19 februari 2008
Ladies and Gentlemen, dear students,
It is a pleasure for me to address such an extensive audience of students with a special interest in criminal law. It reminds me of the time I was a student myself. It seems only yesterday [PM . How time flies!
As you will probably know by now, my name is Rieke Samsom and I am one of five Procurators General in the Netherlands. Together we form the Board of Procurators General which heads the Public Prosecution Service. Unlike in some other countries, the Public Prosecution Service in the Netherlands is nót a government department. No, with the courts it is part of what is known as the judiciary.
It is our job to bring suspects of criminal offences to court. This means that the Public Prosecution Service has the legal monopoly to investigate criminal offences, to prosecute offenders and to make sure that sentences are carried out properly. We also have the power to settle cases by giving the defendant the option of paying a penalty or performing a community service. Starting February 1st, our possibilities to settle a case on our own initiative will be further extended. The police perform the practical side of the criminal investigation, but they are accountable to the Public Prosecution Service.
Put differently, the Public Prosecution Service is responsible for enforcement of the penal code in the Netherlands. An important task which brings special competences ánd special responsibilities. So if anybody knows where the limits of criminal law lie, it should be us. One might assume.
Indeed, we dó have a fair idea about the limits of criminal law. At least, when we are talking about the legal limits. And of course, there are always judges to remind us of those limits. But beside the legal limits, there are also other limits to criminal law. Like societal limits and practical limits. I would like to say a few words about those too. I do not pretend to have all the answers. But the least I could do is to raise a few questions. Let me start out with the legal limits. After all, the law is our trade.
Although public prosecutors have a fair idea of the limits of criminal law, it is not always clear where exactly these limits lie in a particular case. The legal practice is not a binary process. A simple 'yes, permissible' or 'no, wholly unacceptable' can not always be given. Sometimes a public prosecutor has to settle for a 'might be'. And provide the arguments to prove his case. As a matter of fact, this is one of the things that makes working as a public prosecutor interesting.
Let me give you an example from my own experience, when I had just started as a prosecution officer. The National Department of Public Works was sandblasting a bridge. Dust and paint residues were polluting the river below. This caused a serious threat to the environment.
Any individual would have been prosecuted and fined for such an act. But at the time, public authorities could only be prosecuted for penal offences with great difficulty. We decided to press ahead. In this case and others like it. Finally, the penal code was adapted to make the prosecution of public authorities easier.
So in some cases a public prosecutor can decide to push the limits. Because such an initiative can help determine where these limits are or should be. Or because it can trigger the start of process with societal benefits. In those cases we feel obliged to exploit our legal toolbox to the full extent to serve the public interest.
Think of the case of Savannah, the little girl found murdered in the back of her stepfather's car. The Public Prosecution Service decided not only to prosecute the mother and stepfather, but the guardian of the familiy as well. Because she had ignored signs that the girl's family was not a safe place for her. We do not particularly enjoy prosecuting people who do important work, with low salaries and the best intentions. But we wanted to determine in court how far the responsibilities of guardians reach.
These examples do not mean that we always push things to the limit. On the contrary, sometimes it is best to hold back a little. For instance, the time when a clever, uptown kid was led before me on charges of robbery. He had obviously seen a lot of court room movies and called upon his right to remain silent.
I could have left it at that. But instead, I decided to put some pressure on him. I explained that his silence raised the impression that he was very experienced and deeply involved in criminal activities. Whereas I knew he had a clean criminal record. His behaviour would not benefit him. But on the contrary might result in a higher sentence. Later I heard he had given a full confession before the examining judge. The pressure I put on him did not lead to the highest possible sentence. Hopefully, it did lead to some soul searching by this clever youngster who was about to throw his life away.
This also illustrates that public prosecutors are not the fanatical crime fighters they are sometimes made out to be. In fact, our public assignment is not to put as many suspects behind bars as possible or for the longest possible time. Instead, our task is to contribute to discovering the truth. This means we have to respect both the rights of victims ánd of suspects.
The examples I gave so far, were about the limits of criminal law. But one could also think of the limits of administrative law. They too affect our work, although this might suprise you. Just think of all kinds of preventive measures. The distinction between the administrative law and criminal law - however clear in theory - then becomes blurred.
For instance, is drug nuisance a problem that should be tackled under administrative law or under criminal law? Coffee shops receive their permits from local government. But if a coffee shop owner has been a member of a criminal organisation, such a permit will be refused. This already indicates that measures both under administrative law and under criminal law are needed to deal with the problem of drug nuisance effectively.
In the past, prevention was exclusively the territory of local government, of the police, of welfare organisations. Nowadays, one can witness increasing co-operation between these stakeholders and the Public Prosecution Service. Not only in the struggle with drug abuse, but also in the field of juvenile crime and juvenile care.
