In the fourth edition of Erasmus Law Review of 2020, revision law within various European jurisdictions is analysed. In a time of increasing harmonization, comparison of criminal procedure approaches between European countries and new scientific possibilities to collect and analyse evidence, it is crucial to learn more about the legal framework and practical applications of revision law in Europe.
Nina Holvast, assistant professor of Empirical Legal Studies, and Joost Nan, associate professor of Criminal Law and Criminal Procedure Law at the Erasmus School of Law, edited this special edition. They also published, together with Sjarai Lestrade (Radboud University Nijmegen), an article on the developments in the Dutch procedure to deal with wrongful convictions and wrote an overarching contribution which concludes that more research is necessary about the working of revision law in Europe.
The effect of new legislation on Dutch revision law
Dutch legislation on reviewing closed cases has traditionally been restrictive. The main reason for this was that much emphasis was placed on the principle of finality. A step in the right direction was taken in 2012, when possibilities to request for revision were broadened. This new legislation aimed to strike a better balance between legal protection against wrongful convictions and the concept of legal certainty by having a legal process that is finite.The article in Erasmus Law Review by Holvast, Nan and Lestrade discusses, in addition to the previous research commissioned by the WODC, whether the new legislation indeed results in a better balance.
No increase in revision cases
This (additional) study shows that, all things considered, the new legislation has indeed created a better balance. However, the debate on the adequacy of the possibility of reopening cases post-conviction has not quieted down. Additionally, it is noticed that the new legislation has not resulted in an increase in revision cases.
The research identified three significant challenges for the current system. The threshold of a new data point that would most likely significantly change the outcome of the case is still too high according to some. The Arnhem Villa Murder case is an example of a case that is difficult to get admitted to the revision procedure, due to the current scope of the novum criterion. Second, while the possibility of re-examining a case before a request for revision is submitted to the Supreme Court is regarded as a welcome instrument to find these much-needed new developments, the outcomes seem somewhat limited. Third, the mandatory legal representation, combined with the limited compensation that attorneys receive for legal aid work, might prove another obstacle for former suspects to have their cases revised, particularly for those with limited means.
In conclusion, it has been established that due to the limited amount of case law available to date, it remains to be seen what the criteria for reopening closed cases will be in practice. For that reason, it remains to be seen whether the right balance is found.