Conflicting interests: accurate balancing required

Conflicting interests: accurate balancing required

The position of victims in the Dutch criminal justice system has been overlooked for decades. But over the last few years, interest for victims has been growing, as illustrated by the new victim policy presented by State Secretary for Security and Justice.

On February 22, the State Secretary for Security and Justice Fred Teeven sent a letter to the House of Representatives in which he presented his position on victim policy. The needs of the victim are central to Teeven's position. Teeven mentioned five policy objectives, which will form the key objectives of victim policy in the coming four years. These objectives focus on: recognition and careful treatment, a stronger legal position, protection, victim support and possibilities for compensation and remedies. He will submit a legislative proposal that aims to expand the right of victims to address the court by making it possible for victims to express their opinions concerning the punishment they wish to impose.

The increasing focus on the position of victims is understandable and desirable. We welcome the fact that many reforms have been made which improve the victim’s position in our criminal justice system. But we would like to use this blog as an opportunity to call a halt to the many reforms that Teeven is planning to implement by way of his newly presented victim policy. The policy wrongly suggests that a just, proportionate reaction to criminal behaviour is the main objective in criminal law. Law enforcement and legal safeguards should be in balance.

Traditionally, our criminal law system is focused on the (possible) sanctioning of the suspect. He or she is subject to a criminal investigation that is the basis of the inquisitorial system we have in the Netherlands (Cleiren 2003). The criminal justice system protects the suspect against far-reaching actions by the government and this protection prevails over the victim’s interest. The claim that the government is responsible for the fulfilment of the victim’s needs disregards the central position of the suspect in the Dutch criminal law procedure. The expansion of victim’s rights undermines the balance between the prosecution and defendant which is fundamental for a fair trial.

If victims would be allowed to express their views on the punishment, the guilt of the suspect is being implied before the guilt is actually established by the court. This is not in line with the presumption of innocence. Moreover, the possible consequences of this expansion are not yet clear. If these statements have an impact on decisions, this could lead to unwanted differences in sentencing, depending on the presence of victim statements. On the other hand, victims could be left disappointed when their opinion concerning a punishment is not taken into account, resulting in a ‘light’ sentence.

We are not opposed to the increasing importance of the well-being of victims. We would simply like to see that the legal reforms that have already been implemented over the last years are carefully reviewed and adapted, thus ensuring that any problems are eliminated before new elements are introduced. The government even admits that some problems exist and that the law is not functioning optimally. The latest extension of the right to speak for victims and relatives in criminal proceedings was implemented only last year, in September 2012. It has therefore not been used many times yet and may require review before an expansion of this right can be implemented. The registration of crimes and the provision of information to victims needs improvement. The different organisations working in the criminal law field should co-operate and adjust their policies.

Moreover, one should realise that in general, it would be very difficult to translate the various needs of a group of such a heterogeneous nature into uniform policy (Richards, 2009). In that light, Teeven’s proposals concerning a new victim policy might be a bit too ambitious, especially in times of public sector deficits. An optimal system that fulfils the victim’s needs is impossible to implement in our inquisitorial system.