Electronic copy available at: http://ssrn.com/abstract=1698123

TILBURG LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES

Legal reform on behalf of victims of crime: The primacy of the Dutch

legislature in a changing international environment?

Groenhuijsen, M.S. Tilburg University

International Victimology Institute Tilburg (INTERVICT) M.S.Groenhuijsen@uvt.nl

& Letschert, R.M.

Tilburg University International Victimology Institute Tilburg (INTERVICT)

R.M.Letschert@uvt.nl

Intervict Working Paper Series on Victimology and Human Security October 2010

Tilburg Law School Legal Studies Research Paper Series No. 02/2011

Electronic copy available at: http://ssrn.com/abstract=1698123

Electronic copy available at: http://ssrn.com/abstract=1698123Electronic copy available at: http://ssrn.com/abstract=1698123

1. Introduction The past 25 years mark a period of transition in Dutch criminal procedure. A quarter century ago, victims of crime had a very limited role to play in the framework of criminal justice. The situation was governed by the Code of Criminal Procedure, which entered into force in 1926.1 This Code more or less ‘intrumentalised’ the position of the victim. He was allowed to report the crime and to act as a witness. In these capacities the victim could assist the government in successful law enforcement. Not unlike the situation in other countries, the victim could fairly be described as ‘the forgotten party’ in the criminal justice system. The only set of personal rights the victim was granted concerned the so-called ‘adhesion procedure’. The victim was allowed to file a civil claim for damages against the offender, and this claim could be dealt with in the course of the criminal trial. Because the legislator did not tolerate the civil dispute on damages to dominate the trial, several measures were taken to marginalize this instrument.2 The claim could not exceed a maximum amount of approximately 700 euro’s; and the victim had relatively few powers to prove his case. For instance, he did not have the right to call witnesses and experts to document his claim. There is little systematic empirical information available on the success rate of this adhesion procedure. Anecdotal evidence suggests, though, that some major problems frequently affected the effectiveness of the procedure in a negative way. One is that the victim usually was not informed of the date and the venue of the trial of ‘his’ offender. Since the claim had to be filed during the public trial, this lack of information effectively blocked any opportunity for success. A second main impediment was that in case the court actually granted the claim for damages, the court order to that effect had to be executed by the victim himself. More often than not, that left the victim empty handed at the end of the day.3 All of this has changed dramatically during the past quarter century. We will describe and analyze these developments in the following sections. First we will outline some international legal instruments on victims’ rights which have contributed to domestic law reform (section 2). Then we will point to a first wave of reform in our country, which consisted of the introduction of administrative guidelines protecting victims’ interests (section 3). Subsequently we will deal with the second wave of reform: the so-called Terwee-Act of 1992/1995 (section 4). The final parts of this contribution are

1 It should be noted, though, that the basic structure of this Code dates back to the Code of Criminal Procedure of 1838. The implications of this historical background are explained in M.S. Groenhuijsen & G. Knigge (eds.), Het onderzoek ter zitting. Eerste interimrapport van het onderzoeksproject Strafvordering 2001, Deventer: Kluwer 1999. 2 The official label was that the civil incident should be of a ‘subsidiary nature’. More on this in M.S. Groenhuijsen, Schadevergoeding voor slachtoffers van delicten in het strafgeding, diss. Leiden, Nijmegen: Ars Aequi Libri 1985. 3 Estimates are that the failure rate floated around a consistent 75%. Similar findings have been reported from other countries.

Electronic copy available at: http://ssrn.com/abstract=1698123

about the introduction of the oral victim impact statements in 2005 (section 5) and the Victims’ Rights Act 2009 (section 6). Section 7 contains some general conclusions.

2. The international environment The reform of Dutch criminal procedure did not take place in an international legal vacuum. On the contrary, during the mid 1980ties, almost simultaneously two international protocols on victims’ rights were adopted, which have impacted in various ways on national systems of criminal justice. We are referring to the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), and the Council of Europe Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure (1985).4 We do not want to engage in a detailed discussion of the content of these documents. That would be beside the point. The significance of these protocols is twofold. First, they overlap to such an extent that it is justified to argue that generally speaking they reflect an international consensus on the most desirable range of victims’ rights. Second, as a corollary, these protocols have ever since served as a benchmark, as a yardstick to measure progress in reform of domestic systems of criminal justice.5 The two protocols basically can be summarized as follows.6 Victims should have the right to:

- be treated with compassion and respect for their dignity7 - receive information - allow the views of the victim to be presented and considered by the authorities - proper assistance throughout the legal process - protection of privacy and physical safety8 - informal dispute resolution (including mediation and forms of indigenous justice) - social assistance9 - restitution by the offender - state compensation10 - have partnerships build between government agencies, NGO’s and civil society.11

4 The exact references (and some other related documents) can be found in Marc Groenhuijsen & Rianne Letschert (eds.), International Victims’ Rights Instruments, second (revised) edition, Nijmegen: Wolf Legal Publishers 2008. See also Letschert & Groenhuijsen, Between Global Governance and Global Crime – Do Victims Fall In Between? In Letschert, R.M., Van Dijk, J.J.M., The New Faces of Victimhood: Globalization, Transnational Crimes, and Victim Rights, Springer. 5 The ‘classic’ work here is M.E.I. Brienen & E.H. Hoegen, Victims of Crime in 22 Criminal Justice Systems, diss. Tilburg, Nijmegen: Wolf Legal Publishers 2000. 6 Some of the more recent – and more sophisticated and/or more legally binding – instruments build on the same insights. We refer to the EU Framework Decision on the Standing of Victims in Criminal Proceedings (2001); and the Council of Europe Recommendation on Assistance to Crime Victims (2006). 7 This right probably qualifies as the most fundamental of all victims’ rights. This view is elaborated by Marc Groenhuijsen, ‘International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology’, in: R. Snyman & L. Davis (eds.), Victimology in South Africa, Pretoria: van Schaik Publishers 2005, p. 333-351. 8 In passing we observe that these two rights are always mentioned in the same breath, which is not really self-evident, since the interests at stake in both dimensions appear to us to be rather different. 9 It is obvious that this transcends the borders of the criminal justice system. 10 In most countries, including our own, State compensation is not part of the criminal justice system.

Back in 1985, it was fairly obvious that the Dutch Code of Criminal Procedure did not meet all these standards. We will now proceed to examine in what ways our government has acted in order to remedy this situation.

