The Limit of Police Authority

By A. G. Kleijweg*

Recently I had a talk with a few people from various parts of Africa. They all told me that they were very scared of “the police”. Since they were legal residents and certainly decent members of society I was surprised.

In my point of view the police is not terrifying, only annoying; issuing speeding tickets for 6 kilometres over the limit on the highway at 6 o’clock on a Sunday morning.

These people told me that it was not the speeding tickets they worried about, but the possibility of getting caught by “the police” and the power the police could enforce on them, even though, they are no criminals.

This misunderstanding of how things work here made me write this article to explain what the police can do, when, why and for how long.

This article is not about speeding and parking tickets or other matters that happens in the realm of traffic control. It is about being questioned and perhaps arrested as a suspect of any kind of criminal offence.

This article is written on the basis of the assumption that the average policeman/woman is doing his best to do a difficult job, but has an off-day once in a while, and that only a few of them are nasty characters and therefore a disgrace to their uniform.

The legal system is adapted to the described situation and has checks and balances built in. For that reason it is so that one policeman is not doing all the work in a case, but only a part. He will be supervised by a higher ranking officer and above that by the Officier van Justitie (public prosecutor) and higher up by the Rechter- Commisaris (Judge of Investigations).

Let me make it clear that this article is not written for crooks. Crooks carry the card of their lawyer in their pocket and are obviously not afraid of the police; at least, not afraid enough not to be a crook anymore.

This article is intended to give general information to a public with good intentions. Still it can be useful because a person with good intentions who become a suspect. It could happen to anyone.

Imagine there is a simple verbal quarrel between two motorists. It becomes a serious quarrel and a sort of fight. Some bystanders or friends try to get the two separated, or take part in the fight, who knows, and injuries are suffered or cause.  The police arrive at the scene and find a bunch of angry people with bleeding noses, blaming each other for all kinds of terrible things. The poor policeman has to find out what happened, when and who did what at which moment in time and is then stuck with a bunch of suspects....

A police investigation will start when there is a suspicion a crime has been committed by a person.

If there is some information, not necessarily direct evidence, pointing towards a certain person; this person becomes a suspect. Research will be done, evidence will be gathered and in time it will become clear whether or not it can be proven that the suspect has committed a crime.

If there is enough evidence, usually the suspect will be brought to a court of law. The court will judge whether or not the evidence against the suspect justifies a conviction. If the suspect will be convicted the court will try to give a just punishment.

In the cases of average people who did not commit a very serious crime, and who committed no crimes before, the court is, in my experience not harsh. The punishment will be limited, often partly probational and usually intended to teach the culprit a lesson to behave well in future. Unless a person did something real bad, or makes it a habit to commit smaller crimes which therefore makes the person a crook, one does not have to fear the police and the legal system too much.

What will happen to someone in the time between becoming a suspect and standing on trial in court? If there is a reasonable suspicion against a person, this person becomes a suspect. A suspicion is reasonable when the information makes it likely that the suspect is linked to the criminal fact.

The police then can do several things. It is an option to tap the person’s telephone line and actions like that, but this is only in more serious and complicated cases.

If the suspect is seen by the police at the place of the crime or near it, the police usually arrest the person and start to ask all kinds of questions to find out more facts.

Another possibility is, if the event is not so recent, the police invites the suspect of which the name and address is known, to the police station for an interview. This is common practice in smaller cases. If the police decide to keep you, they will say so. Then you are “aangehouden” which means that you are being detained for 6 hours for questioning.

It is also possible that the police come to a suspect’s home or another place where he can be found and taken to the police station. This is also called “aanhouding”.  At this stage the aanhouding can last for 6 hours, excluding the hours of the night (24.00 hours until 09.00 hours).

Within this six hours the police has to decide whether they will set you free or whether the crime you are suspected of justifies a longer provisional detention or whether more interrogation has to be carried out, which requires your detention. 

Most of the time, the suspect is set free in minor cases. If the suspect has to stay longer, this decision will be made by the “Hulpofficier van Justitie” a senior police officer, not by the policeman who made the initial arrest. This is check/balance 1.

If the suspect must stay longer, it is called “Inverzekeringstelling”. From that moment on the suspect will be provided with a lawyer. This will be free of charge as the government pays the lawyer’s fee.

Do not make the mistake to think the lawyer is working for the government or the police. It is not so. Do not think the lawyer is not good because you do not have to pay him a fortune. The lawyer is experienced in this line of work and has qualified himself to do this kind of work.

The lawyer will come and visit you as soon as possible and will inform the suspect about the case, the procedure and will try to advice and assist where possible.

The detention can last for a maximum of three days. If the public prosecutor demands to hold the suspect in temporary custody longer, the demand will be judged by the Rechter-Commissaris (judge of investigation). The suspect and his lawyer will be given the opportunity to give their point of view on the case. 

The judge will decide whether the suspicion against the suspect is serious and well founded enough to keep him in detention for another fourteen days and whether it is necessary to do so. This is check/balance 2.

Usually, the public prosecutor does not easily grant demands to hold the suspect in temporary custody longer. The lawyer mentioned above will also be appointed to handle the case if it goes on trial which is usually the case.

This detention can last for a maximum of fourteen days. In average smaller cases, it stops here and the suspect will be sent home, knowing that in time he has to stand trial.

In more serious cases the public prosecutor demands to hold the suspect in temporary custody longer. The demand will be judged by the Raadkamer (Court Council) which comprises of three judges. The suspect and his lawyer will again be given the opportunity to give their point of view on the case. 

The Raadkamer will judge whether the suspicion against the suspect is serious and well founded enough to keep him in detention for a longer period, up to 90 days, whether it is necessary to do so and whether it is likely that a conviction will follow for a sentence as long as or longer than the temporary custody. This is check/balance 3.

Since the public prosecutor does not easily grant demands to hold suspect in temporary custody longer, except in more serious cases, it is usually granted. The lawyer mentioned above will continue to be the lawyer in the case and is therefore check/balance 4.

 Knowing this, there is not much reason to fear the police. The system is designed to give the police the possibilities to investigate but also to bother suspects, who might be totally innocent as well, no more than is strictly necessary and justifiable. Even if one has done something that one should not have done, but that is not terrible, the outcome will not be too terrible either.