Instruction on the coordination protocol Safety Board for Safety - Public Prosecution Service (2008A004)

Policy document | 15-09-2025

Category	criminal investigation preliminary investigation
Legal nature	designation in the sense of Article 130(4) Wet RO
of	Board of Procurators General
To:	Heads of PPS units
Registration number	2008A004
Date adopted	11 February 2008
Effective date	1 March 2008
Publication in the Netherlands Government Gazette	2008, 45
Expired	Instruction on coordination protocol Safety Board for Safety - Public Prosecution Service (expired) (2005A015 )
Relevant policy rules	Instruction on the provision of criminal records for purposes other than criminal justice (Instruction on the Judicial and Criminal Records Act) (2013A014)
Legal provisions	Article 67, Dutch Safety Board Kingdom Act and Article 24, OvV Decree Section 18, (1), of the Police Data Act in conjunction with section 4:2, (1) (l) of the Police Data Decree
Case law	-
Annexes:

BACKGROUND

On 1 February 2005, the Dutch Safety Board Kingdom Act (hereinafter: Dutch Safety Board Kingdom Act) entered into force. This act established the Safety Board (hereinafter referred to as: the Safety Board). The investigative services and the Public Prosecution Service may have to deal with the Safety Board in day-to-day practice when investigating occurrences [1] .

Pursuant to Article 24 of the Safety Board Decree (hereinafter referred to as: Safety Board decree), the PPS and the Safety Board have agreed on a coordination protocol, which is annexed to these instructions. The protocol provides for agreements on cooperation and information exchange in cases where both the Safety Board initiates an investigation into an occurrence and a criminal investigation is also launched in respect of the same occurrence.

Tasks and working methods of the Safety Board

1. Duties of and investigations by the Safety Board as well as differences from criminal investigations

1.1. Duties of and investigations by the Safety Board

The Safety Board replaced the Transport Safety Board, the Temporary Defence Research Commission and the envisaged Disasters and Calamities Commission, respectively. This also eliminates the need to set up ad hoc committees like the Oosting Commission for the Enschede firework disaster and the Alders Commission for the Volendam cafe fire.

Under the Dutch Safety Board Kingdom Act, the Safety Board is tasked with investigating occurrences with bad outcomes and occurrences that could have had such outcomes, as well as the consequences of such occurrences. That task includes determining the causes or probable causes of occurrences and the extent of their consequences, as well as making recommendations to prevent such occurrences or limit their consequences.

1.2. Excepted occurrences

Not all occurrences can be investigated by the Safety Board. Section 1(2) of the Dutch Safety Board Kingdom Act exempts a number of events from the term "occurrence" in this context. First and foremost, these are public order disturbances, riotous activities and other serious disorder as referred to in the Municipalities Act and situations that seriously raise fears of such an event. Secondly, these are events in the context of competent authorities' actions to enforce the rule of law. Thirdly, this concerns action by the armed forces in a situation of war or armed conflict, during an operation to maintain or promote the international legal order, during the provision of assistance as referred to in the Police Act 1993 or during the provision of assistance pursuant to the Instructions on the deployment of the armed forces in the Netherlands Antilles and Aruba.

1.3. Scope

The duties of the Safety Board cover a wide area. It is authorised to investigate occurrences in all conceivable sectors. This could include:

• occurrences in road, water, rail, air and pipeline transport
• occurrences in industry, including industrial accidents, mining accidents (including off-shore) and nuclear accidents
• natural disasters, including flooding, extreme weather events and earthquakes
• environmental and health occurrences, including food chain contamination, private accidents, epidemics and contamination of the natural environment
• explosions, major fires and collapses.

