The law governing the review of criminal cases needs to be expanded. To this end, the SP and coalition party D66 are submitting a bill this week. The parties also want rulings by the European Court of Justice to form a ground for review in the future.
Via a review request to the Supreme Court, wrongly convicted persons can try to reopen their criminal case. In the past, for example, nurse Lucia de B. was acquitted of murdering patients. Revision can now only take place in the event of a new fact (novum) which creates doubt about the perpetrator of the crime. Another ground for review is if the European Court of Human Rights (ECtHR) rules that a conviction violates human rights.
If it is up to SP and D66, revisions will also be possible in the future if it appears from a ruling by the European Court of Justice that an irrevocable conviction was contrary to EU law. “Because a judgment of the ECtHR can be a reason for review, I think in principle that it should also apply to that other European judge,” says SP MP Michiel van Nispen.
He took the initiative for the legislative amendment proposal after he NRC learned the story from André de Gouw, who was sentenced to two years in prison in 2012 for violating the Medicines Act. After a ruling by the European Court of Justice in 2014, it turned out that Dutch judges had applied the law incorrectly and in violation of EU law.
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De Gouw produced the stimulant mCPP, which produces a similar intoxication as ecstasy. Unlike the active ingredient MDMA in ecstasy, the drug is not on the opium list and is not banned. However, by designating mCPP as a medicine, the Public Prosecution Service was still able to prosecute him for violation of the Medicines Act, which requires a production license.
The European court later ruled in a similar German case involving synthetic cannabis that such ‘legal highs’ do not qualify as medicine. Dutch mCPP sellers were subsequently acquitted in ongoing criminal cases.
The Advocate General also considered a new ground for review ‘desirable’
De Gouw subsequently submitted a request for review to the Supreme Court. In her Opinion, the Advocate General noted that review is currently not legally possible, but the case is ‘clear’ [maakt] that it is desirable” that judgments of the European Court can also be regarded as novel. She stated that it is up to the legislator to ensure that. SP and D66 are now picking up this gauntlet.
De Shire could possibly count on less sympathy than a nurse wrongly convicted of murder. However, Van Nispen is counting on his fellow MPs to look at the bill “in a legal way”. “I cite his case as an example to show that it is not a hypothetical matter. It sometimes happens that a ruling by the European Court shows that the judge has not seen it correctly. Then I think it is logical to make that ground for revision.”
Upon request, the Supreme Court was unable to provide an overview of the number of submitted and granted review requests in recent years. The country’s highest court is known as very strict. Last year, for example, it rejected the requests for review from seven convicts for the Arnhem Villa murder.
A version of this article also appeared in the newspaper of May 18, 2022