REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: German Country of exchange: Netherlands Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: German Functions: Public Prosecutor Length of service: 3 years 6 months Identification of the exchange Hosting jurisdiction/institution: SSR / Public Prosecution Service of the Netherlands District Maastricht City: The Hague / Maastricht Country: Netherlands Dates of the exchange: Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) I. Programme of the exchange REPORT During the first week of the exchange in The Hague/Utrecht we had several presentations regarding the law system of the Netherlands and its organization as well as presentations regarding the Dutch public prosecution service. Furthermore we visited several international institutions such as the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Court (ICC) and Eurojust. At the ICTY and the ICC we had the chance to attend a court session in the trials against Radovan Karadzic (ICTY), charged with genocide, persecutions, extermination, murder, deportation etc. during the Yugoslavian war in the 1990 s, and against Jean-Pierre Bemba Gombo (ICC), charged with crimes against humanity, rape, murder, etc. during an armed conflict in the Central African Republic in 2002/2003. In the second week I stayed at the public prosecution service of the Netherlands District Maastricht along with two other colleagues. During that week we had the chance to gain a deeper insight into the work of the public prosecution service in the Netherlands as well as into the euregional and international cooperation between the police forces and the public prosecution services between the Netherlands and

3 the other countries of the EU. We had the opportunitiy to meet several dutch colleagues working for the prosecution office in Maastricht and/or for the police in the District of Maastricht/Province of Limburg. We got an explanation of the organization and structure of the public prosecution service of Maastricht as well as presentations regarding the euregional/international cooperation of the police and the public prosecution services. Therefore we visited several euregional institutions such as the Bureau of Euregional Cooperation (BES), the Euregional Police Information and Coordination Centre (EPICC) and the International Legal Assistance Centre (IRC). Furthermore we had the chance to visit the Joint Hit Team in Stein (an international drug squad) and a detention centre for juveniles. We attended several criminal court sessions, spoke to an investigative judge and to a prosecutor working with the "ZSM"- proceeding (this is kind of a speed-proceeding handling all minor offences that do not need be brought to court). II. The hosting institution I attended the exchange programme along with about 30 other colleagues ((future) public prosecutors, judges and trainers) from 17 different countries of the EU. The first week of the exchange took place in The Hague/Utrecht. We were hosted by the SSR (Studiecentrum Rechtspleging =Training and study centre for the judiciary) which is responsible for the initial training and continuous education for judges, public prosecutors and legal administrative staff. The initial training of judges and prosecutors in the Netherlands used to last six years followed by a one-year probation period before the trainees are appointed as a judge or prosecutor. Recently this initial training was reformed with the aim to achieve more variety in the training depending on the talents and experiences/former careers of each individual trainee. Therefore the initial training now lasts between one year and four years depending on the above mentioned circumstances. Besides the initial training the SSR also offers continuous education for judges and prosecutors as well as customized advice and training, coaching and peer assessment. The second week we were divided into smaller groups and hosted by different courts or prosecution services throughout the Netherlands. I stayed at the public prosecution service in Maastricht along with two other colleagues. The public prosecution service of the Netherlands employs more than people in total, including about 800 public prosecutors. The public prosecution service stands under the authority of the Minister of Security and Justice. The highest authority of the prosecution service is the Board of Prosecutors Generals that lays down the general policy on investigations and prosecutions and defines the priorities of the crimes to fight. The public prosecution service of the Netherland has recently been centralized. There is now one national public prosecution service with ten regional offices, one national unit working on all severe crimes like terrorism, etc. and one national unit handling certain special crimes like environmental crime, tax fraud, etc. The public prosecution service of Maastricht employs about 30 prosecutors and 250 legal assistance staff. It is divided into four departments, one working the minor/common crimes, one doing the moderately severe and severe crimes, one department for policy and strategy and one department for the appeals. The whole exchange (the stay during the first week as well as during the second week) was very well organized. Throughout our stay we were hosted by very friendly colleagues who did their best in making our stay a very personal and enriching experience. III. The law of the host country The judiciary map of the Netherlands had very recently (April 2013) been reformed with the objective of delivering a higher quality and efficiency of case handling and to speed up the procedures. Instead of 19

