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The most common terms in cassation at Weening Criminal Lawyers are:
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What is cassation?
Cassation is a procedure at the Supreme Court of the Netherlands. The Supreme Court is the highest court in our kingdom. Your case will go there only after you have gone through all other procedures. In cassation, the Supreme Court tests only whether there are formal defects and whether the law was applied correctly.
What is the difference between cassation and appeal?
Cassation is different from the first instance hearing in the district court and in appeal to the court of appeals. The court and the court are also called the fact judges. They review the facts and look at whether or not something happened. They also look at all the circumstances. The Supreme Court is not a fact judge. This means that the Supreme Court will not review the substance of your case. Therefore, you cannot, for example, have new witnesses heard by the Supreme Court or present new facts.
When can you appeal in cassation?
If you have been convicted of a crime on appeal, you can file an appeal in cassation. If you have been convicted of an offense, you can also appeal in cassation unless you have been fined less than €250 for this offense. Finally, the law lists a large number of decisions for which an appeal in cassation is available. Our cassation lawyer can tell you in which cases this is possible.
By what deadline should you file cassation?
If you disagree with a ruling of the court or of the court, you must generally file an appeal in cassation within two weeks of this ruling. In some cases, the period within which an appeal in cassation must be filed differs from the two-week period. Our cassation lawyer will be happy to give you further information about this.
Do you need a cassation lawyer?
You can file your own appeal in cassation if you disagree with a court judgment or in certain cases if you disagree with a court order. However, in order to litigate, compulsory legal representation applies. Proceedings in cassation require in-depth knowledge of the law and case law, as well as legal-technical skills. Few attorneys specialize in cassation proceedings. To contribute to improving the quality of legal assistance in criminal proceedings at the Supreme Court, the Association of Cassation Lawyers in Criminal Cases (VCAS) established. Our cassation lawyer is a member of this association. Our cassation lawyer has successfully filed cassation briefs on numerous topics.
How does the cassation procedure begin?
After filing the cassation appeal, the Supreme Court will request all documents from the district court or court of appeals. In practice, this will take several months. Once the Supreme Court has received these documents you will receive a letter from the Supreme Court: the so-called notice of appeal. 60 days after receiving this letter, a cassation petition must be filed with the Supreme Court. If this is not done, you will be declared inadmissible in your cassation appeal. Your case will then be disposed of by the Supreme Court without any review. In the cassation document, the lawyer will further explain the objections against the contested decision. This could include complaints about premeditation, intent, co-perpetration, failure to hear witnesses and insufficient motivation of judgments. Our cassation lawyer has successfully filed cassation briefs on numerous topics.
After filing the writ there are two options. The Supreme Court can declare the cassation appeal inadmissible or the Supreme Court can continue the proceedings.
In what cases will your cassation appeal be declared directly inadmissible?
Section 80a of the Judicial Organization Act allows the Supreme Court to declare a cassation appeal inadmissible without justification. The Supreme Court can do so if the complaints cannot lead to cassation, if the party filing the appeal has too little interest, or if the district court or court of appeals has ruled correctly based on previous Supreme Court decisions.
Examples of cases declared inadmissible in cassation are:
- the appellant does not raise in his cassation appeal a reason related to interpretation of the law or procedural rules.
- the applicant complains about an interpretation on which the Supreme Court has previously ruled.
- the stakes are too small, for example, a case with a low fine.
- the trial court adequately and intelligibly explained the ruling.
- new facts are presented in the cassation petition.
How will the proceedings proceed if your cassation appeal is declared admissible?
The other option is for the Solicitor General, an independent advisor to the Supreme Court, to write an opinion for the Supreme Court. This opinion is called a conclusion, and in this conclusion the Solicitor General advises the Supreme Court. Often this opinion is followed by the Supreme Court. However, the Supreme Court is not bound by the opinion and may decide otherwise.
What can the Supreme Court do if it departs from the conclusion?
The conclusion is followed by the Supreme Court's ruling. Even after the conclusion, the Supreme Court may declare the cassation appeal inadmissible. The Supreme Court can do so with a standard justification included in Article 81 of the Judicial Organization Act. This standard reasoning implies that the complaints in the case in question cannot lead to cassation and that the Supreme Court need not give reasons for this determination other than that no legal questions of importance to the unity of law or the development of law have been raised. The Supreme Court may also dismiss the cassation appeal and provide an explanation as to why what has been argued should be rejected in cassation.
What can the Supreme Court do if it agrees (in part) with the attorney's writing?
The approach to cassation proceedings is for the Supreme Court to overturn the earlier ruling. In certain cases, the Supreme Court can then dispose of the case itself. In most cases, however, the Supreme Court will refer the case (back) to the trial court. The trial court must then review and decide the case again, taking into account the Supreme Court's ruling.
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