The ( Political ) Pursuit of Victim Voice : ( Comparative ) Observations on the Dutch Draft on the Adviesrecht

In the past decades, many nations have taken measures to increase victim participation in their criminal justice systems. One of the main challenges for policymakers has been to determine to what extent crime victims should be included in criminal trials. Criminal proceedings representing a delicate balance, implementing victim voice within trial proceedings is no sinecure. Indeed, one can spell out the dilemma of how to balance the victim’s interest with the standards of a fair trial.1 Nevertheless, the need to protect victims’ interest is widely acknowledged. Indeed, temporary criminal policy is strongly associated with procedural justice, emphasising the need for victim voice. In pursuit of positive evaluations of (the outcomes of) legal proceedings procedural arrangements were introduced.2 In this paper we will discuss three of these arrangements: the Victim Impact Statement (hereafter: VIS), the Victim Statement of Opinion (hereafter: VSO) and the ‘new kid on the block’: the Dutch adviesrecht.3 The immediate cause is the recent amendment to incorporate an adviesrecht into trial proceedings in the Netherlands.4 Since all three instruments relate to victims’ needs we will relate to victimological findings. Moreover, since procedural justice relates to the design of trial proceedings, we will fit in a comparative legal element by referring to applications of the VIS and the VSO at the federal level in the US.5 Since US procedures use bifurcated proceedings, we will refer to the recent research of Keulen et al. with regard to the advisability of the bifurcation of Dutch trial proceedings.6


Introduction
In the past decades, many nations have taken measures to increase victim participation in their criminal justice systems.One of the main challenges for policymakers has been to determine to what extent crime victims should be included in criminal trials.Criminal proceedings representing a delicate balance, implementing victim voice within trial proceedings is no sinecure.Indeed, one can spell out the dilemma of how to balance the victim's interest with the standards of a fair trial. 1 Nevertheless, the need to protect victims' interest is widely acknowledged.Indeed, temporary criminal policy is strongly associated with procedural justice, emphasising the need for victim voice.In pursuit of positive evaluations of (the outcomes of) legal proceedings procedural arrangements were introduced. 2 In this paper we will discuss three of these arrangements: the Victim Impact Statement (hereafter: VIS), the Victim Statement of Opinion (hereafter: VSO) and the 'new kid on the block': the Dutch adviesrecht. 3he immediate cause is the recent amendment to incorporate an adviesrecht into trial proceedings in the Netherlands. 4Since all three instruments relate to victims' needs we will relate to victimological findings.Moreover, since procedural justice relates to the design of trial proceedings, we will fit in a comparative legal element by referring to applications of the VIS and the VSO at the federal level in the US. 5 Since US procedures use bifurcated proceedings, we will refer to the recent research of Keulen et al.  with regard to the advisability of the bifurcation of Dutch trial proceedings. 6he paper goes as follows.Firstly, we will look into the concept of procedural justice (Section 2); subsequently, we will provide an overview of the differences with regard to trial proceedings between the Netherlands and the USA (Section 3).Section 4 gives a description of the Dutch amendment, followed by an overview of the application of the VIS and the VSO in the USA (Section 5).Section 6 provides a (comparative) analysis and a conclusion completes the paper (Section 7).

Procedural justice and the heterogeneity of victims' needs
Providing procedural justice to victims is a core business within contemporary Dutch criminal policy.Indeed, the 2012 policy plan Recht doen aan slachtoffers (Doing Justice to Victims), states: 'In order to do justice to victims it is important to both punish the perpetrators and to ensure that the punishment enforced is accepted as appropriate.The outcome and punishment being of importance, the appreciation of the results of trial proceedings also depends on the extent to which proceedings are felt to be fair (procedural justice).' 7 Clearly, the topical focus on procedural justice comes as no surprise.Since its introduction by Thibaut and Walker in 1975, 8 the concept of procedural justice has become one of the 'darlings' of the proponents of victims' rights.Driven by a fear of a decline in legitimacy, policy makers welcomed the idea that people's evaluations of the law and its applications relate to the way in which authorities respond to the arguments presented by the parties involved. 9In the rise of victimology, scholars also started to study the significance of procedural justice for crime victims.The idea that compliance with the law directly relates to the perception of the fairness of legal proceedings was applied to victims' experiences, the outcomes providing the turmoil for contemporary governmental victims' policy.
