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Le pénal dans tous ses États

 | 
René Lévy
, 
Xavier Rousseaux

- I - Acculturation juridique et intégration nationale

Integration and Unification of the Dutch Penal System. Some Historical Remarks

Sjoerd Faber et Sibo van Ruller

Texte intégral

  • 1 X. ROUSSEAUX, R. LEVY: 'Les Etats et le pénal: Acculturation juridique et intégration nationale. P (...)

1This text is a reaction to a paper by Xavier Rousseaux and René Lévy, in which they formulated a theme examined in the seminars on 'States and punishment', held in 1993-19951. Their most important theses are:

  1. The present process of integration of European nation-States has consequences for penal law, sanctioning practices, etc. This process cannot be understood in isolation from the historical background. The present period of European integration was preceded by integration processes on a smaller scale: nation-States developed after centuries of centralisation and integration. The formation of States in the past, and European integration in the present, are different phases of one process of unification.
  2. Integration took place in all parts of western Europe, but not in the same way everywhere, and not always smoothly.
  3. (State) punishment performed a key-role in State formation from the 14th century.

2In the conclusion to the present article, these theses will be discussed. We use some examples from the Dutch history of penal law and practice in the 19th and 20th centuries.

  • 2 As well as unification on the local-central scale, there is a process of centripetal movement in t (...)

3Our mam point is the following: the history of Dutch state punishment can be characterised as a steady development of a series of related and overlapping phenomena: standardisation, centralisation, uniformization, 'étatisation', professionalization and rationalisation. This development is still taking place2 (in the rest of this text, this complex and differentiated process is subsumed in the concept of unification). Within the unification process, we make some distinctions. There was unification in:

4codification of laws (see section 1)

5organisation of institutions (see section 2), in the fields of:

  1. police work
  2. prosecution
  3. adjudication
  4. sanctioning.

I - UNIFICATION OF PENAL LAWS

6By far the most important moment in the history of the unification of Dutch penal law was March 1st, 1811. In the years 1810-1813, the Netherlands disappeared from the map of European nations, as it was part of the French Empire. As a consequence, French legislation was introduced. In southern parts of the country this was already done beforehand, but in most areas, March 1st, 1811 was the day that the French codes, such as the code d’instruction criminelle (CIC) and the code pénal (CP), came into force. The result was an enforced, sudden and radical unification. This penal unification was part of a wide-ranging process which produced uniformity in language, orthography, education, weights and measures, civil registration, and many other aspects of public life and government. The introduction of the French laws was one of the culminating points in the brief history (1795-1813) of the disappearance of the former polycentric "Republic of the Seven United Provinces" and the merger of the old provinces into a unitary State.

  • 3 In spite of the influences of the Enlightenment and the French Revolution in the penal laws of Nap (...)

7Did the country resist the abolition of traditional laws and the introduction of a complete, foreign penal law system? From our perspective two centuries later, there were reasons to resist. Napoleon’s laws originated from a faraway country, from a totally different culture, and from a political situation (dictatorship, bonapartism, imperialistic aspirations) which was unknown in Holland, and was not in accordance with the Dutch traditions of non-absolutism and tolerance. A close reading of the CIC and CP reveals many traces of Napoleonic despotism3.

8Nevertheless, what we know of the reception of the French penal laws in The Netherlands, does not give an impression of strong, general aversion. In the first years after the introduction, up until December 1813, open resistance was impossible because of the French regime with its censorship and intimidation. We have found isolated opinions, given after 1813, both critical: 'The products of foreign tyranny', and laudatory: 'for the judge a well-functioning and good integrated system' and 'after a short time soon indispensable'. Before 1811, the Dutch judges had not been at all used to an integral system of legislation that unified substantive and formal penal law, and that also dealt with the organisation of the courts. The almost immediate indispensability after 1811 of the advanced French system is the more fundamental reason why the freedom to abolish French legislation after the departure of the French occupying army (November 1813) was only made symbolic use of. On 11 December 1813, the guillotine, the carcan, and some other penal attributes considered to be typically French and symbols of oppression were abolished. The need to get rid of the whole French penal legacy was Stated in article 100 of the constitution of 1814: Dutch laws shall be made. But there is a striking contrast between the speed with which this Statement was made (and of course the hurried abolition of the guillotine) and the slowness with which the code d'instruction criminelle (27 years) and the code pénal (75 years) were replaced.

