Suspension of pre-trial detention: conditions and procedure

Suspension of pre-trial detention (schorsing van de voorlopige hechtenis) means that a suspect is released from custody under conditions before the criminal case has been decided. Under Article 80 of the Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Sv) the court can order it on its own motion, at the request of the suspect or on the prosecutor’s application, once the suspect has declared that they will comply with the conditions; if a condition is breached, the suspect goes back into custody without a new detention order.

The grounds for detention remain in place; only their enforcement is paused. The court weighs the suspect’s personal interests against the interest served by continued detention.

What does suspension mean, and what not?

Suspension says nothing about guilt. It is not an acquittal and not a finding that the suspicion has weakened, but a decision that the harm of continued custody outweighs the interest of keeping the suspect inside for now.

The detention order stays in force behind the suspension. Under Article 82 Sv the court can end the suspension at any time, on its own motion or on the prosecutor’s application, which is why compliance with the conditions is essential.

How does suspension differ from lifting detention?

Lifting (opheffing) cancels the detention order because the legal grounds no longer exist; nothing remains that can be reactivated and no conditions apply. Suspension leaves the order intact and only stops its enforcement, under conditions.

A defence lawyer often asks for lifting and, in the alternative, suspension. Lifting attacks the grounds; suspension accepts them and argues that enforcing them is disproportionate.

When is pre-trial detention allowed at all?

Pre-trial detention is only possible for the offences listed in Article 67 Sv, mainly offences carrying a maximum sentence of four years or more, and only if there are serious suspicions (ernstige bezwaren) against the suspect. That standard is higher than the reasonable suspicion needed for arrest.

Under Article 67a Sv there must also be a serious risk of absconding or a serious reason of public safety. Public safety covers an offence carrying twelve years or more that has seriously shocked the legal order, a serious risk of certain new offences, and a risk that the investigation will be frustrated, for example by influencing witnesses.

Under Article 67a(3) Sv detention must not be ordered if it is likely that no unconditional custodial sentence will be imposed, or that detention would last longer than the sentence. If that argument applies, ask for lifting rather than suspension. For the criteria at the outset, see our article on when preventive custody is allowed.

How long can detention last before trial?

Each stage of detention is a moment at which a judge looks at the case again, so knowing the timetable helps you time a request. The stages are set by statute.

• Holding for questioning (ophouden voor onderzoek): at most nine hours, not counting the time between midnight and 9 a.m. (Article 56a Sv).
• Police custody (inverzekeringstelling): at most three days, extendable once by three days in case of urgent necessity (Article 58 Sv). Within the statutory period the suspect is brought before the examining magistrate (rechter-commissaris) (Article 59a Sv).
• Remand (bewaring) ordered by the examining magistrate: at most fourteen days (Article 64 Sv).
• Continued detention (gevangenhouding) ordered by the court in chambers (raadkamer): at most ninety days (Article 66 Sv).

Together that is roughly 110 days before the case must be brought to trial; in complex cases this happens at a procedural hearing (pro-formazitting), where detention is reviewed again. Time spent in pre-trial detention is deducted from any custodial sentence under Article 27 of the Dutch Criminal Code (Sr), but that is no reason to accept detention that is disproportionate now.

Which test does the court apply?

The court asks whether the suspect’s personal interests in release outweigh the interest served by continued detention. It starts from the position that the grounds for detention still exist and looks at what detention is doing to this person’s life.

A good request addresses the ground for detention directly. Against a risk of absconding: surrender of the passport, a reporting duty, electronic monitoring or a security. Against a risk of interfering with the investigation: the request is stronger once the witnesses have been heard by the examining magistrate. Against a risk of reoffending: a supervision and treatment plan supported by the probation service (reclassering). A request based only on hardship rarely succeeds.

Which personal interests carry weight?

Courts give weight to circumstances that are concrete, documented and irreversible. Attach a document for each one, because a judge in chambers decides on the papers.

• Loss of employment: a letter from the employer stating until when the job is held open.
• Care duties: proof that the suspect is the only carer for a child, partner or parent.
• Medical grounds: a statement from the treating doctor that treatment cannot be given in detention.
• Housing: a landlord’s notice or arrears overview showing the home will be lost.
• Education: confirmation from the school or university of exams or a placement that will be lost.
• Business: for a self-employed suspect, evidence that the business and its staff depend on them.

How and when is the request made?

A suspension request can be made at any time, usually in writing by the defence lawyer, and it must state reasons (Article 80(1) Sv). Under Article 86 Sv it is decided by the judge who is competent for the detention at that stage: the examining magistrate during remand, the court in chambers during continued detention, and the trial court once the case is before it.

