POLITICAL AND CRIMINAL RESPONSIBILITY Roel de lange Introduction Preliminary remarks Chair of Constitutional and Administrative Law, Faculty ofLaw, Erasmus University Rotterdam
POLITICAL AND CRIMINAL RESPONSIBILITY Roel de Lange* IV B 1 * Chair of Constitutional and Administrative Law, Faculty of Law, Erasmus University Rotterdam. Introduction Preliminary remarks
DE LANGE According to the Questionna ire the following relevant questions were to be addressed I. Concepts and definitions I. Constitutional and legal status of Head of State, Head of Govemment and ministers in relation to national and international crim inal law Ill. Responsibility of Head of State, Head of Government and Minister(s) for criminal acts or om issions committed by their subord ina tes, i. e civil servants IV. Distinctions between governmental (official)and personal crim inal responsibility V. The availability of immunity and/or indemnity from criminal prosecution VI. In which courts would crim nal proceedings take place? Scope of this Report This report deals primarily with national constitutional law. Matters of Dutch crim inal law are discussed where appropriate. The im pact of intemational law, although possibly increasing since the Netherlands si igned the treaty in which the Statute of the Intemational Criminal Court is laid down, foms no part of our discussion. 2 Reference to the Intermational Criminal Court is made only in passing. Head of state The Kingdom of the Netherlands is a constitutional monarchy. The King is Head of State Since 1898 the office of King has been held by a woman, after a period (1890-1898)in which the Queen Mother acted as Regent. According to Dutch constitutional law, the question who is Head of State is not a difficult one, a though there is no ex plicit provision in the written Constitution. The Constitution of 1814 spoke of william as Sovereign Prince. According to contem porary practice, the establishment ofan hereditary monarchy in the Netherlands in 1813 implied that the new Sovereign Prince was Head of State. In 1815, following the Vienna Congress, a new state was recognised, comprising the Netherlands and part of what is now Belgium(separated in 1830). In a Proclamation of March 16, 1815, in which unity with Belgium was proclaimed, the Prince referred to himself as King of the Netherlands, and this title was recognised by foreign governments at the Vienna Congress 4 The 1815 Constitution referred to the King. during the Important Revision of the Constitution in 1848, the Govemment explicitly referred to the King as the Head of State This was never contradicted, and has been generally accepted The Questionnaire was designed by prof John Bridge, University of Exeter(U. K) The significance of the Intemational Criminal Court is discussed by Vander Wilt 2000 Struycken 1917, p 31 Memorie van Beantwoording van het Voorlopig Verslag, Handelingen 1848, P. 56
DE LANGE 2 According to the Questionnaire1 , the following relevant questions were to be addressed: I. Concepts and definitions II. Constitutional and legal status of Head of State, Head of Government and Ministers in relation to national and international criminal law III. Responsibility of Head of State, Head of Government and Minister(s) for criminal acts or omissions committed by their subordinates, i.e. civil servants IV. Distinctions between governmental (official) and personal criminal responsibility. V. The availability of immunity and/or indemnity from criminal prosecution. VI. In which courts would criminal proceedings take place? 1 Scope of this Report This report deals primarily with national constitutional law. Matters of Dutch criminal law are discussed where appropriate. The impact of international law, although possibly increasing since the Netherlands signed the treaty in which the Statute of the International Criminal Court is laid down, forms no part of our discussion. 2 Reference to the International Criminal Court is made only in passing. 2 Head of State The Kingdom of the Netherlands is a constitutional monarchy. The King is Head of State. Since 1898 the office of King has been held by a woman, after a period (1890-1898) in which the Queen Mother acted as Regent. According to Dutch constitutional law, the question who is Head of State is not a difficult one, although there is no explicit provision in the written Constitution. The Constitution of 1814 spoke of William as Sovereign Prince. According to contemporary practice, the establishment of an hereditary monarchy in the Netherlands in 1813 implied that the new Sovereign Prince wa s Head of State. In 1815, following the Vienna Congress, a new state was recognised, comprising the Netherlands and part of what is now Belgium (separated in 1830). In a Proclamation of March 16, 1815,3 in which unity with Belgium was proclaimed, the Prince referred to himself as King of the Netherlands, and this title was recognised by foreign governments at the Vienna Congress. 4 The 1815 Constitution referred to the King. During the important Revision of the Constitution in 1848, the Government explicitly referred to the King as the Head of State.5 This was never contradicted, and has been generally accepted 1. The Questionnaire was designed by prof. John Bridge, University of Exeter (U.K.). 2. The significance of the International Criminal Court is discussed by Van der Wilt 2000. 3. Stb. 27. 4. Struycken 1917, p. 315. 5. Memorie van Beantwoording van het Voorlopig Verslag, Handelingen 1848, p. 56
