issue a report. He may also have you admitted to a psychiatric institution for observation. On the other hand, you may ask the examining magistrate to question witnesses who can corroborate your statements.
If the public prosecutor does not order a preliminary judicial investigation, your lawyer may ask the examining magistrate to conduct an investigation in your interests.
After the examining magistrate has completed the investigation, he sends all the documents to the public prosecutor. The public prosecutor then decides whether to proceed with the case against you.
Prosecution
The public prosecutor may decide to bring your case to court. In this event, you will receive a summons to appear in court.
If the charge is dropped
Alternatively, the public prosecutor may decide to drop the charge against you. In that event, the case will not be brought to court and you will not be summonsed to appear. However, the police and the public prosecutor will keep all your information on file and access it if you are arrested again.
The court hearing
If you have been released but your case is to go before the courts, you will receive a summons at home. If you are still in pre-trial detention, the summons will be delivered to you at the remand centre. If the court has extended the detention order twice and you have still not received a summons, the authorities are obliged to release you. The maximum amount of time you can spend in police custody and pre-trial detention is 106 days (6 days in police custody, 1 x 10 days remand in custody, and 3 x 30 days in detention by court order). Any criminal proceedings begin within this period.
If you are in a remand centre, you will remain in detention – unless there is no reason to detain you any longer – until the court gives judgment in your case. For more information about proceedings in court, see the booklet entitled On trial for a criminal offence, which can be obtained from the Ministry of Justice.
Compensation
If you were held in pre-trial detention, but your case ended without a conviction, you may apply for compensation. Ask your lawyer to advise you.
Stages of detention
Arrest for questioning by the police
maximum 6 hours (excluding time between 00.00-09.00 hours)
place: police station
The period of questioning by the police may be extended:
maximum 6 hours (excluding timebetween 00.00-09.00 hours)
place: police station
Remand in police custody
ordered by the assistant public prosecutor
maximum 6 days (2x3 days)
place: police station
Remand in custody
ordered by the examining magistrate
maximum 10 days
place: remand centre or police station
Detention by court order
ordered by the district court
maximum 3x30 days
place: remand centre
The total amount of time you are detained before the court gives judgment in
your case (voorarrest) will be deducted from your sentence if you are convicted.
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tblues
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Re: Dutch Law explained / dutch legal system explained
« Reply #4 on: January 17, 2006, 06:47:27 AM »
Rammstein can you help us on civil laws there also and how that works??
Thanks.
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Rammstein
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Re: Dutch Law explained / dutch legal system explained
« Reply #5 on: January 17, 2006, 09:41:04 AM »
CIVIL LAW
What is civil law?
Civil law regulates rights and obligations between persons. These may be natural persons, in other words individuals, or legal persons, for example public or private companies, or associations or foundations. The types of cases heard by the civil courts include the law of persons and family law (divorces, adoption and child protection), commercial and bankruptcy law, law of succession, property law, landlord and tenant law and labour law. Claims for compensation are also dealt with by the civil courts.
Rights are of no use in a dispute if they cannot be enforced. Enforcement can be arranged by a lawsuit. In civil law the person who feels injured or aggrieved brings the case before the court.
Main protagonists in civil proceedings
A civil case involves two opposing parties (natural or legal persons): the plaintiff who has initiated the civil lawsuit and wants to have a particular dispute decided to his advantage, and the defendant who does not agree with the wishes of the plaintiff and has to defend himself in the proceedings. In the course of the proceedings these two parties come into contact with a number of people:
The judge
The judge plays a passive role in civil proceedings. In other words, he waits to see what arguments the parties put forward. As stated above, the person who feels aggrieved decides whether to initiate proceedings. Once the case has been brought before the court, the plaintiff and defendant may decide what issues they wish to raise. The plaintiff must make his case right away, explaining what the dispute is, and what evidence and witnesses (if any) he has. The defendant is also obliged to bring forward evidence without
delay. The judge may not exceed the demands, for example by awarding more damages than the plaintiff is claiming.
The judge is impartial and is accountable to no one for his judgments. He is bound only by the law. He must apply and, if necessary, interpret the law. Only a higher court can alter a judgment once it is given. The lower court can, however, correct certain kinds of mistakes made duringthe proceedings, for example manifest errors of form in judgments or decisions.
The clerk of the court
The clerk of the court keeps a record of what is said and done at a session of the court. It is partly by reference to his notes that the
court gives judgment. This work may be done either by a lawyer or a non-lawyer. However, a non-lawyer must take a special training course.
