When the public prosecutor takes a decision not to prosecute

A decision not to prosecute, known in Dutch as a sepot, means the Openbaar Ministerie (Public Prosecution Service) closes a criminal case without bringing it before a court. It rests on one of two sets of grounds: the evidence is not strong enough to support a conviction, or prosecution is not considered opportune. If you reported the offence, you can ask the gerechtshof (Court of Appeal) to review that decision through the beklagprocedure of article 12 of the Wetboek van Strafvordering, in principle within three months of learning of it.

What a sepot is and who takes the decision

In the Netherlands the decision to prosecute belongs to the Public Prosecution Service alone. Article 167 of the Code of Criminal Procedure gives the prosecutor the power to bring a case, and the second paragraph adds that prosecution may be withheld on grounds derived from the public interest. That is the opportuniteitsbeginsel, the principle of prosecutorial discretion, and it is the legal basis for every sepot. The police do not take this decision; they investigate and hand the file to the prosecutor, although in high-volume categories the police may close a case at an early stage in consultation with the prosecution.

You should receive written notice. Depending on the stage the case had reached, this is either a sepotbrief informing you of the decision or a formal kennisgeving van niet verdere vervolging (notice of discontinuance) served on the suspect. Either document names the ground on which the case was closed, and that ground determines what you can do next. Read it carefully and keep the envelope: the date on which you learned of the decision starts the clock for a complaint.

The grounds themselves are standardised. The Public Prosecution Service works with a fixed set of sepot grounds laid down in its own guideline, divided into technical grounds, which concern the viability of a prosecution, and policy grounds, which concern whether prosecution is worthwhile. The distinction matters more than it first appears, because a technical sepot says something about the file and a policy sepot says something about the choice the prosecutor made. A complaint that argues against the wrong one of the two rarely succeeds.

A technical sepot: when the evidence falls short

A technical sepot means the prosecutor concludes that a conviction is not realistically attainable. The Dutch standard is not the common-law formula of proof beyond reasonable doubt, and there is no jury: cases are decided by professional judges, who may convict only if they find the charge proved by wettig en overtuigend bewijs, evidence that is both lawful in form and convincing in substance. Article 338 of the Code of Criminal Procedure sets that standard, and the prosecutor applies it in advance when deciding whether the file will hold.

Two statutory minimum rules do most of the work in practice. The court cannot base a conviction on the statement of a single witness alone, so the account of the person who reported the offence must be corroborated by something independent. Nor can a conviction rest on the confession of the accused alone. This is why a file that consists of one account against another is closed even where the prosecutor privately believes the reporting party. It is a judgement about provability, not about credibility.

Corroboration usually comes from a limited number of sources: forensic material such as DNA, fingerprints or traces; digital material such as messages, images, transaction data or location data; statements from people who saw or heard something, or to whom the reporting party spoke at the time; and documents such as contracts, invoices, medical records or camera footage. Where none of that exists, the file is thin whatever the merits. Our guide to a criminal case in the Netherlands sets out how a file is built and what it must contain.

A technical sepot also covers situations that have nothing to do with the quality of the evidence. The conduct may not be a criminal offence at all, the suspect may not be identifiable, the offence may be time-barred, or the Dutch courts may lack jurisdiction. These grounds are close to final: a complaint against them succeeds only if the legal analysis was wrong or if the file was demonstrably incomplete.

What you can still add to the file

A sepot on evidential grounds is not always the end of the investigation. New material can justify reopening a case, and the Public Prosecution Service can resume a prosecution it had discontinued where fresh evidence, nieuwe bezwaren, comes to light. What counts is genuinely new: a statement from a witness who had not been heard, messages or images that were not in the file, a medical or financial record that was never requested. Repeating what has already been assessed does not qualify.

Time is the limiting factor in two ways. The right to prosecute lapses through limitation, and the period depends on the maximum penalty attached to the offence; the most serious offences do not lapse at all. Separately, the practical value of evidence falls away quickly. Camera footage is routinely overwritten within weeks, telecommunications data are kept only for limited periods, and memories of witnesses fade. If you intend to challenge a dismissal or to supply new material, the difference between acting in the first weeks and acting in the second month is often decisive.

A policy sepot: when prosecution is not considered opportune

A policy sepot is a different animal. Here the prosecutor accepts that the case could be proved but decides that prosecuting it serves no sufficient purpose. The grounds are varied and reflect the same public interest test: the offence was minor in the circumstances, the events are old, the suspect and the reporting party have a relationship in which criminal proceedings would do more harm than good, the harm has already been made good, the suspect has already been dealt with in another case, or the health or age of the suspect makes prosecution disproportionate.

