Summary
Chance of cassation in criminal cases
Empirical study of the chance of cassation in summonsed cases 1 handled by the Supreme Court of the Netherlands in the period from 1997 to 2001
Summary
The results and conclusions of this empirical study deal with the question of whether and to what extent cassation in criminal cases is predictable. How likely is the Supreme Court in cassation to quash the decision of the judge of fact because the arguments of the petitioners do stand up to scrutiny?
The data for the answer to this question came from the years 1997 to 2001. It became clear that the extent to which and on the basis of which data the chance (see the
chance model of Laplace, Chapter 3) of cassation in relation to the submitted cassation grounds for appeal, in similar circumstances could be predicted with a reliability of minimally 95 per cent. This relates here to cassation (partly) on the grounds for appeal as a result of (partly) founded grounds for appeal, or grounds for appeal that (jointly) form the reason for proprio motu cassation. The collective term ‘successful grounds for appeal” is used for these cassation grounds for appeal, see Chapters 3, 2. and 4.1. The reliability of prediction of at least 95 per cent is connected to the term ’95 per cent reliability interval’ from statistics, which is explained in more detail in Chapter 4.
At the time this study was set up and executed, there was no representative picture of the reality in cassation. As Snijders previously noted for civil jurisprudence (1978), the published jurisprudence in criminal cases also does not provide that picture. A
representative sample of cassation appeals was needed to gain insights into the cassation appeals of individual petitioners. The number of cases in which the Public Prosecutor makes an appeal in cassation is so small that no restriction was needed here to finish the study within a reasonable time.
It was decided to examine appeals in cassation in summonsed cases – the most frequent sort of criminal case in which the Supreme Court pronounced judgment in the years from 1997 to 2001. Thus an image of the reality during that period was obtained.
After testing legal and situational research hypotheses (see Chapter 6), the chances in cassation could be quantified and compared. Where that reality has been mapped out using a sample, these are always estimated chances; see Chapter 4.
This showed how large the average chance of cassation is per type of petitioner and what the influence of the cassation judge is on that chance, without correction for the influence on chances in cassation of the types of cassation grounds for appeal. Without this correction, it appeared there were differences in the chance of cassation. Namely between individual petitioners and the Public Prosecutor as petitioner, between ‘slow’
and ‘fast’ cassation appeals, in the number of grounds for appeal submitted and the origin respectively the sort of criminal cases, according to the conclusion of the Advocate-General to the Supreme Court and in the decision making of the Supreme Court sitting with three or five judges; see Chapter 7, 1.2. The terms ‘fast’ and ‘slow’
serve to distinguish between cassation appeals with a (lower than) average respectively above average duration of court procedures: that is to say the time from the date of the judgment or sentence that is being objected to in the cassation appeal and the date of
1
In the Dutch legal system, cases are taken to appeal at the Supreme Court either as a result of a
sentence handed down by a lower court – summonsed cases – or as a result of a court order made by a
lower court – petition cases.
Introduction.
In addition it showed, after correction for the influence of types of grounds for appeal, which arguments petitioners had used most often and which were the most effective or the least effective at convincing the cassation judge; see hereafter in the shaded
passages. Chances for cassation are greater or smaller than average, according to the types of cassation grounds for appeal that petitioners submit. This depends on the degree to which the successful appeals of this type occur in the opinion of the Supreme Court and on the degree to which the Supreme Courts actually quashes a court decision after encountering successful grounds for appeal. In this the influence of the cassation judge him/herself has a role to play. With some types of successful grounds for appeal the Supreme Court always squashes the sentence; see Chapter 6.
It is not possible to exclude the possibility that the chance of cassation is influenced by the lack of a representative, up-to-date image of the reality in cassation, among process participants in all phases of the criminal proceedings. In particular this relates to the information position of the judge of fact, the prosecution and the barrister. Along with the non-representative image of Dutch jurisprudence in criminal cases of the
summonsed case type, the annual figures and the explanation of them from the
Supreme Court itself in the research period offered general information; see Chapter 2, 3.3.2 and 3.2. This situation is no different at the time of concluding this manuscript (autumn 2006).
