Piet Hein van Kempen

This contribution elaborates on the influence of human rights standards on the system of criminal procedure in the Netherlands and analyses and comments on developments within that system. To that end, it extensively explains and discusses the relevant international and regional fundamental rights instruments, the organisation of criminal justice and the system of criminal procedure in the Netherlands, the position of human rights in Dutch criminal procedure, and the most important changes within criminal procedure that might effect the realization of human rights in the Netherlands. It is stipulated that the Dutch criminal procedure system shows genuine concern for human rights. Where fundamental rights are insufficiently provided for in domestic law this is in general adequately counterbalanced by applying international human rights standards. The case law of the European Court of Human Rights in particular exerts a prodound influence in this regard. Nevertheless, some fundamental changes in criminal procedure in the Netherlands have occurred in the last decade or so, prompted by terrorism, organised crime and the wish to make the criminal justice system more efficient. This has also affected the position of the courts, the prosecution, the defence and victims and how the system safeguards human rights. All changes seem to be in conformity with the human rights standards as set by international organizations such as the Council of Europe and the United Nations. Nevertheless, the legislator, the administration and the courts these days seem to have other concerns than only trying to provide the best human rights standard possible. As a result, fundamental rights seem increasingly to function only as absolute minimum conditions which have to be met, and less and less as guiding principles, the generous fulfilment of which is an aspiration for legislation, policy and practice.

Cite as: Piet Hein van Kempen, The Protection of Human Rights in Criminal Law Procedure in The Netherlands, vol 13.2 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (May 2009), <http://www.ejcl.org/132/art132-1.pdf>.

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