The focus on crime victims, however, altered the original lens of procedural justice.Since procedural justice became a non-contested concept, both procedural justice theorists and victimologists appeared receptive to the idea that expectations of procedural justice must be individualised, instead of accepting the homogeneous interpretations of victims' needs that were provided by previous studies. 10Indeed, contemporary Dutch findings with regard to the right to make an oral statement in court (spreekrecht, hereafter: oral VIS) show that victims' perceptions relate to psychological characteristics, the impact of the offence providing a good prediction of the victim's willingness to make use of the oral VIS. 11Next, Dutch studies indicate that we should not overlook the possibility that victims might abscond from the right to activate voice, preferring to be passive participants. 12he general idea underlying procedural law, that is to say that there is a correlation between peoples' willingness to obey the law and the apparent responsiveness of the authorities towards the participants' arguments and needs is, however, undisputed.Opportunities to participate indicate a reaffirmation of people's sense of their standing in the community and is, according to Tyler, as important as 'solving' their problems. 13Where both ends intertwine, it is difficult to get a clear picture of which aim prevails.
Findings show that providing room to participate furthers the acceptance of negative legal outcomes. 14otwithstanding that outcome favourability is found to influence the acceptance of legal outcomes, people do gain desirable outcomes from voice itself. 15Nevertheless, there is debate as to what end is valued most highly: outcome-control or expressive aims, to be accompanied by respectful treatment.Some victimologists suggest that the treatment leading up to the decision-making stage prevails, 16 whereas others claim that victims are (also) in support of outcome control. 17While it is clear that victims pursue participation from the early stages onwards, this should not be interpreted as a synonym for outcomecontrol. 18The correct position appears to be the one taken by Wemmers, who states that victims prefer an 'in-between role': they do not favour full exclusion, nor full control. 19evertheless, in light of the Dutch amendment there is good cause to take a closer look at victims' preferences with regard to outcome-control.Obviously, one of the aims of the adviesrecht is to provide victims with the opportunity to influence the outcome of trial proceedings.The governmental paper Recht doen aan slachtoffers (Doing Justice to Victims) explicitly refers to this aim, stating that in order to provide procedural justice to victims of crime, it is '(…) of importance that victims are informed and are able to influence the outcomes [emphasis added]' . 20Taking into account the highly professionalized nature of the Dutch administration of justice, such an explicit promise for outcome-control may, however, result in reverse effects, causing harm to the authorities' trustworthiness, thus causing a loss of procedural justice. 21

The significance of the procedural design
Besides the nature of victims' needs with regard to procedural justice, the fundamental differences amongst the style of trial proceedings must be taken into account.While the concept of victims' needs used within the political debate may be featured as a homogeneous concept, the legal traditions that need to host victim-oriented arrangements differ.Indeed, the apparent political consensus with regard to the victims' need for procedural justice is not synonymous with uniform (legal) solutions. 22Obviously, the victim's pursuit for procedural justice affects the law's systemic design.Since trial proceedings established within the past era were not designed to provide for victim participation, national authorities are confronted with inherent limitations, causing them to contemplate over changes that need to be introduced. 23The law being a slow instrument, such changes will not -and indeed must not -come overnight.Some scholars argue that the civil law system is better suited to deal with victim participation than common law.Due to the quasi-judicial nature of the trial proceedings, implicitly guaranteeing a fair balance between victim participation and fair trial, civil law systems appear to be better equipped to respond to victims' needs with regard to procedural justice. 24Providing victims with respectful treatment, including the right to make use of the oral VIS is a feasible target in such a setting since it (apparently) does not (seriously) infringe the defendant's rights.Nevertheless, victims' rights are subject to dispute.For example, the introduction of the oral VIS in 2005 provoked substantive resistance amongst the Dutch judiciary; the courts found that the oral VIS could cause an imagery of prejudice.One can, however, observe such systemic changes to have been adapted adequately over the course of time.To date, the oral VIS is generally accepted by the courts, being evaluated as a meaningful addition to the trial proceedings. 