To facilitate this co-operation, we are experimenting in different cities with so-called Security Houses. Buildings where employees of the Public Prosecution Service, of the police, of local government, of the Child Welfare Council work closely together. Not the file but the person of the offender or the victim gets the focus. The aim is to co-ordinate quickly which course is the best in a particular case. For instance, a youth is arrested red-handed by the police for stealing a bicycle. Should he receive a fine from the public prosecutor? Or is it more effective when the probation officer enrols him in a tough training course? Or should the welfare officer look into his home situation and start an action in this area? A combination is of course also possible. All these people have different tasks, according to the law. But their activities are becoming increasingly intertwined.
One could think of the close co-operation between government and the Public Prosecution Service is the buying up and subsequently closing of brothels in the red light district of Amsterdam. This move is motivated, among other things, by the human trafficking in the brothels.
So, on paper the difference between criminal law and administrative law might be very clear. But in real life, the people that apply these distinctive forms of law, often work closely together. Of course, they have different roles and responsibilities which they try to mark out. But it is not always possible to define clearly where the limits lie.
I have said a few things about legal limits. What about societal limits? The actions of the Public Prosecution Service should balance between two societal limits. First, how much insecurity can society endure? Second, how much law enforcement can a society endure?
The first aspect is one that most people find logical. Too much crime wears out the fabric of society. However, too much crime fighting does as well. When we look at the law, the multitude of penal acts is sheer endless. The Public Prosecution Service does not have the capacity to enforce all these acts. And even if we could, the result would not be more security, but more likely revolution. Think of the mandatory identification. What would happen if the Public Prosecution Service would actively try to enforce this duty by sending the police out, asking for ID's in the streets? I can already imagine the discussions in parliament: 'Don't they have anything better to do?'.
So, we have to make choices. What are the criteria for these choices? Well, you could think of the seriousness of the crime, the public nuisance it is causing, the bad example it is setting, the possibilities of prevention. Of course we also pay close attention to discussions in parliament and in the media. We try to deploy our limited capacity as rationally as possible. But admittedly, sometimes emotions play an important role.
For instance, it is very difficult to close a child murder case because there are no more leads for the investigation. Nevertheless, sometimes it needs to be done, so we can reapply our capacity to more promising cases. These are tough decisions, for police and public prosecutor alike. Also because public opinion often is in favour of continued investigation. To give you an example: a few years ago a well-known crime reporter tried to force the Public Prosecution Service by interim injunction proceedings to perform extensive DNA-sampling in the case of Marianne Vaatstra. The judge did not agree.
Finally, the practical limits. I have already mentioned the sheer endless list of penal acts and the limited capacity of the Public Prosecution Service. Let me give you a few facts and figures to illustrate this. Every year the Public Prosecution Service deals with about a million cases. These cases are managed by 4.300 employees. Only 650 of these employees are public prosecutors. A large number of these cases, we are allowed to handle ourselves. 150.000 cases are brought before the judge. 16.000 of these cases will lead to an appeal.
So the workload is quite hefty. Luckily, we have the government's permission to start recruiting an additional 230 employees. Eighty of our new 'recruits' will fill positions as public prosecutors. What kind of people fit our high professional standards?
[What characterizes a public prosecutor?]
First of all, a public prosecutor often works under pressure. Not only because of the high number of cases, but also because of the never lingering attention of the media, of the government and of course the victims. As guardians of the rule of law, we are watched intensively -and rightly so.
Second, a public prosecutor by definition has to deal with uncertainty. You don't know what an investigation will yield in terms of evidence that is useful in court. Witnesses can change their minds, a house search might not lead to the expected results, the judge might be sceptical. Taking calculated risks is part of the job.
Impartiality is also a very important characteristic of a public prosecutor. As I said, we are not the crime fighters we are sometimes made out to be. Our focus is discovering the truth and maintaining the rule of law. This means that sometimes a public prosecutor just has to say: 'No, I am not convinced that this suspect has committed the crime'. Or: 'No, prosecution will not solve the problem in this case'.
Last but not least, a public prosecutor must be very committed to do the job. She or he must have a genuine drive to contribute to a safe society. To do something against organised crime, against reckless driving or white collar criminality. To name just a few categories. It is not a 'nine-till-five' job. Sure, you earn a decent salary. But if you want big money or if you see the court room as a debating club where you can show of your legal knowledge, you might want to choose another profession. Our business is a serious business. With a great impact on society, on suspects and on victims. In short, it is the most fascinating job in the world.
Ladies and Gentlemen,
Criminal law has its limits. Legal, societal and practical limits. But is not always clear where these limits lie. Nor is it always desirable to exploit the limits to the full extend. More law enforcement does not necessarily make a safer or better society. Our goal as Public Prosecution Service is to make people feel safe because they feel protected by the rule of law, not threatened.
To reach this goal our people make choices everyday, paying good attention to the limits. Should I continue to press charges against this youth or just give him a good scare? Should I just focus on prosecution or also devote time to prevention? How far do my responsibilities in the field of prevention reach anyway? Should I follow my own priorities in prosecuting crime or the ones that figure most prominently in public debate?
Difficult questions without easy answers. Interesting and important questions as well. I hope you found my questions stimulating. And I hope you have some stimulating questions for me. Because I am really looking forward to an open discussion with you. Thank you.