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On this page: What is cassation? | The cassation proceedings | Why appeal? | Costs of the proceedings | Other proceedings before the Supreme Court

What is cassation?

After the judgment on appeal, one has to decide whether to lodge an appeal in cassation. The cassation appeal is a remedy in which the Supreme Court assesses whether the court of appeal made an error of law (either substantive or procedural law). Thus, the Supreme Court does not re-examine the facts of a case. The court’s assessment is limited to specific complaints from the defence (or the prosecutor). To increase the chance of a successful appeal, it’s is important that defence in first instance and appeal are conducted in the right way. Therefore, it is recommended to seek assisted by an experienced criminal defense lawyer in these proceedings.

The cassation proceedings

The rules on the cassation proceedings in criminal matters can be found in the Articles 427 to 444 of the Code of Criminal Procedure of the Netherlands. With certain exceptions, the whole proceedings takes place in writing, so without a hearing. In short, the procedure before the Dutch Supreme Court consists of the following steps:

  1. The first step is introducing the appeal, which is done through a statement before the registrar of the court that issued the impugned judgment and within fourteen days of the delivery date of the final judgment. It can be presented by the defendant himself, his counsel or another person with a special authorization.
  2. Find a lawyer registered in the Netherlands with experience in cassation proceedings; you can’t proceed without counsel.
  3. The court of appeal sends the case file to the Supreme Court.
  4. Once the registry of the Supreme Court has received the case file, the defendant will receive an ‘aanzegging’ thereof. This official notice is the start of the limited period for submitting the grounds of appeal (30 or 60 days).
  5. Then the most important step follows: the accused’s counsel submits a ‘cassatieschriftuur’ for you, failing which the appeal will be declared inadmissible. This is a written statement of one or more grounds of appeal (specific complaints about the inpugned judgment).
  6. Then the Procurator General submits his advisory opinion, the ‘conclusie’. Nowadays, the proceedings can also be concluded in this stage. The Supreme Court may declare the appeal inadmissible on summary reasoning if the complaints raised do not justify an examination in cassation proceedings, ‘because the appellant party obviously has insufficient interest in the cassation appeal or because the complaints obviously cannot succeed’.
  7. A copy of the advisory opinion must be sent to the defence. Counsel for the defence has two weeks to submit written comments – ‘schriftelijk commentaar’ – in response.
  8. Then the Supreme Court will deliver its judgment: ‘arrest’. If the appeal is not (entirely) rejected (which is possible on summary reasoning as well), the inpugned judgment will be (partly) quashed. Thereafter, the Supreme Court will either replace the quashed decision with its own, or refer the case to a court of appeal. The court of referral may be the same court that issued the quashed judgment, or another court.

Cassation proceedings have a duration of about one to two years in the Netherlands, but this varies a lot.

Why appeal?

If the court of appeal has made an error to your disadvantage, it is clear that you appeal against it. But even if at first glance nothing seems wrong with the court’s judgment, the defendant may profit from an appeal in cassation, for several reasons.

  1. Only after lodging an appeal in cassation, the report of the (last) hearing and (usually) the summary of the means of evidence are written. These documents may reveal crucial mistakes that do not appear from the judgment itself.
  2. Because of the appeal, the judgment doesn’t become final. Therefore, the sanctions imposed cannot be executed. By withdrawing the application, one can influence the moment the execution starts.
  3. Often, it takes too long before the file is sent to the Supreme Court. This may result in a reduction of sentence as a compensation for the wait.
  4. The law may change in the meantime, for example by a change in the law or a judgment of the Supreme Court or a European Court. This can have positive effects for the defendant, if the judgment is not final at least.

All in all, even an appeal in cassation offers opportunities for the accused!

Costs of the proceedings

In criminal cases, no court fees apply. So you don’t pay the Supreme Court for the procedure. However, the defendant must be represented by a lawyer. Defendants without sufficient financial resources to pay a lawyer are granted legal aid by the “Raad voor Rechtsbijstand” (Legal Aid Board).

Other proceedings before the Supreme Court

Above, only the proceedings in ordinary criminal trials are discussed: the procedure starting with a summons to stand trial for a criminal offense. This is the most common procedure before the Supreme Court, but there are some other procedures. For example, appeal to the Supreme Court is possible after a court has allowed extradition or rejected a complaint against the confiscation of objects. These court decisions cannot be challenged on appeal; one must apply directly to the Supreme Court. The Supreme Court also decides on requests for review. In these special procedures often different rules apply. Also in these proceedings we can assist you!

Are you considering or have you already lodged an appeal before the Supreme Court? Call or e-mail us for more information!