25In fact, if needed to address the victim's needs adequately, some Dutch courts are willing to accept transgressions of the legal restrictions related to the oral VIS. 26 Since the adviesrecht relates to the full scheme of judicial decision-making this will provoke many reactions (see Section 4).Indeed, the negative reception by the Council for the Judiciary (Raad voor de rechtspraak) speaks volumes. 27Taking into account that 'justice needs to be seen to be done' , 28 the use of the adviesrecht (or for that matter any equally far-stretching form of victim voice) in the context of non-bifurcated trial proceedings appears to imply too extensive an appeal on the trustworthiness of the courts, evoking an imagery of bias from the defendant's perspective. 29ith regard to the common law context, the use of a VIS and even the VSO appears to be less problematic due to the use of bifurcated proceedings.Both the VIS and the VSO relate exclusively to the sentencing proceedings, having different authorities decide over guilt and sentencing in subsequent proceedings.There are, however, other systemic obstacles that make the common law system even less suitable for victim participation than the civil law system: a system that uses a procedural design that represents a 'clash between parties' leaves no room for a third participant (the victim). 30Indeed, there are strong opinions against the use of VIS and VSO among common law academics, especially in the UK. 31 Notwithstanding that English authorities have introduced a so-called Victim Personal Statement (VPS, 2001), there remains strong resistance against the introduction of an oral contribution by the victim at trial proceedings.Indeed, the authorities are instructed to inform the victim who wants to make a VPS that the court 'will not take into account any opinion the victim expresses as to how the offender, if convicted, should be punished' . 32As for the US, Australia and Canada, representing the 'juniors' of the common law family, opinions with regard to the use of the VIS appear to be more nuanced.Some authors, such as Erez, Cassell and Roberts, argue in favour of its use. 33These positive evaluations of victim voice, however, relate to a context of bifurcated procedures; there is no room for an oral statement with regard to truth finding, and certainly no support for a 'full-scheme victim voice' as represented by the adviesrecht.Indeed, the cross-examination of victims -representing a real consequence of extended victim voice -is a no-go area for US victim rights scholars.

The Dutch amendment
Having provided a short overview of the victimological and procedural settings that underlie the applications of victim voice, we will now turn to the Dutch amendment.As the amendment provides an extension of existing practices with regard to victim voice, we will first provide a brief overview of the present Dutch practices.

The introduction of the VIS
Within the Dutch system, a VIS stands for a written victim statement (schriftelijke slachtofferverklaring).The Dutch started to experiment with the VIS in 2004, organising regional pilot schemes.Due to an MP initiative the oral version was introduced in 2005. 34The drawing up of a written VIS is now part of the pre-trial investigation and can be drawn up by the victim himself, or with the assistance of the Dutch Victim Support (Slachtofferhulp Nederland). 35Either way, it is added to the dossier (Article 51b Dutch Code of Criminal Procedure (Wetboek van Strafvordering, Sv). 36The aim of a VIS is to inform the judge, the prosecutor and the defendant about the impact of the (alleged) offence on the victim.The oral VIS, the so-called spreekrecht (Article 51e Sv), consists of the right to make an oral statement at trial.Both Article 51b and 51e are part of a catalogue of victim rights, introduced in 2010 (Title IIIA Sv). 37Since then, the oral VIS has been amended, leading towards an extension of the persons qualified to make an oral statement. 38he law explicitly limits the scope of the (written and oral) VIS to the consequences of the offence; the victim cannot (yet) address evidentiary or sentencing issues.Because the information provided is irrelevant to the (substantive) truth finding, the victim is not classified as a witness.Hence, s/he does not fall within the ambit of Article 6(3) ECHR, providing the defendant with a right to question the victim.Indeed, the defence may put forward questions, but only via the bench.It is then up to the bench to decide whether the victim should be required to answer; if the question is feared to cause a risk for repeated victimisation, it will be barred.In practice, the defence seldom questions the victim's (written or) oral statement.However, one avoids this right rather reluctantly.Defence lawyers feel that questioning the victim's statement could harm the defendant's position, as this could be interpreted as hostility towards the victim.