POLITICAL ANDCRIMINAL RESPONSIBILITY in constitutional doctrine ever since 6 The King as Head of State has the power to bind the Kingdom of the Netherands in intemational relations(cf. Vienna Treaty, art 7$2 sub a). This is also true for heads of government and ministers of foreign affairs. The King traditionally plys a central role in the field of foreign affairs. The most solemn treaties are signed by the King himself. In intemational negotiations, the Kingdom is usua lly represented by the minister of Foreign Affa irs or persons acting on behalf of the minister and under his instructions Occasionally, other persons have represented the Kingdom, sometimes in a(seemingly) independent role part from his role in international relations, the King also has a role to pay in domestic affairs, albeit a very lim ited one. In the process of ca binet formation-which is usually a matter of coa litions between political parties in the Netherlands- the King appoints the formateur, who leads the negotations between the political parties. Normally speaking the formateur becomes the new Prime Minister, although there is no rule of constitutional law which makes this necessary. Moreover, there is a chance that a fomateur will not be succesful and has to be repaced by another formateur. The new Prime Minister takes political responsibility for the decisions which the King has taken during the formation of the new ca binet, including the appointment of formateurs The Const itution also provides for some other tasks, such as the ratification of Acts of parliament (article 87 of the Constitution) or the reading of the official speech (troonrede) at the State Opening of Parliament (article 65 of the Constitution). These tasks do not involve the exercise of any real power Who is head of government? The Dutch Constitution has never mentioned a Head of govemment. Until recently this used to be no problem. Over the past years, however, questions have been asked oncerning the position of the Dutch Prime Minister in relation to the European Council, which according to article 4 of the Treaty on European Union consists of Heads of Governmentand Heads of State. Since in the Netherlands the King is part of the overnment(article 42 of the Constitution )and is head of state, one might think that the King is head of govemment as well, but in practice this was not the case. The position of Head of government has-until the year 2000-never been fomma lly recognised. The position of the Prime Minister is trad itionally referred to in the Netherlands asa primus inter pares. Like its parallels in other countries, Dutch prime ministership rose to prominence during the second haif of the 19th century. Dom inating figures like Johan Kortmann& Bovend Eert 2000, p. 78; Burkens c.s. 2001, P. 222. Besselink 1996, p. 14 Bovend Eert2000 Bovend Eert2000, P. 78. Rehwinkel 1991- Rehwinkel/Bovend Eert/Hockstra l 994
POLITICAL AND CRIMINAL RESPONSIBILITY 3 in constitutional doctrine ever since.6 The King as Head of State has the power to bind the Kingdom of the Netherlands in international relations (cf. Vienna Treaty, art 7 § 2 sub a). This is also true for heads of government and ministers of foreign affairs. The King traditionally plays a central role in the field of foreign affairs. The most solemn treaties are signed by the King himself.7 In international negotiations, the Kingdom is usually represented by the minister of Foreign Affairs or persons acting on behalf of the minister and under his instructions. Occasionally, other persons have represented the Kingdom, sometimes in a (seemingly) independent role. Apart from his role in international relations, the King also has a role to play in domestic affairs, albeit a very limited one.8 In the process of cabinet formation - which is usually a matter of coalitions between political parties in the Netherlands - the King appoints the formateur, who leads the negotations between the political parties. Normally speaking the formateur becomes the new Prime Minister, although there is no rule of constitutional law which makes this necessary. Moreover, there is a chance that a formateur will not be succesful and has to be replaced by another formateur. The new Prime Minister takes political responsibility for the decisions which the King has taken during the formation of the new cabinet, including the appointment of formateurs. The Constitution also provides for some other tasks, such as the ratification of Acts of parliament (article 87 of the Constitution) or the reading of the official speech (troonrede) at the State Opening of Parliament (article 65 of the Constitution). These tasks do not involve the exercise of any real power. 3 Who is head of government? The Dutch Constitution has never mentioned a Head of government. Until recently this used to be no problem. Over the past years, however, questions have been asked concerning the position of the Dutch Prime Minister in relation to the European Council, which according to article 4 of the Treaty on European Union consists of `Heads of Government' and Heads of State. Since in the Netherlands the King is part of the government (article 42 of the Constitution) and is head of state, one might think that the King is head of government as well, but in practice this was not the case. The position of Head of government has - until the year 2000 - never been formally recognised.9 The position of the Prime Minister is traditionally referred to in the Netherlands as a primus inter pares.10 Like its parallels in other countries, Dutch prime ministership rose to prominence during the second half of the 19th century. Dominating figures like Johan 6. Kortmann& Bovend'Eert 2000, p. 78; Burkens c.s. 2001, p. 222. 7. Besselink 1996, p. 14. 8. Bovend'Eert 2000. 9. Bovend'Eert 2000, p. 78. 10. Rehwinkel 1991; Rehwinkel/Bovend'Eert/Hoekstra 1994
