onverminderde zoektocht naar evenwicht in de rolverdeling tussen de rechter-commissaris, de officier van justitie en de verdediging
Meij, P.P.J. van der
Citation
Meij, P. P. J. van der. (2010, February 4). De driehoeksverhouding in het strafrechtelijk vooronderzoek : een onverminderde zoektocht naar evenwicht in de rolverdeling tussen de rechter-commissaris, de officier van justitie en de verdediging. Meijers-reeks. Kluwer, Deventer. Retrieved from https://hdl.handle.net/1887/14654
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Summary
INTRODUCTION
This research is focused on the statutory regulation of the criminal pre-trial investigation in the Dutch Code of Criminal Procedure and the incessant need of the legislator to amend that regulation. Since the end of the 1980’s the regulation of the pre-trial investigation and the positions that procedural participants take in that phase have been the subject of extensive discussions.
The regulation has recently been amended several times, amongst other things by two sizeable legislative operations that have restructured the relation between the examining-magistrate and the prosecutor in accordance with the manner in which that relation developed in practice. Despite these recent statutory amendments, the legislator has once again recently submitted a bill that touches the core of the criminal pre-trial investigation: the Law on the Reinforcement of the position of the examining-magistrate (Wet Versterking positie rechter-commissaris). This bill is part of a broader legislative programme with regards to the pre-trial investigation as a whole, in which the position of the defence will also be reconsidered. It is remarkable that the legislative programme by far does not always tally with the amendments that were implemented shortly before.
The basis for statutory amendments is mainly sought in the fact that much has changed since the promulgation of the Code of Criminal Procedure in 1926 and that law and practice have been subject to many developments of a diverse nature. It is remarkable however that the nature of those developments, the question as to the cause of those developments and the consequences of those developments for the statutory regulation and for practice is hardly addressed in depth. Without contemplation of the most important developments that are presented as reasons for statutory amendments, the danger arises that a statutory amendment is doomed to fail in advance. That would be a new reason to set a next statutory amendment in motion or possibly even to revise the code as a whole. In this manner, the need to adapt the regulation of the pre-trial investigation and the implemented statutory amendments that again feed that need, develop into a vicious circle. Contemplation of the many societal, legal political and legal developments can contribute to answering the question if – and, only in the second place, in what manner – the statutory regulation of the criminal pre-trial investigation should be amended. Contem- plation of this kind is valuable, because it offers insights in the origin of the
need to amend. Contemplation of this kind can help the legislator in making well-argued and well-considered future choices.
THE1926 CODE
The point of departure for contemplation lies in the original statutory regula- tion with regards to which the developments have played out: the Code of Criminal Procedure of 1926. The statutory regulation in that code gives certain concrete aspects that are determinative for the manner in which the pre-trial investigation is structured, such as the functions that are fulfilled by the examining-magistrate, the prosecutor and the defence, and the triangular relation between those functions. Neither the functions nor the division of those functions regard random choices: they follow from the aim of the criminal procedure as that was formulated for the 1926 Code. In the 21stcentury, this aim still applies unabatedly as the basis for the statutory regulation of criminal procedure. In brief, the purport of that aim is that the statutory regulation is as conducive as possible to punishing the truly guilty and, at the same time, prevents as much as possible that an innocent person is convicted or pro- secuted. Two primary goals can be derived form this aim, namely the goal of truth-finding and the goal of the protection of individual rights. The statu- tory regulation enables each procedural participant in the pre-trial investigation in contributing to this aim, in their own manner and with different interests.
