An arrest in the Netherlands sets a fixed sequence of periods running, and knowing where you are in that sequence tells you what can still happen and for how long. The single most important right at the start is the right to consult a lawyer before questioning and to have a lawyer present during it. Exercising it costs you nothing and gives up nothing.
Being stopped and being arrested
An investigating officer who deals with you as a suspect may establish your identity. Arrest itself takes one of two forms. Where you are caught in the act, any person may detain you and hand you over to an officer, and an officer may arrest you without further authority. Where you are not caught in the act, arrest is possible only for offences for which pre-trial detention is permitted, and it requires the authority of a prosecutor or assistant prosecutor.
The first hours
After arrest you are taken to a place of questioning, where a prosecutor or assistant prosecutor decides whether you are to be held for investigation. That period is limited to nine hours, and the night hours between midnight and nine in the morning do not count towards it. During this period your identity is established, you are informed of the offence you are suspected of, and you are given the opportunity to consult a lawyer.
You are not obliged to answer questions. The caution must be given before questioning begins, and silence is a right rather than an admission. What you are obliged to do is show a valid identity document when it is lawfully demanded.
Police custody and the examining magistrate
If the investigation needs more time, the prosecutor can order police custody for up to three days, extendable once by a further three days in exceptional cases. Within a set period you are brought before the examining magistrate, who assesses whether the arrest and detention were lawful and can order your release.
Detention can then continue in two further stages ordered by the courts: a first period of remand of up to fourteen days, and thereafter continued detention of up to ninety days. During that time the case is reviewed at hearings at which the defence can ask for release or for investigative steps – the pro forma hearings.
What to do, and what not to do
Ask for a lawyer immediately and do not answer questions about the substance before you have spoken to one, however innocuous the questions seem or however much you want to explain. Give your identity details. Do not sign a statement you have not read or do not agree with; you are entitled to have corrections made. Note the times: when you were arrested, when you were questioned, when you saw a lawyer. Those details matter later.
If you are released, that is not necessarily the end of the case. A decision on prosecution may follow weeks or months afterwards, and what was said in the first interview will still be in the file.
Oft gestallten Froen
Do I have to answer questions?
No. You must identify yourself when lawfully required to, but you are not obliged to answer questions about the offence.
Is a lawyer free?
Assistance at the police station is provided without cost to the suspect in the categories the law designates, and legal aid is available subject to income. Cost is not a reason to speak without advice.
Can my family be told?
You can ask for a relative to be notified of your detention, and there are additional rights for foreign nationals, including notification of the consulate.
Assistance after an arrest
The first twenty-four hours shape a criminal case more than any later stage. Our criminal lawyers assist at the police station, at the examining magistrate and at the hearings that follow. Please contact Law & More; we can usually act at short notice.
