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Volume 13 | Issue 4 | 2020 Special Issue: Towards a European Right to Claim Innocence? Normative and Practical Reflections on Re Rugdikte: 6,87 mm – 30/04/2021 – Textcetera Erasmus Law Review Volume 13 | Issue 4 | 2020 Special issue: Towards a European Right to Claim Innocence? Normative and practical reflections on remedies for over- turning wrongful convictions | Online at elevenjournals.com OM_ELR_2020_13_04.indd All Pages 30/04/2021 11:46:29 Editorial Board Frank Weerman (Editor-in-Chief) Demiano Akerina (Managing-Editor) Nina Holvast, Elena Kantorowicz-Reznichenko, Xandra Kram- er, Madeleine Merkx, René Repasi, Sanne Struijk Mission Statement The Erasmus Law Review seeks to foster independent critical scholarship as relevant to the discipline of law. The Board of Editors encourages the submission of legally rel- evant manuscripts by legal scholars and practitioners as well as those versed in other disciplines relevant to law, such as criminology, sociology, political science and economics. This Open Acces journal usually commissions articles around specific themes, although 'calls for papers' on specific topics might be issued occasionally and will be published on the Review's website. All prospective articles are submitted to double-blind peer review (two reviews per article), and final publication is dependent on the outcome of these reviews. Copyright 1 Between Legal Certainty and Doubt. The Developments in Unless otherwise noted, copyright in all submissions is retained by the author. the Procedure to Overturn Wrongful Convictions in the Permission is granted for non-profit purposes to download Netherlands and print material in Erasmus Law Review and to distribute this material to others provided the author’s name, place of Nina Holvast, Joost Nan & Sjarai Lestrade publication and copyright notice remains secured on all cop- ies. 13 Chosen Blindness or a Revelation of the Truth? A New Disclaimer The opinions expressed in the papers appearing in this journal Procedure for Revision in Belgium are those of the authors. Erasmus Law Review accepts no Katrien Verhesschen & Cyrille Fijnaut responsibility for the views or the accuracy of information published in this journal. Insofar as the making of reproductions from this publication is 22 Correcting Wrongful Convictions in France. Has the Act of permitted on the basis of Article 16h of the Dutch Copyright Act or the reproduction right regulation of Stichting Repro- 2014 Opened the Door to Revision? recht, fair compensation must be paid to Stichting Reprorecht Katrien Verhesschen & Cyrille Fijnaut (PO Box 3051, 2130 KB Hoofddorp, www.reprorecht.nl). For the reproduction and publication of part(s) of this publication as part of an educational curriculum, for example in a (digital) 33 The Challenges for England’s Post-Conviction Review Body. learning environment or a reader (art. 16 Dutch Copyright Act), an arrangement must be made with Stichting Uitgevers- Deference to Juries, the Principle of Finality and the Court of organisatie voor Onderwijslicenties (PO Box 3060, 2130 KB Appeal Hoofddorp, www.stichting-uvo). Carolyn Hoyle ISSN: 2210-2671 44 The Right to Claim Innocence in Poland Wojciech Jasiński & Karolina Kremens 55 Overturning Wrongful Convictions by Way of the Extraordinary Review. The Spanish Experience Lorena Bachmaier Winter & Antonio Martínez Santos 63 Post-Conviction Remedies in the Italian Criminal Justice System Luca Lupária Donati & Marco Pittiruti 73 Mechanisms for Correcting Judicial Errors in Germany Michael Lindemann & Fabienne Lienau 87 Exoneration in Sweden. Is It Not about Time to Reform the Swedish Model? Dennis Martinsson 102 A European Approach to Revision in Criminal Matters? Joost Nan, Nina Holvast & Sjarai Lestrade Between Legal Certainty and Doubt The Developments in the Procedure to Overturn Wrongful Convictions in the Netherlands Nina Holvast, Joost Nan & Sjarai Lestrade* Abstract quate to provide adequate legal protection.3 The legal system requires there to be no subsequent debate on the The Dutch legislature has recently (2012) altered the legisla- outcome, unless there are strong and fresh leads indicat- tion for post-conviction revision of criminal cases. The legis- ing that there is something fundamentally wrong with lature aimed to improve the balance between the compet- the conviction. ing interests of individual justice and the finality of verdicts, This understanding of post-conviction revision law was by making post-conviction revision more accessible. In this jeopardised when various controversial ‘wrongful con- article we describe the current legal framework for revising viction’ cases emerged at the beginning of this century cases. We also study how the revision procedure functions (details of these cases are provided in Section 2). After in practice, by looking at the types and numbers of (success- an extensive discussion in parliament, new legislation ful) requests for further investigations and applications for was passed by means of the Reform of Revision in Favour revision. We observe three challenges in finding the right of Former Suspects Act