Appeal lodged too late. What now?
What can you do if an appeal or cassation has been lodged too late against a criminal court ruling?
After a ruling in a criminal case, the defendant must file an appeal within 14 days pursuant to Article 408 of the Code of Criminal Procedure. In criminal proceedings, there are often strict deadlines within which actions must be taken, such as filing an appeal. If this deadline is exceeded, this generally means that the defendant's appeal will be declared inadmissible, unless there are special circumstances beyond the defendant's control that make the exceeding of the deadline excusable (see Supreme Court 4 May 2004, ECLI:NL:HR:2004:AO5706).
Excusable exceeding of the time limit
In principle, the time limits for lodging appeals are strictly adhered to. However, in exceptional cases, exceeding the time limit may be considered excusable. This may be the case in the following circumstances:
Incorrectly provided official information
Incorrectly provided official information, which gave the defendant the justified expectation that the appeal period would commence at a different time. This was the case, for example, in a case where the defendant, who did not appear at the hearing, had called the court registry on the same day to request the judgment. The court clerk told him on the phone that he would receive the written judgment at home and would have to wait for it. By the time the written judgment was received at home, the deadline for lodging an appeal had already passed. In this case, the exceeding of the time limit was excusable due to incorrect official information (see Supreme Court 8 October 2019, ECLI:NL:HR:2019:1553).
Language barriers
If it is established that the defendant does not or
insufficiently understands the Dutch language, this may also constitute an excusable exceeding of the time limit.
This may be the case if, contrary to Article 366(4) of the Code of Criminal Procedure, the defendant has not been provided with a written translation of the notification referred to in Article 366(1) in conjunction with 3 of the Code of Criminal Procedure in a language he understands (see Supreme Court 8 October 2019, ECLI:NL:HR:2019:1534).
Mental state of the suspect
If the suspect was in a particular state of mind at the time of the appeal period, this may be grounds for accepting an excusable exceeding of the time limit. This is the case, for example, when a suspect is in such a mental state that the failure to lodge an appeal in time cannot be attributed to him (see Supreme Court 6 January 2004, ECLI:NL:HR:2004:AN8587).
Consequence of an excusable failure to meet the deadline
If an exceptional circumstance arises that makes the failure to meet the deadline excusable, the defendant will still be declared admissible in the appeal. This will only happen if the defendant, after the circumstances under which the exceeding of the time limit was excusable have ceased to exist, lodges an appeal or has an appeal lodged as soon as possible (see Supreme Court 15 March 2011, ECLI:NL:HR:2011:BP2429).
Has your deadline for filing an appeal expired, or has your appeal been declared inadmissible due to exceeding the deadline, and would you like specialized advice or assistance from one of our expert lawyers? Then contact us as soon as possible.