3. The first wave of reform: administrative guidelines The first steps taken to improve the situation did not consist of amending the Code of Criminal Procedure. The Minister of Justice clearly recognized that quite often there are better – i.e. more effective – ways of aiming for effective reform of the system. In close collaboration with the leadership of the Public Prosecutor’s Office some administrative guidelines were drafted and officially announced, which provided rules for the police and for the prosecutors which were to be observed whenever they come into contact with victims. Before turning to the content of the guidelines, two preliminary remarks are necessary to understand their status and relevance. First, the guidelines are officially published in the National Gazette and they constitute legally binding rules of conduct. As such, our second preliminary observation, they can be invoked by citizens in a court of law. Subsequently, the court – ultimately supervised by the national Supreme Court – can determine whether or not the victim has been treated according to the standards contained in the guidelines. If not, the court can order means of redress as it deems fit. Now turning to substance, the guidelines include separate provisions directed at the police and to the prosecutors.12 The police was instructed:

1. to treat victims in a correct way13 and to record their crime reports carefully. This obligation includes referral, if necessary, of the victim to assistance agencies, in particular in cases of serious crime;

2. to provide the victims with general information on the procedure following the crime report; to ask the victim explicitly whether or not he wants to claim damages from the offender and whether or not he wants to be kept informed about the progress of the investigation; to inform the victim about means and ways for the settlement of damages, to promote and – if appropriate – to mediate in the settlement;

3. to make an official record of relevant information about the victim and of the police’s dealings with him.

The obligations of the prosecutor were worded as follows: 11 This is not a substantive or a procedural right in itself; rather it provides for a mechanism supporting the effective realization of the previously mentioned rights. 12 The guidelines are generally referred to as the ‘Vaillant-guidelines’. They were preceded by the so-called Guidelines-De Beaufort with some additional standards for the treatment of victims of sexual crime. The historical background of these guidelines is outlined by Jo-Anne Wemmers, Victims in the criminal justice system, Amsterdam/New York 1996, p. 39ff. Subsequent developments of more recent administrative guidelines in this areas have been comprehensively dealt with by M.S. Groenhuijsen & N.J.M. Kwakman, ‘Het slachtoffer in het vooronderzoek’, in: M.S. Groenhuijsen & G. Knigge (eds), Dwangmiddelen en rechtsmiddelen. Derde interimrapport onderzoeksproject Strafvordering 2001, Deventer: Kluwer 2002, p. 773-978. 13 We have always felt slightly ambivalent about this general standard. On the one hand, it is valuable to emphasize the crucial importance of behaving properly vis-a-vis a victim. On the other hand, though, it is virtually embarrassing that such a self evident notion of humanitarianism should be incorporated in a rule of law.

1. to write the victim a letter in which he is invited to declare whether or not he: - wants to be kept informed of the progress in the case - would like to be financially compensated in the course of the pending process - would appreciate a personal conversation with the prosecutor in charge of the

case, preceding the trial in open court (only in instances of serious crime) 2. to provide the victim with all the information he might ask for (within the limits

of existing legal boundaries) 3. if and when the report by the police indicates serious injury or a heavy loss, to

express his sympathy to the victim or to the bereaved family 4. the prosecutor is furthermore instructed to bear the interests of the victim in mind

whenever he has to make a decision in the case. We add a brief word of clarification of this final point. The prosecutor under Dutch criminal procedural law has wide discretionary powers. One of these is to apply the so-called ‘expediency principle’: the power to drop a case if prosecution does not serve the interest of society at large.14 The guideline under consideration now compels the prosecutor to take the victims’ interest into account when deciding whether or not the public interest requires pressing charges.

How did these guidelines fare? How effectively have they impacted a practice of neglecting victims that had been in place for many decades? It is hard to tell what the guidelines brought about in the mindset of the officials who met with crime victims on a day-to-day basis. No systematic review has been conducted to assess the overall meaning of the new standards for the daily operation of the criminal justice system. We do have some isolated pieces of research available, though, and the outcomes are not very encouraging. One study concluded that a couple of years after the introduction of the guidelines, some 25% of the police forces indicated not to be aware of their existence at all.15 That is 25% of the police forces, not of the individual policeman and –women. This sobering finding does not seem to indicate that the guidelines in and of themselves really made a big impression. On a national level, though, major efforts were undertaken to make the guidelines successful. Where the guidelines required providing information through a letter to the victim, the national assembly of Police Commissioners and the leadership of the Dutch prosecution service joined forces to draft some standard letters that could be used by all the officials involved. That proved to be a tedious task. Letters were drafted, circulated, and experimented with. Feedback usually demonstrated that the victims could not understand their content.16 New drafts were produced, quite often with the same result. Over the years, this process was repeated until some 30 draft letters had been tested and not been approved as completely satisfactory. It just turned out that it is extremely difficult to explain legal matters in wordings which are accessible for lay people.

14 The opposite of the ‘expediency principle’ is the ‘legality principle’, which obliges the prosecutor to pursue every case in which a conviction would be attainable. 15 Stefan Leenders, Zolang de klant maar geen slachtoffer is. Onderzoek naar de implementatie van de richtlijnen ‘Vaillant’ bij de Nederlandse politie, Breda/Apeldoorn 1990. 16 It should be added here that whereas it is a well known fact that most of the offenders belong to the least educated strata of society, the same holds true for victims.

Gradually, the conviction grew that oral explanations are an essential addition to circulating letters and leaflets. More generally, it turned out that it is not easy to provide the victims with the information they are entitled to. It is not only educational limitations that account for this, but also – among others – the mobility of the victims. Many victims move around frequently, quite often without notifying the authorities of their current address. In these instances, it is hard to reach them. For these reasons, it is not entirely surprising that Brienen & Hoegen found that in 22 European criminal justice systems, the best performing jurisdiction (the United Kingdom) achieved a success rate of 70% in providing the victims with the information they are entitled to.17 This research finding is corroborated by anecdotal evidence derived from conversations with bereaved families. When we spoke with these next of kin, the most common complaint about the way they have been treated by the system was that they had not been kept properly informed about developments in ‘their’ case. However, there is also some good news to report. In the most serious cases, the guidelines instruct the prosecutor to offer the victim an opportunity to have a personal conversation prior to the trial. When this obligation was introduced, quite a few prosecutors felt uneasy about this responsibility. Their anxiety was fed by their expectation that victims would perhaps be very emotional or revengeful and they resented the prospect of being positioned in a somewhat therapeutic role. As it turned out, none of these fears have materialized. During the course of the years, prosecutors have conducted hundreds of conversations with victims, and there can be no doubt that these have been successful.18 The purpose of the meeting is to explain the routines of a criminal trial, to talk about the particulars of the case at hand, and to explain the opportunities and the limitations of the criminal justice system. Victims generally turned out to be grateful for this kind of detailed information, they proved to be understanding of their limited role during the trial, and they usually could accept the explanation by the prosecutor of the kind of sentence that was likely to be imposed. So, since 1987 the personal encounter between victim and prosecutor has become one of the cornerstones of reformist efforts in the Dutch criminal justice system. Despite this latest piece of positive news, it is obvious that the Vaillant-guidelines did not produce the effects the government had hoped and aimed for. New action was contemplated. This led to a second wave of reform.