Recent evaluations of the use of the oral VIS revealed, however, that in most cases victims went beyond the scope of an impact statement.They also address issues related to sentencing, the defendant's personality and the facts of the case. 39Indeed, differences were observed in the way courts handled the restrictions set by Article 51e Sv.Moreover, contrary to the use of written statements, the actual use of the oral VIS was found to be rather low. 40In fact, the majority of victim respondents preferred the use of a written statement.Victims dreaded the public appearance that comes with the use of the oral VIS since they feared that this would provoke stress and emotions.The process of drawing up a VIS with the assistance of the Dutch Victim Support was, however, felt to be beneficial. 41evertheless, the expansion of the oral VIS remained a contentious issue within the Dutch debate.In the wake of the political debate with regard to the Law of 2012, 42 suggestions were made to extend the victim's right by granting him the right to provide an opinion with regard to evidence and sanctioning, the so-called verruimde spreekrecht. 43At that time, both the Secretary of State and the majority of the MPs objected.It was feared that the regime of non-bifurcated procedures would cause repeated victimisation, as the standard of fair trial would imply that the defence had the right to question the victim. 44Nevertheless, the Secretary of State did not principally object.Indeed, the introduction of an adviesrecht had been previously announced in the political agreement underlying the Rutten II (coalition) cabinet . 45At the time, however, the Secretary of State decided to await the results of an evaluation of the various interests and arguments suggested for bifurcated procedures.Comparative legal research was ordered, focussing on the court's impartiality, the risk of repeated victimisation and the potential adverse impact on the practicality of trial proceedings.The outcome of the research, that there is no cause for the introduction of bifurcated proceedings, was accepted by the legislature. 46

Draft extension VIS 2013
Subsequently a draft amendment to introduce an adviesrecht was introduced. 47At the time of writing, the draft is pending.The reactions from the advisory councils are, however, not (undividedly) positive. 48he 2013 draft proposes a fundamental extension of victim voice.The starting point, however, is still that the victim must not become a 'party' on an equal footing with the defendant. 49Nevertheless, the adviesrecht grants the victim -or his representative -the right to make recommendations with regard to the questions raised in the context of Article 350 Sv.The latter represents the legal framework that constitutes the courts' decision-making, addressing conditions of proof, as well as conditions of guilt and related sentencing.According to the Explanatory Notes, the draft is in pursuit of granting victims an opportunity to 'put forward their opinion with regard to the range of the parts of the indictment proven, the judicial qualification of the latter, the guilt of the defendant and the appropriate sentence' . 50he victim will be entitled to use the right to put forward a VIS and use both the oral VIS and the adviesrecht.Like the oral VIS, the adviesrecht is scheduled before the prosecutor's closing address.Because both rights are scheduled as subsequent procedural provisions, the court bench can allow them to be used consecutively.Such a sequence may result in the lines between the oral VIS and the adviesrecht becoming blurred, leaving the judge to decide whether the victim using his oral VIS did cross the line, and as a result may be questioned by the defence.With regard to the adviesrecht, the opportunity to submit the victim to questioning is fully acknowlegded. 51A request can be put forward by the defence, the public prosecutor or can be determined by the court ex officio in case the victim's statement provided in the context of the adviesrecht produces new, incriminating evidence.Indeed, such an interrogation is of another nature than the one with regard to the oral VIS, the latter pursuing clarification as to the impact of the offence.With regard to the interrogation related to the adviesrecht, the victim is under oath and is treated as a witness (Article 302 Sv).To avoid repeated victimisation, this questioning, too, is executed via the court's bench; improper or irrelevant questions can be barred.
