The role played by victims in criminal cases is threatening to become so great that it may jeopardize the essence of criminal law. According to Nico Kwakman, senior lecturer in criminal law and criminal procedure at the University of Groningen, a criminal case is and must always remain a matter between government and the suspect. To his mind, we are crossing a line by allowing victims to give their views on sentencing during a trial. ‘Although I consider victim support to be a public responsibility, I do not think that victims should be given a role in criminal proceedings if this damages the function and basic principles of criminal procedural law.’
Victims of crime and their families were given the right to speak in 2005. Since then, they have been allowed to explain the impact that the crime has had on their life during the trial. Kwakman: ‘This has certainly satisfied a need, if only by providing relief from speaking publicly about what has happened. But the weight of public opinion, which is inevitably on the side of the victim, has forced politicians to consider giving victims an even greater role in criminal proceedings.’
Since September, for example, the parents of young victims have been allowed to speak during trials. This has now become law. In addition, some members of the Dutch Lower House also want to extend the content of what victims are allowed to say, says Kwakman. ‘Minister Opstelten and State Secretary Teeven from the Justice Department even think that criminal proceedings should actually revolve around the victim, as if the suspect has spent long enough in the limelight and should move over. But this disregards the basic premise that criminal proceedings are a legal dispute between the Public Prosecution Service and the suspect, and not between victim and suspect. The system protects the suspect from people wanting to take the law into their own hands and venting unrestrained anger.’
The Cabinet has announced its intention to extend the role given to victims in criminal cases and is currently exploring the possibilities. Kwakman: ‘They are looking into whether it would be possible to split a criminal trial into two halves, for example. In this scenario, the judge would first make a ruling about the suspect’s guilt, and then the victim would be assigned a major role when it came to sentencing.’
‘This greater role could take the guise of a detailed statement, in which victims give their opinion of the way the criminal proceedings have been handled, for example, or their views on the punishment that the offender should be given. This is a disturbing tendency; we won’t be able to get the genie back into the bottle once it is out. We are jeopardizing the very foundations of criminal proceedings.’
Kwakman thinks that the authority given to victims in criminal proceedings should be examined very closely. ‘We could extend the right to speak, but to my mind, we must draw the line at views on sentencing. I consider this unacceptable. It gives the impression that the court will take this into consideration, which is not the case. I am also opposed to allowing victims or the families of victims to bring a criminal case. This is allowed in Belgium, although victims are not allowed to interfere with the course of the criminal proceedings. In the Netherlands, a victim can start what is known as an Article 12 procedure, which gives him/her a direct say in the decision on whether to prosecute. In all other cases, the decision on whether or not to prosecute should be left to the professionals.’
Kwakman is worried that the current tendency to focus on victims in trials has started an irreversible development, whereby the safeguards set up for suspects are fading into the background. ‘Criminal proceedings serve to bring suspects to trial in the fairest way possible, to curb unrestrained anger and channel feelings of revenge. I am all in favour of more rights for victims, but not at the expense of safeguards for suspects.’
Nico Kwakman (1950) is senior lecturer in criminal law and criminal procedure at the Faculty of Law. He was awarded a PhD in 2003 for a thesis about compensation for damage in criminal law procedures. In his research, Kwakman studied subjects including youth criminal law, experts in criminal proceedings, compensation for damages in criminal proceedings, terrorism, the relationship between administrative and criminal law, and the relationship between science and law. He also coordinates the Minor in Crime and Punishment at the University of Groningen.
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