4. Second wave of reform: the Terwee Act 1992/1995 Just a few years after the introduction of the Vaillant-guidelines, parliament adopted the so-called Terwee Act.19 Finally, the Code of Criminal Procedure was amended substantially with an eye to improving the position of crime victims. Virtually all of the changes were connected to the ‘adhesion procedure’, the instrument that allows the 17 Brienen & Hoegen, op.cit. , chapter 25. 18 It turned out, for instance, that victims are generally speaking less vindictive, and more understanding of the limitations of the criminal justice system, than prosecutors had anticipated. See Jan van Dijk, ‘Crime and Victim Surveys’, in: Chris Sumner et al (eds.), International Victimology: Selected Papers from the 8th International Symposium, Canberra 1994, p. 121-132. 19 The Act had been prepared by a Commission, installed by the Minister of Justice and chaired by mrs Terwee-van Hilten. Hence the denomination of the Act.

victim (the ‘injured party’) to file a civil claim for damages which can then be decided upon by the criminal court. The most important innovations amount to the following:

a. In the old system, the claim for damages was limited to an amount of € 700. Regardless of the seriousness of the crime and regardless of the actual level of damages, this distinctly low ceiling always had to be respected. The rationale behind this was that the decision on damages was not supposed to supersede the interest of a fair trial in criminalibus. It was speculated that large amounts of damages might divert the undivided attention from the court away from its core business of trying the accused. The Terwee Act did away with this fixed cap and replaced it with a more sensible qualitative criterion. Henceforth, a claim for damages would be admissible in a criminal court if and when it was a ‘clear case’. That means that complicated20, contested claims could be banned while all the others could be dealt with in a simple and expeditious way, regardless of the amount of money involved.

b. The second innovation can only be properly understood in the light of the first one. It is the new opportunity to claim only part of the damages in a criminal court while preserving the right to further sue the offender in civil litigation. What it comes down to is the power to split up a claim for damages. The part of the claim which is easy to proof (and/or which does not give rise to legal challenges) can be merged into the criminal trial without compromising the standing of the victim to claim an additional amount in subsequent proceedings. This course of action can also be particularly relevant where the victim has been bodily injured and his medical condition21 cannot be finally determined at the time when the criminal trial commences.

c. The old CCP required the victim to appear in court in order to bring his claim for damages during the trial. For quite some victims, this proved to be a burden, because it compelled them to have a face to face confrontation with the offender.22 The Terwee Act allows the victim to file the claim for damages during the pre-trial stages of the proceedings. To this end, a form has been designed, containing the relevant information allowing the court to decide on the claim.

d. As far as reclaiming damages is concerned, the old CCP was to a large extent shaped by the features of the French system of a ‘partie civile’.23 The victim acting in the capacity of ‘aggrieved party’ (this is synonymous

20 A claim can be complicated because of factual circumstances (evidentiary confusion, for instance) or because of legal arguments. 21 I.e. the amount of immaterial damages. 22 It has to be noted here, that in Dutch criminal procedure victims rarely have to testify in open court. Usually, their statements are taken and recorded by the police or by an examining magistrate. The affidavits will then be used as evidence by the court. Hence, in most cases it is up to the victim whether or not to seek a personal encounter with the perpetrator in the courtroom. 23 Mind the restriction “as far as reclaiming damages is concerned”: the French (and the Belgian) ‘partie civile’ have a power to initiate private prosecution in criminal cases – a power which is absent in Dutch criminal law.

to the ‘injured party’) was allowed to file a civil claim for damages. If the criminal court awarded this claim, then the verdict on damages was regarded as a civil order which had to be executed by the victim.24 For the ordinary victim, this arrangement had major implications. In actual practice, it turned out that the court order on damages was successfully enforced in only less than 25% of the cases.25 Against this background, it was a very significant step that the Terwee Act introduced the so-called compensation order. This means forced reparation by the offender as a sentencing option.26 Recognition of reparation as a penal sanction in its own right offers two distinct advantages. One is that it acknowledges the fact that settling the damages is more than just a private affair between victim and offender: on top of that, forced restitution also serves the public interest by demonstrating that crime does not pay and that the victim of crime can count on public solidarity. And the second main advantage is that the compensation order will be executed by the government (and is no longer a burden on its beneficiary, the victim). Empirical evidence indicates that the rate of successful enforcement will then rise to some 75%.27

e. Perhaps one of the more prominent parts of the reform is of an intangible nature. We refer to the fact that the Terwee Act for the first time in history dedicates a full chapter of the CCP to the rights of victims acting in the capacity of ‘the aggrieved party’. The Code traditionally contained chapters on the position of the accused, the role of defense counsel, the powers of the police and the prosecutor, the involvement of the examining magistrate, but a similar treatment of the victim claiming damages was conspicuous by its absence. This historic omission was remedied by the Terwee Act. The chapter on the aggrieved party provides for the right to claim damages during the criminal proceedings, the right to legal assistance and representation, to have access to the case file28 and to receive information about some essential prosecutorial decisions.29 Arguably, the very fact that a separate chapter has now been included in the CCP on the rights of the victim as an aggrieved party is in and of itself more important than the specifics of the individual rights enumerated by it. 30 The existence of a separate chapter symbolizes the recognition of the

24 To that end, the victim had to hire the services of a bailiff, which took considerable time, effort and expenses. 25 This has already been noted in footnote 3 supra. 26 The provisions are in line with the international standards that were adopted in the mid-eighties of the last century. Art. 9 of the UN Declaration encourages governments to consider restitution as an available sentencing option in criminal cases; and art. 11 of the Council of Europe Recommendation holds that “legislation should provide that compensation may either be a penal sanction, or a substitute for a penal sanction or be awarded in addition to a penal sanction” (see footnote 4 supra). 27 References are provided by J.J.M. van Dijk & M.S. Groenhuijsen, ‘Schadevergoedingsmaatregel en voeging: de civielrechtelijke invalshoek’, Nederlands Juristenblad 1993, p. 163-167. 28 With some restrictions in order to protect the privacy of the defendant. 29 Like the decision to prosecute. The victim will also receive information on the date and time of the trial. 30 More on this in M.S. Groenhuijsen, ‘De rode draad: goed nieuws voor slachtoffers van delicten’, Ars Aequi 1989, p. 740-751.

victim (as aggrieved party) as a key player in the way a criminal trial ought to be conducted. In this sense, it is a major step forward.

