When victims come in high numbers

Victim's representation in the Amsterdam daycare abuse case

This month the Amsterdam District Court conducts the trial of the infamous Robert M., a child minder in a daycare centre, who is charged with a long list of sexual assaults and the production and distribution of child pornography. He has admitted to having sexually abused a high number (84) of children in his care, in age varying from below one to almost four years. The trial started on March 12 and attracted high profile media attention. The crimes were extremely serious and the discoveries had shocking effects on the parents of the little victims and the public at large. At the start of the trial a debate arose around the hearing the court had scheduled for the victims' parents.

Victims' participation in the criminal trial is limited under Dutch law. Although gradually growing over the last decades, victims' rights do not cover the right to join the prosecution and to request or recommend a certain sentence. Moreover, a right to actively participate in the trial is provided only for victims who have entered a civil claim for damage compensation and for the victim who wishes to enter a verbal impact statement in person. Victim in this legal context means: the person against whom the criminal action was directed or, in homicide cases, the close relatives of the deceased victim. Dutch law does not cover the right of relatives, such as the parents of small children, to comment on the impact of the events. Not surprisingly, hearing the parents came up in the Robert M. case, since many of the victims are too young to have any specific recollection of the abuse. The Amsterdam Court ruled that it would allow those parents who wished to come forward time to address the court. It scheduled a separate hearing for that purpose. Since 67 out of the 84 identified cases are included in the charges, the court could count on a high number of parental impact statements.

The controversy over this course of the procedure covers various issues. The first one is related to trial management. It complicates an already complex case considerably, when the court takes responsibility for organizing a victims' relatives hearing, with the ambition of preventing damaging effects for those relatives. The Dutch courts do not have a victims support unit and have to rely on the cooperation with other agencies and the non governmental Victims Aid. What if for example a non scrupulous reporter publishes statement quotes with names or pictures of parents? The court excluded press coverage for the parents hearing in order to prevent such incidents.

A second point is specific for Dutch law. The court ruled on a matter that was not provided for in the Code of Criminal Procedure. It is unclear whether such use of discretion will have an effect on the validity of the final judgment when it comes to the higher courts. Some have already argued that the court acted against forbidding case law of the Supreme Court. For me the outcome of this debate is not to be determined without looking to the fairness issue, a third aspect of the debate. A high level of attention for relatives' impact statements is likely to have a prejudicial effect on the defense case. One might assume that it is almost impossible to (re)balance the trial after such interlude and too much unbalance would amount to a violation of the fairness requirement.

The first and the last issue are not restricted to the Amsterdam daycare abuse case. Courts and tribunals such as the Cambodia Tribunal had to face the same controversies. It is located in Cambodia, amidst the people who suffered from the atrocities that are under its jurisdiction. Consequently, they came in high numbers, already in the preliminary stage of the cases. Participation of those victims was vehemently opposed by the defense for its prejudicial effects. The court also faced trial management questions, even more serious than those referred to above, because it could expect thousands of individuals. How to organize all those individuals to enjoy their victims' rights and still conclude the entire case within a reasonable timeframe, that was an additional problem for the tribunal.

In short, the Cambodia Tribunal took two important steps. Firstly, it ruled that exclusion of victims was not the proper way to deal with prejudice. That would deprive the tribunal's work from its desired effect in the Cambodian society: to contribute to reconciliation. Other procedural instruments have to be deployed, appropriate to the particular stage of the case, to restore the desired level of balance in the trial. Secondly it included in its Internal Rules the power of the court to organize the multiplicity of victims in groups, represented by one attorney. Lastly it introduced the function of Civil Party Lead Lawyers, who are in charge of organizing the victims' representation effectively, in close cooperation with the attorneys who represent the victim groups; as far as possible on the basis of consensus.

Until now, the problems in Dutch cases come in no way near to what the international tribunals have to face. That should not keep us from learning at least two lessons. (1) Exclusion from representation of those, directly affected by the crimes, should not be based solely on the possible prejudice for the defense. (2) Inclusion of desirable but probably prejudicial victims' representation calls for creativity in trial management, in order to safeguard a fair and timely disposal of the case. It would be disappointing when Dutch law turned out to deny the courts that creative discretion.

Related URLs:
http://www.eccc.gov.kh
http://www.rnw.nl/english/bulletin/amsterdam-child-sex-abuse-trial-opens

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