9The explanation of this slowness is to be found in the impotence that was typical of 19th century law-making in the Netherlands. Almost all the large scale legislative projects in the field of penal law, military penal law, organisation of the judiciary, of the police or of the prison system, suffered from failures, conflicts, delay, postponement, cancellation.

  • 4 R. PIETERMAN, De plants van de rechter in Nederland 1813-1920. Politiekjuridische ideeënstrijd ove (...)

10When we observe this phenomenon from our present time of (relatively) quick decision-making, the inertia of 19th law-making seems puzzling. It is always easy to find an immediate cause for each of the many legislative postponements and failures. But behind immediate causes, others can be assumed which are deeper. In our opinion, two of the most important of these underlying causes are the complicated transition from public punishment to solitary confinement and, secondly, the conflict between the central government and the peripheral provinces, which had an underlying influence on Dutch political life for the greater part of the 19th century, after the fast and enforced stage of unification imposed by the French occupier4. The next part of this paper is especially concerned with the second of these causes.

II - UNIFICATION OF THE INSTITUTIONS OF THE PENAL SYSTEM

A) POLICE

11The making and strengthening of a central State and uniform judicial system in 1798 (the constitution of the "Batavian nation") and 1810/1811 were not fully effective at the local level. Many old procedures, rules and institutions remained in existence in towns and villages. There is no doubt that this applies for the police. It took half a century before the traditional various kinds of police in rural municipalities were replaced by a uniform State police force (rijkspolitie). This new system (State police for the countryside, and municipal police for towns), which emerged in about 1850, also brought new problems. The conflicts between central government and local and provincial authorities gave way to a long war between the ministries of Home affairs (local police) and Justice (State police). This war still seems to be going on, for the time being, in spite of a new Police Act (entered into force in 1994), which introduced a uniform police force, divided into 25 regions.

  • 5 These days we would call refraining from any action 'police sepot'.

12The police seem to be an institution that is hard to understand, even in our days, let alone in the first decades of the 19th century. Much research has to be conducted in that field, but one preliminary conclusion is gradually taking shape. It seems that many conflicts and criminal cases were not reported, as the CIC required, to the competent public prosecutor in the principal town of the arrondissement, but were settled and disposed of by, for instance, the burgomaster and/or his policemen, if they did anything at all!5.

13Moreover, we should not forget that this old local autonomy was only partly illegal. To some degree, it was formally maintained by the new regimes. The first Dutch penal code, the Criminal Code (1809), was only relevant for serious crimes. This was not so for the code pénal of 1810, introduced in the Netherlands in 1811, although it only dedicated 20 articles to the so-called contraventions. The last article (484) of the code pénal is very significant: 'Dans toutes les matières qui n’ont pas été réglées par le code et qui sont régies par des lois et règlements particuliers, les cours et tribunaux continueront de les observer'. This was the formal basis on which relics of the Ancien Régime which were now out of date, such as 'compositie' (buying off), continued way into the nineteenth-century.

B) PROSECUTION

  • 6 The French Code Pénal of 1810 classified three kinds of offences: 'crimes' (most serious), 'délits (...)

