“Victims’ participation rights in the post-sentencing phase: The Netherlands in comparative perspective”

Published date01 June 2021
Date01 June 2021
DOIhttp://doi.org/10.1177/20322844211008232
Subject MatterArticles
Article
New Journal of European Criminal Law
2021, Vol. 12(2) 128145
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/20322844211008232
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Victimsparticipation rights in
the post-sentencing phase: The
Netherlands in comparative
perspective
Alice K. Bosmaand Marc S. Groenhuijsen
Department of Criminal Law, Tilburg University, The Netherlands
Max de Vries
Department of Transboundary Legal Studies, University of Groningen, The Netherlands
Abstract
Victimsrights have proliferated rapidly over the past decades. However, the development of
rights in the post-sentencing phase has lagged behind. In this article, we argue that victimsrights
may contribute to the acknowledgement of victims, something that victimological research
suggests is important for victimswell-being at every stage of crimina l proceedings. We review
a new Dutch law and a legislative proposal aiming to improve victimsrights in the post-sentencing
phase in relation to conditional release from prison and conditional discharge from forensic
psychiatric hospital. More specif‌ically, we compare these (proposed) victimsparticipatory rights
with those existing in the Canadian, Belgian and German framework. We argue for a strengthened
position of the victim in the post-sentencing phase. We close by showing that the practical
effectiveness of these proposed rights is put at risk by COVID-19 and statesresponse to the
same.
Keywords
victimsrights, post-sentencing phase, participation, acknowledgement
Corresponding author:
Alice K. Bosma, Department of Criminal Law, Tilburg University, Post box 90153, Tilburg 5000 LE, The Netherlands.
Email: a.k.bosma@tilburguniversity.edu
Introduction
Victimsrights have proliferated rapidly over the past decades. In the European context, the so-
called VictimsRights Directive
1
required Member States to enact and implement a broad range of
victimsrights.
2
These rights seek to realise varying degrees
3
of participation: from what have been
called service rights, such as the right to passively receive information, to active participation.
Irrespective of the degree of direct involvement of the victim in the criminal justice system, the
common denominator of all these rights is that they are designed to acknowledge victims. The idea
is that by hearing the victim, secondary victimisation that is, a negative reaction that is experienced
as a further violation of legitimate rights following from the primary victimisation (the alleged
offence itself) can be avoided, enhancing not only the victimsdignity, but also their perception of
trust and legitimacy towards the criminal justice authorities.
4
In the Netherlands in particular, the development of victimsrights
5
has been characterized by
two related trends since their f‌irst formal introduction in the 1980s. First, victims have been granted
more and more agency. Second, victimsrights have been gradually and chronologically embedded
in the course of the criminal proceedings. This trend began with the so-called f‌irst generationof
victimsrights: guidelines addressed to police and public prosecutors in pre-trial investigations.
6
These criminal justice off‌icials were instructed to avoid secondary victimisation by providing
information and by treating victims correctly and respectfully. Victims themselves were not granted
any power to invoke or enforce these rights. Evaluations showed that these guidelines were poorly
implemented.
7
In the 1990s, the so-called Terwee Act reinforced the victimsposition in the criminal
justice system by introducing the injured party(benadeelde partij) in the Code of Criminal
Procedure (CCP). The goal of victim acknowledgement was still pursued through obligations of
respectful treatment, but, in addition, victims could now play a more visible and active role in the
trial phase of the criminal proceedings, most notably by claiming damages.
8
Several steps to make
1. 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]
OJ L315/57.
2. Kerstin Braun, Victim Parti cipation Rights: Variation Across Criminal Justic e Systems (Pelgrave Macmillan, London
2019); MEI Brienen and EH Hoegen, Victims of Crime in 22 European Criminal Justice Systems (WolfLegal Publishers,
Oisterwijk 2000); J Doak, VictimsRights, Human Rights and Criminal Justice. Reconceiving the Role of Third Parties
(Hart, Oxford 2008).
3. Daniel Pascoe and Marie Manikis, Making sense of the victims role in clemency decision making(2020) 26 IRV 3.
4. Ulrich Orth, Secondary Victimization of Crime Victims by Criminal Proceedings(2002) 15 Social Justice Research 313.
5. MS Groenhuijsen, Van de regen in de drup. Van een kennisgestuurdeslachtofferemancipatie in het strafrecht naar een
goede bedoelingen slachtofferpolitiekanno 2018[2018] DD 169. For a recent summary of these developments in
English, see Nieke A Elbers and others, The role of victimslawyers in criminal proceedings in the Netherlands
[2020] E.J.C. https://journals.sagepub.com/doi/full/10.1177/1477370820931851> accessed 23 October 2020.
6. Richtlijnen De Beaufort [1986] and Richtlijn Vaillant [1987]. For a discussion of these guidelines, see J-A M Wemmers,
Victims in the criminal Justice System. A Study into the Treatment of Victims and its Effects on their Attitudes and
Behaviour (Kugler Publications, Wayne 1996).
7. Even before their entry into force, Steinmetz and others argued that practical implementation was not suff‌iciently
discussed in the guidelines: CHD Steinmetz, ET van Buuren and HG van Andel, De slachtoffercirculaires: enkele
suggesties voor nieuw beleid op basis van een onderzoek voor de invoeringvan de circulaires[1987] DD 952. See
further: S Leenders, Zolang de klant maar geen slachtoffer is; onderzoeknaar de implementatie van de richtlijnen
Vaillantbijde Nederlandse politie (Nederlandse Politieacademie 1990); A Slotboom and J Wemmers, Evaluatie
Terwee. Tevree met Terwee? (WODC 1994).
8. Prior to the implementation of the Terwee Act in 1995, it was already possible to claim damages within the criminal
proceedings, but only up to a relatively low maximum amount of 1500 Dutch guilders (approximately 680).
Bosma et al. 129

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