On the 10th of April the popular weblog “GeenStijl” published a blog in response to the latest issue of the Dutch bar association’s monthly magazine. There, prominent law professors and lawyers expressed their concerns towards populism affecting the criminal legislative debate. “GeenStijl’s blogger reacted strongly by arguing that the authors were only considering the rights of the accused and not the rights of the victims. Why is there so much focus on the accused and should there not be equal attention paid to the victim as well? Would that not be fair? This seems to be the question many of the commentators are asking themselves. It is true that in Dutch criminal procedure the victim has only a small role to play, but it is only in the past years that this lack of attention has begun to be seen as a problem. Why? I argue that the right to a fair trial is largely to blame for this. I shall develop this idea below.
The introduction of the fair trial ideal. Problem?
A good place to start is to state that Dutch codes contain no right to a fair trial. The Dutch system of criminal procedure, as it was enacted in 1926, is stylized in the ‘inquisitorial’ tradition of adjudication. In this system the judge is an active judge who is, together with the public prosecutor, responsible for the investigation and fact-finding. The proceedings themselves are designed to provide a check against government misconduct. The accused is not a true party in these proceedings as he/she has no independent rights to excise. Also, the victim has no role to play, save potentially that of a witness. In this system there need not be equality of arms. As long as the procedure is followed correctly there is no need for such a concept. To guarantee this correct procedure a system of procedural nullities is employed.
In 1954 the right to a fair trial was introduced into the Dutch jurisdiction by the ratification of the ECHR which codifies this right in its article 6. Because the ECtHR, the court responsible for the final interpretation of the Convention, interprets art. 6 as containing independent rights for the accused, e.g. the right to early access to a lawyer, the right to a fair use of evidence, independent rights for the accused have crept their way into the Dutch jurisdiction. These rights seem to replace the traditional system of nullities as the majority of these nullities have recently been abandoned. The accused has thus been getting a stronger position as a procedural actor.
However, it is untrue that the rights of the accused need to be balanced out by equally strong rights of the victim. Remember, because traditionally the judge and public prosecutor are responsible for fact-finding, they have strong powers to conduct their investigations. As the system of nullities seems to be largely abandoned, the rights of the accused now serve as a much needed check in the system to control the large powers of the adjudicating authorities. Yet it is quite understandable, from an outsider’s perspective, that a strong emphasis on the accused seems unjust. Especially considering that the ECtHR sees article 6 as also containing special rights for victims. See e.g. the case of Poitrimol v. France.
Why fairness is problematic
It is time to recap. We can conclude that if it wasn’t for the introduction of the idea of a fair trial the role of the accused would have not been given the attention it now has. Because a fair trial demands a balance, victims demand an equal amount of attention. Yet, our system is ill-suited to provide this attention because that would require a diminishment in the strong power of the judge and public prosecutor. As yet, it does not seem that this power will diminish any time soon because in the current culture of control criminal law is being depended on more and more to deal with social issues. The question now is how to still provide due process for an accused citizen who is faced with the overwhelming (and growing!) power of government without alienating the victim?
Fairness of the future
What I just showed is that the introduction of the fair trial ideal in a system which is not founded on that bedrock forces a reassessment of where the balance in this system should be found. Can our old system from 1926 be sustained or will a true overhaul of the system be necessary to cope with the changes lI just described? Until such time, I sincerely hope that any changes made to our procedure will take into account the effect it might have on our system as it stands now. We just saw how two small words such as ‘fair trial’ can have a major impact on adjudication and public thinking.