Since the Dutch government formation last year, the Ministry for Justice and Security has been represented by three government members: the Minister of Justice and Security, Ferdinand Grapperhaus, State Secretary, Mark Harbers, and the Minister for Legal Protection, Sander Dekker. On 22 February 2018, minister Dekker publicly announced his multi-year agenda, which contains his ambitions for victim policy for 2018-2021. Since I have read Dekker’s intentions, the question has been crossing my mind whether the suspects’ and offender’s rights will be adequately protected, when these intentions will be carried out. In this blog I will make some remarks on minister Dekker’s victim policy concerning the victim’s right to speak during criminal proceedings. It will start with a short overview of victim’s rights in Dutch criminal proceedings. Subsequently, the intentions of minister Dekker will be discussed and critically reviewed from the suspect’s or offender’s point of view. It will end with a short conclusion.
Since the 1970s, victims in the Netherlands have been granted with more and more rights. First, their rights to financial compensation have been optimized. The compensation order and the possibility of advance compensation have been introduced and the admissibility requirements have been stretched. Victims have been acknowledged as independent participants in criminal proceedings.
Second, victims have been given the right to speak in court. When being introduced, this right was restricted for victims to speaking only about the consequences of the offense. Eventually, the legislator waived this limitation. Victims may now speak about damages and harm, but also about their ideas on the passing of the sentence.
Apparently, this development does not go far enough for Sander Dekker, the Minister for Legal Protection. One of the ambitions for victim policy expressed in his multi-year agenda is that suspects of severe violence or sexual offenses who are being held in custody will be obliged to appear in court. One of the consequences of this rule is that, when using his or her right to speak, the suspect will have to listen to the victim. The proposal will therefore ensure not only that victims can speak about what was done to them, but also that they will be heard by the person who has been accused of committing the offense(s) against them. Minister Dekker also intends to extend the right to speak to step-family members of the victim, which will correspond to the proposal of the former Minister of Security and Justice. Until now, only relatives of the victim are allowed to speak in court.
In addition to this, Minister Dekker intends to grant victims the right to speak during hearings on whether to extend hospital orders for compulsory treatment. To protect their interests, he wants to allow victims to state their requests regarding the conditions under which the compulsory treatment conditionally will be terminated.
It follows from the above that Minister Dekker intends to strengthen the legal position of victims. While this may be a positive development from the victim’s point of view, it may be less desirable for the suspect or offender. The right to speak unrestricted is controversial, as victims may speak about the passing of the sentence before the court has proven that the suspect committed the offense(s). In view of the presumption of innocence of article 6 of the European Convention on Human Rights (ECHR), this may be problematic. Therefore, to oblige suspects to listen to a statement of a victim in which he or she will be portraited as an offender and not a suspect is a far-reaching measure. Moreover, it can be counterproductive if the suspect is being acquitted, because from the victim’s point of view the suspect and offender are one and the same person and from the victim’s perspective it is a ‘fact’ that the suspect committed the offense(s). In an interview with De Volkskrant, minister Dekker put a foot in his mouth as he addressed the suspect in pending criminal proceedings as ‘the offender’. The words he used to describe his intentions were ‘Therefore, I will introduce the obligation to appear in court to offenders (translation NS)’. This is exactly the point I want to make. Strengthening the legal position of victims is not per se a bad thing. However, it should never violate the right to a fair trial of suspects. In my opinion, it may be harmful to grant victims with the right to speak unrestricted and to oblige suspects to listen to their statements, while the suspect will not be granted with any rights in return.
It is also questionable whether it is desirable to allow victims to express their feelings and wishes during the hearings on whether to extend the offender’s hospital order for compulsory treatment or not. Originally, the focus of these hearings lays on public safety, the judge’s task being to assess whether the offender’s mental health conditions will enable him/her to be rehabilitated. In order to make this assessment, the judge consults an expert witness. Since victims cannot be considered to be expert witnesses, the judge should not or cannot be influenced by their wishes. The possible impact of the emotional and personal statements of victims on the decision whether to end the compulsory treatment is undesirable. However, allowing victims only to expressing their interests in the conditions under which the hospital order will be ended, may contribute to more prudent judgments of the court that will focus on the circumstances of the case.
In the past few years, it seems like victims are looking for different and many stages to express their dissatisfaction and to call for acknowledgement of their victimhood. In itself, this should not be problematic, since being heard and acknowledged as a victim might contribute to full recovery. However, the legal system should or can only deal with these desires on a certain level, that is victim’s rights should not infringe the suspect’s or offender’s rights. Article 6 ECHR guarantees the right to a fair trial. Besides, victims cannot be considered as full party to criminal proceedings. They qualify as independent participants, but this means that they only are indirectly involved in the proceedings. Criminal proceedings are and should be primarily focused on the case between the public prosecutor and the suspect – or in case of hospital order hearings – the court and the offender.
Regarding the right to speak, victims already had the option to explain the consequences of the offense(s) to the judge during the criminal proceedings. After the passing of the sentence, it is up to the court and medical experts to determine whether the offender is ready or not to be rehabilitated. The hearings in which the focus is whether to end a hospital order must not be considered as an outlet to victims to express their anger, grief or other dissatisfaction caused by the offense(s). The intention of Minister Dekker to extent the right to speak may be disputed, as the original focus of the hearings on whether to extend hospital orders being the mental health of the offender.
In recent years, there has been a rising trend towards victim emancipation. As society has been paying considerable attention to the victim’s vulnerable position, victims have developed a powerful voice. Obviously, the legislator should not ignore this development. But, it is questionable whether the best solution is to grant victims more rights without anything in return to suspects and offenders. From their point of view, it will not be redundant to get a better understanding of the consequences of minister Dekker’s intentions. Though, I do not believe that minister Dekker should throw the baby out with the bathwater, there is room for improvement in his multi-year agenda concerning the protection of suspect’s and offender’s rights. After all, Rome was not built in one day.