1.4. Philosophy of Safety Board investigations

The philosophy underpinning the legal status of the Safety Board and its investigative role provided for in the Dutch Safety Board Kingdom Act is based on the international experience that the investigation of culpability and liability does not provide the appropriate tools to identify the underlying causes in an accident or occurrence. That is mainly where the systematic Safety threats, also known as structural Safety deficits, lie. It is precisely in order to learn lessons from an occurrence, in order to prevent future recurrences, that a different type of investigation is needed: the in-depth independent safety investigation. This investigation focuses on spotting and identifying those structural safety deficiencies on the basis of which safety recommendations can be formulated. This utilises the knowledge gained from accidents and occurrences to further enhance safety in the future. Moreover, independent and in-depth Safety research contributes to addressing societal concerns. After all, victims, relatives, but also society as a whole, are thus provided with clarity about the offences and the (underlying) causes of the occurrence, and it also ensures that the relevant lessons are actually learned.

1.5. Differences between investigation by the Dutch Safety Board and criminal investigations

The main difference between the criminal investigation and the Safety Board's investigation lies in the purpose of the investigation: the criminal investigation focuses on whether a criminal offence has been committed (enforcement of rules, repressive and preventive) and, by extension, on the question of culpability, while the Safety Board's investigation focuses on the underlying causes and how the accident consequences are combated or settled. The criminal investigation therefore involves a suspect (who is not obliged to make potentially incriminating statements) while the Safety Board investigation involves those involved and witnesses who should be able to provide all relevant information as unhindered as possible.

In relation to a particular occurrence, there may be both investigations. However, this need not always be the case. It is quite conceivable that in a particular case, the public prosecutor may decide to refrain from launching a criminal investigation, while from the point of view of preventing a recurrence of the accident in question, an investigation by the Safety Board is considered very important. This may arise, for example, in a situation where it seems clear beforehand that no offence has been committed and/or no criminal prosecution can take place because the only suspect has died, while lessons for accident/injury prevention can probably be derived from the occurrence. The reverse, a criminal investigation but no investigation by the Safety Board, is also conceivable.

2. The Safety Board's approach to investigations

In the process of the investigation and the follow-up to the recommendations, the following steps can be distinguished:

1. Notification
2. Selection of occurrences to be investigated.
3. Investigation
4. Establishing structural safety deficiencies
5. Drafting recommendations
6. Issuing the report
7. Follow-up to recommendations
8. Reopening

Re 1. Notification

Under section 28 of the Dutch Safety Board Kingdom Act, a number of persons and bodies have been designated by Order in Council to report occurrences. The Safety Board itself makes arrangements with these bodies in order to be informed at an early stage of occurrences relevant to the Safety Board.

An investigation can also be initiated without a notification.

Re 2. Selection of occurrences to be investigated

After a report is received, the Safety Board decides whether or not to launch an investigation. For occurrences in civil and military aviation and maritime shipping as well as specified major accidents involving hazardous substances, the Dutch Safety Board is obliged to conduct an investigation on the basis of the Kingdom Act and/or international obligations for these sectors.

The criterion for selection will always be the extent to which, in the opinion of the Dutch Safety Board, lessons can be learned from an occurrence and subsequently recommendations for measures to increase safety can be based on it.

In addition, the Minister concerned in the Netherlands, the King's Commissioner or the mayor may submit a written request to the Safety Board for an investigation. It is a matter for the Safety Board to determine whether or not to comply with the request. Rejection of a request should be reasoned.

Re 3. Investigation

If an investigation is launched, the Safety Board will always appoint a project leader, an "investigator-in-charge". This is the principal investigator.

One or more investigators from the Safety Board may go to the scene of the occurrence for further reconnaissance. In almost all cases, local police will be at the scene earlier and will have taken measures to secure traces.

The Safety Board investigators’s powers include the following:

Under Sections 5 and 6 of the Dutch Safety Board Kingdom Act, the Safety Board has the power to order the freezing of the situation at the scene of an occurrence and to seize items that were involved in the occurrence.

Under section 36(1) of the Dutch Safety Board Kingdom Act, the investigator is authorised to enter any place including the living quarters of a ship.

