The guard dogs of our criminal justice system: oversight on police and justice

The guard dogs of our criminal justice system: oversight on police and justice

New research on oversight on police and justice identified room for improvement.

Recently ISGA members dr. Elke Devroe (project coordinator) and dr. Joery Matthys (researcher) published the final report of their academic study financed by the WODC, in collaboration with prof. dr. Goos Minderman (VU) and dr. Marijke Malsch (NSCR). In it, the authors identified what forms of oversight currently are present in the Dutch criminal justice system, and what caveats can be identified in both a legislative and a practical context. Several oversight mechanisms were found, but amongst other things, the authors concluded that oversight that included the possibility to intervene was often internally organized, while external bodies may be more suited for this.

Oversight was defined as the execution of the following activities (1) gathering information on activities of certain actors; (2) evaluation of this information (including making this evaluation public); and (3) intervention. Effective oversight is possible under the following five conditions, based on the report of the Holtslag committee: (1) the oversight actions taken need to be objectively observable; (2) the actor that is being overseen needs to be transparent towards the oversight body; (3) all the relevant decisions need to be part of the oversight; (4) oversight should in ideal circumstances be done by an external organization (5) oversight should somehow matter (there needs to be an impact).

In this report, the Dutch oversight system was compared with the Belgian one, because Belgian and Dutch legislation, procedures, organization and practices of oversight bodies are rather different and offer interesting comparative aspects. Both cases were analysed based on an extensive document analysis and a total amount of 43 in-depth interviews with high ranked police chiefs, magistrates and directors of oversight bodies. It filled a long-existing gap in the academic literature, since high magistrates and directors of oversight bodies are not always keen on sharing inside information or participating in in-depth interviews.

The results show a different organization of oversight in both countries. In the Netherlands, oversight bodies show a limited capacity of personnel and are in general internally organized within the actors of criminal justice, while in Belgium, much more capacity is recruited for oversight, with a major oversight body working directly for Parliament.

Second, the “judge of the investigation” in the Netherlands (rechter-commissaris) was compared to the “investigative courts” (onderzoeksgerechten) in Belgium. Both bodies are very important in overseeing the investigative phase of the police, but some differences were observed, most notably that the judge of the investigation did indeed have very similar competences to the Belgian higher investigative courts, but was more reluctant to make full use of them. The fact that the latter decide in a committee (three judges jointly make a decision), thus resulting in a more deliberated final decision, may explain why these courts are more willing to fully use the competences they have been given.

The third interesting point of comparison relates to the oversight on penalty orders (strafbeschikkingen) in the Netherlands and the (enhanced) settlement (minnelijke schikking) in Belgium. Both of these relate to a shift where cases are settled outside of court. In both countries, improvements to the oversight can be made by introducing a procedural check by a judge. The Constitutional Court in Belgium has already concluded that a lack of an even broader, substantive, check is problematic in settlement procedures, and run counter the right to a fair trial.

Finally, the handling of technical mistakes (vormfouten) proved to be an interesting point of comparison. In Belgium, these often lead to a mistrial in the past, and this was considered a significant learning moment for the public prosecutor (and the police officers who made the mistake). In the Netherlands, these technical mistakes are identified by the judge, but often they do not have a significant impact on the outcome of the trial. The Belgian handling has in the last years moved towards the Dutch practices. Hence, this learning moment seems to be disappearing in both countries.

You can access the full report in Dutch, as well as a Dutch and English summary through this link. The authors were interviewed about their study by the NRC Handelsblad on September 6, 2017.