in 2012. Since 1 October 2013, balance in the revision process in the Netherlands. These revising cases to the detriment of former suspects has challenges concern: 1) the scope of the novum criterion also been made possible,4 but that will not be discussed (which is strict), 2) the appropriate role of an advisory com- in this article (only one such case has been submitted to mittee (the ACAS) in revision cases (functioning too much the Supreme Court, as of the writing of this article).5 as a pre-filter for the Supreme Court) and, 3) the difficulties The new legislation (described in detail in Section 3) that arise due to requiring a defence council when request- aimed to create a better balance between legal protection ing a revision (e.g., financial burdens). against wrongful convictions and the notion of legal cer- tainty by having a legal process that has an end. Improv- 1 Keywords: revision law, post-conviction review, wrongful ing this balance was expected to be beneficial to the convictions, miscarriages of justice, criminal law, empirical overall trust in the justice system.6 In this article we will research investigate how the Netherlands currently stands with regard to this balance. Does the new legislation indeed provide a better balance between these principles? And 1 Introduction what challenges are still faced in achieving the right bal- ance? While all legal systems aim to exclude the possibility of To answer these questions, we use the data from an wrongful convictions, the reality is that wrongful con- evaluation study we performed five years after the legis- victions cannot completely be ruled out. This is also lation was passed, which was commissioned by the Min- 7 true for the Netherlands. Nevertheless, the legislation in istry of Justice and Safety. We analysed all the submit- the Netherlands to reopen closed cases for revision tra- ted requests for revision and all applications for further ditionally has been restrictive.1 In the legislative pro- investigation (a new opportunity created by the legisla- cess, the importance of the principle of finality of legal tion), made in the period October 2012 to Decem- procedures was of primary importance.2 The prevailing ber 2017. We also interviewed twenty-eight profession- idea has been that revision of unjust cases should be als involved in the revision process and held a meeting possible. However, having a revision procedure should with seven experts to discuss our findings. For this arti- not feed the idea that the normal procedures are inade- cle, we also include new developments that have occur- red over the years 2018 and 2019. We analysed all deci- 3. See the introduction of legislation in 1899 Kamerstukken I 1898/1899, * Nina Holvast is Assistant Professor at the Erasmus Universiteit Rotter- 78, no. 78; See the recent changes in legislation Kamerstukken II dam. Joost Nan is Associate Professor at the Erasmus University Rotter- 2008/09, 32045, no. 3, at 5. dam. Sjarai Lestrade is Assistant Professor at the Radboud University 4. See Art. 482a et seq CCP. Nijmegen. 5. Dutch Supreme Court, 8 November 2016, ECLI:NL:HR:2016:2520, NJ 1. Several terms are used to describe the remedy of overturning a final 2017, 69, m.nt. T. Kooijmans (Vivaldi). The Supreme Court rejected the criminal conviction (or, more broadly, criminal verdict), such as (extraor- petition. dinary) review or revision. In this article, we will use the term revision. 6. Kamerstukken II 2008/09, 32045, no. 3, at 5. 2. See for the legal history J.S. Nan, ‘Herziening ten voordele van de 7. J.S. Nan, N.L. Holvast, S.M.A. Lestrade, P.A.M. Mevis & P. Mascini, gewezen verdachte als buitengewoon rechtsmiddel’, 1 Nederlands Tijd- Victa vincit veritas? Evaluatie Wet hervorming herziening ten voordele schrift voor Strafrecht 11 (2020). WODC (2018). Nina Holvast, Joost Nan & Sjarai Lestrade doi: 10.5553/ELR.000188 - ELR 2020 | No. 4 sions on applications to conduct further investigations to committing the crime, and new convincing evidence in 2018 and 2019, as well as several significant requests indicated that this man was in fact the real murderer.10 for revision. As a response to this wrongful conviction, an evaluation In Section 2, we start by providing background infor- committee was established (the Committee Posthumus). mation on the developments that resulted in the changes This committee wrote a report commissioned by the in the revision legislation. In Section 3, we describe the Procurator General, which resulted in various recom- new legislation (i.e., the current legal framework in the mendations to improve the investigation and prosecu- Netherlands) for post-conviction revision. Section 4 tion of criminal cases. provides an overview of how different parts of the revi- However, at the turn of the century, more miscarriages sion legislation (the applications for further investiga- of justice emerged, and these cases showed that making tion and the requests for revision) function in practice. improvements to the investigation and prosecution In Section 5, we discuss three challenges for the execu- alone was not enough.
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