A procedural defect is a failure to observe formalities in the preliminary investigation that can no longer be put right: an interview without a caution, a search without authority, an unlawful arrest. The court may attach consequences to it.
Legal basis
Article 359a of the Dutch Code of Criminal Procedure gives the court three options: reduction of sentence, exclusion of evidence, and a bar on prosecution. In choosing, the court weighs the importance of the rule breached, the seriousness of the breach and the prejudice caused. The Supreme Court revised the framework in its overview judgment of 1 December 2020: exclusion of evidence remains available where an important procedural rule has been breached, and a bar on prosecution is reserved for exceptional cases of deliberate or grossly negligent disregard of the right to a fair trial. Since that judgment the court may also take into account a defect outside the preliminary investigation proper, and may confine itself to recording that a defect occurred.
How it works in practice
The argument must be raised expressly at the hearing and substantiated: which rule was breached, why it is an important rule, and what concrete prejudice the defendant suffered. Without that last element the argument almost always fails. Exclusion of evidence is rarely applied; a reduction of sentence is the most common outcome.
Where it goes wrong
Arguments stop at noting that something went wrong, without identifying the prejudice. A second error is raising the defect only on appeal, when the file should have been probed at first instance. Third, the underlying police reports, which state the basis of the powers used, are not examined.
Related terms
Procedural defects connect to the right to silence and the caution, to seizure and to the lawyer at the police interview.
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