Three moments recur. The hearing on continued detention, a change in circumstances (such as completed witness examinations, a serious illness in the family or a firm job offer), and the procedural hearing, where the passage of time has itself become an argument. A refused request can be repeated when circumstances change; an identical request without new facts costs credibility.

Which conditions apply to a suspension?

Every suspension carries general conditions under Article 80(2) Sv: the suspect will not evade the detention order if the suspension is ended, will not evade a custodial sentence for the offence, and will cooperate with identification where conduct conditions apply. In practice the court almost always adds that the suspect must not commit a new offence.

Special conditions are tailored to the ground for detention. Common ones are a reporting duty at a police station, surrender of the passport, a ban on leaving the Netherlands, a curfew, an area or contact ban, electronic monitoring, and supervision or treatment by the probation service.

Under Article 80 Sv the court can also require a security (zekerheidstelling), which a third party may provide and which is forfeited if the suspect absconds. This is not an Anglo-American bail system: money alone does not buy release. Propose realistic conditions yourself, ideally with a plan the probation service has already reviewed; a reporting duty that clashes with the job the release is meant to save will end in revocation.

What happens if a condition is breached?

The court can end the suspension at any time (Article 82 Sv), usually after a breach, a new offence or a change in the case. The original detention order then takes effect again immediately and the suspect returns to custody.

A breach also damages the credibility of any later request. If a condition becomes impossible to comply with for a legitimate reason, ask the court in advance to change it under Article 81 Sv.

Can you appeal a refusal?

Yes, once. Under Article 87(2) Sv a suspect whose request to the district court was refused can appeal to the court of appeal once, no later than three days after service of the decision.

Because the right is limited, use it for the strongest version of the case; a new request based on changed circumstances is often more effective. The public prosecutor can appeal a suspension order within fourteen days (Article 87(1) Sv).

How do restrictions during detention affect a request?

A suspect can be held under restrictions (beperkingen) in the interest of the investigation, which limit contact with the outside world to the lawyer: no visits, calls or letters from family. Restrictions increase the personal impact of detention, which counts in the weighing, and they can be challenged separately.

A partial relaxation, such as supervised contact with children, is sometimes possible where a full suspension is not. Restrictions usually end once the witnesses have been heard by the examining magistrate, which is often the right moment to file or refile a suspension request.

What if the case ends without a penalty?

Under Article 533 Sv a former suspect whose case ends without a penalty or measure can ask the court for compensation for time spent in police custody and pre-trial detention. The request must be filed within three months after the case has ended (Article 533(3) Sv).

The court decides on grounds of fairness, using daily rates from guidelines applied by the courts. A separate request can be made for certain costs, such as the defence lawyer’s fees and travel costs; ask your lawyer to diarise both at the moment the case ends.

What about the new Code of Criminal Procedure?

A new Code of Criminal Procedure has been adopted but is not yet in force; entry into force is planned for 2029 and will be set by royal decree. Until then the current Code governs pre-trial detention and its suspension.

What should you check if a relative is in pre-trial detention?

Only the defence has access to the case file and can file the request. Anyone detained in the Netherlands is entitled to a lawyer, and a duty lawyer is assigned if none has been chosen.

• Make sure a criminal defence lawyer has been instructed.
• Collect the employment contract and a letter from the employer.
• Obtain medical statements, the tenancy agreement and confirmation from the school or university.
• Prepare a concrete plan: an address, a daily structure and a contact person willing to be named.
• Note the three-day appeal deadline after a refusal and the three-month compensation deadline after the case ends.

What can we do for you with suspension of pre-trial detention?

Our criminal defence lawyers act for suspects and their families in pre-trial detention matters. For the wider procedure, see our overview of a criminal case in the Netherlands and our note on the cost of a criminal lawyer in the Netherlands.

• We assess whether to ask for lifting of the detention, suspension, or both.
• We draft the suspension request with the supporting documents and a workable set of conditions.
• We discuss conditions with the public prosecutor and the probation service before the hearing.
• We argue the request before the examining magistrate or the court in chambers.
• We lodge the appeal within three days of service of a refusal.
• We file the compensation request under Article 533 Sv within three months after the case ends.

Summary

• Suspension releases a suspect under conditions while the detention order stays in force (Article 80 Sv).
• The court weighs documented personal interests against the ground for detention.
• Conditions offered should neutralise the specific ground: absconding, interference or reoffending.
• Breach of a condition leads to return to custody without a new order (Article 82 Sv).
• A refusal by the district court can be appealed once, within three days of service (Article 87(2) Sv).

Frequently asked questions