In the 1926 Code, the examining-magistrate is the procedural participant who strives for both the goal of truth-finding and the goal of the protection of individual rights. He must always find a balance between the general investigative interests and the individual interests of the suspect. The 1926 Code provides a more expansive function for the examining-magistrate and his investigative and supervisory role, in relation to the function of the pro- secutor and his investigative role. All competencies of the examining-magistrate were shaped within the framework of the judicial pre-trail investigation. The investigative function of the prosecutor – in which context the prosecutor strives for truth-finding and to serve the general investigative interests – is given shape in the phase of the police investigation.1The prosecutor was not given many invasive competencies in the 1926 regulation, based on the notion that he would approach the examining-magistrate if complex criminal cases required such competencies. This allocation of competencies would generate the necessary rights protection for the suspect. The notion that the main point of the pre-trial investigation lays in the judicial pre-trial phase, the defence function was embedded within that phase.
The premise of this research is that these concrete aspects of the pre-trial investigation generate a balance that not only results in conformity between
1 Under Dutch law the pre-trial phase of police investigation is led by the prosecutor.
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the statutory regulation and its aim, but also contributes to the realization thereof. This balance and the relation between the concrete statutory regulation and the abstract foundation on which it is based, is complicated by the societal, legal political and legal developments that have taken place in the last eighty years. Apparently, the developments have consistently fed the need for amend- ments. In the event of an intended legal amendment, the legislator must account for the developments that feed the need for adaptation, as well as of its meaning for the regulation of the pre-trial investigation and the founda- tion on which that regulation is based. If that background is disregarded or insufficiently weighed in amending legislation, that amendment will pressurize the organization of the pre-trial investigation and may cause displacements therein. Such displacements are undesirable because the original regulation is built on the notion that a balance exists in the structure of the pre-trial investigation and in the triangular relation between procedural participants.
Shifts in that organization can lead to a disruption of the balance, so that the aim of the statutory regulation will not be realized and the need for far-reach- ing statutory amendments will increase. In that situation, it is unlikely that the regulation of the pre-trial investigation will be able to rise above the problems with which it is confronted. This raises serious concerns for the future and leads to the question if a balance in the pre-trial investigation and in the relation between the examining-magistrate, the prosecutor and the defence can be rediscovered. A lack of balance can again lead to a new need for amendment. Chapters 4-8 describe and analyse periodical developments that have influenced the regulation of the pre-trial investigation in the Code of Criminal Procedure of 1926 and the amendments thereof since its promulgation in detail.
THE FIRST PERIOD:THE1930’S AND1940’S.
The call for change is already to be heard in the first years after the promul- gation. This early call for change arises from societal and legal political devel- opments: the legal position of the suspect is not in accordance with the prevail- ing opinion in the thirties that the general interest always takes precedence over the individual interests of the citizen. The bad economic circumstances in that period contribute to the view that the rise of the criminality must by all means be rigorously combated, at the expense of the protection of the rights of the individual. In the end, these views do not ultimately lead to far-reaching legal amendments, but they do illustrate to what extent the need for changes can be induced by problems that lie outside of the direct criminal procedural sphere. The developments illustrate furthermore that the relation between the government and its citizens can easily affect the position of suspects in criminal procedure. That is an important observation, because several changes occur
in the relation between the government and the citizens within the different periods, which feed the need for legal amendment.
The legal developments in the first period show that the triangular relation between the procedural participants was indeed set upon the basis of an abstract balance, but that the procedural participants experience difficulty in realizing that balance in practice. The improved legal position of the suspect and the possibilities for the defence to generate a certain degree of protection itself, are hardly utilized at all. On the part of the suspect, consciousness of that new position is lacking and legal counsel seems to not yet have been equipped for the new defence function. Because of this, it is remarkable that the view was able to take hold that the individual interests of the suspect prevail too much above the interests of the community. Besides the develop- ments with regards to the defence function, the division of roles between the prosecutor and the examining-magistrate comes directly under pressure.
Questions arise as to which of both procedural participants is charged with the investigation of the facts in practice. As a consequence of case law since the promulgation of the 1926 Code, the interrogation of the suspect and witnesses can effectively take place within the phase of the police investigation and not only in the judicial pre-trial phase. The prosecutor may also continue his investigation even if it has been transferred it to the examining-magistrate within the context of his pre-trial judicial investigation.
