Victims who miss their hearing because the criminal court does not know that they are present and the usher therefore forgot to call them in. Victims who are unfairly restricted in their right to speak by the court and are then wrongly informed by the public prosecutor. Victims who later determine that the public prosecutor made mistakes in the indictment and subsequently do not want to appeal against the acquittal.
In practice, the rights of victims in the criminal process creak and squeak with great regularity. In mid-July, a publicity storm arose among paramedics, directed against the Public Prosecution Service. That lost a prosecution for threatening to seriously assault an ambulance employee with a piece of wood and stated that there was “no chance of success on appeal”. After which the ambulance employees collectively and openly lost confidence in the Public Prosecution Service and hired a lawyer . He wrote that at least three other offenses could have been eligible to bring the suspect to justice. And that summary proceedings to still enforce an appeal was in the works. A day later, the Public Prosecution Service changed tack and announced a new summons, with a different offence.
Also read this article: The Public Prosecution Service nevertheless continues the case of hindering ambulance workers
Dependent
The victim’s empowerment has been increasing for years. And the political support for victims too. The House recently passed a bill that obliges suspects of certain offenses to be present at the right to speak, and gives next of kin the right to speak at TBS extension hearings.
Interlocutory proceedings to have the civil court order an appeal are also no longer an exception. Recently, at the beginning of July, the Public Prosecution Service lost an appeal against this. The Public Prosecution Service was then strongly addressed by the Court of Appeal in The Hague. Whether the state wants to realize that victims in the criminal process are ‘entirely dependent’ on the Public Prosecution Service, which has all information and is allowed to make all decisions. During the hearing, the public prosecutor should therefore act as a representative of the victim’s interests. Contradiction, therefore, if the court wrongly restricts the victim’s right to speak, as happened at the time. The public prosecutor is also not allowed to drop the case at the hearing and ask for an acquittal “without prior consultation” and “in a different way than the victim should have expected”.
Whether the public prosecutor wants to understand that he or she has a “special responsibility” to protect victims in the criminal process.
Also read this article: “The bereaved does not belong in the officer’s chair”
Victims must in due course effective remedies in a criminal trial, the European Commission proposes
Landslide
In the coming years, this will be stepped up a notch, at least: if it is up to Brussels. The European Commission published a new, tightened one last month Victims Directive. It contains elements that Rosa Jansen, chairman of the board of Victim Support Netherlands, qualifies as a ‘landslide’. Member States are being asked to allow victims in criminal proceedings to challenge decisions that directly affect them. Think of lodging an appeal or cassation yourself. This means that the victim is no longer dependent on the Public Prosecution Service.
Victims must in due course effective remediesin a criminal trial, says the directive. In other words, legally effectively protected interests. For example, that the court is obliged to take into account data on which victims cannot be present. Or mandatory verification of the correctness of the address to which the invitation was sent for the hearing. With real sanctions if those rights are violated: a hearing that does not take place, a penalty, mandatory postponement, etc.
Eternal difference
Jansen hopes that this will bring an end to the eternal difference in legal status between victim and suspect. “If Taghi blinks, so to speak, his hearing will be postponed and three hundred euros in costs will go into the trash. But if there is something with the right to speak or an impediment in an ordinary case, then it really will not be held. Always under the motto that the matter will not be delayed. There’s that difference all the time. We shouldn’t get used to that. All of this must be enforceable and correctable.”
If you want to keep society stable, it is good to involve victims
Rose Jansen chairman of the board Victim Support Netherlands
This is also necessary, says Jansen, because “we notice that this generally happens to the ordinary, average citizen. If you treat them like this all the time, you will eventually get dissatisfaction in this country. The victim is the only one sitting there who didn’t ask for it. We spend multiple times what we spend on victims on probation, tons of money go to TBS, to mega processes – then the question is: what is our part? The rest are in such a room because they have done something or are professionals. I’m fine with that. Victims are too often pushed aside. If you want to keep society stable, it is good to involve victims.”
Stressful
There is another important change in the pipeline: from now on compensation must always be decided within the criminal process. In two-thirds of criminal cases, criminal courts now refer the damage issue to the civil court, usually because it is seen as too complicated or ‘too burdensome’ for the criminal process. And damage issues in criminal law may so far only concern sex crimes or violent crimes. But from now on, all damage from all criminal cases must be determined within the criminal process, the European Commission proposes.
Furthermore, the Dutch practice that the state advances the compensation and then recovers it from the perpetrator itself must apply throughout Europe. Former criminal judge Rosa Jansen is also happy with that. According to her, such damages usually remain within limits in the Netherlands, with an average amount of 5,000 euros. The figures show that the state is really moving ahead: after ten years, the Central Judicial Collection Agency has recovered about 80 percent of the compensation from the perpetrators.
Jansen is “completely happy with the fact that criminal courts will no longer be able to get out of those damage decisions”. In practice, she says, criminal courts are still too often uninterested in damage cases. But every judge is trained in at least two jurisdictions, she says. “so you can no longer find that complicated at all”. And otherwise, in more complicated damage recovery cases, do you ask a tax judge or a civil lawyer as a member of a multiple criminal court? They chop with that ax daily.
Victim appeal
Does Jansen envisage that in the future a victim will also be able to appeal without the public prosecutor? “For me, the victim does not have to take over the process from the public prosecutor, but the victim must be able to obtain his rights there.” If she were a legislator, she would in such a case always let the public prosecutor ‘go along’ with such a victim appeal.
Commission proposals for European directives must first be approved by the Council of the European Union and the European Parliament. Then it is the national legislature’s turn. So before all these new rights for victims can be exercised, it could be a few years. Jansen: “And that is precisely why it is so important to get the professionals involved in this now. Then, in a few years’ time, the minister will be able to limit himself to codifying what the judiciary has long been doing. The judge and officer can start this tomorrow.”
For example, Jansen himself already applied the right to speak before it was included in the law. “It’s not that complicated. Nothing is ever possible with the precise in the courtroom, anything is possible with the flexible. Wouldn’t it be to our credit if we already introduced this through case law? We’ve come a long way already!”
Also read this article from 2022: ‘OM takes too little account of victims in criminal orders’
A version of this article also appeared in the August 3, 2023 newspaper.
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