Last time the so-called “third way” was discussed: state liability for the killing of Surinamese public figures by military criminals in December 1982. Insufficient evidence against the individuals concerned precludes conclusive proof and thus any criminal case against them may well end in acquittal. Still, something should be done for the sake of the surviving relatives. Thus the republic of Suriname, being liable for not having prevented these wrong doings, may try to offer some kind of damages instead.
Ideally damages are directed at undoing any wrongful harm done, “as if nothing happened”. Killings of course cannot be reversed. The perfect crime one might say, by doing away with the creditor concerned …
Even relatives may not claim damages for wrongful death, at least according to tort law in The Netherlands and in Suriname. Love is considered priceless in this respect. Lost family income earned by deceased relatives is however another matter.
Here criminal justice steps in, by acting against offenders “on behalf of everybody”, surviving relatives included. This however does not always lead to a happy outcome. More than a few cases have ended in acquittal for want of evidence, regardless of the fact that many victims are convinced that “their” offenders are real criminals.
Thus victims may be deeply dissatisfied, having to live with the burden of others’ unpaid debts. This is called Tje poti (“how pitiful!”) in Suriname: “tjepotism” i.e. harboring grievances about punitive satisfaction never to be obtained. Sometimes such long-term tjepotism may oust or even black out any remaining grief, however serious and deeply felt. Here again the all too human shortcomings of criminal justice come to light. Individual victims’ expectations or even victims’ rights are not easily realized by criminal law and public law.
Some lawyers are not really aware of this, as was shown rather publicly by Gerard Spong, one of our local legal heroes – at least in terms of media attention. Acting on behalf of surviving relatives of the December 1982 victims he even succeeded in having a Surinamese court order a criminal trial against the offenders: fiat justitia! But still then the books prescribe acquittal, however uncertain outcomes of law in action may be here. (No proof against debtors? Then no effective creditors either – which is not to imply that survivors are on a par with their deceased relatives in other respects as well.)
Why then go to such criminal lengths, with the real risk of confronting victims with a public semblance of the perpetrators’ innocence? Is such innocence indeed commonly “derived” from acquittal by want of legally relevant and conclusive evidence? “Things are as they ought to be” appears to be this lawyer’s line of thought, at the expense of the true facts of reality. Things are as they ought to be in a fundamentally different sense: not all reality can be changed at will. Not only conclusive pieces of evidence may be irrevocably lost. Things are as they are. This is where life begins, not just for crime victims. The rest is vanity.