Legal Reform on Behalf of Victims of Crime: The Primacy of the Dutch Legislature in a Changing International Environment

Abstract

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. 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. 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. 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 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.