f. Finally, the Terwee Act attracts attention for the special way it has been put into effect. Usually, a statutory Act is adopted by both chambers of parliament, it is signed by the queen, it is promulgated in the official gazette, and then it enters into force, nationwide, at a specific date. Not so in the case of the Terwee Act. In 1992, this Act was introduced in only two out of the country’s 19 judicial districts. The districts, Dordrecht en Den Bosch, were used as pilot projects. The government felt that enacting legislation in this field would in all likelihood not automatically lead to the required changes in the daily operation of the criminal justice system. Given previous experience with administrative guidelines, this approach can be considered as prudent, probably even as wise. The authorities wanted to gain knowledge about the problems and the opportunities of making the Terwee Act successful by experimenting with its provisions on a relatively small scale. To a certain extent, this proved to be beneficial. The trial period yielded some basic insights on do’s and don’ts in implementing the new provisions on victim’s rights. On the other hand, it definitely is a missed opportunity that no systematic evaluation was carried out in the two pilot districts before the Act (in 1995) subsequently entered into force throughout the nation.

What kind of practical knowledge did we eventually gain by the gradual introduction of the Terwee Act?31 We learned that there are at least five elements involved which should be taken into account when shaping a comprehensive strategy which provides coherence to the various specific measures to be taken. Here are the most important ones:

- Definitely more vital than the content of the legal rules is the attitude of the officials who come into contact with the victims. This may be particularly relevant for the police.32 Considering the very high attrition rate in every jurisdiction, most victims will never get beyond the stage of reporting the crime. Thus, for the majority of victims satisfaction with the criminal justice system will largely depend on the way they have been treated by the police. Now, the police has traditionally been burdened with many obligations. The additional responsibility of also taking good care of victims of crime requires a supportive attitude throughout the police force. That means: both the officers on the street and at the desk, who actually meet with the victims, and the upper echelons of the police force need to wholeheartedly support this additional part of their jobs. And no matter how important the police are, the other professionals need to have a

31 It has to be admitted that the following account is not entirely based on this trial period only; quite a few empirical studies on different victims’ rights laws of a later date have also been included (e.g. Brienen & Hoegen, op.cit., p. 121; Irvin Waller, Crime Victims: Doing Justice to Their Support and Protection, Helsinki: European Institute for Crime Prevention and Control 2003, p. 48; Marc Groenhuijsen, ‘International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology’, in: R. Snyman & L. Davis (eds.), Victimology in South Africa, Pretoria: Van Schaik Publishers 2005, p. 341-342. 32 Jo-Anne Wemmers, Victims in the Criminal Justice System, (diss. Leiden), Den Haag 1996, p. 112.

similar mindset. The attitude of the prosecutor is of paramount importance in the way he conveys the decisions he has taken in the case. This is probably even more obvious for the presiding judge. The way a trial is conducted can be infinitely more or less victim-friendly or victim-sensitive, depending on the judge’s attitude. Rights and services that victims are entitled to do not always make the difference. Quite often, it is the way rights are allowed to be exercised and the spirit in which services are being rendered that determine whether the victim will be either understanding or bitterly disappointed.

- No matter how important the attitude factor may be, it has to be recognized that good intentions alone do not suffice. Officials within the criminal justice system can cause great harm to victims if their good intentions are not backed up by some basic knowledge on victims’ issues. This requires training for all police officers, prosecutors and judges who come into contact with victims. Many countries have been able to achieve mandatory training modules for the police and for the prosecution service. Experience has shown that it is much more difficult to persuade the judiciary to accept compulsory courses in this area. Quite often representatives of the courts have invoked their independence as a reason to refuse mandatory training. Of course, this argument is false. Independence has nothing to do with (a lack of) professionalism.33 The question really appears to be how the judiciary can be convinced that it is useful and worthwhile to engage in training projects like the ones we have in mind. Examples of best practice in this respect can be found in the United Kingdom and in the USA, where “judicial studies” have been set up to assist judges in doing a good job.34

- Taking care of victims’ rights and interests is an additional responsibility for the authorities operating the criminal justice system. Since none of the agencies involved have a reputation for being overfunded or overstaffed, it is obvious that new obligations can only be properly carried out if and when adequate resources are provided. Experience shows that additional budget will only be effective when it is earmarked for this specific purpose. If that precaution is not taken, the money is likely to be diluted and major parts of it will be spend on the traditional interests vested in the criminal justice system.

- The next requirement for effecting change is strong cooperation between all stakeholders in the victims’ area. Government agencies from different departments (justice, public health, transportation), the police, the prosecution service, the judiciary, the probation, victim support and welfare agencies should all be represented as partners in a network. The network should serve as a platform for policy making and supervision of its execution and to smooth out any kind of problems that will inevitably occur.

- Finally, strong leadership is essential for being successful. In every country designated senior officials in the relevant ministries and criminal justice agencies should be charged with the express responsibility of identifying and promoting

33 In this connection, we frequently heard the expression: “The right to independence does not include the right to ignorance or the right to arrogance.” 34 It must be added, though, that the judiciary in the USA has an interest of its own in observing victims’ rights. In quite a few States within the USA judges can be held personally accountable for violating basic rights of an individual victim in a particular criminal case.

policies and programs for victims of crime.35 As far as we can see, the United States offers an example of best practice in this respect. Their government has established an OVC (Office for Victims of Crime) with a high ranking director, a substantive staff and extensive powers, provided for by legislation.

5. 2005: The introduction of victim impact statements

The next main reform of Dutch criminal procedure came in 2005 with the introduction of the oral victim impact statement.36 The significance of this new instrument is that it constitutes an important contribution to procedural justice. As such, the real question is not so much whether the statement does or does not actually influences sentencing. The real thing is not outcome related, but is about the way the procedure is conducted. A victim impact statement is meant to give the victim – quite literally – a voice during trial. This serves to provide him with recognition of what he went through; it is acknowledgement of victimization. For us, the most powerful way of summarizing the arguments in favour of a victim impact statement is to quote an American victim who commented: “All I want is to be treated as a criminal”. The Code of Criminal Procedure (art. 302) provides for a victim impact statement with two restrictions.37 The first one is that it is only admissible in a limited number of serious cases. According to the law, the case has to involve a crime which is punishable by a maximum prison sentence of 8 years or more. Over and above that, a victim impact statement is also admissible when the defendant is prosecuted for stalking, for serious sexual crime or for some crimes of negligence, most notably causing death or serious bodily injury by negligence (for instance in road traffic accidents). The second restriction concerns the content of the statement. Under the terms of the existing law, victims are only allowed to speak about the actual effects they have suffered from the crime. It is about impact, about the factual consequences of the crime committed against them. Obvious examples are the implications of sexual crime, the emotional disruption of bereaved families, the long lasting effects of stalking. On the other hand, so-called statements of opinion are inadmissible. The victim can not address the question of the sentence. He is not permitted to ask the court for a long prison sentence. In academic writings this restriction has been criticized.38 Van Dijk has argued that the current provisions only give the victim a sort of amputated right to express himself and he vented a preference for what he refers to as a fully fletched victim impact statement. We are not convinced by this plea. We have not seen any empirical evidence

