A decision not to prosecute (sepot) means the Public Prosecution Service (Openbaar Ministerie, OM) closes a criminal case without taking it to court, either because the evidence is too weak or because prosecution is not considered worthwhile. If you are directly affected, for example as the victim, you can ask the Court of Appeal (gerechtshof) to order prosecution through the complaint procedure of Article 12 of the Code of Criminal Procedure (Wetboek van Strafvordering, Sv); if a notice of discontinuance was served on the suspect, you must do so within three months.
Table of contents
Who decides not to prosecute, and on what basis?
Only the Public Prosecution Service decides whether to prosecute. Article 167(2) Sv allows the prosecutor to refrain from prosecution on grounds of public interest; this is the principle of prosecutorial discretion (opportuniteitsbeginsel).
The police investigate and send the file to the prosecutor; in high-volume cases they may close a case early in consultation with the OM. You should receive a written decision. If the suspect was formally served with a notice of discontinuance (kennisgeving van niet verdere vervolging), that document matters for your deadline. Note the date on which you received the decision.
The OM uses a fixed list of sepot codes, split into technical grounds (can the case be proved?) and policy grounds (is prosecution worthwhile?). A complaint must address the ground actually used.
| Type of sepot | What the prosecutor concluded | Typical grounds | Prospect of a successful complaint |
|---|---|---|---|
| Technical sepot | A conviction is not attainable on this file. | Insufficient evidence, no criminal offence, unidentified suspect, time-barred, no jurisdiction, suspect deceased. | Limited. The complaint must show that the legal analysis was wrong or that obvious investigative steps were skipped. |
| Policy sepot | A conviction may be attainable, but prosecution is not worthwhile. | Minor offence, dated events, relationship between the parties, harm already made good, health or age of the suspect, case already dealt with elsewhere. | Better. The Court of Appeal can weigh the same facts differently. |
| Conditional sepot | Prosecution is suspended on conditions during a probationary period. | Compensation, contact ban, treatment, community work. | Rarely necessary. Breach of the conditions revives the prosecution. |
What is a technical sepot?
A technical sepot means the prosecutor expects that a conviction is not attainable. Under Article 338 Sv, the court may only find a charge proved on lawful and convincing evidence (wettig en overtuigend bewijs), and the prosecutor applies that test in advance. There is no jury: professional judges decide.
Two minimum rules do most of the work. A conviction cannot rest solely on the statement of one witness (Article 342(2) Sv), nor solely on the suspect’s own statements (Article 341(4) Sv). That is why a case of one word against another is often closed even if the prosecutor believes the reporting party: it is a judgement on provability, not credibility.
Corroboration usually comes from forensic traces, messages, images, location or transaction data, witnesses and documents such as medical records or camera footage. Our guide to a criminal case in the Netherlands explains how a file is built. A technical sepot also covers cases where the conduct is not an offence, the suspect is unknown, the case is time-barred or the Dutch courts lack jurisdiction.
Can a closed case be reopened?
Yes, with genuinely new evidence. Under Article 255 Sv a suspect who received a notice of discontinuance can only be prosecuted again for the same offence if new evidence (nieuwe bezwaren) comes to light, such as statements of new witnesses or documents that were not in the file. Repeating what was already assessed does not count.
Act quickly. Camera footage is often overwritten within weeks, telecom data are kept for limited periods, and the right to prosecute lapses after a limitation period that depends on the maximum penalty.
What is a policy sepot?
A policy sepot means the case could be proved, but the prosecutor finds prosecution not opportune. Typical grounds are a minor offence, old events, the relationship between suspect and victim, damage already compensated, or the suspect’s age or health.
The prosecutor can also attach conditions. Under Article 167(2) Sv the decision to prosecute can be postponed on conditions for a set period (voorwaardelijk sepot), such as paying compensation, a contact ban or following treatment; breach can revive the prosecution. Policy grounds give a complaint the most room, because the Court of Appeal can weigh the same facts differently.
Is a punishment order the same as a sepot?
No. With a punishment order (strafbeschikking) the OM imposes a penalty itself, without a court. Under Article 257a Sv this is possible for minor offences and for crimes with a statutory maximum of no more than six years’ imprisonment.
The prosecutor can impose a fine, community service of up to 180 hours, a driving ban of up to six months, payment of compensation to the victim through the State, and behavioural directions. A prison sentence is not possible. A punishment order is recorded in the judicial documentation system and can later stand in the way of a certificate of conduct (Verklaring Omtrent het Gedrag, VOG).
The suspect can lodge an objection (verzet) within fourteen days (Article 257e Sv), after which the criminal court decides the case afresh. A victim who finds the order too lenient can also complain under Article 12 Sv; under Article 12k that complaint must be made within three months of learning of the order.
How do you challenge a sepot under Article 12 Sv?
You file a written, reasoned complaint (klaagschrift) with the Court of Appeal in whose district the decision was taken. Only a directly interested party (rechtstreeks belanghebbende) may complain: in the first place the victim, surviving relatives, or a company that suffered direct damage; general public concern is not enough.
What is the deadline?
If a notice of discontinuance was served on the suspect, Article 12l(2) Sv requires you to complain within three months of learning of it. For a plain sepot without such a notice the law sets no fixed period, but the court expects you to act within a reasonable time; treat three months as your working deadline.
