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Política criminal y libertad

 | 
Marcela Gutiérrez Quevedo
, 
Thomas Mathiesen
, 
Dan Kaminski
, 
et al.

Hacia la desprisionalización

The menu is not the meal deconstruction of a criminal justice system

Jehanne Hulsman

Résumé

The menu is not the meal touches upon the some of the vital aspects of the legitimation and function of the current criminal justice system in Holland, analyzing it based on existing critical literature, legislation, practiced cases and official publications, in regard to in what way the menu of its function, is in practice fulfilled to an actual meal being served in results. The criminal justice system seems to be an accepted given as a solution to problematic situations in society that are criminalized, yet given the aspired and proclaimed goals it is meant to address, there are enough indicators there is a lack of a true overall evaluation of its use and effectiveness and a believe in its function that is not based on facts. This paper means to function as a reawakening of the spirit of independent critical thinking concerning the use of the criminal justice system to address societal problematic situations.

Texte intégral

INTRODUCTION

  • 2 Donald Black, Behavior of Law, New York, Academic Press Inc, 1976.

1Every day we are influenced by the way our world is reflected in the conversations we have with people around us and whatever media we consume. Depending upon which social environment we live and work in, our views will be colored. It is therefore impossible to investigate one of the apparent dominant systems in our society, the criminal justice system, without viewing it in the context of the social environment of all those that come into contact with it. Donald Black was one of the first sociologists that analyzed the criminal justice system from the viewpoint of sociology. If you read the behavior of law even today, to many, it will seem a very progressive book, way ahead of it’s time, but it was written in 1976…2.

2To investigate the true nature of the functioning of the criminal justice system means in fact that one will have to investigate one’s own life experiences on the aspects involved.

3Do we remember behavior we witnessed, that caused damage that we would consider ‘unjust’? Did we classify that behavior as a crime? Did we consider ourselves a victim or a perpetrator? Did the incidents we remember in the context of criminalisable behavior enter into the criminal justice system? Were they registered? Do we remember encounters with the police? How do we remember those?

4Though I am strongly influenced by the work of Louk Hulsman, my father, and many of my views have been colored by being brought up in a highly critical, intellectual environment, my own investigative journey started when my son and his friends were, because of their apparent deviant behavior as young men, daily hassled and interfered with by the local police.

5What started as an inquest turned into a journey that is leading me into many unknown situations and to many new locations, like now here, to Bogotá.

6Every bit of acquired knowledge inevitably led to more questions and I can safely state that this query has not yet finished and probably never will. To embark upon a search for the relationship between theory and practice, between our daily lives and written laws is an adventure. In this paper I invite you to join the research that started with one incident and has now, years later made me a professional in a profession I strongly critique, since I now practice criminal law as a lawyer. I entered the profession as a non-believer in the religion of the criminal justice system and the experience I have as a professional within the system, validates that status of a non-believer.

7Especially I want to thank the Universidad Externado de Colombia and those people actually involved in organizing this congress, for inviting me to write this paper and present it in Colombia.

I. ACCEPTANCE IN IGNORANCE?

8The research thesis of this paper is:

9The acceptance of the legitimacy of the criminal justice system is based on theoretical assumptions and lack of knowledge.

  • 3 C. Kelk, Studieboek Materieel Strafrecht, Deventer, Kluwer, 2010, p. 570.
  • 4 Council of Europe, Annual Penal Statistics: space i -2010, 28 March 2012, p. 84 (table 5).

10The research concerning the legitimacy of the criminal justice system in The Netherlands has to be seen in a new climate in Holland in respect to crime control. Formerly the Dutch climate was capable of using ways that did not involve deprivation of liberty as a means to avoid problematic situations within the context of the criminal justice system. Formerly life prisoners did not have to serve out their life sentence. Now lifelong imprisonment has been implemented in the Netherlands, without a proper procedure to ascertain the legitimacy of the continuance of the imprisonment in the particular situation of the detained person3. The Netherlands is a leader in 2012 as far as pre-trial detainees is concerned; it has the highest pre-trial percentage of the total prison population, in Europe.4 Independent social work and an independent rehabilitation service were important in realizing the former, more tolerant climate. The personal position and circumstances of the persons charged by the criminal justice system were represented in court by specialized independent organizations like the rehabilitation service. Those organizations are now under control of the courts and work under direct control of the public prosecution.

11Last years in a rapid tempo new legislation concerning punishment and enforcement has been approved and is being implemented, like the new law on identification (wid) and a law that makes it possible for the public prosecutor to sentence without the interference of an independent judge (Wet om-afdoening). The effects of recent implemented new criminal laws have not yet been measured and evaluated.

12This paper is based on two connected research objectives: literature research into the aims and claims of the criminal justice system in relation to the concept and context of so called crime and exemplary cases from my practice as counsel, as well as two described cases in non fiction literature.

A. Critical doubt

13The menu is not the meal: many provisions and safeguards within the criminal justice system to defend a citizen against unwarranted deprivation of liberty or sentencing to fines, or other interventions of the criminal justice system, are when put to the test, not effective, not used or not usable. The objectives of both parts of the research is to describe factors that define the experienced reality of the criminal justice system by professionals involved, involved actors in incidents that are classified as criminalisable events (both victims and perpetrators) and the peripheral actors such as media and sciences.

14By describing the core, the contours and the context of the criminal justice system and by placing them in an international and relative historical context, I aim to create an image of the complexity of the reality of the system as opposed to the simplified image that it is portraying of itself in relation to the problematic behavior that it is claimed to prevent or punish.

B. The context of literature and empirical data

15A part of this research into the legitimacy of the acceptance of the criminal justice system is based on a literature, looking into aspects of the apparent function of a criminal justice system, like the concept and context of crime.

16This research will look at the concept and context of ‘crime’ from various viewpoints like criminalized behavior in a historical context and the same criminalized behavior in a geographical context (homosexuality). Some connections between the political need for interventions by the criminal justice system and political definitions of crime will be investigated (squatting). An overview will be given of the various components that make up the theory as opposed to the reality of the criminal justice system by comparing policies and law to the practice of interventions on problematic situations and the need for instance to cut costs within all organizations working in the framework of the criminal justice system. Official government publications and statistics are used to view the results as opposed to the claims.

17The practice of the cases will be looked at to determine validation of the issues raised about context and concept of crime and criminals, and the image of the function of the criminal justice system given in reports and media. Some of the cases stem from empirical research results out of my practice as a counsel, some of them can be found in official jurisprudence. In addition two cases described in non-fiction books will be viewed in relation to these aspects. This part of the research is based on a qualitative research, the method based on empirical research.

C. Theoretical framework

  • 5 Lucia de Berk, Lucia de B. Lifelong and Remanded in Custody of the State, Amsterdam, Uitgeverij De (...)
  • 6 Jan Brokken, De Vergelding, Amsterdam, Uitgeverij Atlas Contact, 2013.
  • 7 Donald Black, Behavior of Law, op. cit.
  • 8 Thomas Mathiesen, The Politics of Abolition, Oslo, Universitetsforlaget, 1974.
  • 9 Louk Hulsman, Peines Perdues, Paris, Le Centurion, 1986
  • 10 Louk Hulsman, Critical criminology and the concept of crime, Dordrecht, Martinus Nijhoff Publishers (...)
  • 11 Wayne Morrison, Introducing Crime and Criminology, Oxford, Oxford University Press, 2009.

18The literature research is based on several related scientific fields: criminology, criminal law, sociology and victimology. I will use two documentaries on criminal cases that are based on true events in different time periods, Lucia de B5, and De Vergelding written by Jan Brokken6. The views of Donald Black written in Behavior of law7 will feature as well as the thoroughly described attempts on reform in the criminal justice system by Thomas Mathiesen8. The overlook on the criminal justice system by Louk Hulsman in Peines Perdues9 has a major role in this part of the research, as well, as his paper on Critical criminology and the concept of crime10 is important to outline the concept of crime. Wayne Morrison has made an overview of the context of crime in Introducing crime and criminology11.

19In my profession as a criminal lawyer I meet people that view the criminal justice system critically in relation to their field of work. Yet to my surprise they often seem to accept common assumptions that are based in different areas of expertise than their own, like criminology, sociology, psychology or history. In criminology I felt the same experience in the sessions of the common study group of critical criminology. Professors did not seem to teach their students not to accept the government-based statistics concerning the criminal justice systems’ supposed results in prosecutions and convictions, at face value. The complexity of a real event, a real problematic situation cannot be framed within only one professional context, like the framework of the criminal justice system. I will deal with this issue when I direct myself to analyzing the actual cases in the second part of this paper.