Chances of cassation: general
Predictions of the chances of cassation in cassation appeals submitted by petitioners to the Supreme Court are possible when circumstances remain the same.
Without correcting for the influence of other case characteristics – such as type of grounds for appeal – cassation in criminal cases is (in part) successful on the grounds for appeal of an argument that holds water, a successful cassation ground, a rare phenomenon, except for the relatively small number of cases in which the Public Prosecutor instigates a cassation appeal. Leaving deviations from this aside, individual petitioners have an average chance of cassation in one in every eight cassation appeals, the Public Prosecutor in more than one in two cassation appeals. On an average of seven out of every eight cases, the individual petitioners conduct their case against correctly taken court decisions.
No declaration has been found in terms of differences in factors from the cassation procedure itself for this difference in chance between individual petitioners and the Public Prosecutor as petitioner, see the conclusion about hypothesis III, Chapter 6, 4.3.
For both types of petitioners in cassation, the chance of cassation of fast cassation appeals when decided by a Supreme Court sitting with five judges is significantly greater than average. The explanation for this is that the Supreme Court sitting with five judges, more often than average for that duration of court procedures, encounters successful grounds for appeal and moreover often actually quashes the sentence; see Chapter 6, Conclusion hypothesis III and Chapter 7, 1.2.5.
For both types of petitioner for cassation, the role of the advocate-general as the most important advisor does not actually differ, measured in terms of the result of his conclusion. In all cassation appeals where rejection follows, there is a very high
consensus between the Supreme Court and the Advocate-General about the outcome:
Chance of cassation without correction for
influence of types of grounds for
appeal
Summary
for individual petitioners that is the case in 96.1 per cent of those cases 2 . Also with cassation appeals by the Public Prosecutor, the Supreme Court and its advocate-general only disagree occasionally about the outcome with rejection. In all cassation appeals where cassation follows, there is, in four out of five cases, unanimity about that
outcome, when only a few indicators for deviation from that are ignored: see Chapter 7, 1.2.4.
Possible explanations for the difference in chance between both petitioners for
cassation can be found in difference in the choice of the target, the type of grounds for appeal to be entered and the influence of the duration of court procedures.
Individual petitioners mainly contest decisions on main questions (art. 350 Dutch Code of Criminal Procedure) whether or not combined with decisions on pre-trial questions, however in 43 per cent of the cassation appeals the Public Prosecutor only contests decisions on pre-trial questions (art. 348 Dutch Code of Criminal Procedure); see Chapter 5 Part 1, subsection A and B. Both types of petitioners only chose the same types of cassation grounds for appeal in a few cases. The favourite and relatively low- chance themes for grounds for appeal were for individual petitioners: evidence and the furnishing of proof, the handing down of punishment and the motivation for this. See Chapter 6.
Other than when the Public Prosecutor is the petitioner, the duration of court procedures with cassation appeals does influence the chances in cassation of individual petitioners.
This was apparent in crimes against property, Opium Act crimes and crimes related to
‘Overige Wetten’. The reason is that when cassation appeals by individual petitioners are slow significantly more cases occur with successful grounds for appeal, than is the case with fast cassation appeals. Duration of court procedures is therefore a so-called non-independent characteristic for cassation; see Chapter 7, 1.1.
Chances of cassation in cassation appeals by the Public Prosecutor
In circumstances that are identical, the chance of cassation for the Public Prosecutor as the petitioner – without correction for other characteristics of the case in cassation appeals – is greater than those of individual petitioners. A possible explanation lay during the research period in a greater chance of cassation in cases involving fast cassation appeals with certain types of cassation grounds for appeal, namely related to the description of the crime 3 and to the non-admissibility of the Public Prosecutor for reasons other than non-timely trial 4 ; see Chapter 6, 4.3. Conclusion relating to
hypothesis III. These two types of grounds for appeal were the second most frequently submitted grounds for appeal in cassation appeals by the Public Prosecutor during the research period. Only further research can determine whether the relatively large chances of the Public Prosecutor with these types of grounds for appeal occurred
2
Reliability interval: [93,4%-98,7%].
