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

Abstract

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

van Kempen, Piet Hein, 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 (July 12, 2018). 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). Available at SSRN: https://ssrn.com/abstract=3287898

Piet Hein Van Kempen (Contact Author)

Radboud University Nijmegen ( email )

Faculty of Law
PO Box 9049
Nijmegen, 6500 KK
Netherlands

HOME PAGE: http://www.ru.nl/english/people/kempen-p-van/

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