20The empirical research defines the cases researched within the framework of the criminal law governing the cases, the experiences of those involved, as well as the political targets intended. The enforcement of criminal law touches upon our everyday lives, even though the public debate often deals with appealing high profile cases, like a case of a mass murderer (the supposed case of Lucia de B). An encounter with criminal law enforcement, even temporary incarceration, will have a profound effect upon the person involuntarily placed in that position and upon his family.

II. AIMS AND CLAIMS OF THE CRIMINAL JUSTICE SYSTEM

A. Aspects of the legitimacy of the criminal justice system

21The name of the criminal justice system suggests that it deals with criminality (crimes and criminals), with justice and that it is a (coherent) system. To understand these aspects, I would like to dedicate some attention to those various aspects and subdivide them. First I will look at the concept and context of crime and criminals. The legitimacy of the criminal justice system is based on the assumption that criminal law consists out of democratically voted criminal laws by a legitimate government.

22The assumption of justice is a main feature of the criminal justice system. So an aspect to look at is the process of law making, in regard to criminal law and the role of politics in that process. In that regard, the assumed aims of the criminal justice system are viewed.

23Another aspect of justice is the enforcement of the laws. The choice of priority of enforcement has a direct connection to justice, because of the effect that such enforcement might have on certain groups in society. That choice is also often politically based. To spend capacity of the criminal justice system on one issue, like drug law enforcement, clearly means there is less capacity to enforce issues like physical child abuse or assault.

24Another aspect of the legitimacy is the general agreement on the need of checks and balances and the right to a fair trial, these are to be found in treaties on human rights like the echr and the iccpr.

25Who are the ‘stakeholders’ in the criminal justice system? Who has a voice within the system and what does that mean in regard to influence on the interventions of the criminal justice system?

26Punishment and its variation in form and severity, make out an integral part of the criminal justice system. How is that punishment implemented and do the conditions, regarding the implementation of the punishment, meet the requirements designated by the legislator?

27It is impossible for me to be in any way complete in the framework of this paper and in regard to the intrinsic complexity of the criminal justice system. So bear with me and consider the presented views in regard to these aspects as pinpricks, as an incentive, for those readers that do not yet view the criminal justice system in a critical way, to start to doubt it. For those readers that are aware of the discrepancies of some aspects of the criminal justice system, this might be an incentive to start to reconsider the legitimacy of the existence of the criminal justice system as a whole.

B. Concept and context of crime

  • 12 Wayne Morrison, Introducing Crime and Criminology, op. cit., p. 25.

28First we will also have to define the meaning of the concept of crime and look at the context of crime and the concept of a criminal. Wayne Morrison defined the different contexts of crime in ‘Introducing crime and criminology’12:

  • Crime is some action or omission that causes harm in a situation that the person or group responsible ‘ought’ to be held accountable and punished; irrespective of what the law books of a state say.

  • Crime is an action against the law of God, whether as revealed in the holy books, such as The Bible, Koran, or Torah, or that we instinctively recognize as against God’s will, irrespective of what the law books of a State say. If the law books allow something that we know to be against God’s will this does not change its status — it is still a crime.

  • Crime is an act or omission that is defined by the validly passed laws of the nation state in which it occurred so that punishment should follow from the behavior. Only such acts or omissions are crimes.

  • If there is no public authority capable or ready to police social activity and punish offenders, then there is no crime. Crimes and criminals only exist when a public body has judged them such according to accepted procedures. Without the State and the criminal law there is no crime. Without criminal justice systems there are no criminals.

  • Crime is an irrelevant concept as it is tied to the formal social control mechanism of the State; deviance is a concept that is owned by sociology, thus our study should be the sociology of deviance, rather than criminology.

  • 13 Wayne Morrison, Introducing Crime and Criminology, op. cit., p. 25.

29Morrison continues to discern at least four frameworks in which we could place the concepts of crime mentioned above13:

  1. Crime as a social construction;

  2. Crime as a product of religious authority/doctrine;

  3. Crime as a reflection of nation-state legality;

  4. More recent concepts beyond the nation-state derived from social and political theory;

30Crime is not easy to define, as illustrated by the following examples of crime fitting the framework as mentioned in the above as (c), but conflicting with the legitimacy of criminalization seen from a different geographical angle or within the framework of a different time period:

  • Someone helping people across the border from East to West Germany in the time the wall between East and West Germany still divided the city of Berlin (1961-1989) was named a Flucht Hilfer (escape assistant). This label came from side of West Germany, where such a deed was seen as positive and heroic, the opposite of crime. Clearly from East Germany the same action was seen as a crime, and people trying to help others to cross the border could be shot on the spot ((c). crime as a reflection of nation-state legality).

  • Hiding Jews in the Second World War was considered to be a crime in Nazi occupied territory ((c). crime as a reflection of nation-state legality). After the occupation period the people that had hidden Jews were seen as courageous resistance fighters, not criminals.

  • Nowadays in The Netherlands the parliament is considering to accept a new criminal law stating that a person that does not have a legal status to reside in the country, will be a criminal, therefore punishable, because he is illegal. Even people harboring these so called ‘illegals’ will be punishable in that drafted law, if it will be accepted in the democratic political balance that exists now. ((c). Crime as a reflection of nation-state legality, in the period of a possible future).

    • 14 Wet kraken en leegstand, 1 oktober 2010, stb. 2010, 320.
    • 15 Art 138a WvSr.
    • 16 Hof ’s-Hertogenbosch, 25 September 2013, ecli:nl:ghshe:2013:6825; hr 10 December 2013, ecli:nl:hr:2 (...)

    The new anti squatting law in Holland14 makes anyone a criminal that resides in a house of which the lawful owner has ended the use. The mere presence, even as a visitor can mean a prison sentence of a month.15 This law is being enforced, even though there is a growing shortage of affordable social housing in the Netherlands and yearly more people are becoming homeless. I have had and have several cases where my clients are criminally charged on the basis of this new law16 (c. crime as a reflection of nation-state legality). This even though before October 2010 squatting was not criminalized and the social housing situation has not changed for the better.

    • 17 [www.rijksmuseum.nl/en/explore-the-collection/timeline-dutchhistory/1863-abolition-of-slavery]
    • 18 [www.forbes.com/pictures/egim45egde/10-netherlands/]

    People are being criminalized for actions that were in another time completely legal. At one time slavery was legal. The Dutch abolished slavery in 1863.17 The Dutch constitution does not contain a prohibition of slavery, however the European Convention on Human Rights (echr, art 4) and the International Convention on Civil and Political Rights (iccpr, art 8) to which The Netherlands is party, does contain such a prohibition. In the Netherlands people with debts and without an income can get a social security allowance. If they want help with their debts they are in that position forced to enter a community debt help agreement thereby letting the organization collect their allowance and pay their rent and other monthly cost. At the same time they may have to do community work to keep their social security allowance, which is 70% of the minimum wage. If the debt is too high they are by this agreement actually enslaved, because they cannot pay back the debt and the added interest rate, being dependent on a below minimum income. That could be called slavery in modern western society in a country that belongs to the categories of richest countries in the world (place 10 in ranking order18), yet it is not seen as slavery and therefore is not defined as criminal

  • 19 Louk Hulsman, Critical criminology and the concept of crime, op. cit., p. 1.

31Louk Hulsman states in Critical criminology and the concept of crime19 that we consider criminals as a special category of people and that in the conventional image criminal conduct, is the cause of criminal events that would be exceptional and as events would differ from other events, that are not defined as criminal. Hulsman states that there is no ontological reality of crime. The definition of crime as perceived in society and in the public and political debate, is a result of the criminal justice system. ‘Crime is not the object, but the product of criminal policy.’

C. Criminal

32If we look at the label criminal it is logical that the same discrepancies are to be found as a consequence of the variation in views on what crime is, in time and place.

33A criminal would, according to common views as Louk Hulsman stated in the here fore mentioned paper on the concept of crime, belong to a special category of people.

34The beginning of October 2013, I was invited to give a seminar on law and gender in Kiel, Germany (Fachhochschule Kiel). We reserved the Sunday to get acquainted with criminal justice. I asked 25 students to work in small groups and report to me which events they had experienced that could be classified as criminalisable behavior and if they were in those incidents victims or perpetrators. In the end 25 students out of 25 indicated that at one time in their life they had stolen something. Yet they did not consider themselves thieves in the sense that the criminal justice system labels people that are caught and convicted as criminals, thieves.