As previously stated, the amended adviesrecht also provides a right to make recommendations to the court with regard to additional investigative activities.The court is not obliged to follow such a recommendation, its decision will depend on whether the court is of the opinion that the (substantive) truth finding will benefit from such an additional investigation and whether it is strictly necessary.Given the extended pre-trial investigation which is a feature of the Dutch system, one can expect such a recommendation to be rejected. 52ast, but not least, the draft introduces an obligation for the courts to provide for extended reasoning in case the sentence imposed differs substantially from the one recommended by the victim.In view of the need for transparency, underlined within procedural justice theory, this would further legitimacy. 53eing bound by the 'secrecy of the chamber' ,54 such reasoning is relatively limited.Moreover, Dutch criminal sentencing practices represent a system of tariffs, to be applied by repeat players.A sentencing recommendation put forward by the victim can be expected to be of limited influence only.Indeed, the victim who wants to execute the adviesrecht is not entitled to State-funded legal assistance; 55 according to the legislature there is no need for this. 56Whether this means that the adviesrecht is primarily meant to serve expressive ends, instead of 'real world' outcome-control, is not clear.As mentioned, the policy paper Recht doen aan slachtoffers (Doing Justice to Victims) does make an explicit reference to the actual influence with regard to the outcome of trial proceedings. 57

The US: victim voice in a common law perspective
Since the US is a front runner with regard to both the VIS and the VSO, we will explore the US practices in order to learn about the practical implications that flow from victim participation.The US representing a federal system, victims' legislation is present at both the federal and state level. 58As mentioned earlier, we will limit ourselves to federal practice, state legislation only being mentioned additionally.Moreover, we will not discuss the use of the VSO in capital cases.Since there is no capital punishment in the Netherlands, this would provide for a lame comparison. 59s noted, US trial proceedings feature bifurcation: guilt and sentencing are established in distinct, subsequent procedures, the VIS or VSO only being allowed at sentencing hearings. 60Bifurcation, however, is not always the rule. 61Indeed, there is no federal provision for criminal trial bifurcation in non-capital cases, leaving the issue up to the federal courts. 62Since bifurcation is the cause for legal comparison in this paper, we will assume bifurcation to be applied.
Prosecution is the prerogative of the Public Prosecutor's Office. 63Dissatisfaction amongst crime victims with criminal procedure emerged throughout the 1960s. 64Since then, victim advocates have attempted to raise awareness about the damaging impact of the marginalisation of the victim's role in the criminal justice process. 65Victims' rights gained national prominence in 1982, when the Report of the President's Task Force on Victims of Crime was published. 66This report featured a wide range of recommendations to include victims' rights in federal and state legislation and grant them specific support services.Soon afterwards, major federal victims' rights laws emerged, granting victims the right to participate in sentencing procedures through a VIS. 67With these developments, the US set the stage internationally for its use. 68he most recent major federal victims' rights reform was implemented through the Crime Victims' Rights Act (hereafter: CVRA), a federal statute passed by Congress in 2004. 69Under the CRVA, victims have the 'right to be reasonably heard at any public proceeding involving release, plea, sentencing, or any parole proceeding' . 70The intention was to introduce a mechanism that would provide the victim a means to inform the sentencing authority on the impact of the crime, including the issue of restitution. 71ederal courts have interpreted the right to be heard at sentencing in disparate ways 72 , ranging from interpretation as an unqualified right to address the court -equal to the defence and prosecution -to a right to be heard in a manner that the court finds appropriate.
For example, in Kenna v. District Court the federal court held that victims have an irrepressible right to speak. 73In fact, it found that the CVRA causes victims to become 'full participants' in the criminal justice system. 74Note, however, that the Kenna Court did not explicitly phrase the right to orally address the court in terms of a VSO; it merely specified the manner in which victims should be heard, holding that victims have a right to allocution. 75The right to allocution was traditionally reserved for a convicted defendant, enabling him to make a personal statement regarding any reason he wished to offer for deserving a reduced sentence. 76The CRVA, in conjunction with the Kenna decision, sparked a widespread debate about whether the underlying theories for defendant and victim allocution should be equated. 77n a subsequent Kenna decision, the court held that victims cannot infer a right to the full disclosure of presentencing reports from the CVRA. 78Victim advocates argued that disclosure is required for victims to make a meaningful sentence recommendation. 79The Court was unwilling to accept this argument due to a lack of textual basis in the CVRA.Furthermore, a federal district court held that while judges should consider victim interests when sentencing a defendant, 80 this does not imply that a victim's sentence recommendation should affect a judge's sentencing determination.Again, the Court pointed to a lack of support in the CVRA's text.Furthermore, critics of full victim rights argue that these decisions are caused by the fact that federal judges need to take into account the system of public prosecution along with factors such as rehabilitation. 81It is worth noting that the US Supreme Court held that courts may depart from the Guidelines' recommendations, as long as they provide sufficient justification for their departure. 82This holding implies that victim needs may be balanced against other interests.
