Procedural agreements with the Dutch prosecution: a proposal is not a guaranteed sentence
This article has not yet been legally reviewed. The information is general and does not replace assessment of your individual circumstances.
An agreement with the Dutch Public Prosecution Service (OM) about your criminal case is not an agreement with the judge. Through procedural agreements, the OM and defence can jointly propose how a case should be handled and concluded. This may reduce delay and uncertainty. However, the judge retains independent responsibility, while you may give up specific defence rights. Look beyond the proposed number of months: understand what you relinquish, what is offered in return and what remains uncertain.
This guide concerns Dutch procedural agreements, called procesafspraken, and a joint disposal proposal presented to a criminal court. This differs from an OM penalty order or settlement without a prior court judgment. It draws on the Supreme Court judgment of 27 September 2022, ECLI:NL:HR:2022:1252, and OM directive 2023A002 consulted on 26 October 2026. It predicts no sentencing discount, validity of an individual agreement or outcome of an appeal. Dutch procedure remains the subject throughout.
In dit artikel
- 1. Identify the kind of agreement first
- 2. Make the reciprocal commitments specific
- 3. Voluntary agreement requires more than a signature
- 4. Legal assistance and attendance matter
- 5. An exploratory discussion is not a final proposal
- 6. The judge is not a negotiating party
- 7. Victims and compensation claimants retain interests
- 8. Enforcement and appeals require separate checks
- 9. Fictional example: a witness request is no mere formality
- 10. Prepare a comparison, not a discount calculation
1. Identify the kind of agreement first
Not every discussion with the OM involves negotiating procedural agreements. Arranging a date for investigation requests, attending an OM hearing and submitting a joint proposal for judgment serve different purposes. The directive distinguishes substantive agreements from purely practical arrangements about proceedings. Ask which document is being prepared and who must still make which decision.
The directive expressly says this is not an out-of-court disposal. The process leads to an independent judicial assessment and a judgment. Signing therefore does not bypass the court or turn the proposed sentence into an enforceable judicial decision.
Our existing OM-hearing guide concerns a different preparation, where the prosecution may consider its own disposal. For the general route, see criminal procedure. This page specifically addresses reciprocal agreements placed before a criminal judge.
2. Make the reciprocal commitments specific
The Supreme Court identifies reciprocity as a feature of these agreements. For example, the defence may forgo certain investigation requests or arguments, while the OM limits the accusation and commits to requesting a particular sentence. Comparing only the final number is insufficient: a proposal may concern evidence, sanctions, seized property and compensation together.
Record each commitment separately. Which witness request will not proceed? Will particular wording or the scope of the accusation change? What type of sentence, suspended component and other decisions are proposed? A general statement that you will present “no further defence” is hard to understand without identifying the particular issues.
| Item | Question before agreeing | What not to assume |
|---|---|---|
| Investigation or defence | Which request or challenge will be forgone, and why? | That an administrative arrangement affects no defence right |
| Accusation | What exact wording or limitation is proposed? | That an oral summary replaces the formal charge |
| Sanction | What complete package will the OM request? | That this is already the judge’s decision |
| Seizure or compensation | Which items, sums and interests are covered? | That every other person is automatically bound |
Our editorial argument is that an understandable comparison of rights and commitments matters more than the promise of speed. Compare the proposal with the actual evidence and the alternative of continuing the case. Keep uncertainties visible: a lawyer cannot guarantee every judicial decision either.
3. Voluntary agreement requires more than a signature
The Supreme Court requires the judge to investigate whether you decided unequivocally to cooperate voluntarily, with sufficiently clear information and awareness of the legal consequences. This includes the defence rights being relinquished. It is insufficient merely to note that the OM and lawyer both favour the proposal.
Discuss what you do not understand, documents still missing and whether pressure makes you want the case to end at any cost. Exhaustion after lengthy proceedings is understandable, but does not replace explanation of consequences. Ask for information in a language and form you understand. Repeating a sentence figure differs from understanding which evidential issue you will no longer contest.
The 2022 judgment shows this is substantive. In the case discussed, the Supreme Court found the reasoning about waiver of rights inadequate where the defendant had not attended the hearing. The proceedings were cassation in the interests of the law. This does not mean all procedural agreements are prohibited or every absent defendant obtains the same result.
4. Legal assistance and attendance matter
Both the Supreme Court and directive require assistance from a lawyer when making these agreements. Discuss the file and possible commitments with your own counsel. A conversation with the prosecutor does not replace independent explanation of your position. Identify what must still be investigated before you can choose.
The judge must be able to examine the voluntary, informed decision. In principle, this requires your attendance with legal assistance. If absent, the judge must explain further how those requirements were established. Do not assume an authorised lawyer always makes your attendance unnecessary. Raise obstacles promptly and obtain concrete confirmation of the procedural arrangements.
Not disputing and confessing are different. The directive mentions possible agreements not to dispute an accusation or raise evidential defences. Its explanatory note specifically says an agreement cannot require the defendant to make a confession. This is no instruction to sign an inaccurate statement. Your actual words and procedural position must each be understood.
5. An exploratory discussion is not a final proposal
Under the directive, either the prosecution or defence may suggest exploring agreements. A first conversation is not a completed deal. Within the OM, the designated rechercheofficier assesses suitability and the proposed framework. Relevant factors include the case, victims’ interests, proportionality to its seriousness and efficient handling.
The intended agreements are then recorded fully and in sufficient detail. With the rechercheofficier’s approval, the prosecutor formalises them in a framework agreement signed by prosecutor, defendant and lawyer. Ask for the exact version and annexes; do not confuse meeting notes or an earlier draft with the document actually submitted.
