Supreme Court (cassation)

Litigating in cassation before the Supreme Court is a field of its own within criminal law. If you disagree with your conviction by the Court of Appeal, and in some cases with a decision of the district court, you can have the Supreme Court reconsider your case. The Supreme Court is the highest court in criminal cases and therefore the last opportunity to have a court look at your case.

Where it is among the tasks of the district court and the Court of Appeal to establish the facts, the Supreme Court does not assess those facts again. It takes the facts as established by the trial court, whether the district court or the Court of Appeal, and examines only whether the law was correctly applied, whether the rules of procedure were followed and whether the decision was sufficiently reasoned. That makes the cassation procedure a distinctive one; it calls for a specialist and expert lawyer. Dino Bektesevic has that knowledge and skill, in part through his experience at the Supreme Court and his publications in this field. Tobias Wouters is a cassation specialist as well and has extensive experience of cases of this kind.

How the procedure runs

In most cases you must lodge an appeal in cassation within fourteen days of the Court of Appeal’s judgment. Once you or your lawyer have done so, the Court of Appeal sends the case file on to the Supreme Court. That can take several months.

As soon as the Supreme Court has received the file, you are notified that a statement of grounds for cassation must be submitted by a lawyer within sixty days. So before the Supreme Court you are required to engage a lawyer. In that statement your lawyer explains why the Supreme Court should quash the Court of Appeal’s decision; those complaints are known as grounds of cassation. Whether submitting a statement is viable in your case is something we examine thoroughly and discuss with you. Where our advice is that it is not viable, we tell you so in good time.

Once the sixty-day period has expired, a hearing date is set. Where a statement of grounds for cassation has been submitted, the following may happen on that date. A date may be set on which the Advocate General at the Supreme Court gives an advisory opinion (in Dutch: conclusie). The Supreme Court is not obliged to follow that advice. Where the Advocate General advises that a ground be rejected, your lawyer is given the opportunity to respond in writing in what is known as a Borgers letter. The Supreme Court then gives its decision at a later date.

The second possibility is that the Supreme Court gives its decision immediately and declares the appeal inadmissible or dismisses it with brief reasons. That happens where no statement has been submitted, or where the Supreme Court holds that the complaints give insufficient reason to deal with the appeal on its merits. In that case the Court of Appeal’s decision stands and becomes final.

The procedure before the Supreme Court is conducted in writing. So as a rule no hearings take place and no judge will put questions to you about the case again.

The Supreme Court’s judgment

On the day of the Advocate General’s opinion, the Supreme Court announces when the decision in your case will be given. That is usually six weeks later.

The Supreme Court can reach various decisions. Your appeal in cassation may be allowed, dismissed or declared inadmissible. If the Supreme Court holds that the law was not correctly applied or that the procedure was not properly followed, the Court of Appeal’s judgment is usually quashed and the case referred back to that court. In a number of cases the Supreme Court disposes of the case itself, for example where the reasonable time requirement has been exceeded in your case; it then reduces the sentence itself. Where the appeal is dismissed or declared inadmissible, the Court of Appeal’s decision stands.

Get in touch

The cassation procedure is legally complicated and there are many choices to be made along the way. Careful and expert representation is therefore essential. We are glad to represent you in this procedure. Contact us to discuss your case; we will then set out your options.