The Minister for Security and Justice, Mr Opstelten, was invited to give a lecture at Groningen University on 22 March 2012. His lecture was entitled: ‘The criminal law of the future, recognisable, powerful and custom-made.’ Being a man who likes to be seen as a politician who promotes law and order, it could be said that that this title was very fitting.
As the lecture was held at a university, the audience was of course mostly made up of students. However, I am not quite sure that law students were who the minister had in mind the whole time whilst he was preparing his lecture. When reading the text one sometimes has the impression that he was addressing the average middle-aged man, i.e. a hard working, law-abiding citizen, who could become a victim of a criminal offence. The minister took a firm stance for this person and wanted to protect him. Yes, he told his audience, criminal justice is also concerned with protecting the interests of the defendant, and the minister made sure to point out that he cares for these interests by referring to several new laws concerning the pre-trial phase. However when reading the lecture one gets the distinct impression that protecting the interests of the defendant is not the spearhead of his policy. This is of course nothing new. Nowadays the focus is generally on protecting the interests of society.
Wake up! We now have other things on our mind than protecting of the rights of the defendant, Mr Opstelten seemed to be saying to today’s law students. That’s old news. It has been established that in the interest of society, we need minimum sentences and the termination of periods of subscription for more criminal offences. The interests of the defendant have therefore already been taken care of. His message seems to be: do not put too much time and effort into understanding the complexities of the rights of the defendant in the criminal justice system. The real issue, according to the minister, is that most trials take too long. This negatively affects the speed and efficiency of the criminal justice system. Recent research shows that many cases are not prosecuted, that sentences are not executed and that sentences take too long to be executed. We therefore need to focus on more speed and efficiency. He seems to imply that law students should put more time and effort into helping to solve these problems.
To illustrate this, the minister compared the criminal justice system to a car wash. For me, the metaphor of a car wash evokes images of a criminal justice system without human involvement, with the exception of the one man required to push the buttons. The defendant is of course the car needing a good wash. One assumes that this is necessary to rid him or her of criminal grime. Of course, the car should not be damaged (that would cost money). But anyone who has stayed in a car whilst it goes through a car wash knows that the defendant will be dealt with firmly. This is not what the minister explicitly said to his audience, but one could definitely interpret his message in this way.
According to the minister, the criminal justice system needs to be recognisable, powerful and custom-made. This means for example that a) simple cases should be dealt with within a month, and b) more sentences should be immediately enforceable particularly when this is in the victim’s interest. Let’s look at what this really means.
a) To deal with simple cases within a month, the public prosecutor (officer van justitie) would have to be more directly involved in the early stages of the pre trial phase than is currently the case. The prosecutor would have to decide to bring a case in front of a judge, even during the evening. By then the case file must have been completed, a judge and lawyer must be present and prepared and the probation officer must have had time to consider what would be best for the defendant (a fine, community service, or (suspended) detention). All those involved in the criminal justice system would have to work faster and decide quicker, even outside office hours. I wonder whether this would be possible, 7 days a week, 52 weeks a year, with a very limited number of judges, public prosecutors, probation officers, etc. Judges and prosecutors are already overloaded with work, as Prof. Fokkens, the Procurator General (Procureur-generaal) at the Supreme Court of the Netherlands (Hoge Raad), recently pointed out. More importantly one could question whether the majority of cases are as simple as the minister seems to suggest. Perhaps many are, but who decides this? And who will prevent public prosecutors, judges, lawyers and probation officers from making mistakes in their hurry to bring cases to trial? Or could this haste lead to public prosecutors or judges giving non- or poorly motivated judgments that fail to do justice to defendants, and are also not in the best interests of victims?
b) One could respond by saying that the system itself helps to prevent mistakes and that there still remains sufficient room to deal with the more difficult cases. But what if all cases are considered to be ‘not simple’ in some way or other? What will then become of the proposal to deal with simple cases within a month? Appeal is of course a possibility, within certain limits. However the minister does not seem to be a fan of appeal. Appeal delays the execution of a sentence and is supposed to not be in the best interest of the victim, who has to wait much longer for the final verdict. But does this mean that the court of first instance (rechtbank) is always right? The minister seems to think so. He does not, however, want to abandon appeal altogether (or cassation, which leads to even greater delays to the execution of a sentence). He instead merely wants to speed up the time spend on an appeal trials. Better planning of cases seems to help to speed up cases, which is in the best interest of all involved in the criminal justice system, not least the defendant. In addition, the minister wants to enforce more (types of) sentences immediately. This is something new within the Dutch criminal justice system. But instead of waiting to see whether the recently introduced legislation works, the minister says we have to consider broadening the possibilities of immediate enforcement of sentences. In other words: we are going to go ahead right away. The question is, which sentences? The types of sentence the minister mentioned in his lecture could suggest a simple reply: all of them (i.e. fines, community services, prison sentences, etc).
With his speech, the minister wanted to outline a plan of action for his coming years in office. The collapse of the cabinet shortly after Mr. Opstelten held his lecture meant that it became his legacy. Certain aspects of it are worth pursuing, others need more careful examination. However I do have fundamental objections to one element of his speech: the criminal justice system deals with people and is made up of people. One cannot and should never compare this system to a car wash. The minister admitted that this comparison could be seen as somewhat disrespectful. I would say it most certainly is.