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Article

Access_open Chosen Blindness or a Revelation of the Truth?

A New Procedure for Revision in Belgium

Journal Erasmus Law Review, Issue 4 2020
Keywords final criminal conviction, revision procedure, grounds for revision, Court of Cassation, Commission for revision in criminal matters
Authors Katrien Verhesschen and Cyrille Fijnaut
AbstractAuthor's information

    The Belgian Code of criminal procedure provides the possibility to revise final criminal convictions. This procedure had remained more or less untouched for 124 years, but was finally reformed by the Act of 2018, after criticism was voiced in legal doctrine concerning its narrow scope and possible appearances of partiality and prejudice. The Act of 2018 therefore broadened the third ground for revision, the so-called novum, and defined it as an element that was unknown to the judge during the initial proceedings and impossible for the convicted person to demonstrate at that time and that, alone or combined with evidence that was gathered earlier, seems incompatible with the conviction, thus creating a strong suspicion that, if it had been known, it would have led to a more favourable outcome. Thereby, this ground for revision is no longer limited to factual circumstances, but also includes changed appreciations by experts. To counter appearances of partiality and prejudice, the Act of 2018 created the Commission for revision in criminal matters, a multidisciplinary body that has to give non-binding advice to the Court of Cassation on the presence of a novum. However, the legislature also introduced new hurdles on the path to revision, such as the requirement for the applicant to add pieces that demonstrate the ground for revision in order for his or her request to be admissible. For that reason, the application in practice will have to demonstrate whether the Act of 2018 made the revision procedure more accessible in reality.


Katrien Verhesschen
Katrien Verhesschen is a PhD candidate and teaching assistant at the Institute of Criminal Law KU Leuven.

Cyrille Fijnaut
Cyrille Fijnaut is Emeritus Professor of Criminal Law & Criminology at Erasmus University Rotterdam, KU Leuven and Tilburg University.
Article

Access_open Exoneration in Sweden: Is It Not about Time to Reform the Swedish Model?

Journal Erasmus Law Review, Issue 4 2020
Keywords wrongful convictions, extraordinary legal remedy, exoneration, exoneration in Sweden
Authors Dennis Martinsson
AbstractAuthor's information

    This article reviews exoneration in Sweden, with a focus on the procedure of applying for exoneration. First, it highlights some core features of Swedish criminal procedural law, necessary to understand exoneration in the Swedish context. Secondly, it outlines the possibilities in Swedish law to apply for exoneration, both in favour of a convicted person and to the disadvantage of a previously acquitted defendant. Thirdly, it identifies some challenges with the current Swedish model of administering applications for exoneration. Fourthly, it argues that the current system should be reformed by introducing into Swedish law a review committee that administers applications for exoneration.


Dennis Martinsson
Dennis Martinsson is Assistant Professor in the Department of Law of Stockholm University in Sweden.
Article

Access_open Between legal certainty and doubt The developments in the procedure to overturn wrongful convictions in the Netherlands

Journal Erasmus Law Review, Issue 4 2020
Keywords revision law, post-conviction review, wrongful convictions, miscarriages of justice, criminal law, empirical research
Authors Nina Holvast, Joost Nan and Sjarai Lestrade
AbstractAuthor's information

    The Dutch legislature has recently (2012) altered the legislation for post-conviction revision of criminal cases. The legislature aimed to improve the balance between the competing interests of individual justice and the finality of verdicts, by making post-conviction revision more accessible. In this article we describe the current legal framework for revising cases. We also study how the revision procedure functions in practice, by looking at the types and numbers of (successful) requests for further investigations and applications for revision. We observe three challenges in finding the right balance in the revision process in the Netherlands. These challenges concern: 1) the scope of the novum criterion (which is strict), 2) the appropriate role of an advisory committee (the ACAS) in revision cases (functioning too much as a pre-filter for the Supreme Court) and, 3) the difficulties that arise due to requiring a defence council when requesting a revision (e.g., financial burdens).


Nina Holvast
Nina Holvast is Assistant Professor at the Erasmus Universiteit Rotterdam.

Joost Nan
Joost Nan is Associate Professor at the Erasmus University Rotterdam.

Sjarai Lestrade
Sjarai Lestrade is Assistant Professor at the Radboud University Nijmegen.
Article

Access_open Correcting Wrongful Convictions in France: Has the Act of 2014 Opened the Door to Revision?

Journal Erasmus Law Review, Issue 4 2020
Keywords Final criminal conviction, revision procedure, grounds for revision, preparatory investigative measures, Cour de révision et de réexamen
Authors Katrien Verhesschen and Cyrille Fijnaut
AbstractAuthor's information

    The French ‘Code de procédure pénale’ provides the possibility to revise final criminal convictions. The Act of 2014 reformed the procedure for revision and introduced some important novelties. The first is that it reduced the different possible grounds for revision to one ground, which it intended to broaden. The remaining ground for revision is the existence of a new fact or an element unknown to the court at the time of the initial proceedings, of such a nature as to establish the convicted person’s innocence or to give rise to doubt about his guilt. The legislature intended judges to no longer require ‘serious doubt’. However, experts question whether judges will comply with this intention of the legislature. The second is the introduction of the possibility for the applicant to ask the public prosecutor to carry out the investigative measures that seem necessary to bring to light a new fact or an unknown element before filing a request for revision. The third is that the Act of 2014 created the ‘Cour de révision et de réexamen’, which is composed of eighteen judges of the different chambers of the ‘Cour de cassation’. This ‘Cour de révision et de réexamen’ is divided into a ‘commission d’instruction’, which acts as a filter and examines the admissibility of the requests for revision, and a ‘formation de jugement’, which decides on the substance of the requests. Practice will have to show whether these novelties indeed improved the accessibility of the revision procedure.


