Officieren van justitie in de 21e eeuw: Een verslag van participerend observatieonderzoek naar de taakopvatting en taakinvulling van officieren van justitie

Abstract

Dutch prosecutors are members of the judiciary, charged with executing the tasks of the Public Prosecution Service (PPS). Their role is quasi-judicial, like that of a magistrate. However, they do not enjoy the same independence as judges. Their activities are partly determined by government policy, so they also have a role as public servants. Furthermore prosecutors can be seen as frontline workers as they must meet demands made by law, policy, the courts and the other participants in a criminal case in order to have their decisions accepted easily (and thus in order to work efficiently). In 1985 Van de Bunt conceptualized these three prosecutorial roles and showed the tensions to which they give rise. I present new research into the conception of and fulfilment of the duties by Dutch public prosecutors. It is based on participant observation (conducted in 2011), interviews and literature study. Public prosecutors still experience tension between the three ideal-typical roles. The institutionalization of the PPS adds a new dimension to that tension, which partly determines the quasi-judicial role of prosecutors. This can lead to the paradoxical situation that directives force a prosecutor to follow certain protocols or bureaucratic procedures in order to guarantee the quasi-judicial nature of his actions. Meanwhile, as frontline workers, they risk showing formal behaviour, preoccupied with procedural demands. While this is primarily indicative of tension between frontline worker and public servant, this preoccupation can stand in the way of quasi-judicial considerations. Prosecutors also sometimes demonstrate compliant behaviour: they acquiesce in (overly) high organizational thresholds that prevent them from acting in a quasi-judicial manner. They accept, for example, that mandataries take decisions on prosecution that lack quality. Concerns have been voiced about the ‘institutional preoccupation’ of the PPS, which could hinder autonomous, quasi-judicial decision-making by prosecutors in individual cases. Certain leading members of the PPS openly doubt the usefulness of the concept of the prosecutor as a magistrate. Nowadays, prosecutors are supposed to be all-rounders, e.g. with proficiency in (process) management. The professionalization of the PPS and its prosecutors is emphatically mooted, but the big question remains whether there will be enough room for the quasi-judicial role of the prosecutor. My fieldwork showed that this role is already under pressure in certain situations. Prosecutors will always be faced with tensions between their three ideal-typical roles. The high and also diffuse expectations could lead to an identity crisis for both the public servant and the magistrate, while the frontline worker may eventually resort to working as formally and compliantly as possible. Given the inequality of the playing field, this would enhance the position of the public servant. And that in its turn is worrying. The intrinsic added value of public prosecutors lies in their qualities as magistrates and their autonomous judgements based on values of ‘Rechtsstaat’. The PPS must guarantee the transparency that makes autonomy and quasi-judicial considerations visible. On the other hand, prosecutors must also demand their own autonomy and should not accept working conditions that obscure the quasi-judicial nature of their job.