The attorney-at-law
Proceedings can prove complicated for litigants. In order to take full advantage of the opportunities provided by the law they should be assisted by an attorney-at-law. An attorney also ensures that the proceedings take place in an orderly and efficient manner.
In most cases it is therefore compulsory under the law for both parties (i.e. both the plaintiff and the defendant) to be represented by an attorney. This is known as the principle of compulsory legal representation. It applies to almost every civil case which comes before the District Courts, the Courts of Appeal and the Supreme Court. A private individual may represent himself in proceedings in the subdistrict sector, but since even here matters can become complicated the person would be well advised to seek the expert help of an attorney, particularly if the other party has done so.
The work of an attorney-at-law is not confined to advocacy in the courts. Initially, in fact, an attorney tries to prevent a legal action. He gives an opinion or attempts to reach a settlement with the other party. After all, a court case takes a long time and is both difficult and expensive for most people. If a court action cannot be avoided, the attorney puts his client’s point of view into legal
language. He challenges what the lawyer representing the other party has stated, and may address the court in his client’s defence. He also advises his client how he can best conduct himself in court.
Legal aid
Hiring a lawyer is too expensive for many people. Anyone who cannot afford to pay can be allocated a lawyer by one of the five Legal Aid Councils, but is required to pay a contribution depending on his income and assets. The rest of the attorney’s fee is paid by the State. To assess whether it is worthwhile hiring a lawyer, a prospective litigant can first submit the case to a Legal Aid Centre. Here he will receive expert advice. The first consultation is free, regardless of the income of the person concerned. Many attorneys also provide an initial consultation free of charge.
Other providers of legal assistance
A plaintiff or defendant may also be assisted by someone other than an attorney-at-law. Since there is no obligation to have legal representation in the subdistrict sector, any adult who can assess and plead a case properly can be authorised to act for either party. There are various specialised providers of legal assistance, for example bailiffs, lawyers employed by Legal Aid Centres or trade unions, consumer association staff or legal assistance insurance experts.
The bailiff
Bailiffs are people who have passed a special examination and have been appointed by the authorities. They need not be qualified lawyers. A bailiff’s job is to ensure that the defendant receives the writ of summons, the document that calls him to appear before the court. The bailiff also arranges, where necessary, for the execution of the judgment. For example, he may seize the wages or goods of a judgment debtor or evict the debtor from his home. He may obtain the assistance of the police for this purpose.
Principles of the law of civil procedure
The following principles ensure that proceedings take place as fairly as possible:
The principle that both sides of the case have the right to an equal say
Both parties should be allowed to present their case and should listen to the case presented by the other party. The court may not take account of facts which have come to its attention outside the courtroom.
Public nature of hearings
Court hearings are in principle held in public and are thus accessible to all.
The court is passive
The decision on whether or not to initiate proceedings and what precisely is at issue rests with the parties. Only facts put forward by the parties are relevant. The parties are obliged to keep to the point. The court may order the parties to explain certain assertions or to submit certain documents. The court also has the power to correct certain procedural errors or manifest numerical errors or errors of form.
Right of appeal
Appeal is usually possible after the judgment. However, in some cases it is not, for example where the amount involved is less than € 1,750.
Appeal in cassation
Following an appeal, a party to the case may refer the matter to the Supreme Court. Here there can no longer be any dispute about the facts of the case, in other words about exactly what happened. The Supreme Court merely examines whether the proceedings took place in the correct manner and whether the law was properly applied.
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Rammstein
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Re: Dutch Law explained / dutch legal system explained
« Reply #6 on: January 17, 2006, 09:41:24 AM »
Procedure before the different courts
The District Court
Two sectors of the District Court are concerned with civil law: the subdistrict sector and the civil law sector. Straightforward cases are
brought in the subdistrict sector, where the judge sits alone. In the civil law sector, some cases are heard by single judges, while more complex cases are heard by a panel of three judges.
The subdistrict sector
This sector deals with all landlord and tenant, hire purchase and employment cases. It also hears all other lawsuits involving amounts under €5,000. The subdistrict sector has other duties, too. For example, it may give consent for the marriage of minors.
