Answer to questions by Member Van Nispen on providing a copy of the investigation file to next of kin only after an Article 12 proceeding has been conducted

Question 1
What do you think about the fact that next of kin can only finally force access to the investigation file on the death of their loved one after initiating an Article 12 Sv procedure (complaint of non-prosecution)? (1) (2)

Answer 1
There are three grounds on which next of kin may take cognizance of an investigation file.
The first category involves ongoing criminal proceedings. On the basis of article 51b of the Code of Criminal Procedure, next of kin can take cognizance (inspection and/or provision) of relevant procedural documents. They can submit a request to that effect to a public prosecutor. If the public prosecutor wants to refuse the request, he needs written authorization from a supervisory judge, who tests the grounds for refusal of the request.
The second category concerns cases in which there are no criminal proceedings. This category of next of kin is therefore not covered by the aforementioned statutory regulation. In response to a motion by Member Van Nispen, the Openbaar Ministerie (OM) amended the OM Instructions on Victim Care and Judicial and Criminal Records Act as of July 1, 2018. Since then, requests from next of kin for access to files have been dealt with generously in such situations. When it comes to providing files, the prosecutor treats requests more cautiously, given the protection of the personal data of third parties (such as witnesses or former suspects) contained in investigation files. This is in accordance with the motion, which states the importance of protecting the privacy of third parties.
The third category refers to an Article 12 complaint procedure of the Code of Criminal Procedure. That procedure deals with the prosecutor's decision not to prosecute. If a next of kin starts such a complaint procedure, the complainant can request to receive the investigation file. The Court decides whether to provide the file or part of it. If the Court so decides, the attorney receives the case file. Such provision is for the purpose of preparing the Article 12 complaint procedure. The general practice here is that the documents are provided only to the complainant's attorney. The attorney may not share these documents with his client or others.

So it is not necessary for next of kin to start an article 12 complaint procedure to force access to the investigation file. By their very nature, the various regimes do each have their own (review) framework when it comes to accessing or providing documents.

Question 2
Do you share the view that this does insufficient justice to the Van Nispen motion, which received parliamentary support, calling on the government to expand the opportunities for next of kin to have the investigation file examined while respecting privacy? (3)

Answer 2
Member Van Nispen's motion led to the aforementioned modification of the OM Directions. The Public Prosecution Service has informed me that it has been working on applying the new Instructions for the past six months. This does justice to the motion within the existing legal frameworks, including those regarding privacy. Possibly parts of the file can be provided more broadly, if there is no personally sensitive information in it or that information can easily be removed. The Public Prosecution Service has informed me that it is already doing this for documents that do not contain personal data. I have previously promised to monitor the application of the Instructions. In my discussions with the Public Prosecution Service about this, I will explore how the balance is and should be between taking into account the interests of witnesses and (former) suspects mentioned in files and those of surviving relatives.

I note in this regard that neither the granting of inspection or disclosure on the basis of the aforementioned Directions, nor disclosure on the basis of Article 12 Sv have the purpose of having further research (by third parties) conducted on the file.

Question 3
Why do next of kin receive a copy of the file only after initiating time-consuming proceedings (Article 12 Criminal Procedure Code), resulting in an unnecessary burden on the legal system and unnecessary delay and suffering of the next of kin?

Answer 3
I refer to the answers to questions 1 and 2.

Question 4
Are you willing to enter into discussions with the Openbaar Ministerie 's Office on this? If not, why not?

Answer 4
Yes.

(1) https://www.hartvannederland.nl/nieuws/2018/ouders-omgekomen-youri-bicker-krijgen-onderzoeksdossier-toch-in-handen/
(2) https://www.hartvannederland.nl/aanbevolen/2018/familie-overleden-jessica-van-room-krijgt-na-jaren-inzage-in-politiedossier/
(3) https://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vk9nptdfdiwa and https://zoek.officielebekendmakingen.nl/h-tk-20172018-61-7.html

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