Under Sections 37 and 38 of the Dutch Safety Board Kingdom Act, the investigator is authorised to demand information, inspect business records and documents and make copies thereof.

Under Section 39 of the Dutch Safety Board Kingdom Act, the investigator is authorised to examine items, subject them to inspection and take samples of them; he is authorised to open packages for that purpose.

Under Section 40 of the Dutch Safety Board Kingdom Act, everyone is obliged to lend all cooperation to an investigator that the investigator can reasonably demand in the exercise of his powers. The ministers of the Interior and Kingdom Relations (BZK), Defence and Justice may refuse cooperation themselves or by persons under their jurisdiction in the interests of Safety (BZK and Defence) or investigation and prosecution (Justice).

In an investigation, the Safety Board may add other experts to its own investigators. They will then be granted, for the duration of the investigation, the powers conferred on investigators of the Safety Board by the Dutch Safety Board Kingdom Act. These may be officials from the Transport and Water Management Inspectorate or from the National Traffic Assistance Team (LVBT) of the National Police Services Agency, but also representatives from other agencies (e.g. Railned or Air Traffic Control the Netherlands) or from industry (e.g. NS Reizigers, Shell, etc.). Leadership and responsibilities in these cases remain explicitly with the Safety Board. Other partnerships with investigative agencies are possible.

The first phase of the investigation mainly records data that is difficult or impossible to retrieve later on (trace evidence, data on means of transport involved, data on persons involved, witnesses, data on equipment involved, etc.). For the Dutch Safety Board, the investigation methods are set (in the investigation protocol to be used, based on Section 65 of the Dutch Safety Board Kingdom Act). In the following phases, the focus shifts from data collection to analysis and further investigation (which may also involve external bodies such as TNO or universities, for example). This results in an (internal) report to the Safety Board.

Re 4 to 8. Assess structural safety deficiencies, recommendations, release of report, follow-up on recommendations and reopening

The significance of the Safety Board's investigation lies in uncovering underlying causes and identifying shortcomings in the system used. If an investigation by the Safety Board yields a finding of structural safety deficiencies, the Safety Board will consider whether to base recommendations on it. The Safety Board's conclusions and the recommendations based on them may be set out in a report made public by the Safety Board.

The person to whom a recommendation is addressed must take a position on it, communicate the position to the minister concerned and send a copy to the Safety Board. The Minister of the Interior and Kingdom Relations must inform the States General annually on how the recommendations have been followed up.

If, after the closure of an investigation, new offences come to light that, in the opinion of the Safety Board, are material with regard to the conclusions or recommendations set out in the report, the Safety Board may reopen the investigation.

Criminal investigation

In case an occurrence is the subject of both a criminal investigation by the public prosecutor and an investigation by the Safety Board, this can lead to complex situations. This is because the PPS and the Safety Board both have far-reaching powers and it is foreseeable that mutual investigations will partly focus on the same aspects. It is therefore desirable that there should be coordination between the (case) prosecutor and the Safety Board to avoid, as much as possible, the progress of one investigation being hampered by the other.

The attached cooperation protocol provides concrete agreements on cooperation and information exchange and provides the necessary guidance for further coordination between the Dutch Safety Board and the Public Prosecution Service when both are investigating the same occurrence.

Setting further agreements between prosecutor and Safety Board in a specific case

Article 24 of the OvV Decree prescribes in its third paragraph that the Dutch Safety Board and the Public Prosecutor, subject to the coordination protocol, consult on the set-up of both investigations, if both are investigating in a concrete case. In this consultation, agreements should at least be made, to be recorded in writing, on the content of the investigative acts to be carried out, the planning of these investigative acts in time, the seizure of items and the establishment of a periodic coordination meeting during both investigations.

Evaluation

This instruction and associated cooperation protocol will be reviewed one year after its entry into force.