The prosecutor may also impose conditions instead of closing the file outright. A voorwaardelijk sepot suspends prosecution during a probationary period on conditions such as compensating the victim, refraining from contact, or following treatment. If the conditions are met the case ends; if they are breached the prosecution can be resumed. For a victim this is often a better outcome than it looks, because compensation and a contact ban can be secured without the delay and strain of a trial.

Policy grounds are where a complaint has the most room to work, because they involve a weighing exercise rather than a legal impossibility. If the prosecutor undervalued the seriousness of the conduct, overlooked a pattern of earlier incidents, or misjudged the relationship between the parties, the Court of Appeal can reach a different conclusion on the same file.

The two categories can be summarised as follows.

Closed without a trial: the strafbeschikking

Not every case that stays out of court is dismissed. Under the Wet OM-afdoening the Public Prosecution Service can impose a penalty itself by means of a strafbeschikking (punishment order), governed by article 257a of the Code of Criminal Procedure. It is available for offences carrying a statutory maximum of no more than six years imprisonment, which covers the great majority of everyday criminality: criminal damage, shoplifting, simple assault and a long list of traffic offences.

The prosecutor can impose a fine, a community service order of up to 180 hours, a driving ban of up to six months, an obligation to compensate the victim, and behavioural directions such as a contact ban or an area ban. What the prosecutor cannot impose is a prison sentence. Acceptance of a punishment order is recorded in the judicial documentation register, so it produces a criminal record in the same way a conviction does, and it can therefore block a Verklaring Omtrent het Gedrag (certificate of conduct) later.

The suspect is not obliged to accept it. Lodging verzet (objection) within fourteen days of service brings the case before the criminal court after all, which then decides the matter independently and is not bound by the penalty the prosecutor chose. For the reporting party this means a case that appeared to be settled can still end up at a hearing, and it is worth asking the prosecutor to be kept informed if that happens.

A punishment order is not a dismissal, and the two are regularly confused when the letter arrives. If you have been told the case is not going to court, establish first which of the two you are dealing with, because a strafbeschikking cannot be attacked through the article 12 procedure in the same way a plain sepot can, and the routes for a victim who wants more than the prosecutor imposed are different.

Challenging the decision: the article 12 Sv procedure

Article 12 of the Code of Criminal Procedure allows a directly interested party to complain to the Court of Appeal about a decision not to prosecute, and to ask the court to order that prosecution take place after all. It is the only route by which the prosecutorial monopoly can be overridden, and the Court of Appeal genuinely can compel the Public Prosecution Service to bring a case.

The right belongs to rechtstreeks belanghebbenden, directly interested parties. That is in the first place the victim of the offence. It also covers surviving relatives where the victim has died, and legal entities that suffered direct damage, and in some circumstances a person or organisation whose specific interest was affected by the offence. A general sense of public outrage is not enough: you must show an interest of your own in the prosecution going ahead.

The complaint takes the form of a klaagschrift, a written and reasoned complaint addressed to the Court of Appeal in whose area the decision was taken. As a rule it must be lodged within three months of the day you became aware of the decision. Where no formal notice of discontinuance was served on the suspect, the complaint remains possible for as long as the right to prosecute has not lapsed through limitation, but that exception is narrow and difficult to rely on, so treat the three-month period as the operative deadline.

How the procedure runs and what the court weighs

The Court of Appeal first asks the advocaat-generaal, the prosecutor attached to that court, for a written opinion on the file. In most cases the court then holds a hearing in raadkamer, behind closed doors, at which the complainant can explain the complaint. The suspect may be called and heard as well, and is entitled to be assisted by a lawyer at that hearing. The proceedings are not public and the suspect is not a defendant: nothing is decided about guilt.

The court applies two tests. The first is feasibility: is there enough evidence to make a conviction realistically possible. The second is opportunity: even if a conviction is attainable, is prosecution called for, taking account of the seriousness of the offence, the interests of the victim, the age of the case and the personal circumstances of the suspect. The court will not order a prosecution that it expects to end in acquittal, and it is deliberately restrained where the prosecutor made a defensible policy choice.

The outcome is one of three. The complaint is declared inadmissible, usually because it was lodged late or by someone who is not a directly interested party. It is dismissed as unfounded, and the sepot stands. Or the court declares the complaint well founded and orders the Public Prosecution Service to prosecute, an order the prosecutor must obey. The decision is final; there is no ordinary appeal against it, which is a further reason to put the complaint together properly the first time.

