Acquitted persons at risk of persistent persecution

In December 2011 the lower house of Dutch parliament voted in favor of a bill which will constitute a landslide change in criminal justice. The double jeopardy protection for acquitted defendants will be abandoned to a certain extent. In the near future a category of defendants will no longer be safe after an acquittal. The legal instrument to overturn a final court judgment, the so called revision, is until now limited to convictions, but will also become available for a limited category of acquittals under the new regulation. That will put those under risk that are now protected by rules such as non bis in idem or res iudicata. Under these latin phrases a principle of fairness is hiding, meaning that the State avails of only one opportunity to take a person through the entire criminal proceedings to get him convicted (including appeals etc.). In case that procedure has not ended in the desired result, the opportunity is lost and the individual merits protection against further interference with his life. One could see this limitation to the State's power as a counterbalance against the inequality between the parties involved. The State has a huge machinery at its disposal to investigate and prosecute, but - as a compensation - it can use this only once.

Another argument supporting the present limitation to 'one strike for the State' is the deterioration of evidence over the course of time. The longer after the facts, the worse any means to prove the accusations become. Allowing the State a second chance becomes useless when the year go by, because the factual basis for a conviction will have lost its probative value to a large extent. The more likely that witnesses will have memory problems, the less likely a successful prosecution will be. Better then to limit the right to prosecution in time and to allow it to be used only once, preferably soon after the facts.

It is this last argument that was undermined by the contemporary developments in forensic science. By way of DNA research the truth can be discovered after decades with the same level of certainty as soon after the facts. At least that is the belief among many people, also voiced by the Dutch government in its supporting comments for the bill that is now in the parliamentary process. In criminal law, such is the argument, the concept of real, substantive truth is central. Now that we can use new means to establish this real truth, even after many years, the ban on new prosecution is no longer selfevident. In addition to this evidential argument, a very strong pro victim undercurrent surfaces in this proposal. It is found to be unacceptable for the victims to see someone walking around freely, although there could be a successful new attempt to bring him to justice. In the eyes of many, this prevails over the fairness argument mentioned above.

Although I would advocate another outcome on the balance, I could live with the new regulation as worded in the proposal. It is limited to very serious offences, such as homicides, and the bill contains various safeguards against improper use by the State authorities. There is another danger of this new opportunity to prosecute the acquitted on which I would like to issue a strong warning.

In our country, as in many other countries, possible miscarriages of justice are a media hit that attract a lot of attention from investigative reporters and crime shows on TV. Some famous cases have actually related pressure groups and enjoy a relentless surveillance of the media. In order to develop successful television the financial resources are impressive, although they are never revealed by the private networks. I suspect those resources to exceed the amount of money the State can invest, especially when - to the judgment of the TV editors - high attention statistics can be expected (and advertising prices to rise accordingly). This type of attention can be a pain in the neck for the authorities, but at present it is favorable to the individual who had been the object of prosecution. Anyone who had been acquitted can also be object of this type of scrutiny, but is to a large extent protected by the ‘one strike for the State' rule. To seek a potentially successful revision provides much better television than to hunt a case that can never be overturned. That protection however will disappear when the new bill becomes the law.

The regulation of the behavior of those hunters seriously falls short to provide proper protection to individuals, particularly in comparison to the detailed regulation of the actions of State representatives doing exactly the same. As long as that omission has not been amended those who are acquitted are at risk to be fed to the dogs when the ne bis in idem protection is lifted. As I said, the bill as it is accepted now contains a number of provisions that might tackle the possibility of unjust persecution from the side of the police and prosecution authorities. Apart from that, in a world of limited law enforcement budgets police capacity will be allocated only to those cases that merit attention by the promise of success. The hunting dogs of the media however are regulated mainly by attention rates. The weak counterbalance of the current privacy protection statute is in shocking contrast with the power those can exert over individual lives. From that side constant persecution can be feared for those who are acquitted, particularly in a high profile case. The government cannot leave this to the selfregulatory mechanisms of the media or to civil law. It has to acknowledge that investigatory activities of private persons can have at least the same impact on individuals as those of the State. The fundamental rights protection has to fall in tack with this inequality of arms between civil persons. The bill to introduce revision for acquittals should not enter into force before this has been taken care of properly.

by Evert Stamhuis, Dean and full professor criminal law and procedure OU Netherlands