35When I was in Trinidad & Tobago (icopa, June 2012) we had part of our conference in the military academy. I asked the responsible official for the prisons: everyone that has reached the age of twenty or more has done something to trespass the law in a major or minor matter. Can you tell me what the difference is between the people being in jail and us? There was some silence and then he answered: ‘they were caught’.

36In fact some of our very respected role models were legally convicted criminals, within their legal system at that time: Nelson Mandela, Gandhi and Jesus. Jesus would now not even be allowed to enter the usa because he has a criminal record…

  • 20 D.J. Noordam, Riskante relaties: vijf eeuwen homoseksualiteit in Nederland 1233-1733, Hilversum, Ui (...)
  • 21 Wet openstelling huwelijk, 1 april 2001, stb. 2001,9.

37If we place, what is considered to be a crime, in a historical or geographical context, we get a picture of the same behavior being seen as a crime in one period of time or in one location, while it is totally outside of the scope of the criminal justice system in the same place but another time or in the same time but another location. Example: we can establish that being homosexual was punishable by death penalty in The Netherlands from the 13th century until 180320. During Nazi-occupation homosexuality again became punishable. Same sex marriage is now possible in the Netherlands since 2001.21

38There is still a death penalty on homosexuality now in our time, in some 7 countries: Iran, Saudi Arabia, Yemen, United Arab Emirates, Sudan, Nigeria and Mauretania (geographical). This means that the same behavior depending on time (historical) or place (geographical) can be a crime punishable by death or not a crime but accepted behavior.

D. Aims of the criminal justice

  • 22 W. Mansell, B. Meteyard, A. Thompson, A Critical Introduction to Law, London, Cavendish Publishing, (...)

39All through its relative short history, the aim of the criminal justice system, its very reason for existence, has been to make society safer. To prevent and deter people from behaving in a way that would damage other people or society. ‘Law, we are taught, is what protects and preserves civilization from chaos’22.

40The public image of the criminal justice system is that without it, society would turn into chaos and anarchy and people would be out of control and cause an enormous amount of damage. There is a common view that the criminal justice system pertains to function on the basis of the necessity for deterrence, retribution, decapitation, rehabilitation and reparation. The idea is that the presence of the criminal justice system would keep a balance in society.

  • 23 Donald Black, Behavior of Law, op. cit., p. 25.

41Donald Black23 states in regard to the aspect of criminal law and the balance in society: the seriousness of an offence by a lower against a higher rank thus increases with the difference of wealth between the parties, whereas the seriousness of an offence by a higher against a lower rank decreases as this difference increases. The wealthier thief is, for instance, the less serious in his theft. Thus in modern America, department stores are less likely to prosecute shoplifters who are middle class and white than those who are lower class and black, and, in court, the same applies to the likelihood of conviction, a jail sentence, and a sentence 30 days or more.

42Let us consider, viewing some aspects of the criminal justice system if in any way the purpose of that aim is fulfilled or partly fulfilled in its functioning.

E. Legislation and politics

43Criminal laws in the Netherlands are commonly presented as being legitimate, because they are legitimized by a democratic acknowledged voting process. Like we have already noticed regarding the legitimacy of criminal laws, history as well as geography show that the same behavior can be punishable at one time and accepted in another, can be punishable at the same time in one place (even with a very short physical distance like the Berlin Wall at that time between East and West Germany) while it can lead to worship as a hero in another place.

44It is therefore clear, that the process leading to legislation of criminal law is one that is very dependent on that particular time and place and the majority of the ruling parties in government and parliament, at that time.

45For example in relation to the punishment of homosexuality a major influence was the ideology of that time. In religion homosexuality was seen as Sodomy, ergo heresy and for that reason punishable by death. During the Nazi occupation homosexuality was seen as against nature of man and the strict visions of ‘Mein Kampf’. Recent legislation in The Netherlands on squatting houses has made occupying and living in a house that is not used by its owner, punishable in criminal law. To realize this legislation a fierce lobby had been made by property owners. Some of the so-called right wing political parties were very affiliated to property owners and project development. The process leading to effectuating the legislation had a very narrow voting margin, 41 out of 75 members voted in favor of this legislation in the first chamber of our parliament, this is the last stage of the democratic voting process to pass this proposed legislation. The religious orientated Christian parties and the liberal party voted in favor. At that moment the balance in the parliament allowed the vote to succeed in favor of acceptance of the anti squatting law. If the same proposition to legislation would get the vote of the same parties in 2013, the legislation would not have been accepted because the same combination of parties has now a minority by 7 votes.

46Since then, several court cases have taken place in which activists regarding the occupation of empty houses have been criminally charged and convicted (see note 6).

  • 24 Louk Hulsman, Peines Perdues, op. cit., p. 13.
  • 25 Translation from French to English by author.

47Louk Hulsman24 states about his own professional experiences of the process of making and passing of criminal law: ‘In that period of my life, I have clearly seen how laws come into existence: usually written by civil servants – not the most important ones – subsequently, under pressure of time, on the basis of political compromises altered, the laws represent nothing democratic and they can for that reason hardly be seen as a result of a coherent ideological policy. Even worse, they are established without any knowledge of the diversity of situations they might influence.’25

F. Enforcement of criminal law

48Since the capacity of the criminal justice system is limited, choices have to be made regarding priority of enforcement. The choices are in our Dutch system proposed by representatives of the public prosecution and are determined as a result of political debate. At one time in The Netherlands for example, bike theft had a very low priority on the list of enforcement. People who had a bike stolen did not even go to the police to report it, because they resigned themselves to the fact that the bike was gone and would not be found again. The last years, bike theft has moved up in the rank of priorities of enforcement and I have now a client that has been arrested and kept in jail two days because he could not prove the legitimate ownership of his second hand bike. The penal court of first instance at The Hague has convicted him on January 23 2014.

  • 26 A.C.M. Spapens, H.C. Bunt, L. Rastovic, De wereld achter de wietteelt, Den Haag, Boom Juridische Ui (...)

49A high priority of enforcement in The Netherlands the last years is set on finding illegal cannabis cultures. Our country that was widely known as a tolerant guide for a new policy on soft drugs now uses a fair amount of the capacity of the criminal justice system to find hidden cannabis cultures. Mostly the small home cannabis cultures are found in social rental homes of people that try to survive the problems of their growing debts, by making some extra income. But people in those circumstances are extra vulnerable, because of the local covenants that oblige housing corporations to evict the tenants that will end up on the street, as a form of punishment that is not weighed within the following criminal procedures26.

50This enforcement is decidedly strange in the light that The Netherlands has legal coffee shops that are allowed to sell soft drugs. However, no provision has been made to legalize the culture and buying of larger quantities of cannabis. In this way selling the customers quantity of cannabis is legal, but it is not legal for coffee shop owners to buy retail quantities of cannabis. That behavior is still criminalized and enforced…

  • 27 [www.politie.nl/Zuid-Holland-Zuid/OverDitKorps/BeleidResultaten.asp]
  • 28 This also applies for homeless people and psychiatric patients with a lack of treatment, daycare.
  • 29 [www.om.nl/over_het_om/], kiezen voor Perspectief op 2010, p. 11.

51The police in the district I live in has appointed since three years youth as one of the top three main target areas of enforcement. As far as I know the mere fact of being young is not yet a ‘crime’. The priority has actually been young people that loiter, young people that smoke cannabis, etc. In Dordrecht a special Bike Unit has been employed, assigned to focus on youth. Many young men in Dordrecht in the age group between 14 and 30 have had an experience with police that has left a residue of caution and distrust. A three-year performance contract has been signed by the mayor (police force manager), the Minister of Justice and the Minister of Internal Affairs, stating that there will be intensified enforcement of offences concerning local penal legislation, with an agreed target rise of 1000 tickets per year27. These targets have more repressive results for groups and individuals dependent on public space, like youth in the adolescent phase of their life28. Focus on youth can also be found in the policy program of the Public Prosecution Service29.

G. Statistics and dark figures

52The public image and the criminal justice system itself, create the impression that the criminal justice system is dealing with almost all criminalisable behavior in a professional manner. Therefore fulfilling the need of society and the victims of ‘crime’, to give off a signal that ‘crime’ is not tolerated.