14The process of unification of the system of prosecution did not develop smoothly, but meandered between the extremes of dispersion and centrality. Until the introduction of the French system in 1811, prosecution was in the hands of numerous local and autonomous officials. In 1811, their autonomy was radically terminated. The prosecution of serious crimes6, in particular, was highly centralised. The ultimate decision to prosecute was in the hands of the Chambre d'accusation of the Cour Impériale, called the High Court after 1813, in The Hague (in Belgium: Brussels and Liège). This situation ended in 1838, when the French CIC was replaced by a Dutch code of penal procedure, which resembled the CIC in many respects, but not in its system of central prosecution of serious crimes. As of 1838, prosecution was decentralised and the exclusive competence of the ten (eleven after 1842) provincial Procureurs Généraux. The judicial reorganisation of 1876 reduced the number of 'procureurs' to five, which is the number that has remained until today. New circumstances, and recent developments in serious, organised and international criminal activities, are making a new reorganisation necessary: we expect a return, within a few years, of the centralisation of prosecution decisions which existed in the years 1811-1838.

15The decentralisation caused by the reform of the penal procedure and the courts in 1838 was a step back in the secular trend towards greater centralisation. The explanation of this anomaly is quite simple. The forced unification of the formerly polycentric country, in the period of French domination (20 years), had not gone on long enough. After 1813, latent centrifugal tendencies were able to manifest themselves. These tendencies were not strong enough to tear the Dutch nation apart, but could frustrate a rational unification of the judiciary for decades.

C) ADJUDICATION

16The process of centralisation became manifest most strikingly in the distribution of lower courts. The number of 'vredegerechten', with jurisdiction over minor offences, in the Netherlands came to 220 in 1811. After several reorganisations in the next hundred years, there were 62.

  • 7 Ch. JANSSEN, J. VERVAELE, Le ministère public et la politique de classement sans suite, Bruxelles, (...)

17The activities (or inactivity) of prosecution officials are also involved here: not only in our days, in which only a third of all serious crimes (misdrijven) are finally dealt with by a judge, but also more than 150 years ago, when public prosecutors frequently terminated prosecution in criminal cases, both for crimes (misdaden - crimes) and délits (wanbedrijven - offences). This so-called sepot was used for all kinds of reasons, such as 'insignificance', 'victim to be blamed', 'no proof', and 'youthful age'. Our recent investigations have revealed that, at first, this practice developed parallel to the 'police sepot', mentioned earlier. Later on, in the 1860s, when the increasing number of procès-verbaux produced by the new State policemen, arrived where they belonged ('on the desks of the public prosecutors'), sepot percentages of 20 to 30 or even higher can be found. A similar development took place in Belgium and France, as official statistics show7.

18The most remarkable difference is that the Dutch sepot practice was kept almost a secret. It was not until 1921 that it was explicitly legalised in the new Code of Penal Procedure. A hundred years of debate came to an end, during which some writers had maintained that sepot was illegal, others that it was perfectly within the spirit of the law, while those working in the field used this method of settlement abundantly, apparently without hesitation ('although with a certain discretion').

19This prior settlement of criminal cases by public prosecutors made them into non-public judges, whose policies remained invisible. The central government often tried to control and guide them by means of letters and circulars, but it seems that these civil servants, sometimes far from the Hague, were able to preserve much of the independent position they had conquered.

D) SANCTIONING

20As late as the 1820s, institutions in the area of sanctioning were almost unchanged. Unification of prison administration and other regulations started in 1821. In fact, though, many local elements continued to be important because the prison directors and warders were mere agents executing the detailed wishes and decisions of the so-called "committees of administration". They were all appointed by the minister of Justice, while the latter came from the local elites that had governed the prisons for centuries.

III - LIMITS TO FURTHER UNIFICATION

21The notion of the independence of judges has been an important feature as far back as the period in which the basic principles of a modem penal system originated: law cannot exist without it. In the 19th and 20th centuries, the judges in the Netherlands were not willing to make any concession to their independence. They saw it as an attribute of their professional status. Their "magisterial" attitude was based on the principle that justice could only be done if they clung tenaciously to their independence. They saw judicial independence as an obligation not only due to their professional class, but also to themselves as individuals. The judge carrying out his professional role as a sovereign, who only owes obedience to the law and the High Court, remains a common feature up until today. This phenomenon can be seen particularly in lower courts, where judges do their job on their own. Over the past centuries, this judicial independence has greatly resisted unification of the administration of justice in The Netherlands, as well as in other western countries. That is why it is difficult to centralise and standardise the practice of sentencing. Sentencing is not just a matter of calculating circumstances and arguments according to standard formulas, it is also a matter of intuition and conscience.

