Onder 4 Hoge Raad 18 december 2018

Under the discretionary principle laid down in article 167, paragraph 1 of the Code of Criminal Procedure, it is up to the Public Prosecution Service to decide independently whether prosecution should take place following a criminal investigation. According to current case law, the decision to prosecute lends itself to substantive judicial review only to a very limited extent, since the sole ground on which a prosecution brought by the Public Prosecution Service can be declared inadmissible is that instituting or continuing the prosecution would be incompatible with the principles of due process (in so far as relevant here, the principles of equality of treatment and protection of legitimate expectations) as no member of the Public Prosecution Service could reasonably have concluded that prosecution or continued prosecution would serve any interest protected by enforcement under the criminal law. As this criterion necessitates judicial restraint, the reasoning given for any decision to hold that the case brought by the Public Prosecution Service is inadmissible must meet stringent requirements. This involves weighing the Public Prosecution Service's position on the interest served by the present criminal prosecution against the circumstances submitted by the defence, which are intended to show that the decision to prosecute is contrary to the principles of equality of treatment and protection of legitimate expectations, as argued in this case.

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