Leiden Law Blog

No time for reflection?

No time for reflection?

In my last blog I criticized the present Minister for Security and Justice, Mr. Opstelten. I am not the only one who criticizes him and his policy. With much irony, he has been called the he-man in the local pub. In more serious reports he is blamed for hiding behind the agreement on which the policy of the present cabinet is based, and has stopped reflecting on the bills he has proposed over the last two years. One could justify this lack of reflection referring to the report that ministers did not have time to reflect, as some ministers complained in a national newspaper, but I wonder whether Mr. Opstelten would have reflected on the bills proposed if he did have more time for reflection.

However, it would be unfair to say that this minister does everything wrong. He reveals himself to be a different minister in the recent response to questions from a member of parliament on the occasion of a report in a national newspaper (question number 2012Z13005).

What had happened? A man was arrested on suspicion of the serious maltreatment of another man. Apparently, he had hit him in a car park near a supermarket. The defendant was known to the police. He had previous convictions and was believed to be addicted to alcohol. The defendant told the investigative judge that he had been having treatment because of his aggression problem. For that reason, the investigative judge suspended his pre-trial detention on the condition that he would uphold certain conditions.

The victim was extremely dismayed by this decision. In a national newspaper he stated: ‘The judge has intentionally put me in a dangerous situation.’

Mrs. Helder, a member of parliament, decided to put nine questions to the Minister about this case. I cannot go into all the questions, but will discuss only four of them.

In questions 5 to 7, the minister was asked about his opinion on this case: does the minister agree that previous penalties have not helped, should the defendant be sentenced to prison and why was his pre-trial detention suspended? Quite remarkable questions, I would say. If I am not mistaken, our constitutional state is still founded on the principle of the trias politica: three interrelated but independent state powers, which means that a minister should not interfere in a criminal case that is still pending.

Why Mrs. Helder thought that the Minister for Security and Justice would be able to interfere in a criminal case that is still pending, is not clear to me. Perhaps she wanted to tempt him. Other disputed cases where a pre-trial detention was suspended lead to proposals to amend the law. Secondly, Mr. Opstelten is known for his bold statements. Perhaps Mrs. Helder hoped that the minister would take a firm stand. But the minister did not buy it. For once no incident-driven politics.

The ninth question reads: How are you going to make sure that judges do not suspend pre-trial detention in cases like this one, and how do you feel about a term of office instead of a lifelong appointment for judges? The latter question is striking, because Mrs. Helder had abandoned this position a few months ago. Apparently, she has changed her position once again. What’s this called: swimming with the tide? The minister responded as follows: ‘The lifelong appointment of judges is an important guarantee for an independent and impartial judiciary.’ Only important? An important guarantee is not so substantial that it should be indisputable. So what is the minister telling us here: up till now I have endorsed the lifelong appointment of judges, but I could be persuaded otherwise. That would mean no less than a revolution. So what was this: a slip of the tongue or to be continued?

The former question is, according to me, almost too outrageous to respond to. Fortunately, the minister does not commit himself in his response: ‘The investigative judge has suspended the pre-trial detention, but that does not mean the defendant walks off free. While outside prison, the defendant has to uphold certain conditions set by the investigative judge, while awaiting his trial.’ This is a perfectly correct answer, but at the same time almost meaningless. However, we can hear an undertone: justice should take its course. A displeasing verdict by a judge does not make it a retarded one. Show some patience and wait and see where this case will lead.

Perhaps, these answers will help Mrs. Helder to reflect on her work as a member of parliament. It has become clear that it is not just ministers who have stopped thinking.

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