NCJ Number
47654
Journal
ZEITSCHRIFT FUER DIE GESAMTE STRAFRECHTSWISSENSCHAFT Volume: 90 Issue: 1 Dated: (1978) Pages: 261-285
Date Published
1977
Length
25 pages
Annotation
THE CHANGING ROLE OF THE ACCUSED IN THE DUTCH LEGAL PROCESS AND SOME FACTORS WHICH AFFECT THE DEFENDANT'S POSITION ARE EXAMINED.
Abstract
THE ROLE OF THE DEFENDANT IN THE NETHERLANDS HAS GONE THROUGH REGULAR AND FREQUENT CHANGES. SPECIFIC REASONS FOR THE ALTERNATE STRENGTHENING AND WEAKENING OF HIS POSITION ARE DIFFICULT TO DETERMINE. IT IS TEMPTING TO SPEAK OF DEFENDANTS AS IF ONE HAD A PARTICULAR CATEGORY IN MIND; HOWEVER, THERE ARE MANY DIFFERENT TYPES OF DEFENDANTS AND WIDELY VARIED SITUATIONS. THE LAW MAY SEEM TOO NARROW IN SOME CASES, WHILE IN OTHERS IT MAY BE TOO BROAD. HOWEVER, ALL ARE SUPPOSED TO BE EQUAL BEFORE THE LAW, AND THUS THE LEGAL PROCESS MUST BE APPLIED IN THE SAME WAY TO EVERYONE. THE RULE APPLIES TO ALL DEFENDANTS THROUGHOUT THE COUNTRY, AND DUTCH LAW RECOGNIZES NO SPECIAL REGULATIONS FOR ANY PARTICULAR GROUPS, SUCH AS POLITICAL OFFENDERS, THE POSITION OF THE DEFENDANT IN THE CRIMINAL PROCESS DEPENDS A GREAT DEAL UPON THE WAY THAT SOCIETY VIEWS THE CRIME PROBLEM: IF IT IS SEEN AS A THREAT, THE DEFENDANT'S LEGAL POSITION WILL NOT BE STRENGTHENED; IF THE CRIME PROBLEM IS NOT SO BAD, MORE ATTENTION WILL BE PAID TO THE RIGHTS OF THE ACCUSED. THE VIEW THAT ONE TAKES TOWARD THE JUDICIAL PROCESS ITSELF ALSO PLAYS A ROLE. THOSE WHO SEE THE PRIMARY PURPOSE OF THE CRIMINAL PROCESS TO BE PUNISHMENT WILL INTERPRET THE POSITION OF THE DEFENDANT DIFFERENTLY FROM THOSE WHO VIEW THE OFFENDER'S REINSERTION INTO SOCIETY AS MOST IMPORTANT. A NUMBER OF FACTORS CAN STRENGTHEN THE POSITION OF THE DEFENDANT, SUCH AS AMENDMENTS TO THE CRIMINAL PROCEDURE AND THE SIZE AND STRUCTURE OF THE JUDICIAL ORGANIZATION (E.G., THE NUMBER OF AVAILABLE JUDGES, CENTRALIZATION OR DECENTRALIZATION), THE ROLES OF THE DEFENSE COUNSEL, THE PROSECUTION, AND THE JUDGES ARE ALSO IMPORTANT, ALONG WITH TRADITION, THE DEFENDANT'S CONDUCT, AND THE OVERALL SOCIAL ATMOSPHERE. THE POSITION OF THE DEFENDANT CAN ALSO BE WEAKENED BY CHANGES IN CRIMINAL CASE LAW. SAFEGUARDS OF THE RIGHTS OF THE ACCUSED ARE ALSO WEAKENED WHEN PROSECUTORIAL AND JUDICIAL DISCRETION ARE EXPANDED. IN GENERAL, SINCE ABOUT 1968, THE TENDENCY IN THE NETHERLANDS HAS BEEN TOWARD A STRENGTHENING OF THE RIGHTS OF THE ACCUSED. SPECIFIC AMENDMENTS TO THE CRIMINAL CODE WHICH HAVE CONTRIBUTED TO THIS STRENGTHENING INCLUDE: (1) THE REGULATIONS REGARDING DETENTION PENDING INVESTIGATION WERE CHANGED IN 1974, LIMITING THE LENGTH OF TIME A SUSPECT MAY BE HELD TO 102 DAYS; (2) A RULE WHICH HAD BEEN ABOLISHED IN 1937 REQUIRING THAT THE ACCUSED BE ADVISED OF HIS RIGHT NOT TO ANSWER ANY QUESTIONS DURING AN INTERROGATION WAS REINSTATED; AND (3) A 1973 LAW FOCUSING UPON THE RIGHTS OF PRISONERS PROVIDED THEM WITH A LEGAL REMEDY AGAINST EXCESSIVE DISCIPLINARY MEASURES TAKEN AGAINST THEM AND ESTABLISHED A SPECIAL COMMISSION TO OVERSEE THE ACTIVITIES OF AUTHORITIES IN EACH PRISON. -- IN GERMAN. (VDA)