Multiculturaliteit en verdediging in strafzaken

Abstract

This research aims to gain an insight into the phenomenon of 'cultural criminal cases' and the way in which the Dutch administration of justice responds to these cases. In choosing the defence lawyer's position in criminal law as a point of departure, the central question posed by the research is the following: In which ways does Dutch criminal law provide room for the defendant's cultural background to be taken into consideration? This research question is divided into a number of sub-questions that are successively dealt with in the eight chapters of this book. One of the most striking findings is the fact that in cultural criminal cases it often remains very unclear to the defence whether and how the cultural factor will effect the eventual judgement. This insecurity can lead the defence to the situation where no mention is made of the case's cultural background, even if this is against the client's interest. A second important conclusion is that Dutch criminal law is very much biased in favour of Dutch, or Western, norms and values. This is inevitable, but in the case of a cultural criminal case this may lead to the fact that the defendant makes legal reproaches that might require review. An example is the great importance attached to the specific ways in which feelings of remorse and regret should be shown, although a defendant from an ethnic minority group might not understand this or hold different opinion. Another example is the way in which legal terms are defined, which might mirror quite biased assumptions as well. As discussed above, the term 'complicity' might not be completely applicable to defendants from ethnic minority groups, especially women, because they might lack the necessary mens rea. Furthermore, the often used 'criteriumfiguur' or 'reasonable person' test in criminal law might be adapted to a society that is shaped by people who increasingly base their identities on various cultural orientations. In that context, it is recommendable that the Dutch criminal justice administration should reflect Dutch society more equally. The Dutch Bar is already much more ethnically diverse than it was ten years ago and the lawyers in this research do praise the positive effects of this development. The Dutch bench, however, could be improved concerning this matter, and it is already trying to do so. This research was not meant to deduce easily written conclusions or recommendations. Many of the facts of the criminal cases discussed in this book are abhorrent and deserve appropriate punishment. Culture should never be an easy universal remedy to escape criminal liability and neither should judges be misled into believing so. The main point that has been put forward with this research is that striving for increased legal security and trying to shape the Dutch administration of justice in a culturally sensitive way with regard to terminology, general awareness and staff recruitment, does justice to the principle that the defendant is a rechtssubject and should be able to put across his or her side of the case. The principle of adequate defence requires that the defendant is able to autonomously determine the course and outcome of his case. This can only be realised if the defendant and his counsel do not have to fear unjustified legal inequality or insecurity.