Transitional law

The policy rules in these instructions have effect from the date of entry into force.

Footnotes:

[1] Occurrence: event that causes death or injury to a person or damage to property or the environment, as well as an event that has created a danger of such a consequence (Article 1(1)(f), Dutch Safety Board Kingdom Act)

[2] An official report can be provided by the police after receiving permission from the leader of the investigation (public prosecutor). The legal basis for the provision of transcripts by an investigative agency is found in Section 18(1) of the Police Data Act in conjunction with. Section 4:2(1)(l) of the Police Data Decree. Provision by the PPS of data from criminal records shall take place in compliance with the Instruction on the Provision of Criminal Records for Non-Criminal Justice Purposes.

[3] According to Article 69 Dutch Safety Board Kingdom Act, certain data carriers can only be demanded for inspection or seized by the public prosecutor if it is a criminal investigation into a hostage-taking, murder, manslaughter or a terrorist act. The Safety Board will only provide such data carriers or data derived from them in the relevant situations.

Annex 1:

Some articles in the Dutch Safety Board Kingdom Act concerning the OM-Safety Board relationship

Article 66

If the police in the Netherlands, the Netherlands Antilles or Aruba conduct an investigation into the identity of the victims of an occurrence, the results of this investigation will be made available to the board upon request.

Article 69

1. Cannot be used as evidence in criminal, disciplinary or civil proceedings, nor can disciplinary action, administrative sanction or administrative action be based on:

a. statements made by persons as part of the board's investigation, unless the person making the statement has given express consent

b. communication recorded by technical means between persons who have been involved in the operation of a means of transport

c. medical or private information recorded as part of the board's investigation concerning persons who have been involved in an occurrence investigated by the board, unless the person concerned has given express consent

d. data derived from a flight recorder, cockpit voice recorder or voyage data recorder used in shipping, and transcripts thereof

e. opinions expressed in the context of analysing the investigative material

f. documents prepared by the board.

2. For the purpose of a criminal or disciplinary investigation or a procedure for the imposition of a disciplinary measure, an administrative sanction or an administrative measure, data carriers referred to in subsection 1(a), (b), (c), (d) and (f), with the exception of the report referred to in subsection 1 of section 55, may not be demanded for inspection or seized. However, upon request, statements referred to in subsection 1(a) may be made available for inspection if the person making the statement has given his or her express consent, and information referred to in subsection 1(c) may be made available if the person to whom the information relates has given his or her express consent.

3. Contrary to subsections 1 and 2, data carriers as referred to in subsection 1(b) and 1(d) may be used as evidence and may be demanded for inspection or seized if they are the subject of a criminal investigation into a hostage-taking, murder, manslaughter or a criminal offence with the intent to instil fear in the population or part of the population of a country or forcing a government or international organisation to do, refrain from doing or tolerating anything, or seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.

4. An investigator shall not be called as a witness or expert in respect of an investigation in which he is or has been involved.

5. Subsection 1, opening words and subsection (a), and subsection 2 insofar as it relates to a data carrier as referred to in subsection 1(a), shall not apply when prosecuting a witness or expert for perjury in connection with a statement made by him before the Board.

Article 70

The council, the employees of the police station, the general secretary and the other investigators shall not report to an investigating officer any offence of which they have become aware in the performance of their duties with the board, except for the cases referred to in Articles 160 and 162 of the Dutch Code of Criminal Procedure, perjury, the offences punishable by Article 81 as well as the offences punishable by Articles 179 to 182 and 184 of the Dutch Penal Code, Articles 185 to 188 and 190 of the Penal Code of the Netherlands Antilles and Articles 185 to 188 and 190 of the Penal Code of Aruba, insofar as these offences relate to Article 40, paragraph 1.