3
i.e. grounds about the basis of the indictment and applicability of the description of the crime in relation to decision by virtue of Art. 350 Dutch Code of Criminal Procedure and about the applicability of the crime description by reaction of the judge of fact to express rejection on this point by virtue of Art. 358 Dutch Code of Criminal Procedure.
4
i.e. grounds about non-admissibility of the Public Prosecutor in connection with “other legal rules” about the right to prosecute, and in connection with the principles of good process order and other aspects of admissibility of the Public Prosecutor. Further about the non-admissibility of the Public Prosecutor (for other reasons than charge within reasonable time) in the case of reaction from the judge of fact to express defence on this point by virtue of art. 358 Dutch Code of Criminal Procedure and grounds about
Cassation appeals by
the prosecution
The amendment introduced to Article 359 clause 2. Dutch Code of Criminal Procedure since 1 January 2005 can affect the chance of cassation for the Public Prosecutor 5 . The judge of fact must provide additional motivation when there is a deviation from
“expressly founded standpoints” of the Public Prosecutor about the pre-trial questions, the qualifications and the punishability of the fact and perpetrator. Non-equivalent circumstances can therefore not be excluded, if the Public Prosecutor adopts such standpoints and submits these types of grounds for appeal to the court in cassation.
The policy of the Public Prosecutor to institute or not to institute cassation appeal has not been made visible. During the research period the Public Prosecutor used the route of cassation appeal relatively frequently in judgments from the Courts of Appeal in The Hague and Amsterdam, as well as in ‘Overige Wetten’-cases. Cassation appeals by the Public Prosecutor against judgments in the Dutch Antilles and Aruba did not occur during the five years investigated.
Chances of cassation in cassation appeals by individual petitioners
With individual petitioners it relates to equivalent circumstances (see Chapter 7, 3.1) for cassation appeals where, as far as the outcome is concerned, within the criminal
division of the Supreme Court there is often consensus so that decision making takes place with three justices. The Supreme Court takes standard decisions in an estimated three out of four cases (‘case-list cases’, including summonsed cases). With rejection of admissible cassation appeals in these cases (including summonsed cases) confection – in the form of a decision with a minimal motivation of Art. 81 Act R.O. – does now occur relatively more often than in the research period; See Chapter 2, 3.2. and Chapter 7, 1.2.6. During the period investigated the Supreme Court improved errors made by the judge of fact pointed out by petitioners in cassation grounds for appeal. That happened for example by improved reading. Improvements occur according to the state of affairs in 2006 “(…) more often than was previously the case (…)” 6 .
During the research period the Supreme Court quashed judgment proportionally most often because the trial had lasted too long. The duration of the procedure influenced the chance of cassation, in slow cassation appeals from individual petitioners with grounds for appeal concerned with violation of the reasonable time for trial that referred to treaties.
Individual petitioners complained the most often about the non-timely conduct of the trial with reference to the EVRM and/or the IVBPR. Estimates indicate that between 27 and 57 per cent 7 of the slow cassation appeals about which petitioners complained during the period investigated, contained during the research period a successful ground of this type and concluded with cassation. Such a cassation ground relating to the
timeliness of the trial process led the most often during the research period in the case of individual petitioners to cassation; see Chapter 7, 1.4.5.1.
5
The Supreme Court gives after an extensive and well-considered final grounding by Advocate-General Knigge, its vision of the scope of the response duty of the judge of fact on the grounds of this article; HR 11 April 2006, NJ 2006, 393 m.nt. Buruma.
6
G. van Westerloo, ‘Het hoogste woord [The last word]’, M het maandblad van NRC Handelsblad, May 2006, p. 16-33.
7
Namely 42,4 per cent [27,9%-57,0%] of the cassation appeals with an above-average duration of the procedures in court.
Cassation appeals by
individual petitioners
Summary
Differences occurred here, depending on the origin of the decisions disputed in the cassation proceedings and the sort of criminal case; see Chapter 6, 3.4.2 (sub- conclusion B hypothesis 4) and 4.2.1. (sub-conclusion A hypothesis II).