These are developments that regard the balance in the division of functions between the procedural participants which do not always consistently answer to the abstract aim and the concrete organization of the criminal pre-trial investigation in practice. Departing from the notion that deficiencies in the defence function can be compensated by other procedural participants, the shift in the relation between the police investigation and the pre-trial judicial investigation is unfortunate. It is in the pre-trial judicial investigation that the defence can effectuate its function and that investigation, which is led by the examining-magistrate, is reduced in favour of the police investigation, in which the defence has no position to speak of.
THE SECOND PERIOD:THE1950’S AND1960’S
With regards to the societal and legal political developments in the second period, what particularly attracts attention is that, slowly but surely, the citizens acquire a different position in relation to the government. The need for repression disappears to the background; perhaps against the backdrop of the atrocities of the war or because of the existence of other worries concern- ing the reconstruction of society. Furthermore, new social fundamental rights are laid down in international treaties and can be put into effort by the citizens.
The awareness of the necessity of respecting these fundamental rights illustrates the change in the relation between government and citizens. This awareness
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can affect the position of the suspect in criminal procedure as well, although a more emancipated procedural attitude on the part of the defence has yet to manifest itself.
It becomes apparent that more and more the pre-trial investigation becomes the main point of criminal investigation instead of the trial phase. This is not the only shift: within that pre-trial investigation the focus is not, as the statu- tory regulation presupposes, on the judicial pre-trial investigation, but on the police investigation. Because of this, the question arises as to the procedural position of the prosecutor: is the prosecutor objective enough to lead the investigation with due regard to the individual interests of the suspect? In the expanding and increasingly more technical police investigation, no account is taken of the fact that the defence function is mainly structured within the pre-trial judicial investigation. Neither is the function of the examining-magis- trate extended to that police investigation. It is remarkable that in the shifting of the focus of the criminal investigation to the police investigation, compensa- tion is sought in the actual procedural attitude of the procedural participants.
Because of that, the extent in which the goal of protection of individual rights is realized is substantially dependent on those procedural attitudes, whilst the statutory provisions that constitute that protection are not essentially expanded.
THE THIRD PERIOD:THE END OF THE1960’S AND THE1970’S
The societal and legal political developments in the third period are extra- ordinary as compared to those of the previous periods, as they illustrate that the need for balance between the functions of the procedural participants in the pre-trial investigation eventually surfaces. As the relation between govern- ment and citizens changes and the citizens develop and becomes emancipated, it becomes clear that the government has difficulties with too much inde- pendence and freedom on the part of the citizens. This leads to several fierce societal conflicts, which make evident that the government tends to act repres- sively. Under the circumstances of the end of the sixties and the beginning of the seventies, the consequence of this is that the citizens stand up better for themselves, which in criminal procedure translates as a much better utiliza- tion of the defence function that was created with the statutory regulation.
Citizens stand up for their rights and take all sorts of initiatives to expose the repressive approach of the government. This eventually leads to a better organization of legal assistance. Some time later, the government adopts this development and stimulates it, yet not until after the disproportional actions of the police, a rigid prosecution of ‘civil disobedience’ by the public pro- secution and the uncritical attitude of the criminal judge are extensively exposed.
In this third period, the legal developments mainly consist of a search for balance. The rise of social legal assistance contributes, amongst other things,
to the defence claiming a prominent position in the criminal pre-trial investiga- tion. Lawyer’s initiatives to provide legal assistance in every instance of police custody, is anchored in the law. This begs for more: inspired on the classic fundamental rights in the ECHR, for the first time claims are made by the defence that the suspect has the right to legal assistance as from the first police interrogation. Furthermore, required to do so by rising crime, the public prosecution engages in policy making with regards to the investigation and the prosecution of criminal offences. This new perspective causes the prosecu- tor to orient himself on the question if in concrete cases the general interests are indeed served by the bringing of criminal charges. This leads to the situation that the prosecutor is somewhat more distanced from the investiga- tion. This is also a consequence of the fact that in the phase of police investiga- tion the police act more independent and on their own. This feeds the need of the public prosecution to take on a more supervisory role with regards to the police investigation.
