Affidamento preventivo: quando è consentito e quanto può durare?

Preventive custody (voorlopige hechtenis) is permissible only if you are seriously suspected of an offence for which the law allows it, and there is a statutory ground such as a serious risk of flight. After at most nine hours of questioning and up to six days of police custody, a judge decides on each further step, which together can last up to 104 days before your trial starts; the main exception is that the court can suspend the detention under conditions at every hearing.

Dutch law sets a maximum period for every stage, from the first hours at the police station to detention pending trial, and names the authority who decides. Below we walk you through each stage and the time limits that apply.

Per quanto tempo la polizia può trattenerti per interrogarti?

For at most nine hours, if you are suspected of an offence for which preventive custody is allowed; for other offences the maximum is six hours. Under Article 56a of the Code of Criminal Procedure (Wetboek van Strafvordering, Sv), the time between midnight and 9:00 a.m. does not count.

The police may only arrest you if there is a suspicion of a criminal offence. At the police station, an (auxiliary) public prosecutor may hold you for investigation (ophouden voor onderzoek) without a judge’s permission. If this starts at 11:00 p.m., for example, one hour runs before midnight and the clock restarts at 9:00 a.m., so a nine-hour period ends at 5:00 p.m. the next day.

When that period ends, you are either released or the (auxiliary) public prosecutor orders that you are remanded in police custody.

Quali restrizioni può imporre il pubblico ministero?

From the moment of arrest, the public prosecutor may impose restrictions (beperkingen) under Article 62 Sv if this serves the investigation. In practice this can mean you may only speak to your lawyer, and not to relatives or other people.

The restrictions apply until the public prosecutor lifts them. Your lawyer can challenge them, and they are also reviewed whenever a judge decides on your detention.

Cos’è la custodia cautelare (voorlopige hechtenis)?

Preventive custody is the whole period a suspect can be detained pending criminal proceedings, governed by Articles 63 and following Sv. It requires an offence listed in Article 67 Sv, a serious suspicion of your involvement, and a ground in Article 67a Sv for keeping you detained.

The law does not specify exactly how much evidence a “serious suspicion” (ernstige bezwaren) requires. Full and convincing proof is not needed, but there must be a high degree of probability that you were involved in the offence.

How long can police custody (inverzekeringstelling) last?

At most three days, extendable once by up to three more days in case of urgent necessity (Article 58 Sv). The (auxiliary) public prosecutor orders the custody without a judge’s permission; only the public prosecutor can extend it.

You cannot be remanded in custody for every suspicion. Article 67 Sv allows it in three situations:

1. sei sospettato di un reato punibile con una pena detentiva massima di quattro anni o più;
2. you are suspected of specific offences named in the law, such as threatening (Article 285(1) of the Criminal Code), embezzlement (Article 321), negligent receiving of stolen goods (schuldheling, Article 417bis), or causing death or serious injury by dangerous driving (Article 175(2) of the Road Traffic Act 1994); or
3. Non hai una residenza fissa nei Paesi Bassi e il reato di cui sei sospettato prevede una pena detentiva.

Article 67a Sv adds a ground for keeping you detained: a serious risk of flight, or a weighty reason of public safety that requires immediate detention. The law spells out when such a reason exists, for example a suspected offence that carries a long prison sentence and has seriously shocked the legal order, a serious risk that you will commit another serious offence, a recent previous conviction for certain offences, or the need to establish the truth other than through your own statements.

After the three days you may be released, the custody may be extended once, or, if the investigation is sufficiently advanced, the public prosecutor asks the examining magistrate (rechter-commissaris) to order detention (bewaring). In practice the extension is rarely used.

Cosa succede durante l'udienza di convalida dell'arresto?

The examining magistrate hears you, with your lawyer, and decides on detention (bewaring) for up to fourteen days. The public prosecutor sends a copy of the file to the magistrate and your lawyer beforehand, and the hearing is not public.

Il giudice istruttore può decidere in tre modi:

1. accogli la richiesta: verrai quindi trattenuto fino a quattordici giorni;
2. rifiutare la richiesta: di solito si viene rilasciati immediatamente; oppure
3. Accogliere la richiesta ma sospenderla: il magistrato stabilisce delle condizioni e, finché queste vengono rispettate, non si è tenuti a scontare i quattordici giorni.

Quanto può durare la detenzione prolungata (gevangenhouding)?

At most ninety days. If the public prosecutor believes you should remain in custody after the fourteen days, the court (raadkamer) can order prolonged detention (gevangenhouding) for 30 to 90 days, after hearing you and your lawyer; a shorter first order can be extended up to that total of ninety days.

The court weighs society’s interest in your continued detention against your interest in being released. Grounds for a suspension can include caring for children, work or study, or participation in a supervision programme. Conditions can include a ban on entering certain areas or contacting certain people, surrendering your passport, cooperating with the probation service (reclassering), or paying a deposit.

Fourteen days of detention plus ninety days of prolonged detention makes 104 giorni, by which time your case must come before the trial court, usually at a first, pro forma hearing. The court can then keep you in preventive custody while the trial is adjourned.

What should you check if you or a relative is detained?

• When the holding for investigation started, and whether the nine-hour limit, excluding midnight to 9:00 a.m., was respected.
• Whether the custody order states the offence and the ground under Article 67 and 67a Sv.
• Whether police custody lasted longer than three days without a written extension by the public prosecutor.
• Whether restrictions were imposed, and whether they are still needed for the investigation.
• Which personal circumstances, such as work, children or study, support a request for suspension under conditions.

What can we do for you with preventive custody?

avvocati penalisti assist suspects from the first hours at the police station. We can:

• Check whether the time limits of Articles 56a and 58 Sv and the grounds of Article 67a Sv were respected.
• Assist you at the hearing before the examining magistrate on detention (bewaring).
• Prepare a request for suspension of preventive custody, with proposed conditions.
• Challenge restrictions on contact with relatives.
• Represent you at the hearing on prolonged detention (gevangenhouding) and at the pro forma hearings.

Sintesi

• The police can hold you for investigation for up to nine hours (six for lighter offences), excluding the hours between midnight and 9:00 a.m.
• Police custody (inverzekeringstelling) lasts at most three days, extendable once by up to three days (Article 58 Sv).
• Il giudice istruttore può disporre la detenzione preventiva (bewaring) per quattordici giorni, e il tribunale può disporre una detenzione prolungata (gevangenhouding) fino a novanta giorni.
• After 104 days in total your case must be before the trial court.
• The court can suspend detention under conditions at each of these hearings, so you do not always serve the full term.

Domande frequenti