Indeed, the CVRA's text arguably leaves judges with some discretion to determine whether the right to be heard is meaningfully applied and if it complies with defendants' fair trial rights. 83When making this assessment, courts will likely take into account the stage of the criminal process.The presumption of innocence being a primarily pre-conviction criterion, the VIS or VSO comes into play when defendants have a diminished due process interest. 84This has implications not only for victims' right to be heard, but also for defendants' right to cross-examination after a VIS or VSO.A broad interpretation of the CVRA is likely to place defendants in a difficult position, having to battle a non-party with opposite interests. 85he Due Process Clause or the Sixth Amendment's Confrontation Clause may compensate a lack of a constitutional right to cross-examine a victim.However, some federal courts as well as victim rights scholars have argued that victims may not be subject to cross-examination because of their overarching CVRA right to be treated 'with fairness and with respect for dignity and privacy' . 86This being a statutory right, it is not as far-reaching as defendants' due process right.Moreover, those in support of victim cross-examination point to the adversarial principle that all information relevant to sentencing must be subjected to thorough adversarial testing as an argument. 87ritics such as Blondel have noted that, since victims have not officially acquired a party status under the CVRA, courts should refrain from an overly broad reading of the statute, since this would disrupt the adversarial process. 88It is argued that a narrower interpretation of the rights would still serve the victim's 'outsider' interests. 89Indeed, scholars and courts have noted the lack of legislators' debate and judicial input accompanying the implementation of the CVRA and, in light of this, the danger of focusing on statements of a single legislator. 90Furthermore, it has been held that interpreting the CVRA to construe victims as full participants tends to overlook the legislative history of the previously failed constitutional amendment, which indicates that there was not enough support for absolute victim rights. 91Apparently, Congress has placed most of the burden of serving victim needs on the courts, forcing them to consider the interests of a non-party. 92Indeed, one can argue that courts such as Kenna do not take into account that given the fact that US trial proceedings represent a 'battle between equal parties' , the lack of such a party status with regard to the victim should also come with less outcome-control than that of direct parties.Regardless of this, the CVRA was clear on one issue: federal prosecutorial discretion may not be impaired by the enforcement of victims' rights. 93n sum, the adversary nature of US trial proceedings, leaving the courts with no room to act in a quasi-judicial manner, appear to throw another light on the practice of sentence recommendation by victims.Indeed, one could question whether victims should be accorded such a right. 94Instead, one could opt for the position taken by Blondel, who argues that in order to procure procedural justice, the judicial authorities, especially the courts, should show courtesy and respect to crime victims by allowing them to communicate with the court. 95ith regard to victims' needs, a substantial body of evidence-based findings on the benefits of implementing the CVRA from the victim's perspective appears to be lacking.Apparently, other than the studies mentioned in Section 2, there has been but limited research on the effects of a VIS/VSO executed on a federal level. 96The issue whether the use of a VIS or VSO does effectively influence sentencing has, however, been the subject of study.Research shows that multiple variables in diverse combinations influence the impact of a VIS on sentencing authorities.In fact, the most consistent predictive variable that serves as a threshold to adjust the sentencing is the personal expectation of a juror or judge.Moreover, findings show that there is little evidence of 'expectation manipulation' as a result of the VIS. 97This 'lack' of specific effects leads Weidemann to conclude that the VIS 'does not do what it is supposed to do' . 98he latter suggests outcome-control to be the primary aim of the VIS/VSO; however, as mentioned in Section 2, findings do not show such victim's preference.Victim advocates, having praised the CVRA for its ground-breaking 'inclusive' effect, emphasise the expressive aim.They state that the CRVA has incorporated procedural justice principles into the federal criminal process. 99Regardless of this, due to a lack of party status to be asserted under the CVRA, naming victims full participants is as far as Kenna courts and their followers can currently go.

Lessons to be learned?