DE LANGE Thorbecke(1798-1872), who led the- then much smaller -Cabinet during the years 1849-1853, 1862-1866, and again in 1871-1872, and later Abraham Kuyper (1837-1920 Prime Minister from 1901-1905, took a position which led Van Raalte in his 1917 dissertation about the office of prime minister to the conclusion that there was a discrepancy between written law and political reality. At that tme, the presidency of the Council of ministers was only temporarily held: the ministers elected their president annually. The Royal Decree of September 26, 1922, no. 18, ended this situation and made the presidency of the council of ministers a pemanent position. Since 1933 nomally ough not always, the for ho was asked by the King to government, became prime minister. There was no election by the Council of ministers, although this was still required by the Council's Reglement van Orde. I In 1983, the present article 45 was incorporated in the Constitution. The second section of that article states that the Prime minister is the president of the Council of ministers. It was generally acknowledged that this provision does not make hm head of the govemment In 2000, in its Memorandum on Kingship(Beschounw ing over het koningschap, TK 27409, nr. 1), the Cabinet took the position(a lbeit implicitly and in passing only )that the Prime Minister is the head of government (regeringsleider). Almost certainly, this sentence was written especially for use abroad, to provide clarity with regard to the position of the Dutch Prime Minister. The position of the Prime Minister as the Head of Government has been generally recognised. The reference in the 2000 Memorandum only affirmed and confirmed the situation that had developed inside the Cabinet As a matter of constitutional law, the situation may be summarized as follows The King is Head of State(an office not mentioned in the Constitution)and member ofthe Govemment(article 42 of the Constitution) The Prime minister is head of the Government(an office not mentioned in the Constitution, although article 45$ 2 awards the prime minister the position of president of the Council of ministers) The King is inviolable, the ministers are responsible(article 42 of the Constitution) The responsibility of ministers is criminal and political. Criminal responsibility is regulated by the 1855 Act on Ministerial Responsibility(Wet ministeniele verant- woordeljkheid, which so far has never been applied. The extent of political responsibility is entirely a matter of unwritten law and convention. Inviok bility of the King seems to many people to make legal sense only if it is understood as inviolability of the King s person. Nevertheless, during the preparation of the Constitution in 1848 it was argued by members parliament that unlike the Belgian Constitution of 1831 the dutch Constitution should not refer to the King s person, but to the King. The reasons for this are not explicitly stated during the parliamentary debates on the revision of the Constitution in 1848. They may be found in monarchical sentiment in times of a Van Raalte 1954,p. ll
DE LANGE 4 Thorbecke (1798-1872), who led the - then much smaller - Cabinet during the years 1849-1853, 1862-1866, and again in 1871-1872, and later Abraham Kuyper (1837-1920), Prime Minister from 1901-1905, took a position which led Van Raalte in his 1917 dissertation about the office of Prime minister to the conclusion that there was a discrepancy between written law and political reality. At that time, the presidency of the Council of ministers was only temporarily held: the ministers elected their president annually. The Royal Decree of September 26, 1922, no. 18, ended this situation and made the presidency of the council of ministers a permanent position. Since 1933 normally, though not always, the formateur, i.e. the person who wa s asked by the King to form a government, became prime minister. There was no election by the Council of ministers, although this was still required by the Council's Reglement van Orde. 11 In 1983, the present article 45 was incorporated in the Constitution. The second section of that article states that the Prime minister is the president of the Council of ministers. It was generally acknowledged that this provision does not make him head of the government. In 2000, in its Memorandum on Kingship (Beschouwing over het koningschap, TK 27 409, nr. 1), the Cabinet took the position (albeit implicitly and in passing only) that the Prime Minister is the head of government (`regeringsleider'). Almost certainly, this sentence was written especially for use abroad, to provide clarity with regard to the position of the Dutch Prime Minister. The position of the Prime Minister as the Head of Government has been generally recognised. The reference in the 2000 Memorandum only affirmed and confirmed the situation that had developed inside the Cabinet. As a matter of constitutional law, the situation may be summarized as follows: - The King is Head of State (an office not mentioned in the Constitution) and member of the Government (article 42 of the Constitution); - The Prime minister is head of the Government (an office not mentioned in the Constitution, although article 45 § 2 awards the prime minister the position of president of the Council of ministers); - The King is inviolable, the ministers are responsible (article 42 of the Constitution). The responsibility of ministers is criminal and political. Criminal responsibility is regulated by the 1855 Act on Ministerial Responsibility (Wet ministeriële verantwoordelijkheid), which so far has never been applied. The extent of political responsibility is entirely a matter of unwritten law and convention. Inviolability of the King seems to many people to make legal sense only if it is understood as inviolability of the King's person. Nevertheless, during the preparation of the Constitution in 1848 it was argued by members parliament that unlike the Belgian Constitution of 1831 the Dutch Constitution should not refer to the King's person, but to the King. The reasons for this are not explicitly stated during the parliamentary debates on the revision of the Constitution in 1848. They may be found in monarchical sentiment in times of a 11. Van Raalte 1954, p. 11
