Regiezitting: apa yang terjadi pada sidang pendahuluan dalam kasus pidana

A preliminary hearing in a criminal case (regiezitting) is a court session before the trial in which the court, the public prosecutor and the defence settle how the case will be prepared. The court decides on investigation and witness requests, pre-trial detention and planning; guilt and sentence are not discussed until the substantive hearing.

The term regiezitting does not appear in the Code of Criminal Procedure (Wetboek van Strafvordering, Sv). Legally it is a session of the trial court that is opened and then adjourned, but the decisions taken there are governed by real statutory tests. It differs from the sidang pro forma, which is explained below.

When does a court schedule a preliminary hearing?

When the substantive hearing would otherwise be unmanageable. Typical cases are large investigations with several defendants, files of thousands of pages, many witnesses, expert evidence such as forensic or financial reports, or a disputed procedural point, for example the lawfulness of the investigation.

The court decides on the basis of the file and the parties’ correspondence. The defence can ask for a preliminary hearing; a reasoned request stating what must be investigated and why it cannot wait is far more likely to succeed than a general complaint about complexity. Courts of appeal also hold preliminary hearings in complex appeals; requests refused at first instance must then be renewed and usually better substantiated.

What does the court decide at a preliminary hearing?

Four types of decision dominate: investigation requests, the completeness of the file, pre-trial detention and planning. The court may, for example, refer the case to the examining magistrate (rechter-commissaris) to hear witnesses or experts.

Decisions are given at the hearing or shortly afterwards in writing and recorded in the official record of the hearing. Check that record: a decision that is not recorded is hard to rely on later.

Which test applies to witness and investigation requests?

That depends on timing. A request made in time is assessed under the more generous defence interest test; a late request under the stricter necessity test.

Under Article 263(2) Sv the defendant must notify the public prosecutor of the witnesses and experts he wishes to call at least ten days before the hearing; if the summons was served less than fourteen days before the hearing, shorter deadlines apply. A witness notified in time can only be refused on limited grounds, including that it can reasonably be assumed the defendant will not be prejudiced in his defence by the refusal (Article 264 Sv).

A request made later, at or after the hearing, is assessed under the necessity test of Article 315 Sv: the court grants it only if it finds the investigation necessary. That is applied against the file as it stands, which is why late requests are so often refused.

What changed after the Keskin judgment?

In Keskin v. the Netherlands (2021), the European Court of Human Rights held that a defendant need not explain why he wants to question a prosecution witness whose statement is used against him. The Supreme Court (Hoge Raad) adjusted its case law on 20 April 2021 (ECLI:NL:HR:2021:576): for such incriminating witnesses the defence interest is presumed, and refusal is possible only on limited grounds.

If the court convicts partly on an untested statement, it must check whether the proceedings as a whole were fair under Article 6 of the European Convention on Human Rights. State clearly in each request whether the witness’s statement forms part of the evidence, because that changes the test. Our article on pertanyaan investigasi dalam hukum pidana explains how to build such requests.

For other requests, substance beats volume. Name the witness, state what he is expected to say and explain which element of the charge or which piece of evidence it concerns. A list of names does not succeed.

Can pre-trial detention be lifted at a preliminary hearing?

Yes. The defence can ask the court to lift the detention or to suspend it under conditions (Article 80 Sv). Detention requires serious suspicion of an offence for which it is allowed (Article 67 Sv) plus at least one ground under Article 67a Sv: a serious risk of absconding, or an important reason of public safety such as a risk of reoffending, the interests of the investigation or, for offences carrying twelve years or more, serious shock to the legal order.

Lifting means the grounds or suspicions no longer hold. Suspension leaves the order in place but releases the defendant under conditions, such as a reporting duty, a fixed address, surrender of a passport, a contact ban or electronic monitoring.

A suspension request succeeds when it offers a concrete alternative: where the defendant will live, what work or treatment is available and which conditions remove the ground the prosecution relies on. See our articles on penahanan pra-sidang dan penangguhan penahanan praperadilan.

How does it differ from a pro forma and a substantive hearing?

The difference is the purpose. A pro forma hearing exists because a detained defendant’s case must be brought before the court at fixed intervals; if the investigation is not finished, the case is called and adjourned and detention is reviewed.

A preliminary hearing is about preparing the case on the merits: investigation requests, the file and the timetable. The substantive hearing is the trial itself: the charge is put, evidence examined, the prosecutor states the sentence sought, the defence pleads and the defendant has the last word. See our guide to the Sidang pengadilan pidana di Belanda ke Penjelasan tentang sidang pendahuluan menurut hukum Belanda.

In practice the categories blur. A hearing listed as pro forma can become a case-management hearing if the defence files reasoned requests in time.

Do you have to attend as a defendant?

Usually not. A defendant can be represented by a lawyer with written authority. Where pre-trial detention is on the agenda, attendance usually helps, because personal circumstances carry weight.

The defendant often knows names of witnesses, documents, phone data and alibi material that nobody else knows. That information must reach the lawyer before the ten-day notice deadline, not after the hearing. Everything you discuss with your lawyer is protected by legal professional privilege.

Which mistakes cost cases?

• A vague request: asking to hear a witness “because his statement is important” invites refusal under either test.
• Missing the notice deadline of Article 263(2) Sv, which moves the request to the stricter necessity test.
• Treating a pro forma hearing as unimportant, although decisions on detention and investigation are taken there.
• Not checking the file: missing or exculpatory material should be raised at the preliminary hearing, not first at trial.

A refused request can be renewed at the substantive hearing if circumstances change, and an unjustified refusal can be a ground of appeal. But renewing a request is harder than making it properly the first time.

Does the new Code of Criminal Procedure change this?

Not yet. The new Code of Criminal Procedure has been adopted, but its entry into force is planned for 2029. Until then the current provisions and article numbers apply, including those on investigation requests and pre-trial detention.

What should you check as a defendant before a preliminary hearing?

• When is the hearing, and when does the ten-day deadline for notifying witnesses to the prosecutor end?
• Which witnesses gave incriminating statements, and do you want to question them?
• Which witnesses, documents or data only you know about, and has your lawyer received them?
• Is anything missing from the file, such as phone data or exculpatory material?
• If you are detained: where would you live and which conditions could you offer for suspension?
• Do you need to attend, or can your lawyer represent you with written authority?

What can we do for you with a preliminary hearing?

Mitra tim hukum pidana assists defendants in complex criminal cases.

• We read the full file and identify where the evidence is weakest.
• We draft witness and investigation requests and notify the prosecutor within the Article 263 Sv deadline.
• We argue the requests at the preliminary hearing under the correct test.
• We apply for lifting or suspension of pre-trial detention with concrete conditions.
• We conduct the defence at the substantive hearing and on appeal.

Ringkasan

• A preliminary hearing (regiezitting) prepares the trial; guilt and sentence are not discussed.
• Witnesses notified at least ten days before the hearing are assessed under the defence interest test; later requests under the necessity test.
• Since Keskin and ECLI:NL:HR:2021:576, the defence interest in questioning incriminating witnesses is presumed.
• Detention can be lifted or suspended under conditions (Article 80 Sv).
• The current Sv applies until the new Code enters into force, planned for 2029.

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