Police errors and compensation: when is the State liable?

If the police act unlawfully and you suffer damage as a result, you can claim compensation from the State. The main exception is a claim that the prosecution itself was wrong: that only succeeds in limited cases, for example where your innocence appears from the case file.

There are three routes, and they often work best together. The first is a claim for damages against the State for an unlawful act (onrechtmatige daad) under Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek, BW). This covers, for example, excessive force, unlawful entry, damage caused during a search and detention without a legal basis. You can claim both financial loss and non-financial loss under Article 6:106 BW. Where a criminal case has ended without a punishment or measure, the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Sv) offers a simpler and faster route: a request for compensation for time spent in custody (Article 533 Sv) and a separate request for the costs of your lawyer (Article 530 Sv). Both go to the court that dealt with the case, and both must be filed within three months after the case ended.

A claim that the prosecution was unlawful as such is harder. Under the Supreme Court’s Begaclaim judgment, such a claim in principle only succeeds if your innocence appears from the case file, or if there was no reasonable suspicion justifying the coercive measures from the start. Dissatisfaction with the outcome is not enough.

The third route is a complaint. A complaint to the chief of police, and after that to the National Ombudsman (Nationale ombudsman), leads to a finding rather than money. But it can establish facts that carry weight in a later claim. In cases of serious injury or death caused by police action, the Rijksrecherche, the independent department that investigates the police, carries out the investigation.

Which powers do the police have?

Under Article 3 of the Police Act 2012 (Politiewet 2012) the police maintain public order and investigate offences in accordance with the applicable rules of law. They have powers that ordinary citizens do not have, such as stopping and arresting suspects, searching people and entering homes. Each power has a legal basis and conditions; acting outside them is unlawful.

Examples of police powers are:

• arresting a suspect caught in the act, or outside that situation on the order of a public prosecutor (Articles 53 and 54 Sv);
• taking a suspect to the police station for questioning and holding them for a limited time;
• searching clothing and bags in the cases the law allows;
• entering a home without the occupant’s consent, which in principle requires a written authorisation under the General Act on Entering Dwellings (Algemene wet op het binnentreden);
• searching a home, which in principle takes place under the direction of an examining magistrate (rechter-commissaris), or in urgent cases a public prosecutor.

The police also have the power to use force. Under Article 7 of the Police Act 2012 an officer may use force only if this is justified by the aim pursued, if that aim cannot be reached in another way, and only in proportion to that aim. Force must be preceded by a warning where possible. The detailed rules are in the Official Instructions for the Police (Ambtsinstructie), which also require officers to report any use of force.

If an officer acts without a legal basis, without the required authorisation, or beyond what is proportionate, that is unlawful. The State is then in principle liable for the damage. For official reports, the Public Prosecution Service sets quality requirements before a case can be prosecuted.

Which duty of care applies to police officers?

Besides the legal limits, officers must act carefully. They must treat citizens with respect, draw up accurate and truthful official reports, and keep any use of force proportionate and subsidiary.

An official report (proces-verbaal) must be drawn up under oath of office and state what the officer saw or heard personally. In criminal proceedings the court may use it as evidence. That is exactly why errors are harmful: an incorrect report can lead to a fine, a prosecution or a criminal record.

These standards of care are the basis for liability: if the police acted carelessly and you suffered damage as a result, you may have a claim under Article 6:162 BW.

Which police errors have legal consequences?

The errors with legal consequences range from administrative mistakes to serious abuse of power. The most common are incorrect official reports, unlawful arrest or detention, and excessive force.

What if an official report contains errors?

An official report forms the basis of a criminal case or a fine. If it states the facts incorrectly, leaves out information in your favour, or classifies your behaviour wrongly, you can challenge it.

Examples are an incorrect description of what happened, the omission of exculpatory information, or the wrong classification of behaviour such as disorderly conduct, public urination, fireworks nuisance or driving without a licence. If such an error leads to a fine, you can lodge an objection and, if necessary, have the court review the case. If it leads to an unjust prosecution, the damage can be substantial: fines paid, damage to your reputation and legal costs that turn out to have been unnecessary.

When is an arrest or detention unlawful?

An arrest is only lawful if there is a legal basis, in most cases a reasonable suspicion of a criminal offence. Detention for longer than the law allows, or without the required decisions, is also unlawful.

