Free, at least for the time being
Legislation which protects defendants from being tried twice for the same crime – ‘ne bis in idem’ - will soon be revised. Justice Minister Ernst Hirsch Ballin is working on a proposal which would lead to the demise of this international legal principle, at least as far as Dutch law is concerned. Suspects who were found innocent by an appeals court will soon face the possibility that police will be able to arrest them again. By Eric Hesen
The Public Prosecutor’s Office in Rotterdam was the first to bring the ball rolling. Additional DNA research found evidence which indicated that a freed suspect had killed the manager of a supermarket in the town of Ridderkerk in 2001. However the man could not be prosecuted because he had previously been tried and found innocent in the same case.
The case convinced the most senior official in the Public Prosecutor’s Office, Harm Brouwer, that a change in legislation was called for. He said the prosecution should have a chance to bring charges against suspects who had previously been found innocent of very serious crimes, such as murder.
The Dutch legal world, especially lawyers, quickly responded that the suggestion was tantamount to removing one of the pillars of the legal system. The retired professor and legal expert Ulli Jessurun d’Oliveira said the proposal was “legally perverse”.
“Someone who had been freed four or five times could forever live in fear of being rearrested at any time. I find this an inhuman way to treat people. And besides, what will it mean in future if someone is found innocent? Will the ruling be something temporary that can be reversed at any time?”
Mr Jessurun d’Olliveira also fears that giving the authorities the possibility to repeal verdicts would create a state which would be able to prosecute people endlessly. “It’s a scary kind of science fiction future where the state has unlimited powers.” The underlying philosophy is that accusations must lead to convictions; you end up with a sort of totalitarian state. I’m afraid that the entire country will end up in prison.”
Developments in science and politics
Former Justice Minister Piet Hein Donner asked a committee to look into a similar proposal in 2002. The conclusion was that there was too great a risk that innocent people would end up being prosecuted their entire lives and that this was not worth being able to jail a few guilty people who had been released as a result of judicial blunders. Minister Donner agreed with the findings.
Less than six years later a new justice minister and parliament have a different opinion. DNA techniques have become more sophisticated and victims and their relatives are becoming more influential. One of the people who wrote the 2002 report, Thijs Kooijmans of Tilburg University, says:
“The political situation has changed significantly since 2002. The majority has a different opinion. People are less likely to accept a person getting off scot-free when it is abundantly clear that he or she is guilty.”
Hence Justice Minister Hirsch Ballin is now working on legislation that will allow suspects to be tried more than once for the same crime, which he hopes to have ready this spring. The Federation of Parents of Murdered Children is pleased with the legislation, which they’ve been lobbying for years. The chairwoman of the federation, Sophia Kammeijer, says:
“How is one to explain that the person who murdered your child is immmune from prosecution. It goes against everyone’s sense of justice.”
14 April 2008
[Copyright Radio Netherlands 2008]