Prosecutors in Wilders case now recommend dropping the incitement charge as well as the “insult to Muslim” charge

Bjorn Larsen writes:

It is hard for mere mortals raised in a rational universe to understand how a trial can continue WHEN THE PROSECUTION RECOMMENDS ACQUITTAL!!! But apparently the judges have to agree to drop the charges and let Wilders leave as a free man—how can this even be in doubt?

LA to Bjorn Larsen:

Assuming the judges disagree with the prosecutors, how, as a practical matter, can the trial proceed if the prosecutors themselves no longer believe that there’s a valid charge against Wilders?

I’m going to have to look into Dutch judicial procedure.

Bjorn Larsen replies:

I want to stay as far away from that crazy legal system as I can.

- end of initial entry -

Dutch blogger “Snouck Hurgronje” explains the (to those of us in the Anglosphere) bizarre Dutch court system. Snouck writes:

The prosecution’s task was to gather the complaints of the 40 plaintiffs and bring a suit against Wilders, arrange all the documentation and such, and register the case with the judges. They did not want to do so. They always wanted to drop the case, even before it had become a case. The prosecutors can decide not to take up a case when its is brought by a plaintiff. This is called “seponeren.” The Amsterdam prosecutors had to be ordered by the judges to bring the case at all. So the judges may still punish Wilders, they certainly want to do so. Whether they have enough spine is another question.

There’s the difference. Under Anglo-Saxon systems, the judge is a neutral referee, while the prosecutor is the one who drives the case forward. On the continent, or at least in the Netherlands, the judge is the active party moving the case forward, while the prosecutor is the judge’s assistant or agent. At the same time, extremely oddly, the prosecutor can state his own view of the defendant’s guilt even if it is the opposite of the judge’s. The judge for his part can overrule the prosecutor’s view that the defendent is innocent and command the prosecutor to continue conducting the case. The judge is in effect both the prosecutor and the party who determines guilt or innocence. I find it impossible to process this.

October 16

Kilroy M. writes from Australia:

I don’t understand what all the confusion is about. This is a very simple distinction between the adversarial and inquisitorial legal systems. All the systems on Continental Europe are inquisitorial.

LA replies:

Well, that’s the very thing that’s hard for some of us non-Continental types to understand. How can the same judges who are prosecuting the case, judge the case? To illustrate the problem, suppose that in an American court of law the district attorney was not only the prosecutor but the person who made the final determination of the defendant’s guilt or innocence. Of course, the district attorney already believes that the defendant is guilty; he is prosecuting the case on the very basis of his belief that the defendant is guilty. On what basis, then, could he possibly come up with a verdict of not guilty? By my naive American logic, it seems to me that if the respective functions of prosecutor and jury are combined into the same person or persons, then the defendant would always be found guilty.

October 17

Kilroy M. writes:

Your point is absolutely legitimate—which is why I too find the continental civil system an absolute travesty of justice. Under their laws, there is no jurisdiction of equity, no doctrine of stare decisis (binding precedent), in France there is no habeus corpus, and I believe also the position of an accused is guilty until proven innocent (compared to the English: innocent until proven guilty). I am speculating here, but perhaps that is why the Judges want to maintain the prosecution. Continental Europe is based on legalist tyranny. The English system, despite its rigidity and historical problems, nevertheless is far more just than any other system on Earth. Just look at the nations and states that were settled/founded by the British Empire or were part of it: they are stable, advanced, sophisticated civil societies. Compare them to those from the Francosphere: a circus of civil war, famine and tyranny. As they say in summing up: res ipsa loquitor.

Posted by Lawrence Auster at October 15, 2010 12:43 PM | Send