While during the seventies the defence and the prosecutor set out to reorganize their functions in the pre-trial investigation, no clear changes take place with regards to the function of the examining-magistrate; his role is mainly confirmed and that confirmation also applies to his phase of judicial pre-trial investigation. In the third period, the relation between the procedural participants closely approaches the balance abstractly intended in the 1926 Code.
THE FORTH PERIOD:THE1980’S AND1990’S
The end of the seventies and the eighties show an entirely different societal and legal political reality. The government is faced with the problems of a badly deteriorating economic situation and the necessity for far-reaching cutbacks, while crime figures rise increasingly, the citizen’s claims on the law increase and the manner in which crime is tackled is plainly shortcoming. It becomes apparent which uncertainties are attached to the fact that the balance in the triangular relation between the procedural participants is dependent on the factual procedural attitudes: it has a direct effect on that triangular relation when circumstances change in practice.
The development that the government utilizes the law in a frantic attempt to steer changes in society in a particular direction and to that end pursues an all-encompassing policy, causes the public prosecution to undergo an important change the manner it conducts the police investigation and its prosecution policy. In a certain manner, the public prosecution becomes a policy forming administrative organ, which development indubitably influences its range of duties in criminal procedure. Investigative and prosecutorial decisions are determined through the making of choices and the setting of priorities. This policy is not stripped of notions of governmental steering, even
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if that were only because the public prosecution attempts to combat increased crime through a repressive approach. Both the public prosecution and the police increasingly orient themselves on statutory law and enforcement thereof, as opposed to the law as that is determined by the state of affairs in society.
The goals the prosecutor strives for, change: the goal of truth-finding is ex- tensively coloured by the more policy-related, derived goal of fighting crime.
The development of putting crime-fighting first also leads to fewer efforts on the part of the prosecutor with regards to effectuation of the goal of individual rights protection.
For the defence, this has as a consequence that its position threatens to be lost; the police and the public prosecution develop investigative methods with which the rights and competencies of the defence can be circumvented.
The fact that the procedural attitude of the defence does not change and its function is reinforced by developments in case law and at the level of theECHR, initially leads to an extension of the opportunities to effectively challenge the criminal investigation. Eventually, that development also turns against the defence: the legislator determines that the goal of the protection of individual rights has gained the upper hand and stands in the way of combating crime.
This leads to a limitation of the defence function through the removal of procedural provisions and other guarantees, but also through a different procedural attitude on the part of the public prosecution. The polarization of the functions of the prosecutor and the defence increases further as the combating of crime intensifies.
The unrelenting fight against organized crime by the public prosecution and the police brings with it that the function of the examining-magistrate is sidelined to a great extent and that the pre-trial judicial investigation loses importance. The development whereby the police investigation takes place in an increasingly earlier stage, contributes to that. The investigative methods that are created by the police in practice are not hindered by involvement of the examining-magistrate. As these methods have no legal basis or regulation, no supervision is provided for in the pre-trial investigation by a representative of the judiciary. This situation completely evades the notion that the more the investigation limits the rights of the suspect in a graver manner, the higher an authority should be involved therein. The competencies are presented as not being aimed at a concrete suspect, so that a limitation of the legal position of a suspect is not as serious as may be thought. That stands in a striking contrast to the fact that the applied methods generate a great deal of informa- tion that most certainly can be used against suspects in a later phase of the investigation, while the defence or the trial judge cannot examine the origin of that information.