In practice people are sometimes wrongly identified as suspects, held for too long, or stopped without a valid reason. The consequences are far-reaching: loss of liberty, stress, and often financial loss because work or appointments are missed. If your case ends without a punishment or measure, you can ask the criminal court for compensation for the time you spent in custody (Article 533 Sv). This does not happen automatically: you must file a request within three months, and legal assistance is usually advisable. If the detention itself was unlawful, you can also claim compensation from the State in civil proceedings.

What about excessive force and abuse of power?

Force is only allowed as a last resort, in proportion to the threat, and when other means have failed or would not work. Excessive force, during an arrest or while keeping order at an event, can lead to civil liability of the State and sometimes to criminal liability of the officer.

If you were injured, secure medical evidence straight away. We do not handle personal injury claims (letselschade) ourselves; we refer the part of the claim that concerns bodily injury to a specialised personal injury lawyer, and can assist with the other aspects, such as the criminal case and the complaint.

Which route to compensation fits your situation?

The route depends on what went wrong and how your criminal case ended. Often you use more than one route at the same time.

When is a prosecution itself unlawful?

Only in exceptional cases. In the Begaclaim judgment (Supreme Court, 13 October 2006, ECLI:NL:HR:2006:AV6956) the Supreme Court held that a prosecution and the related coercive measures only become unlawful afterwards if the innocence of the former suspect appears from the criminal case file or the court’s decision.

An acquittal because there is insufficient evidence is therefore not the same as proven innocence. A claim can also succeed if the coercive measures were unlawful from the start, for example because there was no reasonable suspicion at all. In other cases the requests under Articles 530 and 533 Sv are usually the more realistic route.

How do you obtain compensation for police errors?

You obtain compensation by first establishing what went wrong, then holding the responsible authority, usually the State, liable in a letter, and finally negotiating or going to the civil court. For a civil claim the limitation period is five years (Article 3:310 BW).

Which types of damage can you claim?

What are the common obstacles, and how do you deal with them?

The main obstacles are evidence, time limits and the imbalance between you and the State. Each can be managed if you act early.

How do you gather evidence?

Secure evidence yourself as soon as possible, because camera images and other data are not kept indefinitely. Write down the names and telephone numbers of witnesses, take photos of injuries or damage, and ask others for written statements.

Also write down your own account while your memory is fresh: time, place, the officers’ numbers if you saw them, and what was said. Your lawyer can then request further material, such as body camera or street camera images, the official report and internal reports. Your personal data held by the police can be requested under the Police Data Act (Wet politiegegevens).

Which time limits apply?

Different time limits apply to each route, so do not wait. The requests under Articles 530 and 533 Sv must be filed within three months after the case ended.

A civil claim for damages is time-barred five years after you became aware of both the damage and the liable party, and in any event twenty years after the event (Article 3:310 BW). A complaint about police conduct should in principle be submitted within one year of the event: the police do not have to handle a complaint lodged later (Article 9:8 of the General Administrative Law Act, Algemene wet bestuursrecht, Awb).

What should you do straight away?

Most claims fail on missing evidence or a missed deadline, such as the three-month period of Articles 530 and 533 Sv. Do the following as soon as possible:

• Write down what happened: time, place, the officers’ numbers and what was said.
• Collect the names and telephone numbers of witnesses and ask them for written statements.
• Take photos of injuries or damage and see a doctor if you were hurt.
• Note the date on which your criminal case ended, because the three-month period runs from that date.
• Submit a complaint to the police within one year if you want a finding on the officer’s conduct (Article 9:8 Awb).

What can we do for you with compensation for police errors?

Our criminal lawyers assist you in the criminal case, the complaint procedure and the claim for compensation:

• We request the official report, body camera images and your police data under the Police Data Act.
• We file the requests for compensation for custody and lawyer’s costs under Articles 533 and 530 Sv within the three-month period.
• We send a liability letter to the State and negotiate the compensation.
• We start civil proceedings for unlawful force, entry, search or detention if negotiation fails.
• We draft your complaint to the police and, after that, to the National Ombudsman.
• We refer the bodily injury part of a claim to a specialised personal injury lawyer.

Summary

• If the police act unlawfully and cause you damage, the State is in principle liable under Article 6:162 BW, for both financial and non-financial loss.
• If your criminal case ended without a punishment or measure, you can ask the criminal court for compensation for custody and lawyer’s costs within three months (Articles 533 and 530 Sv).
• A claim that the prosecution itself was unlawful only succeeds in exceptional cases, for example if your innocence appears from the file (Begaclaim).
• A complaint to the police and then the National Ombudsman does not give money, but can establish facts that support a claim.
• Secure evidence immediately and watch the time limits: three months, one year for complaints, five years for civil claims.

Frequently asked questions