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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 start a cassation appeal. 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 based on specific complaints from the defense (or the prosecutor). It is important that defense in first instance and appeal are conducted in the right way. Therefore, it is good to be assisted by an experienced criminal defense lawyer in these procedures.

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. With certain exceptions, the whole procedure takes place in writing, so without a hearing. In short, the procedure before the Supreme Court consists of the following steps:

  1. The first step is filing the appeal, to be made by a statement before the registrar of the court that issued the judgment under appeal and within 14 days. It can be presented by the defendant, 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 to the Supreme Court without counsel.
  3. The court of appeal sends the file to the Supreme Court.
  4. Once this is done, the defendant will receive an official notice thereof. This is the start of the limited period for submitting the grounds of appeal (30 or 60 days).
  5. Then the most important step follows: your lawyer submits a ‘cassation writing’ for you. This writing consists of one or more grounds for cassation (specific complaints about the decisions of the judgment under appeal).
  6. Then the Advocate General to the Supreme Court will submit an advisory opinion, the ‘conclusion’. Nowadays, in certain cases the proceedings can also be concluded in this stage.
  7. After that, the defense can reply in a written comment.
  8. Then the Supreme Court will deliver its judgment. If the appeal is not (entirely) rejected, the judgment under appeal will be (partly) quashed. Thereafter, the Supreme Court will make a new decision or refer the case to a court of appeal. The court of referral may be the same court that issued the destroyed judgment, or another court.

This procedure has a duration of about two years, but 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 cassation, for several reasons.

  1. Only after setting appeal, the report of the (last) hearing and (usually) the summary of the means of evidence are written. These documents may reaveal 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, you can influence when the execution starts.
  3. Often, it takes too long before the file is sent to the Supreme Court. This can result in a reduction of sentence as a compensation for the long 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, except if the judgment is final.

So even in an appeal in cassation there are 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. Who does not have sufficient financial resources to pay a lawyer is granted legal aid. Legal aid may be obtained from the “Raad voor Rechtsbijstand” (Legal Aid Board) . As a rule, Dirk Daamen doesn’t work on a pro bono base, the other lawyers of the firm do.

Other proceedings before the Supreme Court

Above, only the procedure in ordinary criminal trials is discussed: the procedure that starts 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 our lawyers can assist you perfectly!

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