35 Phare Report 2002, Reinforcement of the Rule of Law. Final Report on the First Part of the Project. Phare Horizontal Programme on Justice and Home Affairs, Nijmegen: Wolf Legal Productions 2002, p. 57. 36 In this paper we confine ourselves to the oral victim impact statement. In passing we note that during the past years increasing use has been made of a less far reaching improvement of the criminal procedure, the introduction of a written victim impact statement. This instrument has been evaluated by Renée Kool, Martin Moerings & Willem Zandbergen, Recht op schrift. Evaluatie projecten Schriftelijke slachtofferverklaring, Deventer: Kluwer 2002. 37 A critical assessment of this kind of restrictions is provided by Jan J.M. van Dijk, The mark of Abel. Reflections on the social labeling of victims of crime, Inaugural address Tilburg University,Tilburg 2006. 38 J.J.M. van Dijk, Slachtoffers als zondebokken. Over de dubbelhartige bejegening van gedupeerden van misdrijven in de westerse cultuur, Apeldoorn-Antwerpen-Portland: Maklu 2008, p. 163.

indicating that victims have a deep desire to make punitive demands. Nor have we seen any empirical findings demonstrating that victims feel that the current scope of their interventions in court is too limited. Academia is not the only forum where the newly introduced victim impact statement was frowned upon. Initially, the judiciary was also uneasy – to say the least – with this new development. Actually quite a few judges openly expressed opposition to this reform of the criminal procedure.39 The core bottom of their anxiety was that they were afraid the exercise of this new victims’ participatory right might compromise a fair trial for the accused. More specifically, four concrete objections were put forward in this context. First, it was argued that having a victim impact statement might unduly emotionalize the trial. The victim was suspected of making a scene in the courtroom. People were afraid that the victim might vent his anger by shouting at the offender or by calling him names. All kinds of similar problems were predicted. Reflecting on this argument, it appears to be not very strong or convincing. The fear of emotionalizing the trial ignores the basic fact that criminal proceedings are loaded with emotion anyway. Murder cases in which a young child was killed, serious sexual crime in general, a victim being overrun by a drunken driver. In all such situations the trial will be drenched by a deep sense of sadness for what had happened. Yet the professionals conducting the proceedings are trained to deal with the emotional side in an appropriate way. The judge, the prosecutor and defense counsel know how to deal with victims and witnesses who have trouble containing their emotions. So why would this be different in case the victim is allowed to make a statement on the impact of the crime? If the victim would exceed the limits of the scope of an admissible statement, the judge can call him to order, just like the situation when a victim appearing as a witness would not answer the questions asked him but started to tell an unrelated story. And this is exactly what happened. In the years after the introduction of the victim impact statement it turned out that the judiciary was perfectly capable of handling the emotional side of it in a professional way. The same is true for the second objection that was raised: the dire prediction that victim impact statements would unduly delay the trial. The expectation was that victims would go on and on and thereby take an unreasonable amount of time. Of course, simple practical measures can prevent this and have actually prevented this from happening. It is easy to notify victims before the trial that they will only have a limited time to speak. If the agreed number of minutes has passed, the judge can caution the victim that he will have to finish shortly. So this second predicted drawback did not materialize either. The third problem that was raised is slightly more complicated. This argument holds that victim impact statements will lead to inequality in sentencing. In cases where a victim turns up to make a statement, the penalty might turn out to be more severe than in similar cases where no victim attends the trial or when the victim impact statement is of a particularly mild nature. We feel that three observations have to be made in response to this line of reasoning.

First, the victim impact statement is meant as a means to promote procedural justice. It is not aimed at influencing the outcome of a case. Does that objective correspond to actual reality? That is hard to tell. The empirical evidence on the effects of 39 We feel this is important to observe, since we have never ever noticed any kind of judicial resistance or even criticism when new legislation was adopted with additional procedural rights for the defendant.

victim impact statements – obtained in other jurisdictions than the Dutch one – is mixed. Some authors claim that the content of victim impact statements does not affect sentencing at all; others maintain that it is inevitable that the judge is influenced by them in some way.40

Our second observation is about the nature of the sentencing process. Every criminal procedure in which the accused is found guilty culminates in imposing a sentence. The sentence ought to reflect the seriousness of the crime and the mitigating and aggravating circumstances, the latter of which can be dependent on the specifics of the crime or on personal traits of the victim. The basic point here is that the impact of the crime on its victim is part and parcel of the circumstances which determine the seriousness, that is to say the gravity of the crime. And this fact in itself means that a proper investigation of the case must include a detailed fact finding endeavor into the effects the crime has had in the victim’s life. So in an ideal world – where the investigation has been conducted as it is supposed to – the impact of the crime upon its victim has already been explored and documented and is either part of the case file and/or is discussed during the trial. From this perspective and taken literally, the additional meaning of an oral victim impact statement is limited to adding a personal touch to factual information that is already available.

And finally, from the previous remarks it can be inferred that objectively assessed victim impact should be one of the factors co-determining the sentence.41 A few examples suffice to make this point clear. Imagine two burglaries. Both take place during the night time. One is in the home of a young, healthy couple. In the other house lives an old, lonely widow, in frail health. In both cases the stolen property is more or less the same. The young couple of course does not appreciate the incident, but is able to resume their normal life rather quickly and easily. The old lady, on the other hand, is so upset by the crime that she immediately suffers a heart attack and dies. Although the act of the crime may be defined as burglary in both instances, and the criminal intent of the perpetrator was the same when entering both homes, it is obvious that the impact on the latter victim warrants a more severe sentence. Similarly, when two women are raped in more or less the same way, the ramifications of the act can be dramatically different. If for instance one of the victims is a Muslim, the crime may lead to a drastic reduction of her chances of getting married or it may even lead to her being ostracized from her family or community. These objective facts on victim impact should be part of the considerations determining an appropriate sentence.

All of the above serves to refute the notion that introducing oral victim impact statements leads to inequality in sentencing. Quite the contrary, if equality is properly understood – that is: treating similar cases in the same way and dealing with different cases in an appropriately dissimilar manner – then victim impact statements rather promote equality in sentencing than reduce equity.

