Both the European Convention on Human Rights and the Dutch Code of Criminal Procedure stress the importance of a publicly given verdict. § 362 of the Code of Criminal Procedure prescribes that verdicts are pronounced publicly in court, preferably by the judge or judges who decided the case and in the presence of the prosecutor and the clerk of the court. § 363 presupposes that detainees are present when the verdict is given, but it also stipulates that exceptions to the rule can be made in cases where detainees are unable to be present at the pronouncement of the verdict or have waived their right to be there. Defendants who are not in pre-trial detention are not even presupposed to be present when the verdict is given. In addition, judges have no powers to order the presence of the defendant to hear the verdict.
What happens in practice?
At the final stage of a Dutch criminal trial, the presiding judge will wrap up by asking the defendant whether or not he wants to be present when the verdict is pronounced. In many cases, however, judges will not hesitate to remind the defendant that it is of course not really necessary to attend the pronouncement of the verdict since this can also be heard by contacting their counsel. Counsels and prosecutors willingly participate in this ritual dance around the pronouncement rules. And practitioners in the criminal justice system all know why they won´t stop dancing. It is probably just not practical to get everyone in court to hear the verdict.
And so it goes on that the pronouncement of verdicts is something that is done during lunch breaks and usually by judges who have not decided the cases at hand, that prosecutors are summoned internally to be present at the last possible minute and that no counsel seriously considers going to the public pronouncements of judgments. Apart from certain exceptions, the public pronouncement of judgments in criminal cases is one of the least inspiring elements of the public nature of court sessions. And that is something to think about.
Why is this strange and why do we have to think it over?
We treat one of the defining moments in a criminal trial as a poor cousin. What is furthermore interesting, is the question of whether a more obligatory framework for the public pronouncement of judgments might actually contribute to achieving the goals of the criminal law, the criminal trial and sentencing. In that respect, a lot of research needs to be done. We know too little. The public pronouncement of judgments serves a variety of goals, including the need for accountability in judicial decisions. And it is obvious that for some of these rationales, being present at the pronouncement of the verdict is not a necessity. But for others, it might be. Judgments resolve or at least put an end to conflicts and confirm existing rules and values. But we can ask ourselves the question whether the current practice of the pronouncement of judgments contributes to achieving these goals and to compliance with these rules in the future. Perhaps they should. Then why do defendants, who are at the heart of that conflict, have the opportunity to withdraw from this part of the process? To begin with, we definitively need more research on the effectivity of reasoning with regard to the acceptance of the verdict or even the contribution to sentencing aims and other goals related to criminal law. We also need more research on the effectivity of the actual pronouncement of the verdict.