Pre-trial Detention and Remand in Custody in the Netherlands: Free, Unless...

In the Netherlands, the principle of "free, unless" applies to suspects. This means that, in principle, a suspect should be allowed to await their trial in freedom. Nevertheless, it regularly happens that a suspect is held in pre-trial detention. What exactly is pre-trial detention, and what conditions must be met? In this article, we explain how it works.

What is pre-trial detention?

Pre-trial detention (voorarrest) is the period a suspect spends in a cell before a judge has issued a final verdict. It is a severe measure because someone is deprived of their liberty while they are still considered innocent (the presumption of innocence).

The phases of detention

The process of depriving someone of their liberty consists of several stages:

1. Arrest and detention for questioning (Aanhouding en ophouding voor onderzoek): A suspect can be detained for questioning for a maximum of 9 hours (excluding the hours between midnight and 9:00 AM).

2. Police custody (Inverzekeringstelling): If necessary for the investigation, the prosecutor can order the suspect to be held for a maximum of 3 days. This can be extended once by another 3 days in exceptional cases.

3. Remand in custody (Voorlopige hechtenis): After the police custody, the suspect is brought before the examining magistrate (rechter-commissaris). If the magistrate decides the suspect must stay longer, this is called remand in custody. This starts with "bewaring" (maximum 14 days) and can be followed by "gevangenhouding" (maximum 90 days).

Conditions for pre-trial detention

A judge cannot simply decide to keep someone in custody. Several legal requirements must be met:

• Serious indications (Ernstige bezwaren): There must be strong evidence against the suspect. It must be more than just a simple suspicion.

• Grounds (Gronden): There must be a specific reason to keep someone detained, such as:

  • Risk of flight (fear that the suspect will flee).

  • A crime carrying a prison sentence of 12 years or more that has caused great social unrest.

  • Risk of recidivism (fear that the suspect will commit another crime).

  • Collusion (fear that the suspect will influence witnesses or hinder the investigation).

"Free, unless" and the importance of motivation

In recent years, more emphasis has been placed on the "free, unless" principle. The European Court of Human Rights (ECHR) and the Dutch Supreme Court emphasize that the judge must provide a very thorough justification (motivation) as to why detention is strictly necessary and why a lighter measure (such as a suspension under conditions) is not sufficient.

Suspension of pre-trial detention

A lawyer can often request a "suspension" (schorsing) of the pre-trial detention. If the judge grants this, the suspect may wait for the trial at home, but they must adhere to strict conditions. Examples include:

• A ban on contact with victims or witnesses.

• A location ban (not allowed to enter a certain area).

• Handing in their passport.

• Electronic monitoring (an ankle monitor).

Conclusion

Pre-trial detention is a radical measure that should only be used as a last resort. Do you have questions about a specific case or do you need legal assistance? The specialists at Kuyp Baar Advocaten are ready to assist you. Contact us for expert assistance in every phase of the criminal process.