22There remains an area of personal deliberation which is inaccessible to standardisation. One consequence of this is the fact that there are big differences between the courts in adjudication. The drunken driver in Haarlem is punished much more severely than his companion 20 km to the East, in Amsterdam.

23These local differences have existed as long as justice has been being carried out. There was no reason to eliminate them: they were unknown, or they were considered as the natural result of judicial independence. In the last ten to twenty years, these differences have been discovered by social researchers. From that point on, differences in sentencing are no longer tolerated. In the last years of the 20th century there is a tendency to restrict the freedom of the individual judge. Directives and norms for sentencing are made, and the bulk of not too serious cases is settled in a uniform way. The concept of judicial independence is no longer defined at the level of the individual judge, but at the level of the collectivity, of the professional class. Within a few years, courts with a single judge will be no more than history, whereas in 1811 there were 220 of them.

IV - THE UNIFICATION OF PUBLIC PROSECUTING

24The attitude of judicial independence has deeply influenced the way judges do their work, but it has also affected that of the public prosecutors. In the first decades of the 19th century there was a debate in The Netherlands about the position of the prosecution service: were its officials primarily subject to the authority of the king (the executive power), or were they subject to the authority of the law? This debate has never arrived at a definitive victory for either of these two positions. In practice, the executive power (the department of justice) seems to dominate the functioning of the public prosecution system, but it tempers its dominance with prudence and discretion. The debate is still going on today. The officials of this institution have defined their role in many cases not only as crime-fighters and as superiors of the police, but also as guarantors of the safeguards built into the penal process, who have to ensure the lawfulness and justice of its workings. In the culture of the legal system, there was always a certain respect and recognition for this claim by the public prosecution to enjoy certain discretional powers usually attributed to judges. There are, incidentally, strong theoretical arguments for this claim.

25Up until now, this "judge-like" component of their professional role has opposed any strong centralisation and uniformization. They have never been forged into the disciplined army that Napoleon wanted them to be.

V - THE IRT-AFFAIR (1993-1995)8 AND UNIFICATION

  • 8 Interregionaal Recherche Team (Interregional Police-Investigation Team).

26Sometimes historical developments go smoothly, sometimes they come in jolts. The unification of the penal law system m the years 1809-1811 was a short and sudden event. From then on, the process of change went slowly. Currently, the unification of the system of prosecution is accelerating.

27In the early 1990s, the Dutch Government emphasised crime-fighting as an important political issue. Consequently, the police initiated certain experiments with unorthodox methods in the field of criminal investigation. The import and export of large quantities of soft drugs was secretly backed by police and judicial officials. The public prosecution officers, and even the police authorities, lost control over their subordinates. The discovery of these secret practices caused a national scandal, and ended the careers of some well-known politicians. One may expect that the consequence of this scandal will be the end of the autonomy of the local prosecution services. The near future will involve a new chapter in the history of centralisation of prosecution. It will be unified in the way Napoleon imagined.

VI - SOME CONCLUSIONS

28As far as the Netherlands are concerned, theses i and ii of Rousseaux and Lévy could be supported almost completely.

29The following stages may be distinguished:

  1. The Republic of the Seven United Provinces (1579-1795): polycentrism and diversity. (Some unification tendencies and early results in that respect, however, should be noted).
  2. 1795-1813: unsteady and irregular unification.
  3. 1813 and later: a slower and steadier continuation, with several ('mostly temporary') signs and manifestations of independence, and resistance at the local and provincial levels. In the first decades, less serious crimes were left to the traditional procedures at the local level.
  4. For reasons of completeness, we mention here the acceleration of unification from the 1970s until today. International rules and institutions have become more important.

