Welcome

1. Welcome A warm welcome to the delegation, Mr. Michele Cuccaro Italy Mrs. Wanda Wante Belgium Mrs. Kathleen Pipeleers Belgium Mr. George Matei Romania Mrs. Barbara Augustyniak Poland Mrs. Anne Maria Verlengia Italy Mrs. Teresa Iodice Italy Mrs. Theresia Marzi Austria Mrs. Tina Sočan Slovenia Mr. Horst-Josef Wanschura Germany Mrs. Isabelle Kremer Germany Mrs. Patrizia Puccine Italy Mrs. Edwige Bit France Mrs. Nathalie Van den Brande Belgium Mr. Thomasz Kobis Poland Mrs. Suzy Anne Vanhoonacker Belgium Mrs. Ester Vidal Fontcuberta Spain Mrs. Aleksandra Rutkowska Poland Mrs. Daniela Deteşan Romania Mrs. Heli Käpp Estonia Mrs. Margir Vutt Estonia

2. Basics National • The Queen • The Government

3. Basics national 2 • for reasons of balancing the present political powers, there is now one department responsible for the criminal justice politics and public safety under the guidance of one minister being apt to instruct the prosecutorial service and the police in those matters • this is an interim solution, antithetical to the long standing tradition as from 1798 that these responsibilities should be carried by two separate ministers • it is within the likelihood that these separation of powers will be restored in the next future • in the meantime the minister for safety and justice can reorganise the Dutch police into one overarching national police according to this scheme Minister Ivo Opstelten,Security and Justice There will be no self standing police force specialised for criminal matters having only a repressive task. In the best Dutch tradition there will be one national police force competent in criminal - and public safety matters

4. Basics National 3 • There is the political responsibility to be carried towards the Houses of Parliament • the Minister of Public Safety and Justice is responsible for the way the • Higher Prosecutorial Office conducts the national policy in criminal matters • and he is responsible for the instructions and guidelines he gave to the police to uphold public security • he has to answer all the questions to be raised in this context by the Parliament • if the answers do not satisfy he can be dismissed

5. Basics Local • In criminal matters, the police is subordinated to the Local Prosecutorial Service. The Prosecutor is accountable to the Higher Prosecutorial Office. • In matters of public order, the police is subordinated to the Mayor.The Mayor is accountable to the local Council. • The Police is organised and financed within a national system by law.

6. Basics Prosecution • Not every crime, coming to the cognizance of the Prosecution Service, has to be pursued. • The Service, has the “rule of expediency “at its disposal.The discretional power to prosecute or not The criteria are leading , not the piles

7. Example Coffee shop • Expediency

8. Example SOFT Policy Health threads • The aim is to keep cannabis separate from hard drugs in order to protect cannabis users, especially youngsters (under 18 years) who want to try it out, from exposure to hard drugs and the criminal elements who traffic in them. • Although the possession and sale of small quantities of cannabis in coffee shops are offences under the Opium Act, cannabis does not constitute a serious risk to health and is therefore a low enforcement priority. Daily smoking Heavy drinking Use of cannabis Lack of exercise

9. Example Pornography • Child pornography • Child abuse • Always to be prosecuted • National: no problem • International: hurdles to over come • Adults • Restrictive policy

10. Example Euthanasia • Euthanasia is murder • Helping to die is every day practice in hospitals all over the world. • But an open discussion about the overlap of help and murder is in general “not done”. • Regulation is better than proliferation and much better than denying.

11. EU frame work • In the EU-framework, • with a view to the respective prosecutorial national systems, there are two systems, at first sight antithetical to each other: • The rule of absolute legality: • The Prosecutorial Service is submitted to the mandatory obligation to pursue each crime under its cognizance. There is no latitude of appreciation. This is the system of the Bundes Republik Deutschland. • The rule of relative expediency: • It is up to the Dutch Prosecutorial Service, on a case-by-case bound basis, to decide as to whether positive prosecutorial action will be serving positive national interests of justice in the case. Munchen-GermanyJustizpalast

12. Embedded in democracy ? • But certainly, the system of relative expediency activates as an inherent element of the balance of powers in matters of criminal policy the constant braking system by the primacy of politics. • By virtue of the fact that the Prosecutorial Service knows that there is a constant risk that the Minister of Security and Justice has to come to the Parliament to carry full responsibility, the Office will act according to the presumed wishes and desires of the Minister of Justice. • The Office will not wait until the Minister is going to show his disapproval or the Parliament its official disavowal. Prosecutor general Mr. H.J. Bolhaar

13. Judge and Prosecutor • The judge is not entitled to “go behind the indictment” even in the cases he is convinced that the accused committed an other crime than the wordings in the indictment: • the indictment is “tyrannical” for the judge. • There is no jury; only the professional judge appointed by the QUEEN for lifetime may rule upon the indictment. • The judge is leading during court session, and is actively trying to get the objective truth • The public Prosecutor is the “master of the criminal proceedings”. • only the public prosecutor may initiate criminal proceedings • there is no such thing as a “civil party ”partie civile” like in Italy or France • it is only with the prosecutor to define the crime in the indictment • the judge is completely bound by the wordings of the indictment:

14. In the Netherlands, it is not with the judge to rule upon the lawfulness and legitimacy of the prosecutorial policy: • the tyranny of the indictment prohibits that. • Only the PARLIAMENT may rule upon that policy. • It provides the highest level of democratic legitimacy. • If the EU is going to establish EUROJUST as EU-Prosecutorial Service, certainly –the French system will be followed. • The French system implies the total subordination of the prosecutorial service ( Maigret suffers)

15. The Public Prosecutor ( PP) • ADVERSARIAL SYSTEM • State against accused • Equal parties in criminal proceedings • INQUISITORIAL SYSTEM • The PP is a part of the judiciary • PP is investigator and advisor to judge

16. Example UK <> NL • UK: • NO ‘PUBLIC’ PROSECUTION • PUBLIC INTEREST • DISCRETION POWER • SOLLICITOR • PARTY IN CRIMINAL PROCEEDING • SOLLICITORS ‘HIRED BY’ POLICE • DEFENDS QUEEN’S PEACE IN HER REALM

17. MAIN ROLE OF THE PP (CRIMINAL CASES) • Decision if a case should be brought to court • The right to exercise prosecutorial discretion • Policy on certain categories of minor offences • No involvement of the courts • Protecting the rights of victims and offenders • Throughout the judicial process

18. PROSECUTION AND DISCRETION • INVESTIGATION • BY POLICE • DIRECT INSTRUCTION PP • PROSECUTION • INVOLVEMENT OF COURT • PP DECIDES • WHETHER AND • HOW TO PROSECUTE

19. TO PROSECUTE OR NOT... • DISCRETIONARYPOWER PP • TECHNICAL REASON FOR DROPPING CHARGES • OTHER REASONS FOR DROPPING CHARGES • POLICY • UNDERAGED + OFFENDER HAS MADE GOOD DAMAGE DONE • Intersted parties may file a complaint to the Appelate Court in case of dropping of a prosecution.

20. PROSECUTE, BUT HOW • OUTSIDE FORMAL PROCEDURES • RELATIVELY MINOR OFFENCES • SETTLEMENT, • RECONCILIATION BETWEEN VICTIM AND OFFENDER, • CAUTION, ORAL/WRITTEN ADMONITION, • TRANSACTION, • SIMPLIFIED PROCEDURE

21. Prosecution of authorities As a matter of principle, there are no specialised procedures to articulate the criminal responsibility of civil servants except for: • the prosecution of judges and members of the prosecutorial service; • members of parliament; • ministers and those who are equivalised to them. In those cases the indictment will be brought first to the cognizance of the Supreme Court of the Netherlands.

22. Prosecution of authorities -2 • If the Supreme Court does corrobate (confirm) the indictment, stating that there is a “reasonable case” , • the Court will relegate the case to a Court of Appeal. • In case the accused is a member of the judiciary, he has to stand trial before a court to which jurisdictional scope he does not belong. • The official has to stand trial according to the common procedural rules. • In the case of the prosecution of a minister, the supreme court itself will sit on the case.

23. Example with full procedure • Lodewijk Pincoffs (1827-1911)Successful business man Rotterdam • 1856 Municipal Council Rotterdam • 1858 Provincial delegate • 1872 Senator • 1879 Collapse of business imperium • On the run to New York • 6 million Euros debt • End of all immunities • Extradition not possible • TheSupreme Court, • Rendered a judgment in absentia: • Several years of imprisonment • disfranchisement of his properties • The USA refused to extradite and to enforce the verdicht • Pincoffs remained in the USA and died aged 82

24. Geert Wilders case • Geert Wilders, member of Parliament • Indictment: • incitement of hatred against the Moslem belief, the Islam population in the Netherlands • Comparing the Koran with Hitlers “Mein Kampf” • Qualifying the Moslem belief “stupid, primitive and only fostered by mentally debilitated people”. • Freedom of Speech? Abused • In general? • As a parliamentarian?

25. Geert Wilders case 2 • The proces • the prosecution only envisaged statements outside the houses of parliament • the prosecutorial service itself was never in favor of using penal enforcement power in this case. • Appellate Court ordered prosecution • The composition of the district court was twice disqualified on the grounds of being not impartial • an overall acquittal

26. Prosecution of authorities: Example: Prime Minister D.J. de Geer • Prime Minister during the first days of Second World War. • Queen Wilhelmina could not stand the pessimistic views of de Geer, during the self chosen London exile of Queen and Government. • De Geer was forced to step back, and was appointed to the Dutch colonies: Indonesia now a days. • `At a stop at Lisbon harbor, he took the train to Berlin and reentered the occupied Netherlands to join his family. This was seen as un loyal behavior, if not high treason. • After the war a special Court “Raad van Cassatie” sentenced him on 29 October 1947 to 1 year of conditional imprisonment on the indictment of high treason., and took all his immunities,

27. Waiving EU Immunities • Since the first European elections in 1979, more than 100 requests for waiving or defending immunities have come before the EP. • Until July 2005, an average of 75% of cases concluded with the defense or the refusal to waive immunity. • The EP has generally decided to waive immunities when proceedings arose from MEP’s conduct not applicable to the performance of their duties.