Procedure
Proceedings in the subdistrict sector generally take the same course as those in the other sectors of the district court. The majority of proceedings start with a writ of summons, which summons the defendant to appear before the court. The plaintiff or his representative prepares the writ and the bailiff delivers it, to make sure that it reaches the defendant. The writ of summons says what the case is about and what the plaintiff wants, and states what evidence and witnesses he has. The plaintiff must also respond to the defendant’s defence, if he knows what it is. The defendant may reply by means of a statement of defence, showing his evidence and/or witnesses. Unless the judge decides otherwise at the request of one of the parties, there follow oral proceedings, at which the judge can put further questions to the parties and see whether they can reach a settlement. If the parties have no objection, the judge may in some cases refer them to a mediator. If the judge takes the view that both parties have made their case fully, he can give his decision right away, in the form of a judgment. Sometimes the judge needs more information or finds that the opposing viewpoints are not quite clear. He can then ask the parties for more evidence for certain events or allegations. Subdistrict judges may visit the place where something is alleged to have occurred in what is called a local inspection or have an expert report drawn up. If a defendant does not appear, the judge will give judgment by default, without having heard the defendant’s standpoint. The defendant can object to a default judgment by summonsing the plaintiff in turn. The proceedings then start again, before the same judge.
The civil law sector
In principle, the civil law sector hears all cases involving claims in excess of € 5,000, most cases involving the law of persons and family
law, and commercial law cases. Representation by an a atorney is compulsory. Cases are heard either by a judge sitting alone or by panels of three judges. Such panels hear the more complicated cases.
Chambers
In cases heard by three judges, the judges consult together in chambers after they have heard all the facts. It is here too that the witnesses are heard. These hearings are not held in public. If the judges disagree among themselves, they take a vote because they must present a unanimous decision. We therefore have no way of knowing whether one of the judges dissented. This is called the
‘secret of chambers’. The judgment is delivered in public a few weeks later.
Petition proceedings
In certain cases a lawsuit is initiated not by a writ of summons but by a petition. For example, an employer or employee may petition a judge in the subdistrict sector to set aside a contract of employment. A marriage too may be ended by petition proceedings.
Special proceedings
In addition to standard proceedings before a judge sitting alone or before a panel of three judges, certain special proceedings take place before a single judge, for example applications for provisional relief or cases heard by the children’s judge.
Applications for provisional relief
In urgent cases a subdistrict judge or a civil law judge sitting alone may hear an application for provisional relief. This usually involves ordering something to be done or giving a party permission to do something. An application for an interim injunction could be made, for example, to prevent a strike or eviction from a home. The defendant in interim injunction proceedings need not be represented by an attorney-at-law. The hearing is held without delay. At the hearing the parties or their attorneys explain the case orally. The judgment given on such an application is provisional. The parties can then apply for a final decision in an ordinary action before the District Court. In practice, however, the parties usually accept the judgment in the provisional relief proceedings.
The children’s judge
A children’s judge may make orders of different kinds for the protection of a child. The interests of the child are always paramount. The judge may do this where the physical or mental development of a minor child is at risk. One common child protection measure is the family supervision order. Here, the judge appoints a family supervisor who examines, together with the child and its parents or foster parents, what would be the best situation in which to raise the child. The children’s judge also makes access arrangements
between children and parents, for example after a divorce. In both cases, the children’s judge can seek the advice of the Child Protection Board.
But what actually is in the best interests of the child
Opinions may differ on this point. Quite often the parents may want something different from what the Child Protection Board proposes. Nonetheless, both will maintain that they have the best interests of the child at heart. Although children under 12 do not have any formal right to be heard, the judge will generally ask to hear the views of an older child. As the next chapter explains, the children’s judge also plays a role in criminal proceedings involving juveniles.
The Court of Appeal
A Court of Appeal hears appeals against judgments given by the District Court. Only one appeal is possible in each case. Following
an appeal, the only option is appeal in cassation to the Supreme Court. Cases before a Court of Appeal are heard by a panel of three judges (known as justices of appeal). Straightforward cases are increasingly dealt with by a justice sitting alone. The procedure before a Court of Appeal is comparable to that before a District Court.
Some Courts of Appeal have divisions that hear special cases. For example, Arnhem Court of Appeal has an Agricultural Tenancies Appeals Division and Amsterdam Court of Appeal has an Enterprise Division which hears disputes involving works councils. Each Court of Appeal also has a Tax Division which hears appeals in tax cases. In these special divisions, the panel of three justices may be enlarged to include two experts in the relevant field.
The Supreme Court
The Supreme Court is, as the name suggests, the highest court in the Netherlands. Just as at the Courts of Appeal, the judges are known as justices. Appeals in cassation are generally heard by five justices. The Supreme Court’s judgments are often treated as precedents and become part of case law. Once the Supreme Court has ruled on a given issue, everyone knows in the future what the highest court in the Netherlands thinks about it. The lower courts can therefore take account of this in subsequent cases.
