The System of Criminal Investigation in the Netherlands

Abstract

This chapter provides the legal background to the criminal investigation in Dutch law, which concerns the knowledge required in order to assess the adoption of a system of anticipative criminal investigation. An in-depth analysis of the complex entity of regulations demonstrates how the synthesis between the sword and the shield objective was embodied in the regulation of the criminal investigation until changes were adopted due to counterterrorism measures. The analysis is based upon the statutory regulation of criminal procedure, the regulation of intelligence powers and administrative supervisory powers in relation to criminal justice and the judicial interpretation of the law (in both domestic courts and the European Court of Human Rights). For this purpose, the sword and shield tasks and the responsibilities of the different relevant actors are described, as well as the investigative powers attributed in the law for criminal investigative ends. The fundamental rights and principles underpinning the shield function of the criminal investigation are identified and their regulatory influence is analyzed. In that regard, specific attention is paid to the scope of the criminal investigative phase, the threshold of reasonable suspicion and the manner in which control over legitimate and fair criminal investigative activities is realized.