53Like the examples I gave (on page 14), we know from experiences in our own lives that the major part of our own behavior that is criminalisable, will not be registered and therefore will not become a part of the criminal justice system, thus creating the dark figures.

54A whole group of students in Kiel (25 persons) admitted they had had experiences as a perpetrator and as a victim of criminalisable behavior that did not enter the criminal justice system. When I look at my own life the major events that took place within that context, did not get into the criminal justice system.

55My neighbors used to have violent fights. In our house we could hear the sounds of violence. Since I knew that there was also a young child living in that house, I did not feel comfortable in denying the occurrence. I did not call the police. The next morning when I left the house, I saw a trail of blood leading to the corner of the street; I rang the bell of the neighbor and asked whether I could come in to discuss the subject. I was eventually invited to come in. I expected the woman to have been the victim and the man, to have been the perpetrator, but it was the other way around. I felt ashamed because of my prejudice. She had stabbed the man because he came too close and she had a fear of commitment, so it turned out the man was okay it was a superficial wound. The neighbor and I had several conversations on her fears and my worries about the situation for the child, her and her partner. She still lives close to me, the situation has greatly improved and I am very glad that this did not become a part of a criminal justice trajectory.

56In Dubrovnik, Croatia 2013, during the annual international course on victimology, I had a similar experience investing their life events that could be labeled as criminalisable behavior, with the international students. If there is trust, most people are willing to research their own lives and they will realize that almost no criminalisable behavior they have witnessed or experienced, is treated within the context of the criminal justice system.

  • 30 Assistant Professor, Georgia State University, Juvenile Delinquency, juvenile justice.

57Obviously gang members will not go to the police when they are abused or robbed, they are seen as perpetrators, not victims by the police, so T.J. Taylor has told us in Dubrovnik in his lecture ‘Gang Membership and violent victimization’ 2013.30

58Therefore, though the impression is given in media and public debate that most criminalisable behavior is dealt with within the context of the criminal justice system, our own experience will prove this to be a false image.

H. Fair trial, checks and balances

59The market system has influenced the criminal justice system and is now leading to terms like production, inflow and completion time. The allotted budget to the courts is leading and relates to estimates of workload connected to types of offences in cases, so every court case has a norm time schedule as its framework. Judges that use more time for court cases than the framework allows, are likely to have a problem within their department, because this – unless thoroughly justified-will mean that part of the work of the department is not covered for, within the approved budget. A penal court case concerning misdemeanors is estimated to take up five minutes in court. This includes the establishment of the identity of the suspect, the presentation of the case by the public prosecution, the inquest of the judge, the demand of punishment by the public prosecutor, the plea of the defense, the reaction to that of the prosecution, reaction of the defense to that and an oral verdict by a single judge. Cases brought before a single judge are more likely to show signs of pressure trial, because of the budget framework. Cases where several criminal charges are dealt with, within the same court session, prove to have this sense of pressure because of lack of time as well.

1. Police issues

60A major problem in regard to proof is that statements of policemen are regarded as true and infallible within the context of the criminal court. This is especially problematic when it concerns cases where the policemen are presented in the role of the victim. This is the case in qualified insult or resistance against arrest. Both criminal charges are crimes that will be registered on a criminal record.

  • 31 Art 344 WvSv; Gerechtshof’s Hertogenbosch, 1 april 2008, ljn bc 9474.

61In de Dutch criminal law, only one statement under oath of office of a policeman constitutes enough evidence to convict a person for a criminal charge.31 This is in my opinion an untenable position in regard to the initial principle that the people gave the monopoly of violence to the state to prevent citizens from taking right into their own hands.

62In the case of a police officer entering the criminal justice system as a victim, when he uses his professional authority to use violence against the person he sees as the person that is damaging him with words (insult) or physical abuse, he is actually retaliating and in that way avenging himself instead of leaving that to a professional person that is not involved in the conflict.

  • 32 Brenda Vermeer, Strafprocessuele waarborgen tijdens het voorarrest van jeugdigen en hun beleving da (...)

63Not regarded in trials in these cases is, how easy it is for a professional to make use of his own system in benefit of his own situation. His colleagues record his statements; he knows exactly which juridical framework he should refer to in his statement in. He has a definite advantage over a citizen filing a criminal charge against a policeman. Another problem is the first police interrogation. When people are seen as suspects and for that reason arrested, they enter into a very intimidating environment. In the police cell they are locked up under very basic circumstances. There is no daylight entrance, no clock, no access to water or food without the intervention of a guard, there is only neon light, a mattress on the floor; you have to take off your shoes and belt. Often glasses of people are removed and they are not allowed to wear their watch. So they have no sense of time anymore. When they are asked to step out of their cell, they are taken to a room where one or two policemen start asking questions32.

64The questions of the policemen are leading towards a specific criminal charge, a charge that is in most cases not yet shared with the suspect. The interrogation of the policeman has a professional connotation, he is already steering parts of the recount of an event into the framework of the criminal charge. He is looking for proof, motive and confirmation. He is not researching what happened, he is only researching what happened in regard to those aspects that matter to the criminal charge on record.

65Thus this statement of the official interrogation is used as evidence and is one of the main factors that lead to convictions within a criminal trial. The interrogation is biased and prejudged. The suspect does not even get a copy of his own statement.

66More often I have heard Louk Hulsman state during presentations about the criminal justice system and its manner of responding to problematic situations: if a hammer is the only instrument you have, you are bound to see every problem as a nail.

2. Public Prosecution

67The court session is dominated by the dossier. If you don’t have a very active counsel, the dossier will only consist of accusatory evidence collected by a combination of police and public prosecutor. The public prosecution in the Netherlands very rarely occupies itself with what it claims to do: uncovering the truth.

  • 33 Translated by the author
  • 34 [www.om.nl/onderwerpen/commissie_evaluatie/]

68During 2008 up unto 2011 a special commission was formed to look at revision of certain court cases, because the image was forming that the police and public prosecution would not do their work in an unbiased manner. It was called ceas (Commission Evaluation Closed Criminal Cases33). That commission unearthed huge errors of the police and the public prosecution in several high profile cases.34 People had been tried in three instances up to the highest court and had been found guilty and sentenced to long prison sentences, even life imprisonment. After the revision they had been cleared and found to be not guilty. Because of those evaluations a new possibility of reopening cases was implemented. But the cases that are allowed to be treated within the framework of revision have to be cases with conditions like a conviction with a sentence of a minimum 12 years prison. In my opinion if complicated high profile cases like the ones researched by the ceas did go wrong, even though in those cases there is a time period of days reserved to try the case in court, the low key cases are much more likely to go wrong on the same pretrial aspects. Because in the low-key cases there is very little time for a trial and active counselors who put up a proper defense are rare.

  • 35 [www.wodc.nl/onderzoeksdatabase/cenr-2009.aspx?cp=44&cs=6796#publicatiegegevens], chapter 6.

69Judges in preparation of court cases going to trial, have their clerks examine the dossier. Because of the lack of material for the defense in the dossier, the dossier seems to be examined for inconsistencies that might lead to acquittal. From most of the criminal cases I have witnessed I deduct that this pretrial examination must have been to check, if the incriminating material in the dossier, could lead to a conviction. The conviction rate in The Netherlands is high, somewhere around at least 90% in criminal court cases.35 A judge, starting a trial with only knowledge of incriminating material, is like a mammoth tanker on a coarse to conviction. If you as a suspect or defendant want that mammoth tanker to take another course, you will first have to make it slow down and stop. We all can imagine what it will have to take, to stop a mammoth tanker. As defense counsel you are too late, if you think you can achieve this under time pressure during trial, where the judge presides and makes final decisions on what phase the process is in. Many defense counselors refuse to communicate prior to the trial with the public prosecution and judges, because they consider this situation as hostile

3. Fair trial: access to legal aid

  • 36 Monitor gesubsidieerde rechtsbijstand / 2013. L. Combrink-Kuiters / M. van Gammeren / S. L. Peters.

70The system of subsidized legal aid is under pressure because of the costs. For three years in a row there have been cuts in the budgets of subsidized legal aid and in more cases people will have to pay a fee even if they are completely without funds36. High profile criminal counsels will very often not take cases that are dependent on subsidized legal aid, because of the low rewards attributed to counselors.