Annex 2:

COORDINATION PROTOCOL

THE SAFETY INVESTIGATION BOARD - PUBLIC PROSECUTION SERVICE

Introduction

If an occurrence is the subject of both a criminal investigation by the Public Prosecution Service (PPS) and an investigation by the Dutch Safety Board (Safety Board), complex situations can arise. This is because the PPS and the Safety Board both have far-reaching powers and it is foreseeable that mutual investigations will partly focus on the same aspects. It is therefore desirable in such cases that there should be coordination between prosecutors and the Safety Board to avoid, as much as possible, the progress of one investigation being hampered by the other. The guiding principle here is that the Safety Board and the Public Prosecution Service each primarily have their own duties to perform and that they do not hinder each other in conducting them. Wherever useful and possible, cooperation takes place, with the Dutch Safety Board and the Public Prosecution Service meeting each other as much as possible, insofar as weighty interests of one or both of them do not oppose this.

Pursuant to Article 24 of the Dutch Safety Board Decree, the Safety Board and the PPS have agreed on a coordination protocol. The protocol provides for agreements on cooperation and information exchange and gives the necessary guidance for further coordination between the Dutch Safety Board and the Public Prosecution Service in cases where both the Dutch Safety Board and the Public Prosecution Service are investigating an occurrence.

Consultation

If both the Safety Board and the PPS launch an investigation into the same occurrence, the responsible representative of the Safety Board and the relevant public prosecutor shall immediately contact each other in order to consult, subject to this protocol, on the organisation of both investigations. The consultations will in all cases include agreements on the content of the investigative acts to be carried out, the planning of these investigative acts in time, the seizure of cases and the establishment of a periodic coordination meeting during both investigations.

These agreements will always be recorded in writing.

Information exchange

Start of the coordination

For both the Safety Board and the PPS, not all occurrences are investigated. Therefore, for the purpose of possible reconciliation, it will always be necessary to check on a case-by-case basis whether both organisations are investigating the same set of offences. The number of criminal investigations taking place under the responsibility of the PPS is considerably higher than the number of occurrences investigated by the Safety Board. It is therefore a matter of course that, in principle, the Safety Board will check with the PPS whether an occurrence to be investigated is also subject to criminal investigation. To this end, the relevant district prosecutor's office will be contacted by telephone by/on behalf of the relevant Safety Board representative. The aforementioned contact will be made at the earliest possible stage in order to enable optimum coordination. A telephone list of the duty services of the district prosecutors' offices is annexed to this protocol.

In view of the independent position of the Safety Board, it is not desirable that the Safety Board should always contact the public prosecutor when starting an investigation. Indeed, such an automatic procedure could create the perception that a criminal investigation - initiated later in time - into the same occurrence may have been initiated by the Safety Board's coordination contact with the Public Prosecution Service, and that in turn could reduce the (general) willingness to bring occurrences to the attention of the Safety Board. For this reason, in a specific case, the Safety Board may choose to omit (initially) the concurrence check. This of course requires that the Safety Board has no good reason to assume that there is a criminal investigation in relation to the occurrence in question or a concrete intention to conduct one.

Conduct of the investigation

Upon request, the Public Prosecutor's Office and the Safety Board shall inform each other about the investigative acts carried out and those yet to be carried out, insofar as it serves the interests of mutual investigations.

The information exchanged on the conduct of investigations will be confidential and used solely for the purpose of the investigation. This information will not be disclosed or communicated to third parties - including persons to be heard - without prior consent.

Data provision

A request for data and the provision of data shall be made in writing. Conditions may be attached to the provision of data, insofar as they arise from the investigative interest. Both organisations keep records of the dispensations made.

Safety Board and Prosecution appoint representatives to be in charge of handling requests for data disclosure and provision.

Data provision by the PPS to the Safety Board

The investigating agency and/or the PPS shall provide, within the applicable rules [2], to the Dutch Safety Board for the purpose of its investigation.

