An appeal (hoger beroep) in a Dutch criminal case means that the court of appeal (gerechtshof) assesses your case again: the facts, the evidence and the sentence. You must lodge it within fourteen days of the judgment, and keep in mind that the sentence can also become heavier on appeal.
Unlike cassation, which examines only whether the law was applied correctly, an appeal is a new assessment of the case. The court of appeal reaches its own decision on guilt and on sentence. It then either confirms the judgment of the district court or sets it aside and gives its own judgment. If you appeal only against the sentence, the court of appeal focuses on that.
How long do you have to lodge an appeal?
In principle fourteen days from the date of the judgment (article 408 of the Dutch Code of Criminal Procedure, Wetboek van Strafvordering). In some cases where you were not present, the period runs from the moment it is clear that you know of the judgment.
Missing the period is usually fatal. The decision therefore often has to be taken before the written judgment is available. Lodging the appeal in time and withdrawing it later, once you know the reasons for the judgment, is then often the sensible course.
Who can appeal?
Both the defendant and the public prosecutor (Openbaar Ministerie). A defendant who was acquitted of the entire charge cannot appeal (article 404 Sv).
That the prosecutor can also appeal matters more than it sounds. And even where only you appeal, the court of appeal can impose a heavier sentence, because it decides the case afresh. An appeal is therefore not risk-free. Your decision whether to lodge one should take into account what a heavier sentence would mean for you.
Can every case be appealed?
No. For minor offences (overtredingen) where no punishment or only a fine of up to €50 was imposed, appeal is excluded (article 404 paragraph 2 Sv). In those cases cassation is in principle excluded as well (article 404 paragraph 4 Sv), so there is no further remedy.
For less serious cases there is also a leave system (verlofstelsel). If the judgment concerns only minor offences or crimes carrying a maximum prison sentence of four years or less, and only a fine of up to €500 was imposed, the appeal is only heard if the president of the court of appeal considers this necessary in the interest of the proper administration of justice (article 410a Sv).
How do you lodge an appeal?
You lodge the appeal by a declaration at the registry of the court that gave the judgment. Your lawyer can do this for you. If you are in detention, you can make the declaration through the institution.
Within fourteen days of lodging the appeal, your lawyer can submit a written statement of grounds (appelschriftuur). It sets out which parts of the judgment you object to, which witnesses should be heard and whether further investigation is needed. Without any grounds, the court of appeal can declare the appeal inadmissible.
Why do the grounds matter so much?
Because they shape the hearing, and timing affects how your requests are judged. A request to hear witnesses made in a timely statement of grounds is assessed against the interest of the defence (verdedigingsbelang). A request made later, for example at the hearing, is assessed against the stricter necessity criterion (noodzaakcriterium).
What happens at the hearing?
The court of appeal deals with the case in largely the same way as the court of first instance: the charge, the evidence, the defence, your personal circumstances and the sentence. Judgment follows either immediately at the hearing or on a later date that the court announces.
How long does an appeal take?
That varies considerably, depending on the court of appeal and on the investigation that is requested. Where the defendant is in pre-trial detention, the case is given priority. If the proceedings take unreasonably long, that breaches the right to a trial within a reasonable time (article 6 of the European Convention on Human Rights). The court can then reduce the sentence.
What can you do after the appeal?
Against the judgment of the court of appeal, you can lodge an appeal in cassation (cassatie) with the Supreme Court (Hoge Raad) within fourteen days (article 432 Sv). 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 in criminal cases explains what that involves.
In summary
- You must lodge an appeal within fourteen days of the judgment (article 408 Sv).
- The court of appeal assesses the facts, the evidence and the sentence again, and can impose a heavier sentence.
- For minor cases with a small fine, appeal is excluded or requires leave from the president of the court of appeal.
- Submit your grounds and witness requests in time: later requests face a stricter test.
- Against the judgment on appeal, cassation to the Supreme Court is possible within fourteen days.
Frequently asked questions
Can I withdraw an appeal?
Yes. You can withdraw your appeal up to the moment your case is called at the hearing. That is why it is often sensible to lodge an appeal within the period first and decide later, once the written judgment is available.
Can my sentence become heavier on appeal?
Yes. The court of appeal decides the case afresh and is not bound by the sentence imposed at first instance, even if only you appealed.
Do I have to attend the hearing?
No, you are not obliged to attend. Your lawyer can act for you if you authorise them to do so. Attending can still matter, especially where your personal circumstances weigh in the sentence.
Is an appeal worth it?
That 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 only fourteen days, that assessment has to be made quickly.
Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.
How Law & More can help you with this is explained on our criminal lawyer page.
