Joost Nan advocates an even more modern criminal procedural law: “Appealing to a higher court should not remain a habit in one out of three cases”

Joost Nan

“The criminal justice chain has been creaking and groaning for years”, Joost Nan, Professor of Criminal (Procedural) Law at Erasmus School of Law, said in his inaugural lecture on 7 July 2023. He continues, “Many cases remain stagnant or sometimes never proceed. The duration of cases that are taken up is often unacceptably long. The limits of the capacity of the criminal justice system seem to have been reached.” In his speech titled Modern Legal Remedies in Criminal Cases. A Different Approach, Nan elaborates on the critical point at which the criminal justice chain has arrived. Furthermore, he makes some recommendations to alleviate the pressure on the criminal justice system and create a more modern, streamlined criminal procedural law.

Nan outlines the current problem within the criminal justice chain: there are more criminal cases than the police and Public Prosecution Service can handle. “It is clear that the criminal justice chain, like the entire judiciary, has reached a critical point”, Nan says. Modernising the Code of Criminal Procedure is imminent, but Nan wants to go further than that. He aims for an “even more modern” criminal procedural law that effectively uses existing legal remedies.

Nan first discusses the legal remedies in Dutch criminal law and explains their functions. He then presents his plans for an even more modern appeal.

Court, Court of Appeal, Supreme Court

Against a ruling by the criminal judge, two legal remedies are available: appeal to the Court of Appeal and then cassation to the Supreme Court.

In 34% of criminal cases in the Netherlands, an appeal was filed in 2022. Especially in severe cases, appeals are often made. The average duration of appeals is a staggering 480 days. “Appeals thus occupy a considerable portion of the available capacity”, Nan states.

Legal remedies are also being reviewed in the modernisation of criminal procedural law. Nan says, “I come to my main point: wouldn't it be better if, more often in the first instance, a proper and acceptable final decision is reached directly?” Nan suggests restructuring the criminal procedural law to compel the Public Prosecutor and the defendant to present everything necessary for a proper case assessment by the criminal judge as quickly as possible. “Prevention is better than cure”, emphasises the professor.

Nan mainly focuses on the appeal; “It is the last ordinary legal remedy in which the facts can still be raised, and the case can be thoroughly reviewed. Therefore, it is by far the most important and effective legal remedy to correct an erroneous judgment”, Nan highlights. However, he stresses that its use should not be an automatic exercise. “Appealing to a higher court should not become a routine in one out of three cases.”

Existence of legal remedies

“The international consensus is that there must be a remedy against a conviction. Not only as a human right but also as a guarantee to prevent a wrongful conviction”, says Nan.

Nan identifies two functions of legal remedies. Firstly, the corrective or re-trial function aims to correct errors on the side of the parties involved in the legal process or the criminal judge. Secondly, creating legal unity aims to promote uniformity in criminal law.

However, the availability of legal remedies also has disadvantages: the more instances involved, the longer the legal process takes, and the more expensive it becomes. Additionally, parties remain uncertain for a long time, and the execution of punishments takes longer. “As a result, the restoration of legal peace is delayed”, Nan argues. He advocates for the judicious use of legal remedies. Besides, he points out that the goals of criminal law may not be fully or timely achieved when an appeal is filed, as parties may strategically choose to disclose new information only during the court of appeal proceedings. “In my opinion, this is undesirable since the relevant facts and sound arguments can usually be presented at the trial court and, in my view, should also be presented there”, says Nan.

Modernisation of the appeal

Nan explains that there is currently a middle ground: the appeal falls between completely retrying a case and simply reviewing the decision of the criminal judge. “Thus, the Court of Appeal has a much broader task when rendering its judgment than merely addressing the objections raised against the verdict”, Nan states. The legislator partly addresses this issue by modernising the Code of Criminal Procedure. The Court of Appeal will generally decide on the objections raised (also called grievances) and not retry the entire case. “The Court of Appeal can still make a different decision outside of the grievances”, Nan adds.

An even more modern appeal

Nan advocates for an even more modern appeal. First, the professor proposes limiting the scope of further investigations during the request. Additionally, he suggests a stricter system of raising grievances. Both proposals, according to Nan, represent “a different approach”.

Emphasis on the first instance

Nan argues that more consideration should be given to the importance of the first instance in reaching a correct and acceptable outcome. “The more thorough the treatment by the trial court, the less there is left for the Court of Appeal to do”, Nan explains. By compelling parties to lay all their cards on the table in the first instance, the focus shifts to the early stages of the legal process. Nan also advocates conducting most of the investigation during the court hearing rather than before, as is the current practice. This enhances both internal and external transparency.

Furthermore, Nan proposes a broader obligation to provide reasoning. Under the new legislation, a decision in a verdict only needs to be motivated “to the extent necessary for its comprehensibility”. “But as I always say, you can learn to provide reasons”, Nan comments.

Compare @count study programme

  • @title

    • Duration: @duration
Compare study programmes