Externe openbaarheid in het strafproces

Abstract

The subject of this study is the principle of publicity, i.e. the legal principle that criminal proceedings must be open to the public. The research question is: What is the normative meaning of the publicity requirement in the criminal justice system in the Netherlands? The requirements ensuing from the principle of publicity are derived from the history of ideas that is located in the French reforms of the Enlightenment. The core meaning of publicity is to safeguard external influence on the administration of criminal justice. The legitimacy of the criminal justice system is its main aim. Legitimacy via publicity has two related aspects: one is the visible banning of arbitrariness and abuse of power and the visible protecting of citizens’ rights (the rule of law component) and the other the visible role of the views of the citizenry in criminal justice (the democratic component). Discussion of the Dutch rules on publicity and the requirement of a public hearing in Article 6, Paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) leads to the conclusion that the Dutch rules should be amended on a few points, and that very few efforts have been made to achieve the aims of publicity. Legitimacy from a rule of law perspective should lead to visible compliance with fair trial requirements. In the context of Dutch criminal procedure, this is primarily the duty of the court. Publicity has a normative link to the proceedings themselves. The meaning of publicity can be described as safeguarding a public-oriented focus. Due to misinterpretation of the public focus idea, the potency of publicity as a factor contributing to the fairness of the trial remains unused. The narrow meaning of publicity is the result of an inward-looking trial culture and confidence in the professional judge. The notion of publicity, which reinforces adherence to safeguards by the judicial authorities, should be present in decisions whether or not to settle out of court and decisions affecting clarity for the (lay) audience, such as those regarding questioning witnesses in court. It is subsequently argued that the democratic principle of transparency is one source of the principle of publicity. The democratic principle of publicity has three components: the availability of information enabling citizens to formulate opinions on the criminal justice system, the opportunity to make these opinions known, and the availability of ways to affect the criminal justice system via these opinions. In the Dutch system, there is no clear answer to the requirement that the authorities be affected by the citizens’ views. In the criminal justice system, there is however a growing awareness of the need to communicate with society and be held accountable by it. It is argued that it will not be possible for the publicity requirement to contribute to legitimacy under the rule of law without the support of the democratic component. The judiciary needs to assume a role in public debate, by primarily using trial and judgment as moments to communicate with society.