Article 12 complaint: challenging a decision not to prosecute

When the public prosecutor decides not to prosecute a criminal offence, or drops a case, a directly interested party can ask the court of appeal (gerechtshof) to order prosecution after all. This is the complaint procedure under Article 12 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Sv); the law sets no fixed deadline for most complaints, except that a complaint about a penalty order (strafbeschikking) must be filed within three months of the day you learned of it (Article 12k Sv).

The court of appeal assesses whether prosecution is feasible on the evidence and whether it should have taken place. If it upholds the complaint, it orders the Public Prosecution Service (Openbaar Ministerie, OM) to prosecute, and that order is binding.

What is the Article 12 procedure?

It is a written complaint (beklag) to the complaints chamber (beklagkamer) of the court of appeal against a decision not to prosecute, to discontinue a prosecution or to settle a case with a penalty order. It is the main check on the OM’s discretion to decide which cases go to court.

The complaint can concern a formal decision not to prosecute (sepot), the situation where the OM simply does not prosecute, or a penalty order that you consider too light. The court of appeal does not decide whether the suspect is guilty. It decides whether the case should go to the criminal court, which then rules on guilt and sentence.

Who can file an Article 12 complaint?

Only a directly interested party (rechtstreeks belanghebbende) under Article 12 Sv. In practice this is the victim, a surviving relative in a fatal case, or a company that suffered direct damage from the offence.

A legal entity, such as a foundation or association, can also qualify if its articles of association and its actual activities protect an interest that the decision directly affects. A general concern about crime or a news report is not enough. The court checks this first: if you are not a directly interested party, your complaint is declared inadmissible without a review of the merits.

Which court of appeal handles the complaint?

You file with the court of appeal for the district where the decision not to prosecute was taken. Decisions of the National Public Prosecutor’s Office (Landelijk Parket) and the Public Prosecutor’s Office for fraud, environmental crime and asset confiscation (Functioneel Parket) go to the Court of Appeal of The Hague.

Complaints about decisions not to prosecute a police officer for the use of force go to the Court of Appeal Arnhem-Leeuwarden. If you file with the wrong court, it declares itself not competent and, where another court is competent, refers the complaint there (Article 12b Sv). The legal basis is Article 12 of the Code of Criminal Procedure.

What are the deadlines?

For a complaint about a penalty order, the deadline is three months from the day you became aware of it (Article 12k Sv). For a decision not to prosecute there is no fixed statutory deadline, but a complaint filed very late can be declared inadmissible.

The court weighs, among other things, how long you waited and whether the suspect could reasonably assume the case was closed. Act within weeks of receiving the OM’s letter, not months. A complaint about a penalty order that has not been fully enforced may still be filed after three months.

How do you file the complaint?

By a signed and dated letter to the court of appeal, sent by post or by email. According to the judiciary’s guidance on rechtspraak.nl, the letter should contain:

• the public prosecutor’s case number (parketnummer) or the police report number;
• the police station or OM office that handled the case;
• a description of the offence and the person you want prosecuted;
• why you are a directly interested party and why you disagree with the decision;
• a copy of the OM’s decision letter, if you have one, and an address for replies.

A lawyer is not mandatory. The court’s registry (griffie) confirms receipt in writing, and the court then asks the advocate general (advocaat-generaal) of the OM to report on the case (Article 12a Sv).

Can you see the case file?

Yes, usually before the hearing. According to rechtspraak.nl you contact the registry within 14 days of the date on the hearing summons to arrange inspection, and you bring identification.

The presiding judge can withhold documents, for example to protect third parties or the investigation. Usually only a lawyer can obtain copies. Reading the police report and witness statements is the best way to understand why the OM decided not to prosecute, and to answer those reasons specifically.

What happens at the hearing?

The complaints chamber hears you and, before it can order prosecution, the person you want prosecuted (Article 12e Sv). The hearing is not public.

You may attend alone, with a lawyer or with an authorised representative, or stay away and let the court decide on the documents. The advocate general explains the OM’s position. If a complaint is clearly inadmissible or clearly unfounded, the court can decide without a hearing. The court can also order further investigation before it decides.

What can the court of appeal decide?

It either upholds the complaint and orders prosecution, or rejects it (Article 12i Sv). According to rechtspraak.nl the decision normally follows within six weeks of the hearing.

If the court orders prosecution, the OM must bring the case before the criminal court, which then decides on guilt. The court of appeal can attach instructions, such as a judicial investigation. It can also refuse an order on grounds of the general interest, for example when an offence is minor or old. Ordinary appeal (hoger beroep) against the decision is not possible.

Which mistakes weaken a complaint?

Most complaints fail on admissibility or on a lack of concrete arguments. The court needs reasons why prosecution is feasible and should have followed, not only disagreement.

• Waiting months after the OM’s letter, so that the complaint is filed too late.
• Filing without showing a direct interest, for example as a neighbour or witness.
• Repeating your account instead of addressing the OM’s stated reasons, such as insufficient evidence.
• Not inspecting the file before the hearing.
• Filing with the wrong court of appeal.

What can we do for you with an Article 12 complaint?

Our criminal lawyers assist victims, relatives and companies in complaint proceedings before the courts of appeal.

• We assess whether you are a directly interested party and whether the complaint is filed in time.
• We analyse the OM’s decision and its reasons for not prosecuting.
• We draft and file the complaint with the competent court of appeal.
• We inspect the case file and obtain copies of the relevant documents.
• We represent you at the closed hearing before the complaints chamber.

Summary

• Under Article 12 Sv a directly interested party can ask the court of appeal to order prosecution after the OM decides not to prosecute.
• A complaint about a penalty order must be filed within three months (Article 12k Sv); for other decisions, act promptly.
• File a signed, reasoned letter with the competent court of appeal, by post or email; a lawyer is not mandatory.
• The hearing is closed, the suspect is heard before any order, and ordinary appeal is not possible.

Frequently asked questions