40 For an overview of the empirical studies on this topic, with the main conclusion that there is very little influence of victim impact statements on sentencing in the USA, see Edna Erez, ‘Integrating a Victim Perspective in Criminal Justice trough Victim Impact Statements’, in: A. Crawford & J. Goodey (eds.), Integrating a Victim Perspective within Criminal Justice, Alderschot: Ahsgate 2000. 41 This is extensively argued in Marc Groenhuijsen, Sentencing principles and the impact of a crime upon its victim, in: B. Naudé & R. Snyman (eds.), Crime and Justice in the Nineties. Papers from the Crimsa/Idasa conference 3-5 July 1996, Pretoria 1997, p. (2) 29-43.

The final objection that was being voiced before the introduction of the victim impact statement held that the instrument might be detrimental for the victims themselves. Opponents contended that delivering the statement might lead to revictimization of the victim, because it could never meet their expectations of such an appearance in court.42 Like the previously mentioned dire predictions, this one also is of a highly speculative nature. And it fails to take into account that in practice it is possible to minimize the likelihood of revictimization by taking specific precautions. And that is exactly what has been done in The Netherlands. As an example, the national victim support organization was specifically charged with the responsibility of preparing victims for their day in court. This involves explanations of the criminal justice system, the scope and the limits of a victim impact statement, the most likely responses to the statement by the professionals in the courtroom (judge, prosecutor, defense counsel), etc. By providing this kind of assistance the chances of serious disappointments have been significantly reduced, in any event to a level that potential revictimization can no longer seriously be invoked as an obstacle for having oral victim impact statements.

6. The final stage of reform: proposal 30143 leading up to the Victims’ Rights Act

2009 In 2001, the European Union adopted a ‘Framework Decision’ on the standing of victims in criminal proceedings.43 A Framework Decision is a legally binding document, in this case with a list of minimum rights victims have to be awarded in the framework of criminal justice. The instrument requires the member states of the EU to ‘transpose’ these rights into their own domestic legislation. The Framework Decision – which can only be adopted unanimously by the member states – was passed relatively easy, because most of the member states believed that their legal order already conformed to the standards set in it. However, this assumption turned out to be unfounded. In 2004, the Commission of the EU published a report in which it was reported that none of the member states fully complied with the provisions of the Framework Decision.44 Subsequently, in June of 2005, the Dutch government introduced a bill in parliament in order to comply with all European standards and norms.45 This Act, which

42 This argument was presented in two different manifestations. One held that victims would be disappointed because their role would not lead to the kind of stiffer penalty the victim was supposed to expect. The other claimed that the victim would be exposed to critical examination when certain factual point in the impact statement would be contested by the defence. 43 15 March 2001 (2001/220/JHA) 44 Report from the Commission on the basis of Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings, Brussels, March 3, 2004 COM(2004)54 final. Five years later a follow up assessment was published (which is still highly critical): Report from the Commission pursuant to Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA), Brussels, April 20, 2009 COM(2009)166 final. The merits and drawbacks of this evaluation process are discussed by Marc Groenhuijsen & Antony Pemberton, ‘The EU Framework Decision for Victims of Crime: Does Hard Law Make a Difference?’, European Journal of Crime, Criminal Law and Criminal Justice 17 (2009), p. 43-59. 45 Tweede Kamer, vergaderjaar 2004-2005, 30143. It has to be acknowledged that the content of the draft Act was to a large extent based on the findings and recommendations of a major research project that was completed just before. M.S. Groenhuijsen & G. Knigge, Dwangmiddelen en rechtsmiddelen, Deventer: Kluwer 2002, p. 773-971; and idem, Afronding en verantwoording, Deventer: Kluwer 2004, p. 107-111.

was adopted by the lower chamber of our parliament in 2008 and by the Senate in December 2009,46 constitutes the final step in a process of emancipating the victim in criminal proceedings which started some 25 years ago. The Act is of great significance. We highlight the most important reform measures.

- In section 4 supra on the Terwee-Act we reported that for the first time in history a separate chapter in the Code of Criminal Procedure was dedicated to the rights of the victim acting in the capacity of aggrieved party. We noted the symbolic value of this amendment, putting the victim who claims damages on a par with the other main players in a criminal trial, like the prosecutor, the defendant and defense counsel. The new Victims’ Rights Act 2009 takes this a meaningful step further. Now a dedicated chapter has been included in the Code on the rights and the position of the victim as such. To clarify this point: it is not about rights of the victim in a derived capacity (aggrieved party, civil claimant, witness), but it states that every victim shall have procedural rights because of the very fact that he has been victimized. Actually, it is for the first time that the word ‘victim’ is being used in the Code. Again, like the case of the Terwee-Act, the inclusion of this full chapter is of great symbolic value which transcends the content of the specific rights awarded to the victims.

- According to article 51a section 2 CCP the prosecutor must make sure that the victim is treated in a correct, respectful way. This obligation primarily applies to the pretrial stages, when the prosecutor is in charge of the proceedings. For the trial stage, a similar provision was drafted. Article 288a CCP now holds that the presiding judge shall make sure the victim is being treated in a correct and respectful way. We regard these provisions as a sign of civilization. It is this kind of reforms that constitute a yardstick for the progress made during the past quarter century. Admittedly, a cynic could claim it is rather an expression of poor taste that it is apparently necessary to legislate basic human morality. We feel, however, that no matter how self-evident correct and respectful treatment of victims might be, it is of pivotal importance to reaffirm this basic value in a written rule of law and to assign high ranking professionals with the responsibility of enforcing that rule.

- The new Act also provides for extensive additional informational rights. In this respect, the drafters have been inspired by a recent recommendation by the Council of Europe, which reflects state of the art victimological knowledge on this topic.47 Under the ‘old’ system, victims’ rights to information were primarily governed by administrative guidelines, such as the Vaillant-guidelines and their successors. In the Code of Criminal Procedure, victims who had the additional capacity of ‘civil claimant’ were awarded the right to be informed about major prosecutorial decisions and about the time and the venue of the trial. Now there is an extensive array of items the victim per se has to be informed of. This looks like a substantial improvement. It has to be noted, though, that some of the problems we have mentioned previously in successfully communicating with victims will

46 The Act of 17 December 2009 was published in the National Gazette 2010, no. 1. It is expected that the Act will enter into force on January 1, 2011. 47 Recommendation (2006)8 on Assistance to Crime Victims, adopted on 14 June 2006.

inevitably remain. Hence it is essential that special attention be paid to effective means of factually implementing the new informational rights. Article 6 of the Council of Europe Recommendation concludes with the provision that “Victims should be given the opportunity to indicate that they do not wish to receive such information”. The amended Dutch CCP does not yet have an ‘opt-out-clause’ like that. It is clearly advisable to follow the Council of Europe’s example here too.