In order to ensure speedy processing, a request will indicate as specifically as possible the identity or position of the person whose statement is concerned, or the nature of the documents or data carriers to be provided. The data obtained will be used by the Safety Board confidentially and exclusively for the purpose of its investigation and will not be disclosed or made public to third parties - including persons to be heard by the Safety Board - without the prior consent of the public prosecutor.

Data provision by the Safety Board to the PPS

The Safety Board shall, to the extent permitted within the Dutch Safety Board Kingdom Act, provide [3] , data in its possession to the public prosecutor and the police upon request, insofar as such data are necessary for the purpose of criminal investigation.

Statements made by persons in the context of an investigation by the Safety Board will be made available to the PPS upon request, provided the person concerned has given his or her express consent. Medical or private information of persons recorded in the context of a Council investigation will be made available to the PPS upon request, provided the person concerned (or next of kin of that person) has given their express consent.

Investigative activities

Occurrence/crime scene management

The police shall ensure proper cordoning off of the scene of the occurrence, as well as access to the scene for investigators of the Safety Board, who shall identify themselves as such. The management of the occurrence/crime scene is discussed between the responsible representative of the Safety Board and the police crime scene leader or manager at the start of the investigation.

Deployment of external bodies or experts

In principle, if and to the extent that both organisations have an interest in using the same external body or expert(s), a in conjunction with an joint assignment will be given.

Where possible, given the available capacity and investigative interests, the police and prosecutors take into account wishes of the Safety Board in their investigative activities. Also to be considered in this context is a request by the Dutch Safety Board that, when the Dutch Forensic Institute carries out a technical investigation - to be conducted as part of the criminal investigation - it should also pay attention to aspects that are not (directly) relevant to the criminal investigation.

Destructive testing

Destructive testing does not take place until after agreement from both the Safety Board and the PPS.

Seizure

If both the PPS and the Safety Board wish to seize an object, the PPS will handle the seizure and the Safety Board will then be given the opportunity to examine the object during the seizure. Seized objects will not be released until after consultation between the Safety Board and the Public Prosecutor's Office.

In this context, it should be noted that under Article 69 of the Dutch Safety Board Kingdom Act, certain items (including statements, private and medical data of persons, taken/obtained in the context of an investigation by the Dutch Safety Board) cannot be requested for inspection or seized for the purpose of the criminal investigation. Some of the information in question may be made available for inspection upon request, but only if the data subject has given his or her express consent. Other components (including the conversations recorded with a cockpit voice recorder) are only claimable by the PPS if the case of a criminal investigation into a hostage-taking, murder, manslaughter or a criminal offence with terrorist intent.

Autopsy

Under Article 73 of the Dutch Burial and Cremation Act, the Safety Board, like the public prosecutor, is authorised to carry out or commission an autopsy. For practical reasons, the PPS will seize a corpse for this purpose. If both organisations deem an autopsy necessary in a preliminary case, they will issue a joint order to that effect. If (initially) only one of the two organisations deems an autopsy necessary, it will be commissioned and the results will be made available to the other organisation upon request.

Cost of joint investigation assignments

If the Safety Board and PPS issue a joint investigation order, the costs thereof will be borne equally unless there are reasons to deviate from this. In the latter case, the division of costs is determined by the Safety Board and PPS prior to the investigation assignment.

Dispute resolution

Disputes regarding the cooperation/coordination between the Safety Board and the PPS in the context of mutual investigations into a particular occurrence should be resolved primarily through consultations between the responsible representative of the Safety Board and the public prosecutor. If the dispute persists, as well as general disputes on the interpretation and implementation of this protocol, the chairman of the Safety Board and the portfolio holder of the Board of Procurators General shall consult with each other.

Entry into force

This protocol enters into force on 14 July 2005.

Evaluation

One year after its entry into force, this protocol will be evaluated and, if necessary, updated.

The Dutch Safety Board Public Prosecution Service

meester Pieter van Vollenhoven meester H.N. Brouwer

Chairman of the Board of Procurators General