The Judicial Chain: why different actors in criminal proceedings should cooperate
When we look at the effectiveness of courts in a particular legal system, we often forget that the number of convictions and acquittals does not merely depend on judges. What about the quality of the evidence gathered by the prosecution? Or what about the way in which the police carried out investigative activities? Moreover, how would we assess a legal system in which decisions – of an otherwise efficient judiciary – are poorly enforced and executed? Delivering justice, in criminal proceedings in particular, is a process wherein various actors need to cooperate. The effectiveness and efficiency of criminal proceedings will largely depend on the manner in which this cooperation takes place. It is therefore important to realize that the different actors in different stages of criminal proceedings i.e. the police, prosecution, the judiciary, penitentiary institutions, probation services and the Ministry of Justice are interlinked – they form a chain. Delivery of justice is contingent upon all chain actors working together, and like with every chain, it is only as strong as its weakest link.
The cooperation within this chain is triggered by a criminal act. If a house has been broken into, a criminal report will be filed with the police, based on which a police investigation will start. At a certain point during the investigation a prosecutor will be involved. Depending on the legal system at hand, the prosecutor can direct the police investigation. If a suspect has been identified he will receive assistance from a defence counsel. Once the investigation has been completed, the prosecutor may decide to take the case to court. During the trial a judge will assess the evidence that was gathered by the police during the investigation stage. Much will depend on the quality of the investigation which was carried out. If the defendant is found guilty, a conviction will follow and once this conviction becomes final, a sanction will be imposed. Depending on the court’s decision, the perpetrator will be taken to prison, pay damages or a fine, do community work or cooperate with the probation service if a suspended sentence is imposed.
The outcome of each stage within this process depends on the cooperation of two or more actors involved, while the joint objective of all the actors within the chain is the delivery of justice. If actors within the chain are not aware of the significance of their work for others within the chain, this could lead to a drop out of cases or an inefficient and unnecessarily long process. Not only would this compromise the delivery of effective and efficient justice, but the trust of citizens in the outcome of judicial procedures will decline, all together weakening the rule of law.
Another important aspect to bear in mind with regard to trust in judicial procedures is the changing set of values within society. Given capacity restrictions within the criminal justice system, it is impossible to spend equal time on all crimes that society faces. To take a typical Dutch example: bicycle theft. Hundreds of thousands of bicycles are stolen each year in the Netherlands. If the police and the subsequent chain actors were to investigate each and every stolen bicycle to the fullest extent of its abilities, the prosecution of other crimes would suffer as a result. Actors in the criminal justice chain therefore need to prioritize and find a balance between all interests involved, interests of the individual, the society and international community.
The governments of Montenegro and the Netherlands organized a two-day regional conference on 11 and 12 December, in Budva, Montenegro on this topic of cooperation within the judicial chain. All potential EU member states from the Western Balkans participated in the conference with delegates from the various institutions which are part of this so-called judicial chain. This year’s topic revolved around the need to cooperate, rather than a particular model of cooperation as such. The conference aimed at gathering practitioners and agents of change – who based on their experience, can exchange ideas and best practices with their counterparts from the region.
“The initiative to organize this conference together with Montenegro is a sign of recognition of the fundamental importance the Netherlands attaches to rule of law”, says Onny Jalink, Head of the Regional rule of law unit comprised of dedicated policy officers working in the embassies of the Kingdom of the Netherlands in the region. “The Netherlands has intensified its policy-priorities in the field of the rule of law in the region; with various projects funded through our MATRA fund, but also through for example EU twinning projects, the Netherlands remains actively engaged in the region on the issue. By being able to analyze the transformation processes in the particular systems of future EU member states, it is our strong belief that we will be better equipped to contribute to efforts made by the states in the region in overcoming the various challenges which arise as part of the EU accession process”.
The increased focus by the Dutch government on strengthening the rule of law in the region follows the new “Fundamentals First”-approach adopted by the European Commission. Various dimensions of the broader rule of law concept – such as improving the efficiency, independence and efficacy of the judiciary, the respect of fundamental rights the fight against corruption – are given priority in the EU enlargement process. Grouped in the chapters 23 and 24 of the EU acquis, these topics are addressed at the early stages of the accession process. These chapters are amongst the first to open, and amongst the last to close. In fact, even when the negotiations on chapters 23 and 24 close, efforts to strengthen the rule of law will continue. One of the aims of the conference was to reflect on the fact that legal systems are constantly developing and changing, in order to adapt to new realities and technological advancement. In support thereof, this regional conference will ideally become an annually recurring event, organized each year by a different EU Member State together with a possible Candidate Country, and highlighting a different conference topic related to the rule of law. The United Kingdom will organize a follow up conference next year, thus ensuring the continuity of this initiative.
Aleksandar Momirov, Senior Policy Advisor, Embassy of the Kingdom of the Netherlands in Belgrade
Cornelie Peeck, Criminal Judge, District Court of Rotterdam, the Netherlands