L. Stevens

The Netherlands: Statutory Balancing and a Choice of Remedies

The search for the truth has always dominated Dutch Criminal Procedure, as it has most continental European criminal justice systems. The Dutch Code of Criminal Procedure, however, contains a provision that allows for exclusion of illegally gathered evidence, whether in violation of statutory rules or constitutional commands, after the judge engages in balancing various interests laid out in the statute. The Dutch provision says that, if a violation cannot be “remedied”, a concept often applied to certain “nullities” which can be “purged” or remedied, then the judge, taking into account the importance of the interest the rule protected, the seriousness of the violation, and the harm it caused to the rights of the defendant. If the judge finds a remedy is merited, he or she has several options. The most severe is to dismiss the entire criminal action, a remedy that is also available theoretically for the most serious “nullities”. The second option would be to prevent use of the evidence at trial, and the third, would be to reduce the defendant’s punishment due to the violation, but allow the evidence to be used at trial. This chapter thoroughly explores how the statutory provision is applied in different kinds of cases involving violations of the right to privacy and the right to silence and other rules relating to interrogations.