4 there are now 11 district courts and 32 instead of the former 53 locations in the country and 4 instead of the former 5 courts of appeal. Each court has a three person board with the president as chair. The board is responsible for the personel, financial matters, organization, quality, housing, security and information technology of the court. That means that each court organises itself more or less independently. On a national level there is the Council for the Judiciary that consists of four full-time members (2 judicial and 2 non-judicial) who are nominated by the Minister of Security and Justice after an extensive consultative process within the Judiciary and who are appointed by the Crown. The Council for the Judiciary prepares the judiciary budget that is decreed by law on an annual basis, distributes these financial resources among the courts, delivers operational support to the courts, gives advise regarding new legislation and functions as a spokesperson for the judiciary. Within the criminal law system the public prosecution service and the criminal law courts together make up the judiciary. The public prosecution service investigates crimes, prosecutes the offenders and supervises the enforcement of the sentences. It is responsible for protecting the rights of both victims and defendants throughout the judicial process. The public prosecution service leads the investigation of criminal offences. The police have to render account for their actions to a public prosecutor. The dutch criminal law system is based on the principle of opportunity. That means that the public prosecution service decides who has to appear before a court and on what charge. Not all cases are brought to court. The prosecution service can decide how to deal with minor crimes without necessarily bringing them to court. It has the competence to drop the charges not only in the case that there is not sufficient evidence, but also in the case of minor offences and/or the offender has made good the damage. The public prosecutor can also impose a sanction (fine or community service) at his own discretion without the involvement of the court. Only if the offender does not pay the fine or does not do the community service, the case is taken to court. In the case of severe crimes, etc. the prosecutor will of course charge the suspect and bring him/her to court. The decision of the prosecutor how to deal with a case is made on either an individiual basis or by policy (i.e. policy to tolerate certain drug offences). If a case is taken to court the defendant is sent a letter containing the indictment and stating when the case is to be heard. Usually the suspect appears in court for the trail. However, if he/she does not appear he/she can still be trialed and sentenced if he/she has received the above mentioned letter stating the date of the trial. Relatively minor offences are heard by a single judge court, more serious offences are heard by three judges. The sanctions that are imposed by the court (fines, community service/rehabilitation and imprisonment - it is possible to give a part of the sanctions on probation) are executed by the public prosecution service. The dutch criminal law system also knows the "investigative judge". The main tasks of this judge are to deal with presented suspects and to decide if they have to go to provisory custody or not, to hear witnesses and to undertake all urgent investiagitve measures like house searches. In the Netherlands an arrested suspect has to be presented to a judge within three days after the arrest. If the judge decides that the suspect has to stay in prison, the provisory custody lasts for 14 days. If it shall last longer than that period of time, the suspect has to be presented to a board of three judges. They can order the suspect to be kept in prison for up to three months. This period of time can be prolonged three times. Within 104 days the case has to be brought to court at least with a provisory indictment and a proforma public trial. IV. The comparative law aspect in my exchange Compared to the german criminal law system the dutch criminal law system shows more similarities than differences. The most important difference however is the opportunity principle of the dutch criminal law system in contrast to the principle of legality of the german criminal law system. According to the principle of legality the prosecution service in Germany has to respond to every criminal act that comes to the knowledge of the police or the prosecution service. It can decide to drop a case (i.a. minor charges) or

5 to offer a suspect to drop a case under certain conditions (i.a. if the suspect does good the damage or pays a certain amount of money to a social or public institution), but it can not impose any penalties at its own discretion. In the german criminal law system only a court can do so. Therefore the case has to be taken to court. However, to speed up the proceedings it is not always necessary that there is a public trial. On request of the public prosecution service the court can impose a sanction in a written procedure. In that case the suspect is sent a penalty order stating the charges and the imposed sanction. If the suspect does not accept the penalty order he/she can appeal against it within two weeks. The dutch criminal law system does not know these kind of written procedure at court. Last year however, the dutch criminal law system implemented a kind of accelerated procedure called "ZSM", which means "as fast as possible". The main aim of that procedure is to speed up the proceedings, give a fast decision to minor cases (regularly within several hours or days) and to minimize the number of cases that are taken to court. You now find ZSM-institutions all over the country, often located in a police station, that are working on seven days a week, 12 hours a day. The decision how to deal with a case is made by the public prosecutor on an very individual basis, taking into account the personal and financial situation of the offender as well as the interests of the victim. Therefore professionals from other authorities and related fields (i.a. parole board, social service, psychologists, lawyers) work alongside with the public prosecutor at ZSM. The role of the investigative judge is also a bit different in the dutch law system. One of the main tasks of the dutch investigative judge is the hearing of witnesses. On request of the public prosecutor, the lawyer or the court the investigative judge hears the witnesses during the ongoing investigation before the public trial starts. The witnesses are regularly not heard again by the deciding judge in the public trial. Instead the written statement or a summary of it is read in the court session. That results in the investigative judge playing a far more important role in the dutch law system than in the german one. In Germany usually all witnesses have to be heard in the public trial. In the dutch law system even statements of witnesses that have only been heard by the police can be read in the court session. Altogether the dutch criminal law system seems a bit less formal than the german one. V. The European aspect of my exchange During my stay in the Netherlands I had a lot of opportunities to learn about the international cooperation. Not only on a large scale like at Eurojust, the ICC and ICTY, but also on a smaller scale. Maastricht and the whole province of Limburg is a very unique part of the Netherlands as this area has longer borders with its neighbouring countries, like Germany and Belgium, than with the rest of the Netherlands. This unique location attracts not only tourists and professionals to go from one country to the other but also criminals. To fight cross-border crimes effectively, a strong cooperation between the police forces and the public prosecution services of all countries involved is essential. In the province of Limburg there are several euregional institutions such as the Bureau of Euregional Cooperation (BES), the Euregional Police Information and Coordination Centre (EPICC) and the International Legal Assistance Centre (IRC) where professionals from all neighbour states work alongside their dutch colleagues in the police or the public prosecution service (liassion officers). All of these institutions have more or less the same purpose: To support and improve the international justice cooperation in the Euregions and to fight cross-border criminality effectively. Therefore they assist the countries involved with mutual legal assistance requests, start up and execute joint cross border criminality analyses, investigations and enforcement projects in the Euregion.