The agreement becomes part of the case file and is jointly presented before the hearing addressing it. It is not a secret arrangement outside the record. The Supreme Court also describes reading it aloud or summarising it at the public hearing. Ask how sensitive information is treated under the applicable rules, without assuming anonymity or secrecy.
6. The judge is not a negotiating party
A judge may suggest exploring agreements, but does not make them. Independent assessment continues. Even if you do not contest the evidence, the judge need not adopt the proposed finding of guilt. The proposal does not displace statutory questions or requirements to give reasons.
The same applies to sentencing. The judge may follow the proposal, but can decide differently if the proposed result is disproportionate to the seriousness shown by the file and hearing. An agreed prosecution request is therefore not a guaranteed maximum. Our guide to the prosecutor’s sentencing request explains the ordinary distinction between request and judgment; here, relinquished rights add another dimension.
If the judge reaches a substantially different view of proof or sentence, the Supreme Court says parties should have an opportunity to address disposal in that situation. Proper procedure or fairness may require reopening the hearing for further submissions. This does not promise that every agreement can simply be reversed without consequences. Discuss beforehand how counsel would respond.
7. Victims and compensation claimants retain interests
An OM-defence agreement must also take victims’ interests into account. The directive describes informing victims who requested information and opportunities to hear their views on compensation. An agreement between two participants creates no general power to write away others’ rights.
The Supreme Court specifically states that agreements about an injured party’s claim carry no weight if they insufficiently respect that party’s interests. Ask what compensation has been investigated, who is involved in each component and what remains for the court. Do not assume an included amount always constitutes a complete and final settlement of every possible loss.
For a victim, receiving information does not make the OM a personal lawyer. For a defendant, consideration of victims does not establish every claimed sum. Different positions require specific assessment. Avoid turning an agreement about evidence into an unnoticed comprehensive civil settlement.
8. Enforcement and appeals require separate checks
A proposed sentence is not automatically an agreement about its precise execution. The directive limits such commitments: an exceptional enforcement arrangement considered necessary and effective in a particular case may be confirmed only after a positive CJIB decision. Granting conditional release is not freely negotiable under this framework. The directive describes a separate exception for certain older revocation situations; do not transfer it to a new release expectation without examination.
An undertaking not to appeal also needs careful reading. The Supreme Court distinguishes a statement before a future judgment from a legally regulated waiver after the judgment’s contents are known. Nevertheless, that earlier statement can matter when assessing sufficient interest in a higher court’s consideration. “Not automatically waived” does not mean “free to litigate without consequences”.
Have the actual judgment promptly compared with the complete proposal and appeal information. Ask which differences matter legally and whether special circumstances exist. This guide calculates no appeal deadline and does not recommend lodging or abandoning an appeal. A difference from the sentence figure you hoped for is not a complete assessment.
9. Fictional example: a witness request is no mere formality
In this invented example, Milan and his lawyer receive a proposal under which the OM will request a particular sentence and the defence will not pursue a witness request. Milan mainly remembers that the proposal seems shorter than his feared sentence. However, the witness might address a disputed part of the accusation. The significance of abandoning the request must therefore be discussed first.
Milan asks what the witness could add, what the existing file contains and what remains uncertain. He also seeks explanation of compensation and possible appeals. The exact agreement, his understanding and judicial scrutiny remain distinct. This example promises neither a suitable sentence nor a successful defence and is not an existing case from the judgment.
10. Prepare a comparison, not a discount calculation
| Material to keep | What it helps check |
|---|---|
| Current file and accusation | Basis for the evidence position and scope |
| Draft and final agreement | Commitments actually recorded |
| Investigation requests and defences | Specific rights potentially relinquished |
| Full sanction and compensation package | Components beyond a sentence figure |
| Recorded explanations and questions | What is understood and still requires investigation |
| Judgment and follow-up arrangements | What was actually decided and who checks it promptly |
- Recognise the proposal as part of judicial proceedings.
- Discuss evidence, alternatives and relinquished rights with counsel.
- Record reciprocal commitments and the exact document version.
- Distinguish not raising an evidential defence from a required confession.
- Keep judicial independence, victims’ interests and enforcement separate.
- Have judgment, agreement and possible appeals assessed together immediately.
The strongest reason to explore agreements is not a supposed entitlement to a fixed discount. A carefully defined dispute can sometimes be handled more efficiently. That requires understandable commitments and limits. A faster case is useful only when the procedural choices and remaining uncertainty are clear.
Frequently asked questions
Is this the same as an OM penalty order?
No. The proposal discussed here goes to a criminal judge and ends in a judicial assessment. An OM penalty order is the prosecution’s own decision, with a different procedure and challenge route.
Is the judge bound by the agreed sentence?
No. The judge independently assesses evidence and sanction and may give reasons for departing. Do not treat the proposal as a guaranteed judgment or maximum.
Must I confess to make procedural agreements?
The directive distinguishes forgoing a challenge or evidential defence from a confession. Its explanation says an agreement cannot require such a statement. Have your actual position and any statement explained first.
Can I make the agreement myself without a lawyer?
The Supreme Court and directive require legal assistance for these agreements. Ask counsel about evidence, choices and consequences; talking to the OM does not replace that assistance.
Do I automatically lose my appeal after signing?
An advance statement differs from formal waiver after a known judgment, but can affect interest in a later appeal. Have the actual decision and agreement assessed together promptly.
Dit artikel geeft algemene informatie. De regels en mogelijkheden hangen af van je situatie. Bespreek je zaak en eventuele termijnen met een advocaat.
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