Alinea 208 Parket bij de Hoge Raad 26 juni 2018

372. In my view, the mere fact that amnesty has been granted to the defendant abroad cannot mean that his prosecution in the Netherlands is in breach of a principle of unwritten law. When assessing the defence’s argument based on the principle of legitimate expectations and the principle of equality of treatment, the Court of Appeal has rightly presupposed (at A.2), first, that the decision to prosecute lends itself to substantive judicial review only to a very limited extent, since it is only in exceptional cases that a prosecution brought by the Public Prosecution Service can be declared inadmissible on the ground that instituting or continuing the prosecution would be incompatible with the principles of due process and, second, that where a court finds that exceptional circumstances do exist and that the prosecution brought by the Public Prosecution Service must therefore be declared inadmissible its reasoning must meet stringent requirements. The Court of Appeal’s finding that the principle of legitimate expectations is not violated by an amnesty granted abroad is based on the view that only promises attributable to the Public Prosecution Service can give such a legitimate expectation of non-prosecution (or discontinuation of prosecution) that a subsequent prosecution will fail for this reason (at A.2.2). This view is correct. An amnesty granted by a foreign state is in any event not attributable to the Dutch Public Prosecution Service. However, those who have framed this ground of appeal in cassation still attach some value to a submission that was also made before the Court of Appeal, namely that the Netherlands endorsed and/or actively contributed to the introduction of the Liberian amnesty scheme. However, government bodies that operate in fields that have nothing whatever to do with investigation and prosecution cannot make a promise (or apparent promise) on behalf of the Public Prosecution Service that no prosecution will be brought. As the scope for review of the prosecution decision is very limited, the mere fact that a prosecution takes place in spite of an amnesty granted abroad cannot, without additional and extraordinary circumstances, conflict with one of the other principles of due process.

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