- All victims have the right to inspect the case file. This is no small feat, given the fact that the case file is probably the single most important source of knowledge in Dutch criminal procedure.48 It contains the report of the crime by the victim, it has a full record of subsequent investigatory activities by the police, it includes accounts of all the statements made by the accused and by witnesses who have been interrogated or interviewed during the pretrial stages, and in serious cases it can have written statements produced by experts, for instance on the mental state of health of the suspect. With only few exceptions (for instance to protect the privacy of others), the victim has the right to read all of this progress in his case. If access to certain documents is denied (by the prosecutor), then the victim can appeal this decision. On top of this, the law also grants the victim the right to have additional documents entered in the case file.

- The Terwee Act allowed the victim in the capacity of ‘civil claimant’ the right to be assisted during the trial by another person and the right to be represented by a lawyer. Both of these rights have now been awarded to all victims, regardless whether or not they file a claim for damages. Legal assistance and representation by a lawyer are means tested.

- Under the new law, victims who do not command the Dutch language have a right to translation of the key documents in their case and the right to an interpreter during the public trial.49 In our region this is of particular significance because of the relatively large number of cross border crimes50 and the victimization of persons belonging to ethnic minority groups who do not speak Dutch. As a side-note, we feel it is interesting to observe that the phenomenon of cross border victimization has proved to be a catalyst for change in the area of victims’ rights in general. The inconveniences these victims have experienced quite often turned out to be the more conspicuous manifestations of similar problems that domestic victims are constantly faced with.51 Hence, reforms which were initially meant for foreign victims have later on been expanded to the internal legal order of the

48 The special role the case file plays within Dutch criminal procedure – which is also the reason why trials in court take much less time than in other countries – is explained by M.S. Groenhuijsen & J.B.H.M. Simmelink, ‘Criminal Procedure in The Netherlands’, in: Richard Vogler & Barbara Huber (eds.), Criminal Procedure in Europe, Berlin: Duncker & Humblot 2008, p. 373-481. 49 Here, Dutch legislation is more generous than is called for by the EU Framework Decision of 2001. Article 5 of the Framework Decision calls for communication safeguards, but translation and availability of interpreters is only required for “victims having the status of witnesses or parties to the proceedings”. In The Netherlands, neither status is required; it suffices to be the victim. 50 This refers to the situation where someone is victimised in another State than his country of residence. 51 This process is also visible in the background of the EU Framework Decision of 2001. It started out as an initiative to protect victims travelling to another member State; then the EU came to realise that it would be absurd to provide ‘international victims’ with a higher level of legal protection than ‘national victims’.

member states. A concrete example is allowing victims to give testimony through video-taped statements.

- A completely novel provision is the right to claim damages from the parents of an offender under the age of 14. Of course, parents have always been financially responsible for the illegal acts of their children. The only way to hold them accountable was to sue them in civil court. Now this power has been expanded by allowing the victim to act as civil claimants against the parents of the juvenile perpetrator in a criminal procedure. It remains to be seen, however, whether the practical implications of this innovation are really important. In The Netherlands, children can be criminally liable from the age of 12. Hence, the age group concerned is rather small (there are not too many prosecutions of children aged 12 and 13). On top of that, most of these young offenders are from broken families, living in circumstances which might make it hard to retrieve significant sums of money to cover damages.

- Article 51a, section 3 CCP now provides for the right of the victim to be informed of the release of the incarcerated perpetrator in his case. It can pertain to situations of pretrial detention, the end of a prison term, or conditional release. This right is limited to a number of serious crimes which are listed in a separate ministerial directive. For a long time, the right to be informed about release has been quite controversial.52 The government, generally speaking sympathetic to reform on behalf of victims, felt that this particular right might interfere with the rehabilitation of offenders. According to Dutch law, the execution of a prison sentence is also aimed at preparing the offender for returning in society with the least possible risks of recidivism. Conventional views held that this included the absence of the social stigma of being labeled as a former inmate. It is obvious that this perspective is in direct conflict with the victims’ interest to know when his offender will be released. Victim Support Netherlands – our national service provision organization – has effectively lobbied to get the new provision on this type of information included in the Victims’ Rights Act 2009.

- After the proposal 30143 had been introduced into parliament, the members of the lower chamber suggested several so-called amendments (i.e. more or less ‘minor alterations’), which were subsequently adopted. One of these turned out to be rather unfortunate. The lower chamber agreed to insert in art. 496 CCP an obligation for the parents of juvenile offenders to attend the trial. The rationale behind this provision is that the pedagogical effects of the criminal trial would be enhanced. The assumption is that the parents would be impressed by the court proceedings and would discuss it at home with their offspring. This in turn would then supposedly refrain the juvenile from reoffending. Nice as this may sound, the question arises whether this line of reasoning is slightly over-optimistic and/or even somewhat naive. And the provision might have adverse side effects which have been overlooked by the members of the lower chamber. All of this came to the surface when the matter was considered by the higher chamber of the

52 In practice, since 2000 victims of sexual crime who have explicitly requested information about release have been told about the expiration of a prison sentence by the prosecutor’s office. The same was true for victims whose offenders were confined to an institution for people who could not be held criminally responsible for their acts because of mental disorders. Kamerstukken II 2004/2005, 30143, nr. 3, p. 20.

parliament (the ‘senate’). The senators felt that an unqualified obligation for all parents to be present is undesirable, because it would mean that the trial would have to be adjourned in case the parents are absent. In short, they felt that the potential advantages of the provision are clearly outweighed by the apparent drawbacks. The situation was further complicated by the fact that the ‘senate’ of the Dutch parliament does not have the power to make minor changes in an Act that has been adopted by the lower chamber. It can only vote on it as it stands. Because the senators felt strongly about this particular detail, the whole process of passing the Act was suspended. In the end, the minister of Justice had to introduce a new law in the lower chamber of parliament to correct the mistake that was made the first time.53 Needless to say that this episode led to a substantial delay in getting the proposal 30143 (introduced in 2005) finally adopted as the new law of the land (in 2009).