6 VI. The benefits of the exchange During my stay in the Netherlands I leaned a lot about the dutch criminal law system and the international and euregional cooperation between the member states of the EU. Especially in the first week of the exchange I met colleagues of many other member states and gained a lot of information not only about the law system in the Netherlands but also of the different law system of the other countries. I realized that we all are more or less facing the same challenges, sometimes presenting different solutions for them. The different national law systems within in the EU seem to share more similarities than differences but it is theses (small) differences, that are important to know about when we work together. Only when we know how our colleagues work in the neighbour countries and why they work this way, we can work together effectively. The exchange helped me to gain this understanding. On the small scale I was very impressed by the "ZSM"-procedure in the Netherlands. I think that in Germany it often takes too much time to give a decision to an offence, even to smaller ones. The reason for this might be that our law system is more formal than the dutch one. Given our current law system we do not have the legal possibility to offer a procedure like "ZSM" in Germany as only the judge, but not the public prosecutor, can impose punishments. Still, I think we can learn from the "ZSM"-procedure how to work efficiently along with the reprentatives of all other relevant professions and authorities to offer quick and individuell responses to common offenses. VII. Suggestions As everything was so very well organized during this exchange, I do not have any suggestions for further improvements. I'd like to express my gratitude to everyone involved in arranging the programme for the two weeks and in organizing our stay.

7 SUMMARY I attended the exchange programme along with about 30 other colleagues ((future) public prosecutors, judges and trainers) from 17 different countries of the EU with the first week of the exchange taking place in The Hague/Utrecht, where we were hosted by the SSR (Studiecentrum Rechtspleging =Training and Study Centre for the Judiciary) which is responsible for the initial training and continuous education for judges, public prosecutors and legal administrative staff, and the second week taking place in a smaller group along with two other colleagues at the Public Prosecution Service in Maastricht/Province of Limburg. During these two weeks we had several presentations regarding the organization of the dutch judiciary, the dutch criminal law system, the public prosecution service and the international and euregional cooperation. We visited several international institutions like the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Court (ICC), Eurojust, the Bureau of Euregional Cooperation (BES), the Euregional Police Information and Coordination Centre (EPICC) and the International Legal Assistance Centre (IRC). In several meetings and conversations with the dutch colleagues working for the prosecution office in Maastricht and/or for the police in the District of Maastricht/Province of Limburg I gained a better insight into the dutch law system, the structure of the public prosecution service in the Netherlands and into the daily work of my dutch collegueas regarding not only dutch legal matters but also regarding the international/euregional cooperation in fighting crossborder crimes. As the exchange also offered many opportunities to speak to my other colleagues from the other participating member states of the EU, I did not only learn about the dutch criminal law system but also about the law systems in other european countries. I realized that our law systems share more similarities than differences and that we all struggle with the same challenges and demands: Offer a quick but profound decision for crimes with taking into account all the involved interests (offenders, victim, society) and facing cutbacks in the financial and personal infrastructure all at the same time. Our law systems sometimes offer different solutions for these challenges. By learning about my international colleagues' way of work and organization, I was able to extend my expertise by identifying where both the german system of law as well as my daily work can be improved.

8 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?