Process agreements in Dutch criminal law: rules and limits

A process agreement (procesafspraak) is an arrangement between the Public Prosecution Service (Openbaar Ministerie, OM) and the defence: the defence gives up certain procedural steps, and the OM narrows the charge or moderates its sentence demand. The main limit: the court is never bound by it and decides on guilt and sentence itself, under the framework the Supreme Court (Hoge Raad) set on 27 September 2022 (ECLI:NL:HR:2022:1252).

The parties can agree on what they will ask for; only the court decides what happens. This article explains the requirements, how they work in practice, the position of the victim and what you can do if the court departs from the agreement.

What can a process agreement contain?

The core is reciprocity. The defence undertakes not to pursue certain steps, such as hearing more witnesses, a preliminary defence or an appeal; in return, the OM drops or narrows a charge or states its sentence demand in advance.

The agreement cannot settle the case. The court must still answer the questions of Articles 348 and 350 of the Code of Criminal Procedure (Wetboek van Strafvordering, Sv) itself: whether the prosecution is admissible, whether the charge is proven on lawful evidence, whether it is an offence, and which sentence fits. A joint proposal of the parties is information, not a verdict.

Is there a statutory basis for process agreements?

Only for one form: the agreement with a cooperating witness (kroongetuige). Under Article 226g Sv, the OM can promise a suspect a lower sentence demand in exchange for a witness statement in the case of another suspect, after review by the examining magistrate (rechter-commissaris).

Our article on the crown witness system in the Netherlands explains that procedure. For other process agreements there is no statutory framework. That does not make them unlawful, but the safeguards come from case law and the court carries them.

What does the Supreme Court require?

In its judgment of 27 September 2022, the Supreme Court gave no general rules, which it left to the legislator, but set out points of attention for the court. In short, the court must check four things.

• Waiver of rights: the defendant gave up defence rights under Article 6 of the European Convention on Human Rights (ECHR) voluntarily, with enough information and aware of the consequences.
• Presence: in principle the defendant must be present at the hearing. If not, the court must explain how it established the waiver; in this case the Supreme Court found that reasoning insufficient.
• Legal assistance: the defendant was assisted by a lawyer when the agreement was made.
• Victim: the prosecutor took the interests of the victim and the injured party (benadeelde partij) into account.

The court then assesses independently whether the proposed outcome is in reasonable proportion to the seriousness of the offence and the person of the defendant. It may impose something else.

How do lower courts apply this?

The Arnhem-Leeuwarden Court of Appeal accepted an agreement on 13 May 2025 in a case about participation in criminal organisations for drug trafficking and money laundering, after checking that the defendant agreed voluntarily and understood the consequences (ECLI:NL:GHARL:2025:7005). It imposed 180 days in prison, 155 of them suspended, plus 240 hours of community service.

The Zeeland-West-Brabant District Court did the same on 7 October 2025 in a case of money laundering, forgery and cannabis cultivation (ECLI:NL:RBZWB:2025:6733). It stressed that it was not a party to the agreement and not bound by it.

What happened in the Drents Museum case?

On 25 January 2025, the gold Helmet of Coțofenești and three Dacian gold bracelets, on loan from Romania, were stolen from the Drents Museum in Assen. After process agreements with suspects in custody, the helmet and two bracelets were handed over to the OM on 1 April 2026.

The North Netherlands District Court gave judgment on 5 June 2026. In one of the cases (ECLI:NL:RBNNE:2026:2189), it held that the agreements could be taken into account and did not violate the right to a fair trial under Article 6 ECHR. It imposed 47 months in prison, more than the 44 months the OM had demanded under the agreement.

The lesson for practice: a defendant who enters into an agreement buys a position of the OM, not an outcome. The court weighs the agreement but sets the sentence on its own assessment.

What is the position of the victim?

The victim is not a party to the agreement and has no veto. Under Article 51aa Sv the prosecutor must treat the victim correctly, and under Article 51b Sv the victim can ask to see the relevant case documents.

The victim keeps the right to speak at the hearing and can join the proceedings as an injured party to claim damages. If the OM drops a charge under the agreement, the victim can file a complaint with the Court of Appeal under Article 12 Sv. Agreements on the injured party’s claim that do not serve the victim’s interests carry no weight for the court.

What if the court does not follow the agreement?

If the waiver was not voluntary or informed, or legal assistance was missing, the court leaves the agreement out of account and deals with the case under the ordinary rules. The rights that were given up then revive.

The court may also accept the agreement and still impose another sentence. You can then appeal against a district court judgment within fourteen days (Articles 404 and 408 Sv), or appeal in cassation against a Court of Appeal judgment within fourteen days (Articles 427 and 432 Sv). The argument is usually about insufficient reasons for departing from the agreement.

What should you check as a suspect?

Treat an offer as a decision about evidence, not only about the sentence. Check these points:

• What does the file prove without the procedural steps you would give up?
• Which exact rights do you waive, and is that recorded in writing?
• Is the promise only a sentence demand? The court can depart from it in both directions.
• Has your lawyer’s advice on the agreement been recorded?
• Will you be present at the criminal court hearing? Absence makes the agreement easier to attack later.

What should you check as a victim?

An agreement between the OM and the defence can affect your interests. Check these points:

• Has the OM informed you about the agreement and asked for your view?
• Have you asked to see the relevant case documents under Article 51b Sv?
• Have you joined the proceedings as an injured party for your damages?
• Has a charge been dropped? Then consider a complaint under Article 12 Sv.

What can we do for you with a process agreement?

Our criminal lawyers assist suspects and victims:

• We assess what the file proves and what an offered agreement is worth.
• We negotiate the terms with the OM.
• We record the waiver and our advice so that the court can assess them.
• We appeal within fourteen days if the court departs from the agreement without sufficient reasons.
• For victims, we join the proceedings as injured party and file a complaint under Article 12 Sv where needed.

Summary

• A process agreement exchanges procedural steps of the defence for a narrower charge or a lower sentence demand.
• Only the crown witness agreement (Article 226g Sv) has a statutory basis; other agreements rest on ECLI:NL:HR:2022:1252.
• The court checks the waiver, the defendant’s presence, legal assistance and the victim’s interests.
• The court is never bound: in the Drents Museum case it imposed more than the OM demanded.
• Against a judgment that departs from the agreement, you can appeal within fourteen days.

Frequently asked questions