Nkwekọrịta usoro na iwu mpụ Dutch: ikpe okpu agha ọlaedo

A process agreement (procesafspraak) is an arrangement between the Public Prosecution Service and the defence about how a criminal case will be conducted or concluded: the defence gives up specified procedural steps and the prosecution narrows the charge or moderates its sentence demand. There is no general statutory basis for such an agreement in Dutch iwu mpụ. Its admissibility rests on the judgment of the Supreme Court of 27 September 2022 (ECLI:NL:HR:2022:1252), and the trial court is never bound by what the parties have agreed.

That last point is what distinguishes the Dutch arrangement from a plea bargain. The parties can agree what they will ask for; only the court decides what happens. This article sets out what the Supreme Court requires before a court may take an agreement into account, how it works out in practice, what the victim can do, and what remains open if the court departs from the agreement.

What a process agreement is, and what it is not

The core of the arrangement is reciprocity. The defence undertakes not to pursue specified procedural activity: a request to hear further witnesses, a preliminary defence, a challenge to particular evidence, or an appeal against a decision already given. In return the prosecution narrows the indictment, drops a charge, or states in advance what sentence it will demand. Both sides gain predictability in a case that would otherwise take years.

What the agreement cannot do is settle the case. The court still has to answer the questions of Articles 348 and 350 of the Code of Criminal Procedure (Sv) for itself: whether the summons is valid and the prosecution admissible, whether the charge is proven on lawful evidence, whether the proven conduct is an offence, whether the defendant is criminally liable and what sentence should follow. A joint position of the parties is information, not a verdict, and a court that simply adopted it would be failing in its own task.

The statutory picture: only the cooperating witness is codified

Dutch law does regulate one form of bargaining in detail. Under Articles 226g and following of the Code of Criminal Procedure, the prosecution may undertake to a suspect that a lower sentence will be demanded in exchange for testimony in the case of another suspect. That arrangement is subject to a lawfulness review by the examining magistrate before it can be used, and it is narrowly bounded: it covers a promise about the sentence demand and nothing more. Our article on the crown witness system in the Netherlands sets out how that procedure runs.

Outside that scheme there is no statutory framework. The absence of one does not make process agreements unlawful; the prosecution has discretion over how it brings a case, and a defendant may waive procedural rights. What the absence does mean is that the safeguards have had to come from case law, and that the court carries the whole weight of them.

What the Supreme Court requires

In its judgment of 27 September 2022 the Supreme Court declined to lay down general rules for process agreements, which it regarded as a matter for the legislature, and instead set out points of attention for the court that has to deal with one. They amount to four things the judgment must address.

The first is the waiver itself. Where a defendant gives up defence rights, that waiver must be established unequivocally and be surrounded by safeguards commensurate with what is being given up. The defendant must have had clear information about the consequences and must have decided in full knowledge of them. As a rule this calls for the defendant to be present at the hearing; the Supreme Court held that a court had reasoned insufficiently where it relied on counsel confirming, in the defendant’s absence, that the agreement was accepted.

The second is legal assistance. The defendant must have been assisted by a lawyer in reaching the agreement, which is the practical guarantee behind the first requirement. The right to counsel follows from Article 28 Sv and from Article 6 of the European Convention on Human Rights.

The third is the independence of the court. The judge assesses on the case file and the hearing whether the outcome the parties propose bears a reasonable relation to the seriousness of the offence and the person of the defendant, and is free to impose something else. The fourth is the position of third parties, in particular the victim, whose interests must have been weighed.

Lower courts have applied that framework consistently since. The Arnhem-Leeuwarden Court of Appeal accepted an agreement in a case on participation in a criminal organisation, drug trafficking and money laundering, in which the defence withdrew its objections against a substantially reduced sentence (ECLI:NL:GHARL:2025:7005). The Zeeland-West-Brabant District Court did the same in a money laundering, forgery and cannabis case, stressing that it was itself not a party to the agreement and that it had satisfied itself that participation was voluntary and informed (ECLI:NL:RBZWB:2025:6733).

The Drents Museum case: process agreements in practice

The clearest recent illustration is the theft at the Drents Museum in Assen. In the early hours of 25 January 2025 the Helmet of Cotofenesti, a gold helmet of roughly 2,500 years old, and three Dacian gold bracelets on loan from Romania were stolen. On 2 April 2026 the Public Prosecution Service announced that the helmet and two of the three bracelets had been recovered, following agreements made with suspects in custody that were aimed precisely at getting the objects back. The third bracelet has not been found.