There are differences between ordinary appeals (to the Court of Appeal) and appeals in cassation (to the Supreme Court). On appeal the court checks whether the lower court correctly interpreted all the facts and whether there was sufficient evidence. If this judgment differs from that of the lower court, the first judgment ceases to have effect and is replaced by the new judgment. In cassation proceedings, it is assumed that all the facts are known and that everything which the lower court considered to be sufficiently proven actually happened. It is therefore not possible to complain to the Supreme Court that certain facts are incorrect. The Supreme Court merely examines whether the lower court applied the law correctly and whether it complied with the
procedural requirements imposed by the law. If not, the Supreme Court refers the case back to a lower court, which then gives judgment anew, taking account of the Supreme Court’s opinion.
Execution of judgments and orders
Those who are held to be in the right will wish to see the judgment or order executed. In general, this can happen only after it has been served on the other party, i.e. after the defendant has in any event had an opportunity to see what it contains. The bailiff arranges for service. The plaintiff will first ask the other party to comply with the ruling voluntarily. If this does not happen, the bailiff
can employ a number of coercive measures. For example, if a person does not pay maintenance, the bailiff can seize goods or attach his salary. If a defendant being evicted refuses to vacate a dwelling, the bailiff may call on the police for help. The court may also impose a penalty payment. If the defendant still does not comply with the court ruling, he must pay a given sum to the plaintiff.
If one of the parties appeals, it is to that party’s benefit if the judgment is not executed. This is because if the judgment is held on appeal to have been incorrect, it is hard to restore the status quo once it has been executed. Often, however, the court declares its judgment to be ‘immediately enforceable’. This means that it may be executed even if one of the parties has appealed. In that case, the only remedy is an application for an interim injunction. The judge hearing such an application may direct that the judgment will not be enforced until the case has been heard on appeal.
Other procedures
Arbitration
In some cases, differences of opinion may have to be referred to an arbitration tribunal rather than a court of law. Such a tribunal consists of arbitrators, i.e. experts from the relevant industry (such as mechanical engineering or construction). Arbitration is faster than court proceedings. However, it is also more expensive. Arbitrators are not official judges and the persons seeking arbitration must therefore pay their salaries as well as that of their legal adviser (attorney). Nor is State-funded legal aid available.
A warrant of the District Court is required in order to execute the decision of an arbitration tribunal (known as an arbitral award). It is not possible to appeal against an arbitral award, but it is possible in certain cases to ask the courts to quash such an award.
Dispute resolution committees
Dispute resolution committees exist in all kinds of areas of consumer law. These are committees subsidised by the State on which representatives of potential litigants sit. For example, the Consumer Complaints Committee consists of representatives of consumers and of the suppliers’ trade associations. Dispute resolution committees have been established for a variety of sectors including travel, dry cleaning and home furnishings. When the parties conclude a contract, for example when a consumer books a holiday or buys an item of furniture, reference is made in the terms and conditions of sale to these committees. The supplier must, however, be a member of the trade association which is represented in the committee. The recommendation of the dispute resolution committee is binding. Only if the recommendation is clearly unreasonable may the case be referred to the courts after all.
Disciplinary proceedings
Disciplinary proceedings are a special form of procedure intended to ensure that the practitioners of a particular profession or trade comply with the rules of their occupation. Examples of such professional groups are doctors, attorneys, notaries and footballers.
They practise a profession – i.e. they are not in salaried empoyment - but cannot simply do as they please. All attorneys-at-law, for example, are members of the Dutch Bar Association (NOVA) and have to act in accordance with the code of conduct for attorneys-at-law. The Supervisory Council checks to ensure that the code of conduct is observed and deals with any complaints
against attorneys. Doctors, midwives and pharmacists are subject to the Medical Disciplinary Board. The disciplinary tribunal of the Royal Netherlands Football Association (KNVB) hears complaints against footballers. Such disciplinary tribunals may impose stiff sentences, for example by suspending a member or barring him from continuing to practise his profession.
Mediation
For some years now, several District Courts have been running pilot projects aimed at resolving disputes by means of mediation, without recourse to the courts. The parties, assisted by a mediator, attempt to resolve their disagreement themselves. Mediators have to meet certain standards, and must be registered with the Dutch Mediation Institute (NMI). Mediation can come into play in various ways. The parties themselves may decide to go to mediation, or the court dealing with a case may refer the parties to a mediator, though only if both parties agree, since mediation is not compulsory. If mediation fails, court proceedings resume. Cases in many areas of the law can be referred to mediation. So far, it has been used most frequently in family law, especially in relation to divorce and accessarrangements.
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