4. Pinball machine

71I would like to compare the experience of a suspect in the criminal justice system, with the experience of a ball in a pinball machine. Gravity will make it go down and out of the game. You have to your defense, a counsel that hopefully is skilled in manipulating the course of the ball and keeping it in any way possible in the game with the flippers, in last instance. Every object, bumper, hole, band, in the pinball machine is a part of the criminal justice system, you are bounced against objects comparable to the effect of deprivation of liberty, the loss of self esteem, manipulation by policemen in your interrogation with the full intend to use that against you in a court case. You bounce up against a judge that apparently does not speak the same language you do and seems to be already convinced that you did something wrong. You feel like you would like to explain parts of the problematic situation that led up to the specific behavior here posed as the major problem, but the juridical framework does not allow you to do that…

72A good counselor might keep the ball in the game for a long time, using the same bumpers strategically. More often the ball goes through the flippers, down the hole, and the client is convicted.

I. PRESUMPTIO INNOCENTIAE AND PUNISHMENT

1. Pretrial detention

  • 37 Council of Europe, Annual Penal Statistics: space i -2010, 28 March 2012, p. 84 (table 5).
  • 38 Complaint declared partially grounded by complaintscommittee PI Haaglanden, November 25th 2013; ZO (...)

73The important principle of the presumption of innocence is laid down in art 6.2 echr and art. 14.2 iccpr. Yet at this moment The Netherlands has the highest rate in Europe of pretrial detention.37 In one of my cases my client has been detained for five months, of which three month in pretrial detention, has lost his house because he did not have an income during his pretrial detention, has lost his health because the prison authorities did not allow specialized treatment for an injury my client had when he was arrested and probably because of the risk of a not complete recovery as a result of withholding the needed medical treatment, he stands the chance to lose a job career after his detention.38 In the court case I asked the judge to take his personal circumstances in consideration and pointing at the horrible conditions of his detention already leading to severe and probably permanent damage, I asked the judge if she found him guilty, not to administer a sentence.

  • 39 Gerechtshof Den Haag, 2 mei 2014, parketnummer 09-819181-13.

74The eyebrow of the judge was raised, because in the eyes of our system of criminal trials, there is no juridical framework that allows a judge to take into account what damage is caused by the side effects of keeping persons in detention. I told her I realized that this was the case in our system, but I considered that highly unjust and for that reason wanted a redress on that issue in the verdict. He was convicted in first instance but acquitted in appeal.39

75In another case my client was a foreigner and did not speak Dutch or English. He was also kept in pretrial detention for a long time. During his pretrial detention I got a message from one of the other detainees that he was in a bad shape and I should come and visit him, which I did.

  • 40 Regionaal Tuchtcollege Den Haag, 25 november 2013, ecli:nl:tgzrsgr:2013:4G2927;2012-152

76This client had had problems with his dentures in prison and the prison dentist had decided to extract 13 teeth and molars. He did not have written consent from my client, nor did he make use of a translator. When I visited my client he told me he was very much afraid, because he had the distinct feeling he was being tortured because he had not confessed. The dentist had even drilled a cavity without anesthesia. Besides the pain and anguish he could not eat very well and needed special food that was not provided for. The allowance he would normally receive was blocked and he could not order alternative food, because of what the prison authorities later stated: a computer mistake. Since then we have won his medical complaint in a complaint procedure,40 but my client had to appear before a judge without hardly any teeth in his mouth. These two cases deal with pretrial detention, when the presumption of innocence should be leading, but already permanent damage is likely to have been done in those conditions that are outside of the control of the person that is criminally charged.

2. Fines, proportionality and deprivation of liberty

  • 41 Art. 24 WvSr

77The Dutch criminal law code gives a firm impression that punishment in the form of a fine is given in relation to the personal financial circumstances of the convicted person.41 However, fines are in fact fixed amounts and the judge in all the cases I have witnessed will not change the amount of the fine, but only give more terms in which to pay.

78Another problem is that the administrative fines, designed to keep most traffic related criminalized behavior out of the criminal justice system, have found a backdoor entrance to administering deprivation of liberty as a sanction: hostage taking.

79In growing measure, people incapable of paying their administrative fines are remanded to be taken hostage in an attempt to force them to pay. This might be understandable from the viewpoint of people refusing to pay but capable of paying. But when it comes to taking people hostage that are willing to pay, acknowledge the fine, but are without the financial means to pay, the hostage taking is not anymore an injunctive relief, but changes color and becomes a punitive sanction. Almost weekly, I get new cases regarding these remands that come before a judge in a kanton criminal court, designed for low-key cases.

80If a person does not show up, he might not have had the call to come to court, the remand to take him hostage is assigned by the judge. There is no form of appeal against this judgment. I have one client that as a result of these rulings has passed 60 days in two periods in prison and of course still was not capable of paying. The fine still remains; after his detention he will still have to pay the total amount of the fine.

3. Some of the effects of imprisonment

81There is not a lot of difference between pretrial detention here above mentioned and being in prison as a result of a conviction. I am under the impression that the severity of the sentence often coincides with the period of pretrial detention. It would be well worth investigating in a scientific research.

  • 42 Prof. Drs. Janne Fengler, Alanus University of Arts and Social Sciences, Educational Science, psych (...)
  • 43 Associate Professor and Graduate Coordinator, Criminal Justice Sciences at Illinois State Universit

82In the Dubrovnik program on victimology 2013 professor Janne Fengler gave a victim perspective on family systems because of a family member imprisoned.42 The punishment intended, surpasses the intended goal of retribution in regard to the offender, because not just the offender, the whole family is punished as a result of a family member missing. Mostly it is the father, but assistant professor Dawn Beichner presented ‘Overcoming past victimization in preparation for reentry to Society’ in de international post graduate course of victimology in Dubrovnik iuc 2013 regarding some of the results of research into the situation of mothers being imprisoned and the effect on their children.43

83Since this is a limited paper, I will not go into the reality of rehabilitation, work and careers, after having been in prison. Suffice to state that recidivism is high as a result of the outcast status of an ex prisoner; in the Netherlands 50% of former prisoners return to prison within a period of two years.44 This result does not meet the aim of deterrence that was intended by imposing this sentence, by the criminal justice system. The aim of retribution was the only one met, but the aim of deterrence, incapacitation, rehabilitation and reparation, works out in a reversed manner in cases of recidivism.

III. OTHER INFLUENTIAL FACTORS

A. The danger of Systemic language

84Experiencing the practice of penal law, I find it extremely helpful to be aware that the legal language used by professionals is inaccessible to non-professionals. I am aware of the effect of the lack of knowledge of the meaning of that language to the persons it most concerns and the lack of knowledge of procedures and the consequences thereof when one is caught in a legal setting. Motivation for part of the research is given to me by the experiences of young people within the criminal justice system. Legislation and its strict enforcement risk to be progressively directed towards suppressing freedom of youth and they are becoming more unforgiving, thereby denying youth the right to be young. Youth is not a different species of humanity; it is a stage of life, meant for learning, experimenting.

  • 45 Victor Klemperer, lti, Stuttgart, Philip Reclam, jun, 2007.

85Systemic language, like juridical language, can be extremely dangerous, because it can create an atmosphere that allows professions, to discriminate and exclude: to de-humanize. Victor Klemperer has written a very impressing account of the change of language through the rise of the Nazi movement and its results on victimization of designated groups targeted by the use of that language45. The criminal justice system is very apt in using systemic language to pretend that its actions are humane. Most of us can imagine how it must feel if you are arrested, handcuffed and enter a police station and the policeman tells you ‘you may sit there’. You actually have no choice at all, if you don’t sit down you will be forced to sit there. The policeman just wants to create a pleasant atmosphere by pretending he gives you a choice. Like if you have to enter your cell and the policeman tells you ‘you may take off your shoes’. These are just two minor, but very clear examples.

86The language used in courts similarly excludes the defendant as well as a possible present victim and treats neither of them, as equal persons that deserve respect and dignity. The label criminal excludes human traits and talents; it dehumanizes a person to probably just one deed that might not even have been properly established. That same type of labeling language is used daily in the papers, in detectives, thrillers and in the news. I strongly advocate therefore, not to use words like ‘crime’, ‘criminal’ and terrorist.

B. Public image in the media

87If I look at the program of television, daily one of the main features is crime in all kind of forms. Detectives, popular programs like csi, ncis, thrillers with killers, apparently programmers consider crime related programs and series as relaxation and entertainment. Thus, they are actually influencing many lives with the image that this kind of socalled criminal behavior would be a part of our daily lives.

