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Netherlands: Crime Victims’ Rights Enhanced

(May 3, 2016) On April 26, 2016, the Dutch Senate (Eerste Kamer) adopted a legislative proposal put forward by the Minister of Security and Justice that gives victims of serious crimes the right to be heard in the courtroom and to express, “for example, [what they] think about the guilt of a suspect and what the punishment should be.” Formerly, the victims were only permitted to relate what the crime had meant to them personally. (Unlimited Right to Be Heard for Victims as from [sic], Ministry for Security and Justice website (Apr. 12, 2006).)

Amendment of the Code of Criminal Procedure

The new law amends the Code of Criminal Procedure and also the Damages Fund for Violent Crimes Act. For example, under article 51e of the current Code of Criminal Procedure, a victim may exercise the right to make a verbal statement at a court session “if the offence as charged in the indictment is a serious offence which carries a statutory term of imprisonment of at least eight years, or any of the serious offences referred to … [in specified sections] of the Criminal Code and section 6 of the Road Traffic Act 1994 … .” (Code of Criminal Procedure (valid as of Oct. 8, 2012, with amendments coming into effect on Jan. 1, 2013, incorporated), art. 51e ¶ 1), EJTN (European Judicial Training Network); Wetboek van Strafvordering [Code of Criminal Procedure] (Jan. 15, 1921, as last amended effective Nov. 17, 2015), OVERHEID.NL.)

The amending law adds to the same provision a sentence to the effect that persons authorized to do so who intend to exercise their right to speak should inform the prosecutor in writing before the start of the court session, so that the official can call on them at the appropriate time. In the same article 51e, a new second paragraph has been added to expressly state that “the victim may make a statement at the hearing.”  (Wet van 14 april 2016 tot wijziging van het Wetboek van Strafvordering ter aanvulling van het spreekrecht van slachtoffers en nabestaanden in het strafproces en wijziging van de Wet schadefonds geweldsmisdrijven ter uitbreiding van de mogelijkheid van uitkering aan nabestaanden [Act of April 14, 2016, Amending the Code of Criminal Procedure to Supplement the Right to Speak of Victims and Families in Criminal Proceedings and Amending the Criminal Injuries Compensation Fund Act to Expand the Possibility of Payment to Survivors] (Act of April 14, 2016), STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN, No. 160 (Apr. 26, 2016), art. I A.) Other changes to article 51 chiefly streamline the paragraphs related to statements that may be made by the father or mother of a victim who has not reached the age of majority and by surviving relatives of a deceased victim. (Id.)

Amendment of the Damages Fund for Violent Crimes Act

According to the Damages Fund for Violent Crimes Act, payments from the Fund will be made to, among others, the next of kin of a person who is deceased as a result of the commission of an intentional violent crime in the Netherlands or such a crime committed on a Dutch vessel or aircraft outside the Netherlands. (Wet schadefonds geweldsmisdrijven (June 26, 1975, as last amended effective Jan. 1, 2012), art. 3 ¶ 1, OVERHEID.NL; Damages Fund for Violent Crimes Act (and related Decree) (undated but appended with  the amending Act of 14 December 2005 Implementing Directive No. 2004/80/EC Relating to the Compensation of the Victims of Crime, and the related Decree, EUROPA.)

The amending law changes this article to include the survivors of deceased victims of road traffic violations and of crimes of negligence. (Act of April 14, 2016, art. II(A).) The new law also extends the time in which a compensation application may be submitted to the Fund, from the current “within three years of the day on which the crime in question was committed” under article 7, paragraph 1, to ten years. (Id. art. II(B).)

Rationale for the Amendments 

According to the Ministry of Security and Justice, the amending law will serve to eliminate the differences in practice that had formerly prevailed in courts, whereby victims might in some cases be given the opportunity to talk about the perpetrator’s sentence, but not in others, because the court adhered to the strict formulation of the law before this recent amendment. (Unlimited Right to Be Heard for Victims as from, supra.) The Ministry indicated that, because before appearing in court victims must be well prepared “for their right to be heard and the possible consequences,” the victims will be given assistance by various authorities, such as the Netherlands Victim Support group or lawyers specializing in victims’ rights. (Id.) The public prosecutor can discuss the case with the victim during the victim interview, to give him or her in particular an idea of “what the victim may expect of the hearing at the court session, the demand of the public prosecutor and the final judgement of the judge.” (Id.)

Under the amending law, the Minister of Security and Justice is to send a report to the Parliament on the effectiveness and impact of the law five years after its enactment. (Act of April 14, 2016, art. IIA. ) 

Additional Legislation on Crime Victims’ Rights

The Dutch House of Representatives (Tweede Kamer) adopted draft legislation on April 12, 2016, that provides for victims of crime to “immediately receive all information about their rights,” such as their options for protection and legal counsel, “during their first contact with the police and public prosecutions department.” In addition, they will be given advice on the possibilities for compensation and how the reporting on the case is to proceed. (House of Representatives Agrees with Extra Rights for Victims in Criminal Proceedings (Apr. 12, 2016), Ministry of Security and Justice website.)

Under the draft proposal, police, the public prosecutions departments, and other organizations are to pay more attention in practice to contact with victims who are minors; to that end, part of the content of training courses of employees who have contact with young victims will be on the needs of such minors. An “important new aspect” of the draft law is that an individual assessment may be made of a victim’s situation, in order to determine whether they are eligible for special protective measures. (Id.)

The legislation is aimed at the implementation in Dutch law of European Union Directive 2012/29/EU, which lays down minimum standards for the rights, support, and protection of victims of crime. (Id.; Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and Replacing Council Framework Decision 2001/220/JHA, 2012 O.J. (L 315) 57, EUR-LEX.) The  Ministry of Security and Justice pointed out that although victims already enjoy “a strong legal position in the Netherlands,”  the proposed law means that “t]he rights of victims will apply from the moment of reporting until the case against the suspect has been settled by the court.” (House of Representatives Agrees with Extra Rights for Victims in Criminal Proceedings, supra.)

The House of Representatives’ legislation is now under consideration by the Senate (Eerste Kamer), with the next scheduled meeting on it to take place on May 24. (34.236 Implementatie richtlijn minimumnormen voor de rechten, de ondersteuning en de bescherming van slachtoffers van strafbare feiten [34,236  Implementation Directive on minimum standards on the rights, support and protection of victims of crime], Senate website (last visited Apr. 29, 2016).)