Abstract
One of the key elements in building an EU area of criminal law, as part of the wider Area of Freedom, Security and Justice (AFSJ), is knowledge and understanding of the various legal systems this area comprises. This might appear obvious, given that knowledge and understanding are prerequisites to any type of relationship, but in practice this necessity has proven difficult to keep in sight. Knowledge of and mutual understanding between the 27 different legal systems (e.g. inquisitorial models, adversarial models, ‘hybrid’ models) operating within the AFSJ–sometimes dubbed the ‘penal rainbow’ – is often diffuse, incomplete or absent altogether. Add to that the existence of 24 official languages and (legal) cultural differences, and the complexity of this simple aim becomes clear.
While incorporating increasingly supranational elements, EU criminal law is designed to maintain the centrality of domestic criminal justice systems, as is made clear for example by Article 67(1) of the Treaty on the Functioning of the European Union. This is why EU criminal law remains essentially about coordinating the cooperation between national systems.
The EU itself has sought to enhance this knowledge and mutual understanding through training and exchange programmes, reports and studies, and other forms of facilitation through various platforms and agencies. Alongside this, however, academic research (both EU-funded and independent) has a key role to play. The Criminal Justice System of the Netherlands, edited by van Kempen, Krabbe and Brinkhoff (based on a previous edition by Peter Tak), is one example of a book aiming to give an insight into the Dutch criminal justice system, aimed in particular at foreign readers. The book is concise (coming in at a lean 178 pages) and provides easy access to a foreign legal system that is, for many lawyers, unknown. The chapters are written by subject-matter experts. Importantly, the book is written entirely in English, the current lingua franca of EU criminal law.
The book’s approach is to focus on the key elements of the Dutch criminal law system from a ‘foreign perspective’. That means a focus on its idiosyncrasies, such as the complete absence of a jury system, the broad powers of prosecutors and the ‘liberal’ drug policy. The book is structured as follows. Part I starts with the general structure of the Dutch state and its criminal justice system, as well as a discussion of the ‘peculiarities’ (in the editors’ words) that give it its unique character. The book then proceeds as expected in a handbook on criminal law. Part II covers substantive criminal law, Part III criminal procedure, and Part IV sentencing.
It is worth devoting special attention, here, to chapter 3. If one is interested in those ‘peculiarities’ that make the Dutch criminal justice system different, then this chapter will be of particular interest. In this chapter van Kempen discusses Dutch criminal policy. Alongside presenting various statistics and the wider societal debates to give welcome context, he puts forward an argument that nuances the notion that this criminal justice system is ‘mild’. The author focusses on Dutch criminal policy concerning abortion, euthanasia and drugs, topics where the Dutch policy is indeed unusual, but also often misunderstood. By providing the history and societal debates that underpin these complex policy areas, one is left with an insight into the Dutch approach that might create a better understanding. For example, international debates on euthanasia often refer to the Dutch system providing access to euthanasia ‘at will’. However, a closer examination reveals that careful and gradual development in legislation and case law, driven by political and societal debates, has led to a system carefully controlled by checks and safeguards. That system is still in flux today, as is illustrated by the ongoing discussion on euthanasia in cases of a ‘completed life’. Another example is the Netherlands’ liberal drug policy. The chapter presents a diffuse set of laws and policies that essentially tolerate the use of soft drugs (primarily cannabis), but ban its production or cultivation. This inconsistent system – ‘contradictory’, in the words of the author–has led to various (legal) problems that are still not solved today. Those problems are often difficult to explain to external observers: in fact, this policy is also increasingly difficult to explain to Dutch citizens themselves. Recently, the state has begun certain experiments with the regulated production of soft drugs, supplied to ‘coffee shops’ through a closed supply chain. Yet even this more ‘consistent’ approach faces issues, with the author highlighting its difficulty in light of international treaty obligations.
The remaining chapters are authored by an expert or experts on the topic, and each is clear, up-to-date and complete. The chapters discuss the basic organisation and principles that drive the Dutch criminal justice system and provide an outline of the various offences, defences, criminal procedure including the rights of suspects, complainants and victims, and sentencing and rehabilitation. On occasion, the impact of international and EU law is mentioned, a perspective that is of particular interest to an international audience. This aspect could have been further developed by making more reference to relevant Council of Europe and EU legislation and highlighting the impact this has had on the Dutch system; in fact, this may have merited its own chapter. The chapters contain sufficient reference to materials for further study, such as relevant (domestic) case law, reports and academic literature. The authors have made a largely successful effort to include English sources. It is inevitable, however, that the key texts are in Dutch, and remain largely inaccessible to the target audience.
As previously noted, the book is concise and to-the-point. Therein lies both its main strength and its main limitation. The book is only an introduction to the criminal justice system of the Netherlands. It provides practitioners, researchers and students (including Dutch students, if they wish to brush up on their ‘legal English’) the essential information to understand the broad functioning of the system. If they desire more in-depth knowledge, accessing other more detailed works is required. The book can thus be seen as a gateway into Dutch criminal law. For judicial authorities and practitioners, both within the EU and beyond, this will be sufficient to develop a basic understanding of the system with which they will be cooperating or interacting. Likewise, academic researchers comparing Dutch criminal law to another system will find here sufficient information to make a start. The authors have, further, made an effort to enable further research and study where that basic understanding or start is not enough.
Given that this is the precise aim of the book–the editors state in the Preface that it serves as a starting point for further ‘exploration’ – its mission has been achieved. The book is therefore a more-than-welcome addition to a growing body of literature on European criminal law (and criminal law in Europe). Hopefully similar sources, covering domestic legal systems across the EU, will continue to see the light of day. By making accessible that which too often remains obscure, this will contribute to creating mutual understanding and ultimately mutual trust in EU criminal law.