88The police largely controls police messages in the media. Three years ago there was still a frequency the police used for emergencies in the Netherlands that was available to outsiders like the press. But the police have now switched to a frequency that is shielded off. The police give out press reports on incidents that they themselves assemble and write. Counter information is not available since names of suspects are not mentioned to the press for protection of privacy. News concerning accidents, arrests, conflicts, burglaries appear daily in this form in the media and create a one sided image of crime prevention and police intervention. Youth has a prominent role in these police reports. A remarkable manipulation is the way age is mentioned. When a young male (17) has been in a car accident as a victim, he will be mentioned as a boy. When a young male (17) has been arrested for an alleged offense, he will be called a man. Another problem concerning the image of youth in media is that they themselves are often not the authors. For this reason, the viewpoint of young people is rarely integrated in professional articles on criminal law or in the media in a balanced way.

C. Stakeholders, participants

89The role of the various participants and stakeholders in the criminal justice system plays an important part in the actual realization or non-realization of its intended aims.

  • 46 Louk Hulsman, Peines Perdues, op. cit.

90The general image is still that the criminal justice system would be a coherent rational system controlled by men. Every service or department works in fact independent of the other without being aware of what happened to someone in the prior stage of the system and what will happen to that same person after its own intervention46. There is no collective responsibility for the (welfare of) the person being entrusted to this system, being dependent of it.

  • 47 Nils Christie, “Conflicts as Property”, The British Journal of Criminology, 1977.

91The state, in the construction of the need for intervention by the criminal justice system, takes over the conflict or intervenes in a problematic situation, which is labeled as criminal behavior and prosecutes the suspect or defendant in the name of the victim and in the name of society47.

92In doing that the role of the victim is minimized in the criminal trial and the possibility of indicating what you would need as a victim to repair the damage that has been done, that possibility exists within a civil lawsuit, is in the context of criminal law forfeit. In that way the possibility of restoration and reparation is blocked. Maybe even more important, any chance on coming to an understanding between the alleged offender and the victim is gone. Thus, the social cohesion is not reinforced by an intervention by the criminal justice system.

  • 48 Nils Christie, Victimology, Victim Assistance and Criminal Justice, iuc, Niederrhein University of (...)

93Nils Christie recounts in a very clarifying manner how the lack of intervention by any agent of the criminal justice system actually saves one young man for the community, whereas within the context of the criminal justice system two young men would have been lost. It is the case of one young man killing another in a remote valley that organizes its own ways of dealing with such truly problematic incidents by an intervention of a group of elders that agree on the deathbed of the young man hurt, in consultation with both parties, that it was never the intention of the other young man to kill the young man and on agreeing in which way repairs can be made by him48.

94Another participant is the suspect or the defendant that does not have a voice on his experiences within the system, but enters the system mostly without understanding what is expected of him or her. As a defense counsel, I am always extremely worried when a policeman or a judge questions my client because my client does not speak the same professional language and he is bound to be trapped into what is seen as an admission of guilt by saying something he intends in another, more casual way. Very often policemen ask the suspect if he drank alcohol. Often they reply truthfully, ‘yes, but only two glasses of beer.’ In court only part of that quote is used, the ‘yes’ part. In several cases I heard the judge continue ‘since you were drunk, your declaration does not have a high degree of credibility…’ I have already stated a lot about the vulnerable position of a suspect, especially when someone is pressurized by detention.

95Let us look at the role of the policeman. The policeman has to score, he has to get results and results are arrests, followed by convictions, or fines. Those results show up in statistics and proof the necessity of the police intervention. De-escalation or prevention is not registered and will not show up as a result. There is very little to no incentive for dealing with situations outside of the criminal justice procedure in a manner that will improve the situation for all those involved. Policemen on the street are mostly the lowest paid, least trained personnel and yet they have to decide on very complicated situations. They have to decide how to deal with the prohibition of sleeping on the streets by homeless people, who have no alternative places to go. An intervention resulting in sending them away or giving a fine serves no purpose and creates aggression.

96To maintain their job they will have to bring in cases that they will reconstruct into criminal charges in the interrogations sessions, consequently resulting in official statements used in prosecution.

97The public prosecutor is more or less in the same position as the policeman; ‘crimes’ will have to be produced to prove the necessity of the existence of the public prosecution. In The Netherlands, the public prosecution is actively involved in consultative bodies that create new ways of repression like the actual monitoring of all the traffic around the major cities and tracking license plates and drivers. In doing that, they are breaching the privacy of many citizens in an unlawful manner. There is no incentive to close cases without trials, because they will influence the statistical results in a negative manner.

98The judges rarely belong to the same social circle as the defendants, they deal with within the context of a criminal justice trial. Time and again it becomes clear that judges find it hard to imagine the social context of the persons brought to trial before them.

99There was one man that threw a tea light to the golden coach of the Dutch queen. No damage done, except to the image of the head of state. The man was kept in pretrial for two years because the judge assumed he would pose a threat to society and finally he was convicted to a prison sentence of five months.

100Judges are very careful to avoid high profile dissenting sentences, because that would mean extra attention drawn towards them and a lot of explanatory work towards colleagues.

D. The role of science

101One of the irritations I registered with the critical scientists I met at conferences was that they had a distinct feeling that politicians were not paying attention to scientific evidence presented, often contradicting the political agenda. But on the other hand I found very few criminal lawyers at conferences of criminology and also few sociologists. Only the program on victimology I regularly attend at Dubrovnik seems to be very multi disciplinary.

102When Louk Hulsman started the criminal law faculty in Rotterdam in what is now called the Erasmus University, one of the reasons he chose to work there was that he had the freedom to organize a multi disciplinary faculty, including sociology and criminology besides criminal law. The multi disciplinary approach gave the possibility to see what was labeled as criminality in a different light.

103Critical research by students is usually not promoted in the Netherlands. More universities are dependent on subsidies of either the government or business, because of lack of funds.

104That might be the very reason that there is very little critical research into the functioning and presumptions of the criminal justice system.

  • 49 Cesare Lombroso, L’Uomo delinquente, Torino, Atlante, 1897.
  • 50 Diagnostical and Statistical Manual of Mental Disorders (dsm) 1973.

105Scientific standards in publications rely more often on the authority of recognized academics. Science, history has proven, often has promoted erroneous findings. We still remember the scientific theory of Lombroso49 and not so long ago (1973) homosexuality was scientifically seen as a disease.50

  • 51 Louk Hulsman, Cátedra de investigación científica, Universidad Externado de Colombia, 2003, p. 23.

106What is needed is independent research and the possibility to publicize with academic credibility without the need for affiliation to a university. To enhance the credibility of the integrity and independence of science, controversial research is needed: ‘Es importante recalcar que en una investigación empírica se debe partir de la experiencia personal, como lo hacen los estudiantes de las líneas de investigación de Centro de Investigación en Política Criminal’51.

IV. TWO RELEVANT CASES

A. De Vergelding, the vengeance (Brokken 2013)

107This book is the result of a seven-year research done into the killing of a Nazi soldier during the occupation period in The Netherlands. The research is based on 185 direct witness reports. The lesson to be learned from this book is that even after reading 372 pages there is no certainty of who was responsible for the death of that soldier. In retaliation, the Nazis killed 10 arbitrary hostages. This book should be translated and be mandatory reading for anybody wanting to work as a professional in the criminal justice system. The careful balanced account of events, seen from all the different perspectives of the involved actors and their families, leaves the reader with the wisdom that it is impossible to reconstruct such events as a death in the circumstances described: someone leaving an electricity wire loose that killed the soldier. If seven years of research and 185 witness reports cannot give conclusions, how can the court cases dealt with within the limited framework of the criminal justice system do justice to the actual event?

B. Lucia de B (DE BERK 2013)52

  • 52 Gerechtshof Arnhem, 14 april 2010, ecli:nl:gharn:2010:bm0876.

108The case of Lucia de B. is one of the revised cases by the ceas mentioned above. Lucia de B. was published by media, the public prosecution and the judges in three instances as a mass murderess, murdering in cold blood.

109She was an intensive care nurse that came under suspicion because her colleagues suggested that an abnormal amount of patients died on her watch.

110The Hospital started an investigation and involved the police. Lucia was aware that she was under suspicion and made an arrangement with the public prosecution that, if they wanted her to come in, she would come willingly and they did not need to fetch her with an obvious police force. She specifically asked this because her grandfather was dying and she wanted to care for him in his dying process and did not want to bother him with her possible prosecution. The police came in full force and uniform to arrest her at the home of her grandfather and that was the last time she saw him.

