What is an arraignment with the magistrate judge?
An arraignment at the magistrate's court occurs after the prosecutor orders it. The prosecutor then asks the magistrate judge to order that a person be detained an additional 14 days. This is the first time the attorney has a case file.
What will be looked at during the arraignment at the magistrate's court?
The arraignment takes place behind closed doors and can be attended only by the accused, the lawyer, the prosecutor and the examining magistrate. In minor cases, the parents may also attend the arraignment. The examining magistrate must - in brief - answer a number of questions:
- Is there any serious objections? There must be a serious suspicion toward a suspect, otherwise the suspect will be released immediately.
- Are there soils for pre-trial detention? These might include the recidivism ground (has someone been previously convicted of a similar crime?), the 12-year ground (a serious crime has been committed and society will be shaken upon release) or the flight ground (a suspect might flee upon release). If there are no grounds for pretrial detention, the suspect is released immediately.
- Does the anticipation order? This means that a defendant may be detained longer than a possible prison sentence that will be imposed.
- Should pretrial detention be suspended? While there are serious objections and grounds, the personal interest of a suspect should outweigh the criminal interest in detaining someone.
The criminal lawyers at Kötter, L'Homme & Plasman Advocaten have extensive experience with arraignments before the examining magistrate. They know which points matter and ensure that everything is done to get a client released. If a friend or family member is arrested, it is important to contact us as soon as possible so that one of our lawyers can act during the arraignment.
How long does detention last?
Imprisonment lasts a maximum of fourteen days. A suspect is then generally taken to a house of detention somewhere in the Netherlands. Extending the period of detention is not possible. Should the public prosecutor find it necessary to detain someone longer, he or she will issue an order to detention have to file with the court.
What does an attorney do at arraignment?
During the arraignment, the attorney may request that the claim be dismissed.
1) No serious suspicion? Suspect must be released!
A lawyer at Kötter, L'Homme & Plasman Lawyers may argue that there are no serious objections and therefore the claim for detention should be rejected. This means that there is insufficient evidence that the suspect is guilty of the crime of which he is suspected.
If the magistrate judge follows this position of the defense, the defendant will be released immediately.
2) What are the grounds for pretrial detention?
Furthermore, the magistrate judge must assess whether there are grounds for granting the prosecutor's claim. The grounds will be discussed below.
- Danger of flight: there must be serious consideration that the accused will flee.
- Collusion risk: serious consideration must be given to the fact that if the accused is released he/she will interfere with the criminal investigation.
- Risk of recidivism: serious consideration must be given to the fact that the defendant will re-offend upon release.
- 12-year ground: the 12-year ground can be the ground for pre-trial detention if it concerns a criminal offense punishable by law by imprisonment for 12 years or more and, in addition, it must shock society if the suspect would be released.
A lawyer at Kötter, L'Homme & Plasman Advocaten may argue that no grounds are present. This makes the prosecutor's claim to be rejected by the examining magistrate. The suspect will then be released.
3) What is the anticipation commandment?
In addition, the attorney may argue that serious consideration should be given to the possibility that the suspect, if convicted, will not be given an unconditional custodial sentence or measure involving deprivation of liberty, or that the sentence will not exceed the time the suspect has already been detained. This is included in article 67a paragraph 3 of the Code of Criminal Procedure and is also called the anticipation order mentioned. If the magistrate judge follows this position of the defense, the defendant will be released.
4) Lawyer needed suspension of detention/remand?
As a last resort, the defense may ask for the detention to be suspended. This means - simply put - that while the examining magistrate grants the prosecutor's request, the defendant is allowed to await his trial at liberty. Conditions may be attached to this suspension. These may include a ban on contact with persons appearing in the criminal investigation. You may also consider probation supervision and other (special) conditions. For example, a lawyer looks at the suspect's personal circumstances, work, school, care for another person, etc.
Arrested and arraigned? Find a lawyer!
It is advisable to be assisted by a lawyer from Kötter, L'Homme & Plasman Attorneys at Law during the arraignment with the examining magistrate. Please visit this link more about the lawyer's role in the criminal process.
If you have any questions about this, please feel free to contact our office. You can send an e-mail to info@klpadvocaten.nl or (during office hours) call 020-6731548. In case of emergency (you or someone you know may soon be arrested), please contact us at our emergency phone number 06-24428734.
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