Democratic expectations in complaint procedures against non-prosecution: between penal populism and penal elitism

• In Event: Political and Social Discourses about Crime and Justice Panel 1

Abstract

Traditionally, democratic citizenship has played a minor role in the Dutch criminal justice system. This could be illustrated by the monopoly position and discretionary power of the Public Prosecution Service which is based on the 'principle of opportunity': a non-prosecution could be grounded in the public interest. Nevertheless, the so-called 'complaint-procedure' enables citizens to request a chamber of independent judges to prosecute their case. This presentation focuses on the expectations citizens hold when this complaint-procedure handles cases with underlying social conflicts. Through four case studies—the prosecution of politician Geert Wilders, the case concerning Pedophile Association Martijn, and the cases following the Libor scandal and the fatal arrest of aruban citizen Mitch Henriquez—this presentation provides a framework for conceptualizing these unique claims on the Dutch criminal justice system. Using a combination of
media analysis and in-depth interviews with citizens and their attorneys involved in these cases, it will be illustrated that the expectations of these citizens and attorneys can be conceptualized as democratic expectations. However, in the four mentioned cases, these expectations were not conceptualized as such, by both the media and various powerholders. Instead, they were redefined within the liberal defendant-victim paradigm through which the Dutch criminal justice system has traditionally been understood. Therefore, this research not only aims to address an empirical gap but also a normative one in the debate concerning the relationship between the criminal justice system and our democratic society: the democratic vocabulary constructed from the case studies provides a democratic middle ground, between both penal populism and penal elitism.

Author

• Sophie Koning, Leiden University