111She was detained in pre-trial detention and interrogated by the police several times in long sessions. She did not confess. After the police cell, they transferred her to a penitentiary institution and first showed her a cell that was a vast improvement on the cell she had had before. Just when she started to believe that this would be her cell, they took her downstairs to an observation cell, where they kept the lights on day and night and had an air conditioner with a cold airstream directed towards the only place she could sit: a mattress on the floor.

112After two days, she constructed some sort of slippers for her bare feet with the only material present, toilet paper, to fend of the cold from the concrete floor. When the guards found out, they took away the slippers and the toilet paper and after that she had to ask every time she needed toilet paper.

113She was convicted in three instances to a lifelong imprisonment and remanded in the custody of the state, on the basis of statistical evidence that turned out to be wrongly interpreted. When she got the cassation court verdict of lifelong imprisonment she had a cerebral infarction and because of a lack of rehabilitation in the prison environment became handicapped. After her case is revised and she is acquitted of all guilt, she tries to get a disability allowance because of her handicap. The state tells her that she is not insured for such an allowance while she was in detention.

V. CLAIMED AIMS, MEASURING RESULTS, CONCLUSION

A. Measuring results

  • 53 Den Haag, wodc, cbs, Raad voor de Rechtspraak, 2013.
  • 54 That information is based on the cbs (translated Central Bureau of Statistics), ‘Criminaliteit en r (...)

114The last statistical results stem from 2012: 23,7% of the registered crimes by the police were solved53. It is wise to remark even on these statistical results, since we have already learned that cases exist where the police was convinced that the cases were solved, but they turned out to have arrested the wrong person or the situation was in retrospect not to be seen as a crime54. The investigation into high profile cases by the commission on evaluation of closed criminal cases has produced very interesting reports on those cases, accusing the public prosecution of investigating cases in a biased way, since the suspicion is taken as a lead in the investigative process and there is no incentive to investigate material that might lift the suspicion.

115It would be very interesting to have scientific research into the statistics in relation to that aspect of the criminal justice system.

116We also know that the major part of criminalisable behavior does not get registered and thus will not end up in the statistics as crime.

117In the last survey on the trust of citizen in police, done in April 2013 by smv, only 40% of the population still has trust in the police.55 That is a minority of the population. Interaction and trust form an important precondition of the function of police, since people will not register what has happened to them, if they have no trust in a positive outcome.

118Based on these results there is a strong indication of very high dark figures regarding criminalized behavior. There is no interference of the criminal justice system in these cases, so none of the aspired claims can be made in respect to problematic situations outside of the scope of the criminal justice system.

B. Conclusions

119If the aim of the criminal justice systems is to make society safer, there are several indications that it has not succeeded and in all likelihood will not succeed. Criminalized behavior does not necessarily signify that behavior is damaging to society. What crime is depends on time and place; so a reaction on ‘crime’ within the framework of the criminal justice system does not necessarily mean that such a reaction would make society safer. Given the before exposed aspects, it becomes apparent that assessing the necessity or merits of the criminal justice system based upon its face value image reflected in criminal law, statistics and crime reports, will not do.

120Only very few problematic situations defined by the system as ‘crimes’, are actually dealt within the context of the criminal justice system. The cases that are treated within the context of the criminal justice system have a high likelihood of being distorted within the juridical framework and risk leading to wrongful convictions. Imprisonment leads to a high rate of recidivism and the retribution intended, also inflicts pain on the innocent family members. Victims cannot heal any damage that may have been done by directing the system towards their needs.

121The precondition to the ultimate legitimization of interventions of the criminal justice system is that every citizen is deemed to know the law. Of course, we know that this is not true, as almost all claims of the criminal justice system have been proven false. Why in general do people accept the existence of the criminal justice system? Because it is so powerful, so complex and so defensive that even professional people within the criminal justice system do not get the full picture. The criminal justice system is as a religion; there is very little proof, yet a lot of people have unconditional faith in it. The only people getting the full picture are the people being processed as criminals by the system and their opinion is in the eyes of the professionals and public not valid, because they are a special kind of people, they are ‘criminals’.

C. Recommendations

  • 56 Thomas Mathiesen, The Politics of Abolition, op. cit.

122It is obvious that suggesting to do away with the criminal justice system will not find a lot of resonance in a society that is still set on believing in it, regardless of results. Thomas Mathiesen has described very well in his book ‘The Politics of abolition’56 that reform within the framework of such a powerful and complex structure as the criminal justice system will most likely end in legitimizing the very system and getting nearly no changes effectuated. My suggestion would be for science to wake up and show the scientific results as opposed to the claimed results, by promoting and realizing critical multi disciplinary research. I suggest that trainings are given where people can exchange their experiences regarding problematic behavior and share solutions that do not involve the criminal justice system. My recommendation is to advise as many people as possible not to make use of the criminal justice system but find other ways to resolve problems and develop alternatives ways to deal with problematic behavior, outside of the scope of the criminal justice system. My other advice is not to use the systemic language used in the criminal justice system, but speak about occurrences needing an intervention in the layman terms on what actually happened.

123Finally, my view is not that people within the criminal justice system are intentionally defensive and repressive. I have come to know that people within the system are human with human capacities of making mistakes and will try to get a maximum result with a minimum effort, even if that means bending the rules. Just because they are human, just because they can. Just because a lot of people are not willing to show their part of the system for what it really is: malfunctioning. Maybe we should give people who dare give out true accounts on the reality of the criminal justice a special prize.

Bibliographie

LITERATURE LIST

De Berk, Lucia. Lucia de B. Lifelong and Remanded in Custody of the State, Amsterdam, Uitgeverij De Arbeiderspers, 2010.

Black, Donald. Behavior of Law, New York, Academic Press Inc, 1976.

Brokken, Jan. De Vergelding, Amsterdam, Uitgeverij Atlas Contact, 2013.

Christie, Nils. “Conflicts as Property”, The British Journal of Criminology, 1977.

Christie, Nils. Victimology, Victim Assistance and Criminal Justice, Iuc, Niederrhein University of Applied Sciences & Kiel University of Applied Sciences, 2009.

Combrink-Kuiters, L. e.a., Monitor gesubsidieerde rechtsbijstand 2012, Nijmegen, Wolf Legal Publishers, 2013.

Hulsman, Louk. Peines Perdues, Paris, Le Centurion, 1986

Hulsman, Louk. Critical criminology and the concept of crime, Dordrecht, Martinus Nijhoff Publishers, 1986.

Hulsman, Louk. Cátedra de investigación científica, Universidad Externado de Colombia, 2003.

Kelk, C. Studieboek Materieel Strafrecht, Deventer, Kluwer, 2010.

Kalidie, S. N.; De Heer-de Lange, N. E. Criminaliteit en rechtshandhaving 2012, Den Haag, wodc, cbs, Raad voor de Rechtspraak, 2013.

Klemperer, Victor. lti, Stuttgart, Philip Reclam, jun, 2007.

Lombroso, Cesare. L’Uomo delinquente, Torino, Atlante, 1897.

Mansell, W.; Meteyard, B.; Thompson, A. A Critical Introduction to Law, London, Cavendish Publishing, 2004.

Mathiesen, Thomas. The Politics of Abolition, Oslo, Universitetsforlaget, 1974.

Morrison, Wayne. Introducing Crime and Criminology, Oxford, Oxford University Press, 2009.

Noordam, D.J. Riskante relaties: vijf eeuwen homoseksualiteit in Nederland 1233-1733, Hilversum, Uitgeverij Verloren, 1995.

Spapens, A.C.M.; Bunt, H.C.; Rastovic, L. De wereld achter de wietteelt, Den Haag, Boom Juridische Uitgevers, 2007.

Vermeer, Brenda. Strafprocessuele waarborgen tijdens het voorarrest van jeugdigen en hun beleving daarvan, Apeldoorn, Maklu Uitgevers, NV 2012.

Web references

Centraal Bureau voor de Statistiek [www.cbs.nl]

Official website of the Central Bureau of Statistics

Forbes [www.forbes.com/pictures/egim45egde/10-netherlands/]

Het Openbaar Ministerie [www.om.nl/onderwerpen/commissie_evaluatie/]

[www.wodc.nl/onderzoeksdatabase/cenr-2009.aspx?cp=44&cs=6796#publicatiegegevens], chapter 6.