Legal representation is not compulsory and the procedure is deliberately accessible without a lawyer. In practice, a complaint that engages with the specific sepot ground, points to concrete investigative steps that were not taken and identifies the evidence the file does contain stands a far better chance than one that repeats the original report. Legal aid may be available depending on your income, and the same considerations that apply to appeal in criminal law apply here: the strength of the argument on paper largely decides the outcome.

The article 12 procedure step by step

Other routes when the criminal case stops

The criminal law is not the only way to hold someone to account, and in many cases it is not the most effective one. A civil claim based on onrechtmatige daad (tort) under article 6:162 of the Burgerlijk Wetboek runs on a different standard of proof. The civil court asks which version of events is sufficiently established, not whether guilt is proved to the criminal standard, and it can allocate the burden of proof differently. A claim that fails as a prosecution can therefore succeed as a claim for damages, an injunction or a contact ban.

Victims of a violent or sexual offence committed in the Netherlands can also apply to the Schadefonds Geweldsmisdrijven, the state fund for victims of violent crime, which pays a one-off sum. The fund decides independently of the criminal case, so a sepot does not in itself bar an award, although the fund does need to be satisfied that the offence took place. Applications are subject to their own time limit, which is set by the fund and published on its website.

Where the complaint concerns how the police handled your report rather than the prosecutor decision itself, there is a separate route: the statutory police complaints procedure, first within the police force and, if that does not resolve matters, before the Nationale ombudsman. That procedure cannot force a prosecution, but it can establish that a report was not properly recorded or investigated, and that finding sometimes prompts the case to be looked at again.

Your position as a victim while the decision is being taken

Victim rights in Dutch criminal procedure are set out in the Code of Criminal Procedure and are considerably wider than most people expect. You are entitled to be informed about the progress of the case and about the decision on prosecution. You can ask to inspect the case file, and to add documents to it, which is often the practical way to get an overlooked piece of evidence in front of the prosecutor before the decision is taken rather than afterwards. You can be assisted by a lawyer or by a case manager from Slachtofferhulp Nederland throughout.

If the case does go to trial, you can join the proceedings as a benadeelde partij (injured party) and claim compensation from the accused within the criminal case itself, and in the more serious categories of offence you have a right to address the court in person. The scope of these rights, and the deadlines attached to them, are set out in our article on victims rights in Dutch criminal proceedings.

Many high-volume cases are handled through ZSM, the accelerated route in which the police, the Public Prosecution Service, the probation service and victim support assess a case together shortly after the suspect is arrested. Decisions taken there, including a sepot or a punishment order, are taken quickly, sometimes within days. If you have reported an offence and want your interests weighed, say so to the police at the moment you make the report and ask that your wish to be informed and to claim compensation is recorded in the file.

One point of context is worth adding. A new Wetboek van Strafvordering has been adopted by Parliament and published in the Staatsblad, but it enters into force book by book by royal decree. Until each part actually takes effect, the current article numbers, including article 12 and article 167, continue to apply, and any advice that quotes the new numbering is premature.

There is one further point that surprises many complainants. A decision not to prosecute is not a finding that the offence did not happen, and it is not a judgment in favour of the suspect. It records that the Public Prosecution Service will not put the matter to a criminal court. That distinction matters when the same facts are used elsewhere, for instance in employment proceedings, in a dispute about contact with children, or in a claim against an insurer. A sepot letter does not bind the civil court, the employment court or the disciplinary tribunal, and it should never be presented as an acquittal.

What to do when the letter arrives

Start with the date and the ground. Note the day you received the decision, because the three-month period runs from your becoming aware of it, and identify whether the file was closed on a technical or a policy ground. Ask the Public Prosecution Service for the underlying documents if the letter does not make the reasoning clear; as a directly interested party you are entitled to ask for access to the file.

Then decide what you actually want. If the aim is compensation, a civil claim is often faster and more certain than forcing a prosecution. If the aim is that the conduct is established and sanctioned, and the file contains material the prosecutor did not weigh properly, the article 12 procedure is the right instrument. The two are not mutually exclusive, but they run on different timetables and it is better to choose deliberately than to let the criminal deadline pass while a civil claim is being prepared.

Law and More assists victims and other directly interested parties who are confronted with a decision not to prosecute. We assess the sepot ground and the file, advise on whether an article 12 complaint is realistic, draft and lodge the klaagschrift, and represent you at the hearing before the Court of Appeal. Where the criminal route offers little, we set out the civil alternatives. If you have received a sepot letter, contact us well before the three-month period expires.

Frequently asked questions