Webcolumn Rechtswetenschappen - by Evert Stamhuis - October 2011
The Dutch criminal justice administration is in a crisis! That is what reports from journalists and experts lead us to believe. Some stress that criminal courts are not properly composed to face the challenges of today. Judges have too little professional expertise and are not capable of assessing the modern forensic evidence, such as DNA, at its proper value. Others contrarily stress that there is too much professionalism and therefore lack of common sense in the courts. Dutch courts are in need for participation of common people, juries or the like. Both types of critics end in the same serious allegation: the courts no longer enjoy the necessary public confidence. This statement is often underscored by referring to the latest miscarriages of justice that have been discovered. Someone should do something about it!
The issue of a confidence crisis was included in a collection of essays and articles, published in the last week of August to honour professor Ybo Buruma, a well known criminal law expert who left the university to join the Dutch Supreme court. This colleague himself had participated at large in public debates on the criminal justice administration, earning him the title "media professor". No less than five contributions to this book directly deal with the topic of trust in one way or the other, adding to the vast number of authors from legal practice and the academic world who had paid attention to this issue earlier. Also the media professor himself has brought up the issue of trust regularly, however avoiding to partake in the crisis lamentations.
Those five essays show a diversity in their diagnosis and their solution to the crisis. More than discussing those well balanced opinions I would like to jump back to the criticism referred to in the introduction. Those critics commonly seek to break the monopoly of professional lawyers in the justice administration. Either we should devise a system of citizens' participation in line with the countries around us, or we should appoint forensic experts as members of the courts. True, the Dutch justice administration is dominated by legally trained professionals. To be appointed in a court one has to have a university law degree. So, all judges are trained lawyers and there are no others in the regular criminal cases; no juries, no lay assessors, expert members or whatever. The - sometimes hidden - prediction is that trust will not be restored and mistakes will occur as long as others continue to be banned from the judges' bench.
Is a lawyers' monopoly a predictor for little confidence with the public? One could say no to this question on the basis of the composition of the advocacy. So far we have not witnessed the advocacy to share in a downhill trend of trust, although every advocate in the Netherlands is also a trained lawyer. Cynically, one might say that as a professional group the advocates could hardly sink lower in public confidence. Who trusts an advocate, that is the drift of many jokes and anecdotes, already for ages. But that is not the full picture today. Looking closer we see that there is a remarkable level of confidence in advocates. They appear in TV shows very regularly, not as representative of their clients, but as commentator of legal events. Apparently these are successful in getting across a message of reliability. Lawyers can have public confidence and with patience and clever explanation they will earn new respect; one could conclude.
Thinking that the criticism to the courts will subside the more judges appear in the media to do a lot of explaining, is a misunderstanding. In the book mentioned above Lenie de Groot argues that there are great difficulties for judges when appearing in the media. An attempt to ‘win' a media debate does not go down well with a judges' attitude in which impartiality and lack of prejudice shall rule. Judges are not necessarily cold fishes, but should stay away from a discourse where they have to share a vocabulary and attitude not compatible with their specific position. Not the popularity of the courts or individual judges, but the critical values of unprejudiced decision making provide the necessary ingredients for a healthy society. To be good at that is not safeguarded by professional legal training only. But such training is one of the conditions under which we have achieved what we have: a quite reliable, impartial and fairly cost efficient court system. I am convinced that the medicine is worse than the ailment, when we fundamentally change the composition of our courts in the face of crisis rhetoric.
by Evert Stamhuis, Dean and full professor criminal law and procedure OU Netherlands
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