30As far as the 19th century is concerned, we have some doubts about the priority implied in thesis iii. Of course punishment was important: the power to punish provides a strong symbol of political power. But there are more candidates for a key-role: education, welfare, army, unification of language. One might even assume just the reverse: municipalities and provinces using their old methods and reconquering courts and officials at their own level, in order to emphasize their independence and retard the unification process. The signal was clear, but in fact highly symbolic, and without great or lasting consequences.

Notes

1 X. ROUSSEAUX, R. LEVY: 'Les Etats et le pénal: Acculturation juridique et intégration nationale. Projet de séminaire interdisciplinaire' (unpublished typescript).

2 As well as unification on the local-central scale, there is a process of centripetal movement in the political realm: in the first half of the 20th century the penal theories and ideologies were widely diverging: the socialists, Calvinists, Catholics and liberals had their own ideas about the causes of crime and penal policy. In the second half of the 20th century, these differences disappeared for the most part. It would be very interesting to describe this as a process of unification and to question the possible European dimensions of it, but we limit ourselves here to the local-central dimension.

3 In spite of the influences of the Enlightenment and the French Revolution in the penal laws of Napoleon, the CIC of 1809 embodied a penal procedure remeniscent of Jeremy Bentham's 'panopticon' (the prison intended to control every prisoner totally). Its ideal was a system that enabled the authorities a total knowledge of infringements of the laws by civilians. See: 'Motifs exposés par les Conseillers d'Etat, et des Rapports faits par la Commission de législation du corps législatif, sur chacune des lois qui composent le code'. This is an appendix to Code d'instruction criminelle, édition conforme à l'édition originale du Bulletin des Lois, Paris, 1809. See also: J.G. LOCRE, Législation civile, commerciale et criminelle ou commentaire et complément des codes français, Bruxelles 1837-1845, tome 1 and 16.

4 R. PIETERMAN, De plants van de rechter in Nederland 1813-1920. Politiekjuridische ideeënstrijd over de scheiding van machten in de staat, Arnhem, 1990.

5 These days we would call refraining from any action 'police sepot'.

6 The French Code Pénal of 1810 classified three kinds of offences: 'crimes' (most serious), 'délits', and 'contraventions' (lightest).

7 Ch. JANSSEN, J. VERVAELE, Le ministère public et la politique de classement sans suite, Bruxelles, 1990; A. DAVIDOVITCH, R. BOUDON, Les mécanismes sociaux des abandons de poursuites. Analyse expérimentale par simulation, L'année sociologique, 1964, p. 111-244.

8 Interregionaal Recherche Team (Interregional Police-Investigation Team).

Auteurs

Professor of Dutch Legal History at the Law Department of the Vrije Universiteit Amsterdam (The Netherlands). With Sibo van Ruller he wrote Afdoening van strafzaken in Nederland sinds 1813. Ontwikkelingen in beleid en praktijk (Amsterdam, 1995). He is now working on long term developments in criminal and civil justice. A first article on this theme, titled "Crime and Punishment in Seventeenth Century Amsterdam. A Comparative Preview" will appear in a book about Amsterdam and Rome in the seventeenth century (Amsterdam U.P.).

Sociologist teaching criminology at the Vrije Universiteit Amsterdam (The Netherlands). One of the fields he is interested in is history of penal law. In 1987 he published a book on capital punishment and mercy in the nineteenth century: Genade voor recht. In 1995 he wrote with Sjoerd Faber a book on long-term developments in the Dutch penal system: Afdoening van strafzaken in Nederland sinds 1813. Onwikkelingen in beleid en praktijk (Amsterdam, 1995). He is now preparing a textbook on penal history.

© Presses de l’Université Saint-Louis, 1997

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