Originally, Article 12 of the Dutch Code of Criminal Procedure was intended as a correction mechanism for the prosecution monopoly of the Public Prosecution Service. In a later stage, the private interest of complainants (or victims) became more central. This article argues that a third function now emerges: a valve function for social dissatisfaction. The social conflicts that underly the proceedings in these socially sensitive cases give rise to new democratic legitimacy problems. However, an appropriate normative framework that captures these new democratic demands has not yet been constructed. To this end, this article provides an alternative democratic vocabulary in order to bridge the gap between empirical and normative notions of legitimacy. By means of a historical and normative analysis, it will be argued that Article 12 has an important democratic potential within the characteristically autonomous Dutch system of criminal law. |
Search result: 12 articles
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Journal | Netherlands Journal of Legal Philosophy, Issue Pre-publications 2022 |
Keywords | Article 12-procedure, principle of opportunity, liberalism, judicial activism, democratic legitimacy |
Authors | Sophie Koning |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2020 |
Keywords | Freedom of speech, Separation of powers, Criminal law, Hate speech, Legal certainty |
Authors | Jip Stam |
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This article contains a critical review of the provisions in the Dutch penal code regarding group defamation and hate speech. It is argued that not only these provisions themselves but also their application by the Dutch supreme court, constitutes a problem for the legitimacy and functioning of representative democracy. This is due to the tendency of the supreme court to employ special constraints for offensive, hateful or discriminatory speech by politicians. Because such a special constraint is not provided or even implied by the legislator, the jurisprudence of the supreme court is likely to end up in judicial overreach and therefore constitutes a potential – if not actual – breach in the separation of powers. In order to forestall these consequences, the protection of particularly political speech should be improved, primarily by a revision of the articles 137c and 137d of the Dutch penal code or the extension of parliamentary immunity. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2017 |
Keywords | Virtuele grooming, Schade, Strafbaarstelling, Uitlokverbod |
Authors | Jeroen ten Voorde |
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As part of a package of legislative measures concerning cybercrime, the Dutch State Secretary for Security and Justice proposes to criminalize virtual grooming, that is the grooming of a person of minor age who, for example, does only exist as an online creature. The legislator’s principle argument for criminalization is based on the harm principle. This article examines the possibility of founding the criminalization of virtual grooming on this principle. |
Symposium |
Euthanasie: gaat het nog wel goed in de Lage Landen? |
Journal | Res Publica, Issue 2 2015 |
Authors | Gerbert van Loenen, Heleen Weyers and Herman Nys |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2012 |
Keywords | banality of evil, Hannah Arendt, Adolf Eichmann, Holocaust studies, philosophy of international criminal law |
Authors | Klaas Rozemond |
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In her book Eichmann in Jerusalem Hannah Arendt concluded that the Eichmann trial taught us the lesson of the ‘fearsome, word-and-thought-defying banality of evil’. Arendt explained the concept of banality as thoughtlessness: Eichmann did not realize what he was doing when he planned and executed the Final Solution of the Jewish Question in Nazi Germany. In this article Arendt’s analysis of Eichmann’s evil is criticized from an internal perspective: the conclusion that Eichmann was thoughtless cannot be founded on the information Arendt herself gives, especially her reports on Eichmann’s idealism, his knowledge of Kant’s categorical imperative, his Pontius Pilate feeling during the Wannsee Conference, and the two crises of conscience Eichmann experienced during the Holocaust. This information shows that Eichmann clearly realized what he was doing in a moral sense and consciously decided to go on with the Final Solution on the basis of his own convictions as a Nazi. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2009 |
Keywords | rechtszekerheid, in dubio pro libertate, Brouwer, rechtspositivisme, constructivisme |
Authors | Marc Loth |
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This paper addresses the principle of legal certainty, which was central in the work of Bob Brouwer. He both regretted and disputed the decline of this principle in the theory and practice of law, trying to defend it against the spirit of the time. I argue that this attempt was in vain, because it opposes recent developments in law, as is illustrated by a notorious case of the European Court of Human Rights. Moreover, these developments invoke a constructivist account of legal certainty, which opposes Brouwer’s legal positivist account. Additionally, this meta-level shows that legal certainty in its classical form is indefensible, which – of course – does not mean that it is senseless altogether. On the contrary, the principle of legal certainty does have meaning in current legal systems, and it is the task of new generations of young scholars to try to get a grip on it. In doing so, they will undoubtedly make use of Brouwer’s work, which excels both in the depth of thinking and the clarity of writing. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2004 |
Keywords | rechtvaardigingsgrond, rechtmatigheid, onrechtmatigheid, schulduitsluitingsgrond, toestemming, schadevergoeding, delinquent, zaakschade, eigendom, politie |
Authors | J.C. Hage |
Book Review |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2004 |
Keywords | auteur, autonomie, democratie, dwaling, kwaliteit, leerling, levering, overlijden, prestatie, uitleg |
Authors | A.J. Wolthuis |
Book Review |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2003 |
Authors | W.T. Eijsbouts |
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Journal | Netherlands Journal of Legal Philosophy, Issue 3 2003 |
Keywords | slachtoffer, oorlogsdelict, tenlastelegging, misdrijf, delinquent, verdrag, film, levering, onpartijdigheid, strafbaarheid |
Authors | T.J.M. Mertens |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2002 |
Keywords | strafbaar feit, minister van justitie, openbaar ministerie, aansprakelijkheid, staat der nederlanden, strafbaarheid, strafrechtelijke aansprakelijkheid, algemeen belang, gemeente, opschorting |
Authors | N. Rozemond |
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Journal | Netherlands Journal of Legal Philosophy, Issue 2 2002 |
Keywords | overeenkomst, contract, verzet, verdrag, citaat, geweld, geschrift, strafbaarheid, student, executie |
Authors | R. Janse |