Katrien Verhesschen
Katrien Verhesschen is PhD candidate and teaching assistant at the Institute of Criminal Law KU Leuven.

Cyrille Fijnaut
Cyrille Fijnaut is Emeritus Professor of Criminal Law & Criminology at Erasmus University Rotterdam, KU Leuven and Tilburg University.
Article

Access_open Legal Assistance and Police Interrogation

(Problematic Aspects of) Dutch Criminal Procedure in Relation to European Union and the Council of Europe

Journal Erasmus Law Review, Issue 4 2014
Keywords Legal assistance, police interrogation, Dutch Criminal Proceedings, EU Directive
Authors Paul Mevis and Joost Verbaan
AbstractAuthor's information

    This paper discusses the rise of a fundamental issue in Dutch criminal proceedings. The presence of a lawyer prior to and during police interrogations has for a long time been a matter open for debate in the Netherlands. Allowing legal assistance during and prior to police interrogations has been researched on several occasions in the previous century and the beginning of this century. In the Netherlands, one of the most important reasons for not admitting legal assistance was and is founded in the confident reliance on the professionalism and integrity of police officers and justice officials in dealing with the interests of suspects. However, after the Salduz case (ECHR 27 November 2008, Appl. No. 36391/02, Salduz v. Turkey), the Dutch government was compelled to draft legal provisions in order to facilitate legal assistance during and prior to police interrogations. The initial drafts still contained a hesitant approach on admitting the lawyer to the actual interrogation. The EU-Directive of November 2013 (Pb EU 2013, L249) set out further reaching standards compelling the Dutch government to create new drafts. In a ruling of April 2014, the Dutch Supreme Court (ECLI:NL:2014:770) argued that the judgements of the ECtHR were too casuistic to derive an absolute right to have a lawyer present during police interrogation. However, they urged the legislator to draft legislation on this matter and warned that its judgement in this could be altered in future caused by legal developments. The Dutch legislator already proposed new draft legislation in February. In this paper it is examined whether the provisions of the new drafts meet the standards as set out in the EU-Directive as well as by the ECtHR.


Paul Mevis
Paul Mevis is Professor of Criminal Law and Criminal Procedure at the Faculty of Law of the Erasmus. He has been a visiting professor at the universities of Münster, Mmabato (South Africa) and in Moldavia, the Ukrain and in Frankfurt an der Oder. Besides his academic activities, Paul Mevis is Honorary Judge at the Criminal Court of Rotterdam and Honorary Judge at the Court of Appeal in Amsterdam, since 1994 and 1998 respectively. He has been parttime Judge at the Court of Arnhem (1990-1994) and is member of the Commission of Supervision of prisons (2006-2008). Paul Mevis is also member of the board of editors of several journals in the field of criminal law and human rights law and commentator for the journal ‘Nederlandse Jurisprudentie’ on criminal cases. He was chairman of the ‘Commissie Strafvordelijke gegevensvergaring in de informatiemaatschappij’ (2000-2001), of which the report has lead to the Bill of the same name. He is a member of the School of Human Rights Research and the Research School on Safety and Security in Society.

Joost Verbaan
Mr. J.H.J. (Joost) Verbaan is an assistant-professor at the Erasmus School of Law of the Erasmus Universiteit Rotterdam. He teaches Criminal Law and Criminal Procedure law. Mr. Verbaan is the Managing Director of the Erasmus Center for Police Studies (ECPS). The ECPS organises courses on criminal and criminal procedure law for law enforcement agencies as well as the prosecution. Mr. Verbaan has been involved in many researches in the practical field of investigation. He has taken part in the research for the Governmental Institute of Scientific Research and Documentation on the effects of the presence of an attorney during the first police interrogation.For the same institute together with professor Mevis he researched the Modalities of Serving in comparative law perspective.He served the secretary of the Committee to draft a new Dutch Antillean Criminal Code and served the secretary of the Committee to draft a new Criminal Code for Aruba, Sint Maarten and Curacao. He served the secretary of the Committee to Draft a common Criminal Procedure Code in the Caribbean regions of Aruba, Curacao , Sint Maarten and the BES-territories. In the republic of Surinam Mr. Verbaan has worked in the legal advisory board of the Committee founded in order to codify a new Criminal Code for the republic of Surinam.

Willem-Jan Verhoeven Ph.D.
Erasmus School of Law, Department of Criminology, Erasmus University Rotterdam.
Article

Access_open Introduction: Staying out of court

Journal Erasmus Law Review, Issue 5 2008
Authors René van Swaaningen

René van Swaaningen
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