At the end of the eighties, the pre-trial investigation has more or less become the domain of the prosecutor and the police officials he is expected to have authority over; the examining-magistrate and the defence play a marginal role. As said, in the police investigation there is almost no room for
the goal of the protection of individual rights. The goal of truth-finding is mainly coloured by the unrelenting combating of crime: there seems to be no balance in the goals striven for. The police seems to show no interest in the knowledge that the prosecutor must account for the eventually investigated criminal offences at trial and goes its own way. The prosecutor loses authority over the police investigation. This eventually leads to a crisis in the practice of the police investigation.
The resolution for this crisis is found in two sizeable legislative amend- ments: the Law on Special Investigative Competencies (Wet Bijzondere Opspo- ringsbevoegdheden) and the Law on the Revision of the pre-trial judicial investi- gation (Wet Herziening gerechtelijk vooronderzoek). Remarkably, these amend- ments do not restore the disturbed balance in the triangular relation between the procedural participants. In fact, the amendments confirm the division of functions that arose in practice during the 1980’s: the prosecutor leads the police investigation, the special investigative competencies are necessary to firmly fight crime and because that fight is in good hands, expansion of the functions of the other procedural participants like the examining-magistrate and the defence is not necessary. In the statutory regulation, the judicial pre- trial investigation is pushed to the background and the function of the examin- ing-magistrate is marginalized.
THE FIFTH PERIOD:THE21ST CENTURY
At the beginning of the fifth period, the need for efficiency seems dominant.
Partly as a consequence of the aspirations of security, the goal of combating crime unabatedly dictates governmental policy. This affects the regulation of the pre-trial investigation and the course of events in practice. Nevertheless, the disrupted balance in the triangular relation seems to restore itself. That can be attributed, in the first place, to the attempt of the public prosecution to realize the affirmation it was given by the legislator in its leading role regarding the pre-trial investigation. There is a turning point in the outlined developments with the determination that, despite his sincere intentions, the prosecutor is certainly not always able to lead the police investigation in such a manner that the investigation is not only legal, but also leads to the finding of the truth. The ambivalent attitude of the prosecutor with regards to the police investigation – closely involved, but at an appropriate distance – proves difficult to realize.
The pitfalls exposed in the practice of police investigations increase the call for more supervision of the prosecutor’s investigation. This development leads to more attention for the quality and the reliability of the results of the investigation. The policy of the government and the public prosecution to firmly fight crime seems to be forced back somewhat in this regard. The
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legislator feels obliged to create provisions in the regulation of the criminal pre-trial investigation that meet the realization of the goal of truth-finding.
This forms the basis for the proposed legislative bill to reinforce the position of the examining-magistrate mentioned above; a proposal in which the pre-trial judicial investigation is done away with and the examining magistrate is placed at the centre of the prosecutor’s police investigation. The proposed bill seems at first glance to repair the division of roles between the examining-magistrate and the prosecutor, but it presupposes too easily that a change in the practice of the pre-trial investigation will follow. In this regard, the attitude of the procedural participants is very important: in what manner will a procedural participant manage its statutorily provided function, with its rights, duties, competencies and possibilities? What works against a reinforced position of the examining-magistrate is that he has become accustomed to a role in the background of the pre-trial investigation. This is the result of the developments in law and practice over the last thirty years, that have been confirmed by the many amendments to the statutory regulation of the criminal pre-trial investigation.
CONCLUSION
Contemplation of more than eighty years of societal, legal political and legal developments gives good insights. The most important conclusion is that the legislator has the duty to guarantee that the statutory regulation of the criminal pre-trial investigation provides a balance in the triangular relation between the examining-magistrate, the prosecutor and the defence and that all three are enabled to fulfil their allocated functions. If that is not the case, the realiza- tion of the aim of criminal procedure is endangered and the need arises to amend the law. That need will only increase if there is no regard for the necessary balance between the goal of truth-finding and that of the protection of individual right: the legislator must always unabatedly keep searching for balance in the criminal pre-trial investigation.
