Advice after fatal incidents
Are you a bereaved family member of someone who died during or after an arrest by the police, the Royal Netherlands Marechaussee (KMar), or a municipal enforcement officer (boa)? You don’t have to go through this alone. We support bereaved families and have compiled several tips on what you can do.
Controle Alt Delete's Investigations
Since 2016, Controle Alt Delete has been investigating how many people die under the responsibility of law enforcement. In the Netherlands, one person dies each month during an arrest, while being transported, in a police cell, or in the hospital after police violence. Controle Alt Delete states that this does not mean all these people died due to the negligent actions of a law enforcement officer or that they acted criminally. It does mean, however, that these people died during or after their arrest, and thorough investigations are necessary to prevent future occurrences. Controle Alt Delete is dedicated to ensuring thorough investigations are conducted to understand what happened and how to prevent similar incidents in the future.
No Criminal Investigation
When someone dies, the police report this to the Public Prosecutor’s Office (OM). The OM can then decide to conduct a criminal investigation. Not all fatal incidents are investigated by the National Criminal Investigation Department (Rijksrecherche) and the OM. If the OM does not investigate and you want them to, you can file a report (aangifte). By filing a report, you request the OM to start a criminal investigation. You can include information with your report, as explained below in the civil procedure section.
Criminal Investigation
When the OM initiates an investigation, it instructs the Rijksrecherche to conduct it. The Rijksrecherche operates under the OM’s responsibility and is not independent. Often, the Rijksrecherche conducts the investigation with or in collaboration with police officers. According to the European Court of Human Rights, the investigation (or parts of it) should not be carried out by police officers from the same unit as those involved in the fatal incident, even if another authority is leading the investigation (Ramsahai and others vs The Netherlands, paragraphs 405-409).
The Rijksrecherche's investigation can take six to twelve months, sometimes longer. Family investigators from the Rijksrecherche contact the bereaved families and keep them informed about the investigation. They may also show available camera footage if the families wish to see it. During this period, families and lawyers can do little, and the wait can be psychologically very taxing.
As long as the Rijksrecherche is investigating, the OM is reluctant to grant access to the files or parts of them. Families can request access based on Article 51b of the Code of Criminal Procedure. The request must be sent to the public prosecutor handling the case. There is a significant difference between providing and granting access: providing means handing over or giving, while access means you can view the files without taking any documents home.
When the Rijksrecherche completes its investigation, they send the findings to the OM. Ultimately, the OM decides whether to prosecute the involved officers. Between 2016 and 2023, the OM decided not to prosecute the involved officer(s) in 94% of cases. The OM informs the bereaved families of this decision and may issue a press release. If the OM decides to prosecute, the case will go to court, which will determine if the involved officer(s) will be punished.
No Prosecution
If the OM decides not to prosecute (a decision known as a sepot), families can initiate a procedure under Article 12 Sv of the Code of Criminal Procedure). This procedure is conducted at the court of appeal. In this procedure, families ask the court of appeal to rule that the OM must still prosecute. It can take a year from the submission of the request until the hearing. The hearing is closed to the public, including journalists. The court's decision is usually not made public, except by the Amsterdam Court of Appeal, which always makes the decision public.
If the OM dismisses the case, the investigation by the OM is essentially closed. The court of appeal can order the OM to prosecute the officer(s) if the Article 12 Sv procedure is successful. However, the criminal investigation is essentially closed at that point. According to the law, it is possible at this stage to request the OM to provide (parts of) the file based on Article 39f of the Judicial and Criminal Data Act (Wjsg), subsection f. This article states that the file can be provided within the context of "assisting." The OM interprets assisting to include informing bereaved families and supporting them in the mourning and trauma processing. Families do not have a right to the file under the ‘Guideline for Judicial and Criminal Data’ but can submit a request. The request should be sent to the OM’s privacy officer. Address the letter to het OM, Parket-Generaal, t.a.v. de privacyfunctionaris, postbus 20305, 2500 EH Den Haag.
If the OM decides not to prosecute and families consider an Article 12 Sv procedure, the lawyer often receives the file from the OM for preparation for the Article 12 Sv case. Families do not usually get the file themselves, but the lawyer can allow them to view it at the lawyer's office. In some cases, the lawyer provides the file to the families. The reasons for this inconsistency are unknown. It is also unclear whether the OM would provide the file to families without a lawyer.
If the Article 12 Sv procedure is successful, the case is referred to the court for a hearing. This procedure is rarely successful. Since 2016, the court of appeal has referred only two cases on fatal incidents to the court. If the Article 12 Sv request is denied, families can only appeal to the European Court of Human Rights.
European Court of Human Rights
If the OM decides not to prosecute and the Article 12 Sv request is denied, families can go to the European Court of Human Rights. During a procedure at the European Court, it is possible to reach a settlement. The Dutch government may propose a settlement and financial compensation. If the Dutch government does not want to settle, or if the families do not want to settle, the European Court can issue a ruling. The European Court is not bound by deadlines, and it can take between 3 and 10 years for the Court to make a decision.
Civil Procedure
An alternative to a criminal investigation is a civil procedure. With a preliminary witness hearing, you can call witnesses and hear experts. The family of Sammy Baker, for example, used this procedure. You can also conduct your own investigation. The information obtained can be sent to the OM when filing a report. It can also be used in a civil procedure where you ask the court to declare the police officer's actions unlawful. In this procedure, you can also request compensation.
Lawyer
For all the procedures described above, we recommend seeking the help of a lawyer. This can be costly. We have asked the Legal Aid Board (RvR) about the rules for obtaining compensation for this. Lawyers call this an assignment. If a lawyer requests an assignment to assist bereaved families after an incident where someone died under police responsibility, and prosecution could occur, the RvR grants an assignment with code O013. There is no income or asset test, and no personal contribution is required.
If the lawyer requests an assignment to assist families of a fatal incident in an Article 12 Sv case, the RvR grants an assignment to the families with code Z180. An income or asset test is conducted, but no personal contribution is required.
It is not possible to receive both assignments, according to the Legal Aid Board. If the lawyer received an O013 assignment, but no prosecution occurred, and the families then initiate an Article 12 Sv procedure, the issued and free O013 assignment also applies to the Article 12 Sv case. In that case, no Z180 assignment is issued.