- In The Netherlands, a criminal trial is focused on very formally described charges in the indictment. This practice works well in situations where the number of crimes committed is relatively small. However, if the defendant has committed many different crimes (e.g. a large number of drug related burglaries) the prosecutor usually selects only a few of them to be included in the indictment. When the perpetrator is found guilty of the charges brought against him, the judge, in sentencing, is allowed to ‘take into account’ the fact that the defendant has also committed the other crimes which were not included in the indictment.54 Until now, the victims of these facts which are taken into account did not have the power to claim damages suffered because of these acts. The Victims’ Rights Act 2009 improves their position in this respect. From now on, the victims of ‘facts taken into account’ in sentencing (facts ad informandum, as they are commonly referred to) do have an opportunity to file a claim for damages in the criminal trial based on an indictment focusing on other crimes. We sincerely doubt whether this new provision will be truly significant for future generations of victims. It is important to appreciate the fact that the mechanism of ad informandum-facts is only employed in situations where there really is a very large number of crimes at stake. In these situations, the prosecutor has traditionally been obliged to select those cases for inclusion in the formal indictment where there are victims involved whose damages are likely to be recovered from the perpetrator. It follows that the means of the offender will usually be insufficient to additionally pay any reasonable level of reparation to the victims of the ad informandum-facts. Hence this new provision cannot be expected to constitute an effective improvement of the position of victims of crime.

- An exact opposite observation might be applicable to the next innovation introduced by the new Act. In section 4 sub d supra we have described the so-called compensation order in the Terwee-Act. We indicated that when a

53 The end-result still contains a provision urging the parents to attend trial. If they are absent, though, the procedure can commence without them being present. 54 This method of dealing with large numbers of crimes has not been regulated in the CCP, but was accepted in the case law of the Supreme Court. Of course, several conditions have to be met for proceeding in this way. The most prominent of these conditions is that the defendant has to confess to these crimes which will be taken into account in sentencing. If he denies involvement, the prosecutor can proceed to charge the perpetrator in a subsequent indictment.

compensation order is part of the sentence, the government is responsible for executing the judicial decision. This is important, since it leads to an approximately 75% success rate in actually getting the awarded sum to the victim. Viewed from the reverse side, however, that would still leave some 25% of the victims involved without the reparation they are entitled to. In order to solve this remaining problem, the Victims’ Rights Act 2009 includes a provision which obliges the government to pay the compensation order up front to the victim, and then recover the money from the offender. The details of this scheme will be elaborated in an Order-in-Council. At the time of writing, it looks like there will be a ceiling of 5000 euro’s and the procedure will only be applicable in cases of violent crime or sexual crime. We do not hesitate to call this reform revolutionary in nature. Very few countries in the world have gone this far in securing that a judicial compensation order will be effectively carried out.

- Another topic we discussed in section 4 (sub a) supra was the ‘clear case criterion’. This concept means that victims’ claim for damages can only be admissible in a criminal trial if and when it is relatively easy to decide whether or not the claim is justified. The rationale behind it is that the court’s search for truth and attention for sentencing should not be overshadowed by complicated issues of civil liability. In actual practice quite a few judges tended to embrace this clear case criterion in order to expel more claims for damages than the legislative thought appropriate55. As a consequence, the new Victims’ Rights Act aims to clarify the ‘clear case criterion’ in a restrictive way. From now on, a claim can only be dismissed if it would lead to a ‘disproportionate burden’ for the criminal procedure. Obviously, the objective is to allow more claims for damages to be considered in the framework of a criminal trial.

7. Conclusion

The first conclusion to be drawn is obvious: over the past 25 years, we have made tremendous progress in reforming the Dutch criminal justice system on behalf of victims of crime. The person who used to be described as “the forgotten party” has been emancipated. Nowadays, the victim is someone to be taken seriously in every criminal proceeding, from beginning to end. The huge differences between today and a quarter century ago are reflected in the Code of Criminal Procedure and in supporting policy guidelines. But that is still only part of the story. The changes that have taken place have also affected the institutions of our system and the attitudes and minds of the officials running these institutions. Courts are no longer the same. Prosecutors have adapted to new circumstances. The police is aware of the fact that law enforcement has a deeper meaning than ‘just’ catching criminals. In The Netherlands, the world has become a better place for victims of crime. Is that all? Is there nothing left to improve? Of course there is. But where should we focus on? In our view, it would not be beneficial to just aim indiscriminately for ever more rights. Some years ago warnings have been expressed against the ‘victimologists

55 This phenomenon has been observed in other countries as well. Groenhuijsen (op.cit. 1985) reports similar abuse of an escape clause in German legislation.

fallacy’, which holds that the more victims’ rights there are, the better it is.56 Instead, we urge for caution. New victims’ rights are unacceptable when they would compromise the right to a fair trial for the defendant. The victim may be a participant, but should never be positioned as a third party in the trial (because this would expose him to counterattacks and it could lead to a situation where it is the victim who ends up as the vulnerable person again). And we should not give the victim a final say57 in decisions on pretrial detention, in sentencing, or in parole.58 Additional victims’ rights in criminal procedure should only be contemplated following the state of the art in research in victimology. If and when concrete and significant gaps are discovered through empirical evidence, then it might be advisable to establish even more rights (for instance, for a limited category of – say: particularly vulnerable – victims). Generally speaking, though, we feel that the future of victims’ rights is better served when we focus on better implementation of the kind of rights which have been introduced during the past 25 years. This includes providing services to victims and shaping policies which empower them to actually benefit from the rights provided for them in the Code of Criminal Procedure. Why is this kind of empowerment of particular importance? We would argue that apart from the many familiar reasons that have been repeated endlessly in all victimological textbooks, there is an institutional consideration which can in and of itself tip the scale. This consideration concerns the specific nature of criminal law and criminal procedure. The criminal justice system is a sad business. It deals with suffering and misery. And it does so by inflicting punishment on the perpetrators of crime. So in essence it only adds more suffering to the harm that has already been inflicted. In a proverbial sense, the criminal justice system traditionally added insult to injury. And here comes the transformation that can be achieved by taking victims’ rights seriously. Victim empowerment would mean that finally, for the first time, something good can come out of the criminal justice system. Realizing victims’ rights can lead to a reduction of human suffering. And it can avoid the occurrence of avoidable additional grief (secondary victimization). In our view, this is the key to understanding victim empowerment in the framework of criminal justice. And it also constitutes the ultimate justification for the developments that took place in the past 25 years, which have been analyzed in this paper.

56 Groenhuijsen (op.cit. 1999). 57 He should not have a final say. He ought to have the right to express his feelings and interests, and these should be taken into account when the authorities make their decision. 58 The second and third limits are closely linked. They follow from one of the principles for the establishment of victims’ rights as articulated by the European Forum for Victim Services (recently renamed into ‘Victim Support Europe’): “Throughout Europe, the State has assumed responsibility for prosecuting offenders and has removed from the victim the burden of responsibility for determining any action to be taken in respect of the offender. The acceptance of responsibility by the State should be recognised as a fundamental right of victims of crime, and no attempts should be made to erode this by returning the responsibility for decision making to victims” (in: Statement of Victims’ Rights in the Process of Criminal Justice, London, September 2001).