The duration of court procedures in the cassation appeals can be influenced: a characteristic, depending on the judiciary itself. The judge of fact and the cassation judge both influenced the chance of cassation during the research period because they define the duration of the procedures in court in cassation appeals: the judge of fact who worked out the judgment against which petitioners initiate cassation appeal, and the Supreme Court that handled the cassation appeal. That influence on the chance of cassation, can explain part of the flow of cassation appeals and – in unchanged
circumstances – sustain it. Because petitioners have no influence on the duration of court procedures it is understandable why petitioners in many cases from the research period in any case regarded that duration or a part thereof as a target for cassation appeals, separately from the other merits of a criminal case; see Chapter 7, 1.2.3.
The proportion of the duration of court procedures in cassation appeals that is
accounted for by the judge of fact deserves to be given special attention; see Chapter 7, 2.3. In the period from 1997 to 2001, it appeared among individual petitioners that there was large difference in the duration of court procedures of cassation appeals against judgments from various courts. In cassation appeals against judgments from the communal court of the Dutch Antilles and Aruba, the Courts of Appeal in
Amsterdam, Den Bosch and Leeuwarden a longer duration of court procedures than average was found significantly less frequently. Assuming that the cassation court after the receipt of criminal dossiers internally used the same procedure regardless of the origin of the criminal cases, then differences in duration of court procedures can be attributed to time taken at the lower courts: namely for the working out of the judgments in criminal processes with a view to the cassation procedure.
In the event of circumstances that remain the same and without correction for the influence of other characteristics such as types of grounds for appeal, individual
petitioners in fast cassation appeals have, on average, more chance of cassation if they only submit a single ground. (Indications for) deviations occur according to sorts of crimes; see Chapter 6, Hypothesis II (4.2.) and Chapter 7, 1.2.3.
If petitioners lodge more than one ground for appeal – i.e the most frequent type of cassation appeal by individual petitioners – there was in the research period in fast cassation appeals a significantly smaller than average chance of cassation for that number of grounds for appeal. This could be explained as the Supreme Court encountering successful grounds for appeal less frequently than average in the submission of several grounds for appeal.
Since almost six out of every ten fast cassation appeals in the research period had more than one ground 8 , there was then without correction for the influence of types of
grounds for appeal, a significantly smaller than average chance of success for more than half of the fast cassation appeals by individual petitioners. One possible
explanation for this is, along with the choice of grounds for appeal, other case
characteristics other than duration of court procedures and the number of grounds for appeal; see Chapter 6, 4.2.1. ( Table c ).
Cassation appeals with
more than one ground for appeal in
period 1997 to 2001
petitioners would result in cassation. A considerable proportion of these cassation appeals had then an above-average chance of cassation. In the research period, this was the case in cassation appeals against judgments from the Courts of Appeal in Amsterdam and The Hague with more than one ground and in fast cassation appeals with several grounds for appeal against judgments from the Arnhem Court of Appeal;
see Chapter 7, 1.2.
There were conspicuous differences in the chance of cassation in the research period when distinguishing between fast and slow cassation appeals of individual petitioners with more than one ground, according to the origin of the criminal case (see Chapter 6
Table i to Table m ) and sort of criminal case (see Chapter 6 T able d to Table h ).
Without correction for influence of types of grounds for appeal it appeared, if fast cassation appeals were involved that individual petitioners had a lower than average chance of cassation in property crimes ( Table f ) or if they appealed against judgments of the Den Bosch Court of Appeal ( Table m ). They had an above average chance of cassation with Opium Law crimes ( Table g ) or as the case may be when appealing against
judgments made by the Courts of Appeal in Amsterdam, The Hague and Arnhem ( Table j, k and l ). In the case of slow cassation appeals individual petitioners had a lower than average chance of cassation in ‘Overige Wetten’-cases ( Table h ). With slow cassation appeals, they had an above average chance of cassation in property crimes ( Table f) and when they appealed against judgments from the Courts of Appeal in Amsterdam and The Hague ( Table j and k ).
And in cassation appeals related to violent crimes (including sexual crimes) the chance of cassation was in certain circumstances – depending on duration of procedures and number of grounds for appeal lodged – possibly below average; see Chapter 6 Table e . This is not a significant image but because it concerns the relatively largest proportion of cassation appeals by individual petitioners it attracts attention.