The official website of the public prosecution

[www.om.nl/over_het_om/], kiezen voor Perspectief op 2010, p. 11.

History

[www.rijksmuseum.nl/en/explore-the-collection/timelinedutch-history/1863-abolition-of-slavery]

Jurisprudence

Hof’s-Hertogenbosch, 25 September 2013, ecli:nl:ghshe:2013:6825;hr 10 December 2013, ecli:nl:hr:2013:1737, [www.rechtspraak.nl]

Maatschappij en Veiligheid [http://www.maatschappijenveiligheid.nl/wordpress/wp-content/uploads/2013/09/Smv-Imagoonderzoek-politie-Deel-Burgers.pdf]

A website of an organization dedicated to research regarding society and safety Politie [www.politie.nl/Zuid-Holland-Zuid/OverDitKorps/BeleidResultaten.asp]

The official website of the Dutch police

Tweede Kamer [http://www.tweedekamer.nl/kamerstukken/dossiers/strafrechtelijke_onderwerpen.jsp]

The official website of the second chamber of the Dutch Parliament

Other references

Council of Europe, Annual Penal Statistics: space i -2010, 28 March 2012, p. 84 (table 5).

Diagnostic and Statistic Manual of Mental Disorders (dsm), 1973.

Jurisprudence

Gerechtshof’s Hertogenbosch, 1 april 2008, ljn bc9474. Gerechtshof Arnhem, 14 april 2010, ecli:nl:gharn:2010:BM0876.

Gerechtshof Den Haag, 2 mei 2014, parketnummer 09-819181-13.

Regionaal Tuchtcollege Den Haag, 25 november 2013, ecli:nl:tgzrsgr:2013:4G2927;2012-152

Complaintscommittee PI Haaglanden, November 25th 2013; ZO 2013/456 t/m 459.

Laws

Wet kraken en leegstand, 1 oktober 2010, stb. 2010, 320.

Wet openstelling huwelijk, 1 april 2001, stb. 2001,9.

Notes

2 Donald Black, Behavior of Law, New York, Academic Press Inc, 1976.

3 C. Kelk, Studieboek Materieel Strafrecht, Deventer, Kluwer, 2010, p. 570.

4 Council of Europe, Annual Penal Statistics: space i -2010, 28 March 2012, p. 84 (table 5).

5 Lucia de Berk, Lucia de B. Lifelong and Remanded in Custody of the State, Amsterdam, Uitgeverij De Arbeiderspers, 2010.

6 Jan Brokken, De Vergelding, Amsterdam, Uitgeverij Atlas Contact, 2013.

7 Donald Black, Behavior of Law, op. cit.

8 Thomas Mathiesen, The Politics of Abolition, Oslo, Universitetsforlaget, 1974.

9 Louk Hulsman, Peines Perdues, Paris, Le Centurion, 1986

10 Louk Hulsman, Critical criminology and the concept of crime, Dordrecht, Martinus Nijhoff Publishers, 1986.

11 Wayne Morrison, Introducing Crime and Criminology, Oxford, Oxford University Press, 2009.

12 Wayne Morrison, Introducing Crime and Criminology, op. cit., p. 25.

13 Wayne Morrison, Introducing Crime and Criminology, op. cit., p. 25.

14 Wet kraken en leegstand, 1 oktober 2010, stb. 2010, 320.

15 Art 138a WvSr.

16 Hof ’s-Hertogenbosch, 25 September 2013, ecli:nl:ghshe:2013:6825; hr 10 December 2013, ecli:nl:hr:2013:1737, [www.rechtspraak.nl]

17 [www.rijksmuseum.nl/en/explore-the-collection/timeline-dutchhistory/1863-abolition-of-slavery]

18 [www.forbes.com/pictures/egim45egde/10-netherlands/]

19 Louk Hulsman, Critical criminology and the concept of crime, op. cit., p. 1.

20 D.J. Noordam, Riskante relaties: vijf eeuwen homoseksualiteit in Nederland 1233-1733, Hilversum, Uitgeverij Verloren, 1995.

21 Wet openstelling huwelijk, 1 april 2001, stb. 2001,9.

22 W. Mansell, B. Meteyard, A. Thompson, A Critical Introduction to Law, London, Cavendish Publishing, 2004, p. 3.

23 Donald Black, Behavior of Law, op. cit., p. 25.

24 Louk Hulsman, Peines Perdues, op. cit., p. 13.

25 Translation from French to English by author.

26 A.C.M. Spapens, H.C. Bunt, L. Rastovic, De wereld achter de wietteelt, Den Haag, Boom Juridische Uitgevers, 2007.

27 [www.politie.nl/Zuid-Holland-Zuid/OverDitKorps/BeleidResultaten.asp]

28 This also applies for homeless people and psychiatric patients with a lack of treatment, daycare.

29 [www.om.nl/over_het_om/], kiezen voor Perspectief op 2010, p. 11.

30 Assistant Professor, Georgia State University, Juvenile Delinquency, juvenile justice.

31 Art 344 WvSv; Gerechtshof’s Hertogenbosch, 1 april 2008, ljn bc 9474.

32 Brenda Vermeer, Strafprocessuele waarborgen tijdens het voorarrest van jeugdigen en hun beleving daarvan, Apeldoorn, Maklu Uitgevers, nv, 2012, p. 42.

33 Translated by the author

34 [www.om.nl/onderwerpen/commissie_evaluatie/]

35 [www.wodc.nl/onderzoeksdatabase/cenr-2009.aspx?cp=44&cs=6796#publicatiegegevens], chapter 6.

36 Monitor gesubsidieerde rechtsbijstand / 2013. L. Combrink-Kuiters / M. van Gammeren / S. L. Peters.

37 Council of Europe, Annual Penal Statistics: space i -2010, 28 March 2012, p. 84 (table 5).

38 Complaint declared partially grounded by complaintscommittee PI Haaglanden, November 25th 2013; ZO 2013/456 t/m 459.

39 Gerechtshof Den Haag, 2 mei 2014, parketnummer 09-819181-13.

40 Regionaal Tuchtcollege Den Haag, 25 november 2013, ecli:nl:tgzrsgr:2013:4G2927;2012-152

41 Art. 24 WvSr

42 Prof. Drs. Janne Fengler, Alanus University of Arts and Social Sciences, Educational Science, psychology, sociology.

43 Associate Professor and Graduate Coordinator, Criminal Justice Sciences at Illinois State University

44 [http://www.tweedekamer.nl/kamerstukken/dossiers/strafrechtelijke_onderwerpen.jsp]

45 Victor Klemperer, lti, Stuttgart, Philip Reclam, jun, 2007.

46 Louk Hulsman, Peines Perdues, op. cit.

47 Nils Christie, “Conflicts as Property”, The British Journal of Criminology, 1977.

48 Nils Christie, Victimology, Victim Assistance and Criminal Justice, iuc, Niederrhein University of Applied Sciences & Kiel University of Applied Sciences, 2009.

49 Cesare Lombroso, L’Uomo delinquente, Torino, Atlante, 1897.

50 Diagnostical and Statistical Manual of Mental Disorders (dsm) 1973.

51 Louk Hulsman, Cátedra de investigación científica, Universidad Externado de Colombia, 2003, p. 23.

52 Gerechtshof Arnhem, 14 april 2010, ecli:nl:gharn:2010:bm0876.

53 Den Haag, wodc, cbs, Raad voor de Rechtspraak, 2013.

54 That information is based on the cbs (translated Central Bureau of Statistics), ‘Criminaliteit en rechtshandhaving 2012’, CBS.nl, note 26.

55 [http://www.maatschappijenveiligheid.nl/wordpress/wp-content/uploads/2013/09/Smv-Imago-onderzoek-politie-Deel-Burgers.pdf]

56 Thomas Mathiesen, The Politics of Abolition, op. cit.

Auteur

Hulsman Foundation The Netherlands.
Hulsman Foundation (board of directors since 2010; guardian of the work of Louk Hulsman, promotion of alternative ways to solve problematic situations than involving the criminal justice system); Lawyer since 2010 (Practice in administrative, civil and criminal law) llm; Lecturer in Dubrovnik (iuc), Johannesburg (victimology); European Group of Critical Criminology and Icopa (Abolitionism); Kiel (Law and gender); former professional musician (1980 – 1998) and writer (1990-2009).

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