Introduction to Dutch Criminal law
Prof. Dr. Ybo Buruma
Peter Tak (the Dutch criminal justice system)
Harm and intent (how about insulting minority groups ?)
Justification and exculpation or a third way (Drugs, prostitution, euthanasia)
Punishment (the entrustment order for the dangerous criminal)
Investigating crimes and proactive policing (Terrorism and the Rule of Law/the role ofattorney – Organized crime)
Trial (victims, witnesses and experts) – inquisitional procedure
Reopening of procedure (innocent convicts) – which cases should be reinvestigate ?
Criminal law as well as criminal procedure, international corporation.
In European Union, we lead to an international aspect for organized crime but there is nothing to do with ordinary crime.
What do youknow about your own country ?
Criminal law :
Actus reus (the physical act of the crime/objective part of the crime) and mens rea (the intention/subjective part of the crime), preemptive law ? If we think about causality, condition sinequanone, where should we look (far away or closer cause – causa proxima theory) ? There is different way to solve the problem. Ex : attempt isforbidden. In Netherlands, there should be a beginning of criminal act, the preparation for instance to buy a gun is not a criminal act. In 1995, they change criminal law about importing drugs for example, then in 2001, they have a big list of preparation act which were criminal act. The difficulty is : how are you sure that the subject was preparing an act with a criminal intention ? How could youknow ? Whether you do it based on preparation or on conspiracy, there are all kind of legal tricks and manoeuvres to be able to convict people who didn't do anything yet. The basic idea is : foreseeing things, preventive. We accept that the police is investigating in private life.
Is the continental tradition really different ?
Criminal procedure :
Human rights and the rule of law : private life? What is sufficient to enter into a private life/premises ? The supreme court in the NL wants to make a differentiation between breaking the private life of a criminal and another human right : fair trial. As long as you're talking about private life, judges should look at the specific of the case, to know if they can accept the case.
Accusatorial or inquisitorial ?
Criminal justiceorganization :
Police, prosecution and judges (3 judges in NL ordinarily). In NL the prosecutor is acting as the chief of the police. In some countries, there is also something like investigating judge, this role is sometimes an important one.
What criminal offenses are ?
An action which is against the rules of law. Ordinarily it's in a codified law (maybe not in UK). In NL we add to thisthat it's not justifiable, not excusable.
Back to this basic thing : ordinarily it's in the statute. What is forbidden in a code of law ?
Example : the council of Europe wanted to change the criminal code of Albania. There were 2 problems : the last article of the code said if one of the crimes in chapter 1,2,3... are committed in collaboration with another person, the major punishment is deathpenalty. Can you do that ? If the democracy wanted that, how to change it ?
In Albania, homosexuality will be punish – European court of Human rights told that was forbidden. You can't have this provision in your penal code. The basic idea of the HR code, according to the court, it's possible to trump a national code with HR. then you said that national parliament is less important than 47 judgesin Strasbourg. Criminal provisions are not allowed.
What kind of activities should be made an offense ?
3 separate categories :
crimes or offenses that bring about imminent harm. The principle is that you criminalize something because of the harm. Example : pornography → in the first place, there is no imminent harm, no victim. For child pornography, there is psychological damage for the...
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