For the chances during the research period in these cassation appeals with more than one ground – both fast and slow – more than one (possible) explanation can be given because many combinations of cassation grounds for appeal are possible; see Chapter 6 at hypothesis II. When lodging more than one ground there are for that reason
indications that cannot be excluded for non- equivalent circumstances: the chances of cassation outside the investigated period can thus be different to those found. For that reason predictions for cassation appeals with more than one ground have not been made; see Chapter 7, 1.2.3.
The chance of cassation can be predicted in similar circumstances, if individual petitioners lodge two types of grounds for appeal. This prediction applies to fast and slow cassation appeals, and a correction has been made for the influence of types of grounds for appeal submitted and not for the influence of the other case characteristics of cassation appeals; see Chapter 7, 1.3.
In similar circumstances individual petitioners have a small chance, estimated as a below average chance of cassation, with grounds for appeal relating to the description of the crime and with grounds for appeal about the non-admissibility of the prosecution for other reasons than non-timely trial.
In the research period there were indications for a greater than average chance of cassation in cassation appeals with grounds for appeal concerned with the description
Chance of cassation
after correction for
influence of types of grounds for
appeal
Summary
of the crime, if certain characteristics (sort of criminal case, origin of the contested judgment) occurred. In cassation appeals with grounds for appeal about non- admissibility of the prosecution for reasons other than non-timely trial there were indications that if a particular ground appeared to be successful, then cassation always followed.
Individual petitioners in the research period most often submitted grounds for appeal about evidence, in particular about the reasoning of the proven declaration (see Chapter 6, sub-conclusion C about hypothesis 2), and about punishment i.e. grounds for appeal about the punishment being handed out exceeding the prosecution’s demand, the reaction of the judge of fact to a defence asking for a punishment-reducing ground to be applied and on the imposition of ‘detention at the disposal of the government with confinement in a secure institution or hospital’ (see Chapter 6, sub-conclusion D about hypothesis 1).
In the research period these cassation appeals had a small, i.e. lower than average, chance of cassation. That also applies to cassation appeals with only other types of grounds for appeal in connection with evidence and the furnishing of proof. Namely cassation appeals with ground after ‘certain evidential defence’ considered by the judge of fact; i.e. pleas about improperly obtained evidence and about the reliability and exclusion of evidence (see Chapter 6, sub-conclusion A hypothesis 2) and cassation appeals with grounds for appeal according to ‘Meer- en Vaartverweren’ or
‘Dakdekkerverweren’ with the judge of fact (see Chapter 6, sub-conclusion B Hypothesis 2).
Non-similar circumstances cannot be excluded in these cassation appeals since the changes that were made as of 1 January 2005 to Article 359 clause 2 Dutch Code of Criminal Procedure. Further motivation by the judge of fact is needed in deviation of
“expressly reasoned standpoints” of suspects who are affected by the decision of the judge of fact about the evidence and the handing down of punishment and/or
disciplinary measures. Non-similar circumstance cannot therefore be excluded, if petitioners adopt such standpoints and submit types of grounds in cassation about evidence and punishment; see Chapter 7, 1.4.5.1.
Thus predictions have not been made about the chance of cassation of cassation appeals with grounds for appeal about timely trial whereby petitioners point to treaties, because in some of these cassation appeals since 1 January 2005 changed
circumstances cannot be excluded. These are namely to the extent that petitioners have adopted “expressly reasoned standpoints’ with the judge of fact about reasonable time questions that affect the decision of the judge of fact about the punishment and/or measure to be handed down. No other chance of cassation then in the research period occurs – under otherwise similar circumstances – in cassation appeals with other grounds for appeal about timely trial. This is namely that grounds for appeal have been lodged after a defence has been conducted in actual instance or standpoints have been taken that affect the decision of the judge of fact on the pre-trial question into the admissibility of the prosecution in connection with timely trial. In this the history with the judge of fact unchanged. Alternatively, those grounds for appeal about timely trial have been submitted where petitioners complain about the amount of time that has elapsed since the judge of fact handed down judgment contested in cassation.
(possible) influence of
altered circumstance
s;
Articke 359 clause2
(new) Netherlands
Code of Criminal Procedure