POLITICAL ANDCRIMINAL RESPONSIBILITY democratic revolution in Europe. As far as the Netherlands are concemed, 1848 comes close to a constitutional and political revolution as well. In that year, the foundations were laid for the development of a parliamentary system, which matured in a period of about 20 years. That parliamentary system gradually became more democratic with the extension of the franchise, although general suffrage was not introduced before 1917, then again under the influence of political developments abroad Political responsibility A D. Belinfante, professor of Administrative law at the University of Amsterdam already in the 1960s suggested that the basic rules with regard to political responsibility were interlinked and could be formulated in the following way 1. No powers without responsibility- No one should have powers to exercise offical public authority, unless he or she can be held responsible for the exercise(ornon-exercise) f those powers; 2. No responsibility without powers- No one should be held responsible for acts or omissions falling outside the scope of his powers These are very clear guidelines, which still have their practical value. Being guidelines, they cannot and should not be interpreted too strictly in practice. Political responsibility includes that one may be held responsible for having failed to obtain certain powers, if such an omission results in grave damage to the public interest. It implies also, that if members of parliament ask a minister for infomation which lies outside the scope of a ministers powers, the minister will normally answer such questions if it is obvious that either no other minister would be able to answer, or failure to answer would be considered as a political weakness which might result in political consequences for the minister involved 4.2 History of political responsibility 4.2. 1 Origins of political responsibility of ministers in the Netherlands The political responsibility of ministers was introduced into the Dutch Constitution in 1848. Crim inal responsibility of m inisters had existed since 1840, when articles 75-77 of the Constitution were revised. The new article 75 provided that the Heads of ministeral Departments were responsible for all acts which they performed or to which they contributed or cooperated, by which the Constitution or an Act of Parliament would be iolated article 77 provided that the hoge raad would be the court before which the For a discussion of political responsibility and its relationship to other forms of responsibility,see Elzinga 1994
POLITICAL AND CRIMINAL RESPONSIBILITY 5 democratic revolution in Europe. As far as the Netherlands are concerned, 1848 comes close to a constitutional and political revolution as well. In that year, the foundations were laid for the development of a parliamentary system, which matured in a period of about 20 years. That parliamentary system gradually became more democratic with the extension of the franchise, although general suffrage was not introduced before 1917, then again under the influence of political developments abroad. 4 Political responsibility12 4.1 Introduction: the Basics A.D. Belinfante, professor of Administrative law at the University of Amsterdam, already in the 1960's suggested that the basic rules with regard to political responsibility were interlinked and could be formulated in the following way: 1. No powers without responsibility - No one should have powers to exercise official public authority, unless he or she can be held responsible for the exercise (or non-exercise) of those powers; 2. No responsibility without powers - No one should be held responsible for acts or omissions falling outside the scope of his powers. These are very clear guidelines, which still have their practical value. Being guidelines, they cannot and should not be interpreted too strictly in practice. Political responsibility includes that one may be held responsible for having failed to obtain certain powers, if such an omission results in grave damage to the public interest. It implies also, that if members of parliament ask a minister for information which lies outside the scope of a minister's powers, the minister will normally answer such questions if it is obvious that either no other minister would be able to answer, or failure to answer would be considered as a political weakness which might result in political consequences for the minister involved. 4.2 History of political responsibility 4.2.1 Origins of political responsibility of ministers in the Netherlands The political responsibility of ministers was introduced into the Dutch Constitution in 1848. Criminal responsibility of ministers had existed since 1840, when articles 75-77 of the Constitution were revised. The new article 75 provided that the Heads of Ministerial Departments were responsible for all acts which they performed or to which they contributed or cooperated, by which the Constitution or an Act of Parliament would be violated. Article 77 provided that the Hoge Raad would be the court before which the 12. For a discussion of political responsibility and its relationship to other forms of responsibility, see Elzinga 1994