How does the procedure run?
After receiving the complaint, the court asks the advocate general (advocaat-generaal) for a written report (Article 12a Sv). The court must hear you, or at least summon you properly, before deciding (Article 12d), and it may also summon the suspect (Article 12e). The hearing takes place in chambers (raadkamer), not in public, and does not decide on guilt.
The court assesses whether a conviction is realistically attainable and whether prosecution is called for. If it finds the complaint well founded, it orders the OM to prosecute (Article 12i(1) Sv); it may also refuse that order on public-interest grounds. There is no ordinary appeal against its decision. A lawyer is not compulsory, but a complaint that addresses the specific sepot ground, names investigative steps that were not taken and points to evidence in the file stands a better chance. See also our article on appeal in criminal law.
What other routes do you have?
A civil claim for unlawful act (onrechtmatige daad) under Article 6:162 of the Dutch Civil Code (BW) is often the more effective route. The civil court applies a different standard of proof from the criminal court, so a claim can succeed even after a sepot, for damages, an injunction or a contact ban.
Victims of a violent or sexual offence can apply to the Violent Offences Compensation Fund (Schadefonds Geweldsmisdrijven), which decides independently of the criminal case and applies its own application deadline. A complaint about how the police handled your report goes to the police complaints procedure and then to the National Ombudsman (Nationale ombudsman); that route cannot force a prosecution.
What rights do you have as a victim before the decision?
You may ask the prosecutor for access to the case documents that matter to you and add documents to the file (Article 51b Sv). That is the practical way to get overlooked evidence in front of the prosecutor before the decision is taken. If the case goes to trial, you can join as an injured party (benadeelde partij) and claim compensation within the criminal case (Article 51f Sv). More detail is in our article on victims’ rights in Dutch criminal proceedings.
Many high-volume cases are handled quickly through ZSM, where police, OM, probation service and Victim Support Netherlands (Slachtofferhulp Nederland) decide together, sometimes within days. State your wish to be informed and to claim compensation when you file your report. A new Code of Criminal Procedure has been adopted but is not yet in force, so the current article numbers still apply.
Finally, a sepot is not an acquittal and does not bind the civil court, the employment court or a disciplinary tribunal.
What should you check as the victim or reporting party?
Your options depend on the exact decision and its date. Check:
- The date you learned of the decision, and whether a notice of discontinuance was served on the suspect (three-month deadline, Article 12l Sv).
- Whether the ground is technical or policy-based, and which sepot code was used.
- Whether the decision is a sepot or a punishment order.
- Which evidence is missing from the file and whether you can still supply it (Article 51b Sv).
- Whether a civil claim under Article 6:162 BW or an application to the Violent Offences Compensation Fund fits your aim better.
What should you check as the suspect?
A sepot does not always end the matter for you. Check:
- Whether the sepot is conditional, and which conditions and period apply.
- Whether you received a notice of discontinuance, which limits renewed prosecution to new evidence (Article 255 Sv).
- Whether the victim has filed an Article 12 complaint; the court may summon you (Article 12e Sv).
- Whether a punishment order was issued instead, and the fourteen-day objection period (Article 257e Sv).
- Whether a civil claim based on the same facts is still possible against you.
What can we do for you with a decision not to prosecute?
We assist victims, other directly interested parties and suspects; see also our criminal lawyer page.
- We request the decision and the case file and identify the exact sepot ground.
- We assess whether an Article 12 complaint is realistic and calculate the deadline.
- We draft and file the klaagschrift with the Court of Appeal and represent you at the hearing in chambers.
- We set out civil alternatives under Article 6:162 BW and draft the liability letter.
- For suspects, we assess conditional sepots and punishment orders and file an objection within fourteen days.
Summary
- A sepot is a decision by the Public Prosecution Service not to prosecute, on technical or policy grounds (Article 167 Sv).
- A directly interested party can complain to the Court of Appeal under Article 12 Sv; with a notice of discontinuance the deadline is three months.
- The court can order prosecution, but there is no appeal against its decision.
- A punishment order is not a sepot: the suspect can object within fourteen days, and a victim can also complain.
- A civil claim under Article 6:162 BW remains possible after a sepot.
Frequently asked questions
Why might the prosecutor decide not to proceed with my case?
Either because the evidence is not strong enough for a conviction (technical sepot), or because prosecution is not considered worthwhile in the public interest (policy sepot, Article 167(2) Sv). The decision letter states which ground was used.
Can I challenge a decision not to prosecute?
Yes. As a directly interested party you can file a written complaint with the Court of Appeal under Article 12 Sv. If the court finds the complaint well founded, it orders the Public Prosecution Service to prosecute.
Is there a deadline to complain?
If a notice of discontinuance was served on the suspect, you must complain within three months of learning of it (Article 12l Sv). For a punishment order the period is also three months (Article 12k Sv). For other sepots there is no fixed period, but you should act promptly.
Can I still claim compensation after a sepot?
Yes. You can bring a civil claim for unlawful act under Article 6:162 BW, where a different standard of proof applies. Victims of violent offences can also apply to the Violent Offences Compensation Fund.
