An appeal in a Dutch criminal case is a full rehearing. Unlike cassation, which examines only the application of the law, the court of appeal takes the case again from the beginning: it hears the evidence, can hear witnesses afresh, and reaches its own decision on guilt and on sentence. The judgment of the first court disappears and is replaced by that of the court of appeal.
The period for lodging an appeal is short. In principle it is fourteen days from the date of the judgment, or from the moment the judgment comes to your knowledge where you were not present. Missing it is usually fatal, so the decision has to be taken quickly – often before the written judgment is available.
Who can appeal?
Both the defendant and the public prosecutor. That matters more than it sounds: where only the defendant appeals, the sentence can still be increased by the court of appeal, because the case is decided afresh. An appeal is therefore not risk-free, and the assessment of whether to lodge one should include what a heavier sentence would mean.
Not every case can be appealed. For the least serious matters, where only a small fine was imposed, appeal is excluded by statute; in those cases the route, if any, runs directly to cassation.
What happens in the appeal
The appeal is lodged by a declaration at the registry, and grounds of appeal are submitted afterwards. Those grounds shape the hearing: which findings are challenged, which witnesses should be heard again, whether further investigation is requested. Requests for investigation made early carry more weight than the same requests made at the hearing.
At the hearing the court of appeal deals with the case in the same way as the court of first instance: the charge, the evidence, the defence, the personal circumstances of the defendant and the sentence. Judgment follows either immediately or within a set period.
How long does it take?
Considerably longer than most defendants expect. It is common for a year or more to pass between lodging the appeal and the hearing, depending on the court and on what investigation is requested. Where the defendant is in pre-trial detention the case is given priority, and undue delay in the proceedings is itself a ground on which a sentence can be reduced.
After the appeal
Against the judgment of the court of appeal, cassation lies to the Supreme Court within fourteen days. The Supreme Court reviews only whether the law was correctly applied and whether the judgment is adequately reasoned; it does not reconsider the facts. Our article on cassation sets out what that involves.
Frequently asked questions
Can I withdraw an appeal?
Yes, up to a point in the proceedings. Lodging an appeal within the period and withdrawing it later is often the sensible course where the decision has to be taken before the written judgment is available.
Can my sentence become heavier on appeal?
It can. The court of appeal decides the case afresh and is not bound by the sentence imposed at first instance.
Do I have to attend?
You are not obliged to, and your lawyer can act for you, but attendance matters in cases where personal circumstances weigh in the sentence.
Advice on a criminal appeal
Whether an appeal is worth lodging depends on what went wrong at first instance and on what could realistically be improved – weighed against the possibility of a heavier sentence. Because the period is fourteen days, that assessment has to be made quickly. Please contact Law & More; our criminal lawyers can review the judgment and advise.
