The Right to Fair Preliminary Investigation and Trial for Vulnerable Defendants. The law of the European Convention on Human Rights, European Union Law and the Case of the Netherlands
in Ronnie Mackay & Warren Brookbanks (eds), Fitness to Plead: International and Comparative Perspectives (Oxford: Oxford University Press 2018) pp. 231-253 (Oxford Monographs on Criminal Law and Justice)
26 Pages Posted: 12 Dec 2018
Date Written: July 12, 2018
Mainly as a result of the nature of criminal procedure in the Netherlands, which till recently could be characterized as a modern moderate inquisitorial system, the fitness to plead principle has been rather underdeveloped here. This chapter analyses how the European Convention on Human Rights, EU Directives and the increase of adversarial elements in an originally inquisitorial criminal justice system are now catalysing the fitness to plead principle. Fourteen recommendations will be provided for what is considered a necessary reinforcement of the legal position of defendants who possess insufficient abilities to adequately participate during criminal proceedings – both preliminary investigation and trial – or who are even unfit to stand trial. The recommendations are based on a detailed analyses of criminal procedure law of the Netherlands, case law of the European Court of Human Rights and several EU Directives that are relevant for the fitness to plead principle.
Keywords: fitness to plead, Dutch criminal procedure, European Convention on Human Rights, EU law, effective participation, adversariality
JEL Classification: K14, K33, K40, K41
Suggested Citation: Suggested Citation