The North Netherlands District Court gave judgment on 5 June 2026 and imposed prison sentences of 47 months on each of the three defendants. It held that the agreements met the requirements and did not conflict with the right to a fair trial, and it took them into account in its judgment. It then reduced the sentence of all three by a third, on two grounds: the return of the objects, and shortcomings in the investigation, including the publication of the photographs and full names of the defendants in the media before less far-reaching alternatives had been exhausted.

The detail that matters for practice is that the reduction went to all three, including the defendant who had made no agreement. That shows both the reach and the limits of the instrument: the court used the agreements as a route to a result it considered just, but it distributed the benefit according to its own assessment rather than according to the bargain. A defendant who enters into an agreement buys a prosecution position, not an outcome.

Ọnọdụ onye ahụ a tara ahụhụ

The victim is not a party to a process agreement and has no veto over it. That does not leave the victim outside the picture. Under Article 51a Sv the prosecution must treat the victim correctly and take account of the victim’s position, Article 51b Sv gives access to documents from the file and the right to have documents added, and the right to speak at the hearing is preserved regardless of what the parties have agreed. The victim may also join the proceedings as an injured party to claim compensation.

Where the agreement leads the prosecution to drop charges altogether, the victim can complain to the court of appeal under Article 12 Sv about the decision not to prosecute. And because the weighing of the victim’s interests is one of the points the court must address, a victim whose position was ignored has an argument that goes to the validity of the agreement itself rather than only to the sentence.

If the court does not follow the agreement

A court that finds the waiver was not made voluntarily or in full knowledge, or that the defendant lacked adequate legal assistance, will leave the agreement out of account and deal with the case under the ordinary rules. The defence rights that were given up revive, which is the reason the assessment is made before the agreement is used rather than afterwards. The court makes that assessment of its own motion; it does not wait for a party to raise it.

A court may also accept the agreement as validly made and still impose something different, because proportionality is its own judgment to make. Where that happens, the ordinary remedies apply. Appeal against a judgment of a district court runs under Article 404 Sv, and cassation to the Supreme Court against a judgment of a court of appeal under Article 427 Sv, within the period set by Article 432 Sv. The argument on appeal is usually about reasoning: that the court gave insufficient grounds for departing from the agreement, or that it applied the wrong test to the waiver.

The argument for and against

The case in favour is capacity. Criminal cases of any size take years, witnesses become harder to hear as time passes and the value of a conviction erodes with the delay. A process agreement can shorten that by removing the parts of the case the parties do not genuinely dispute, and, as the Drents Museum matter shows, it can achieve results that a contested trial would not have produced at all.

The case against is that a defendant in custody, facing a long sentence and a long wait, is not in a strong position to weigh a waiver calmly, and that establishing the truth is a public interest that the parties cannot trade away between them. Both concerns are answered, if at all, by the same mechanism: a court that examines the waiver properly and that reaches its own view of the file. That is a heavy load for case law to carry, which is why codification continues to be argued for. The new Code of Criminal Procedure was adopted by the Senate on 24 February 2026 and published in the Bulletin of Acts and Decrees on 13 March 2026, but it enters into force book by book by royal decree, so the present articles continue to apply in the meantime.

If you are offered a process agreement

Treat the offer as a decision about evidence, not about sentence length. Establish first what the file actually proves without the steps you would be waiving, because the value of a witness you will not hear is the value of the case you will not run. Then establish what is being promised: a sentence demand is a position of the prosecution, and the court is free to depart from it in either direction.

Put the agreement and the advice on it in writing, and be present at the hearing. The Supreme Court has made presence close to a practical condition for the court to be able to satisfy itself that the waiver was made knowingly, and an absent defendant makes the agreement easier to attack later, including by the defendant. What is agreed in the file at the criminal court hearing is what the court can work with.

Otu anyị nwere ike isi nye aka

We advise suspects who are offered a process agreement on what it is worth, negotiate the terms with the Public Prosecution Service, and make sure the waiver and the advice behind it are recorded so that the court can assess them. We also act for victims whose interests are affected by such an agreement. Please feel free to contact us to discuss your case.

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