Contempt of court does not fit into the Dutch judicial system
What can criminal courts do when the course of justice is obstructed? Countries such as England and Wales apply the instrument contempt of court, which enables the court to act according to criminal law in such a case. Could that work in the Netherlands too? PhD defence on 18 December.
Although the formal mandate of criminal courts has changed little in the past hundred years, society itself has changed dramatically, criminal defence lawyer Marianne Lochs explains: 'Due to the heightened interest in criminal cases, increased empowerment of citizens and increased polarisation in the courtroom among other things, the question arises whether courts have adequate means to fulfil their duties properly. Also, it is often suggested that the Netherlands needs an instrument such as the Anglo-Saxon contempt of court to strengthen the position of the courts.'
What is contempt of court?
Contempt of court is a broad instrument which Anglo-Saxon courts can use to safeguard the due administration of justice. Using this instrument, courts can act (under criminal law) to counter all kinds of obstruction to the course of justice such as disruption of order during proceedings, unwilling witnesses and publications or comments in the media, which could form a threat to the right to a fair trial.
Contempt of court is cited as a response to the frequent and unreasonable submission of challenges for example. The same applies to so-called abuse of procedural law, a phenomenon which in recent times has been linked for example to the withdrawal of the defence, such as in the case against Klaas Otto.
Also when certain court decisions are not observed, for example when the Public Prosecution Office does not implement a court order, or when politicians during pending proceedings make comments on the defendant or the course of the proceedings, the Dutch courts do not have adequate means to respond. In her dissertation, Lochs examines whether the instrument of contempt of court could be beneficial in such situations.
'First, I examined what contempt of court entails. To do this, I focused on criminal cases in the judicial system in England and Wales. I produced a broad picture of what types of behaviour can constitute examples of contempt of court and how courts can respond. Besides this, I made an inventory of existing comparable instruments in the Netherlands and how criminal courts here are able to ensure due administration in proceedings. I then compared the findings from both legal systems in order to answer the question of how the concept of contempt of court could benefit Dutch criminal justice.' The Netherlands has a wide-ranging and fairly adequate system of safeguards for the due administration of criminal justice. Nevertheless, in a number of areas the system fails to provide clear or adequate enforcement options. Lochs examined whether in these areas provisions inspired by contempt of court could form a worthwhile addition.
Lochs established that contempt of court cannot simply be implemented into the Dutch judicial system. It is a collective term for a variety of instruments that are related in some cases to procedural aspects which do not exist in the Netherlands, such as trial by jury. That said, the concept could form an inspiration for instruments that could contribute significantly to ensuring the due administration of criminal justice. For example, the courts should have the option to attach consequences to the refusal to carry out an order, such as the possibility to bar the public prosecutor. Another effective rule could be the requirement that politicians, in principle, refrain from making comments on pending proceedings.
Although these instruments could contribute significantly to ensuring the due administration of criminal justice, it appears that many challenges faced by the criminal courts cannot be solved by contempt of court-type provisions. The findings in the dissertation are therefore placed in a broader perspective, in which the role, task and self-image of the courts and the responsibilities of other state authorities are considered.
Currently the Ministry of Justice and Security is working on updating the Code of Criminal Procedure, Lochs continues: 'The findings of the research could be considered in this respect. Currently much attention is also being paid within the judiciary to the quality of court decisions and how to ensure that the courts can properly fulfil the crucial role they hold in society. The findings from the dissertation could contribute to the discussion on how the position and resilience of the criminal courts can be strengthened and could provide a basis to deal with the challenges facing criminal courts.'
Supervisor Professor C.P.M. Cleiren on Marianne Lochs’ research:
'In 2009 Marianne Lochs completed not only a master’s degree in Criminology, but also a master's degree in Law specialising in Criminal Law and Criminal Procedure. She graduated with the distinction cum laude in both degrees. She wrote her master's thesis for criminal law under my supervision on the possibilities for victim-offender mediation in Dutch criminal proceedings. The quality of the thesis was so high that it was published in book form by legal publisher Boom. Our paths crossed once again when having worked for three years at law firm Spong she was still interested in academic research. After a number of orientation meetings, she took the ambitious step to conduct doctorate research while still working as a criminal defence lawyer.
The supervision which Jan Crijns and I proceeded to undertake was no hardship by any means. The topic contempt of court was a challenge for us as well. The Dutch criminal law system, with its civil law background, had never previously been studied from the perspective of the interesting concept of contempt of court from a common law system. And the outcome of the research was indeed uncertain for a long time. Not only was the content of the research interesting for us, it was also a pleasure to supervise Marianne. Combined with her practical skills, she also has a real academic attitude combined with thorough knowledge of her profession. Besides being very clever, she also works at great speed demonstrating a high level of motivation and care in her research. She had clear ideas about the course of her research, but was also constantly willing to listen to our advice. As Marianne’s supervisors we look back with much pleasure on the past years during which we have been honoured to supervise Marianne.'
Text: Floris van den Driesche