What lessons can we draw from the findings presented and how do they relate to the Dutch amendment?Obviously, both the Dutch and US authorities are in pursuit of procedural justice, facing the challenge of how to integrate the victim's perspective into the criminal law's systemic design.Since legal traditions diverge, the avenues to pursue procedural justice differ.There are, however, communalities.Firstly, both the Dutch and the US legislature abstain from attaching victim voice to the prerogative to prosecute; the public prosecutor's right to prosecute remains unimpaired.Nevertheless, the Dutch discourse shows ambivalence.The starting point is that the victim is to be qualified as a participant (procesdeelnemer) and not as a party (procespartij).As a result the victim is granted a position sui generis: s/he is entitled to statutory rights, including the right to be heard at the trial proceedings (spreekrecht), but does not have a say with regard to the prosecution. 100his starting point is affirmed by the Explanatory Notes accompanying the amendment: 'The victim, not being a party, is not entitled to give an opinion with regard to the nature and extent of the investigation' .The aim of the adviesrecht is to provide for limited victim voice (beperkte stem). 101A preceding passage however mentions that the introduction of the adviesrecht will cause the nature of trial proceedings to become more adversarial.Remarkably, the legislature explicitly addresses the relationship between the defendant and the victim, leaving the public prosecutor aside. 102bviously, the legislative developments within the US discourse are of a less encompassing nature.Recent attempts to construe constitutional basic victims' rights have failed.While statutory rules are present (the CRVA), they do not provide for a solid legal framework to implement victim voice.Indeed, the US federal discourse (but also on a state level) appears to maintain a heterogeneous interpretation.In the absence of legislative and case law incentives providing guidance on how to pursue full victim participation, construing a 'reasonable' opportunity to be heard is as far as the courts can take it.Whether this is because of the 'clash between parties' design is not ultimately clear, but one can assume this to be of influence.
The Dutch willingness to adjust the law's systemic in order to pursue victim voice may, however, have serious repercussions.Making amends to pursue procedural justice for crime victims can arouse false expectations.This touches upon the heterogeneous nature of victims' needs, as discussed in Section 2. Indeed, the assumption underlying the Dutch amendment is that victims favour an extension of the present oral VIS.Based on victimological findings this appears to be a realistic observation, at least at first sight.The majority of the respondents involved in the recent evaluation of the oral VIS express the wish to expand the communication with the courts with regard to the impact of the offence.However, a closer look reveals that while a substantive cohort of the respondents are in support of having the opportunity to influence the sentencing, they also state that this would not have contributed significantly towards their satisfaction. 103Indeed, the evaluation shows that the willingness to present an oral VIS correlates with the impact of the offence. 104Those who have been strongly affected by the offence are most willing to make use of the oral VIS.The impact of the offence, however, does not imply the offence to be of a serious nature per se.These findings do not, however, relate to the issue whether extended victim voice would still be desired when this would come at the price of being interrogated, as will be the case for the adviesrecht. 105Besides, the legislature apparently neglects other victimological findings that show that victims' needs are of a heterogeneous nature, implying a need for a differentiated approach. 106he suggestion of the Council for the Judiciary that the draft is prompted by the political wish to serve the needs of a specific group of victims seems plausible. 107Nevertheless, both proponents and opponents of the adviesrecht agree that the present regime of the oral VIS is too strict and needs to be adjusted.
A next point of comparison is the risk of repeated victimisation ensuing from extended victim voice.Both the Council for the Judiciary and the Victim Fund (Fonds Slachtofferhulp) express concern that the adviesrecht will result in repeated victimization. 108The concern that the adviesrecht can result in victims' deception appears realistic given the present managerial approach underlying Dutch trial proceedings.Indeed, when the oral VIS may, as a rule, not take more than ten to fifteen minutes, one may wonder what complications lie ahead with regard to the execution of the adviesrecht encompassing the full scheme of Article 350 Sv.Taking into account the present European incentives to avoid repeated victimization, one may wonder how the Dutch authorities are planning to manage these risks. 109The Dutch Victim Support, however, does not anticipate such negative effects.According to the Dutch Victim Support, victims are capable of coping with the responsibilities and restrictions accompanying the use of the adviesrecht. 110This position appears to contradict the opinion of (other) victimologists and victim organisations (e.g.Victim Support Europe) that have voiced objections against victims having to bear major responsibilities. 111Although these objections relate to the right to prosecute, the adviesrecht indicates similar (public) responsibilities. 112bviously, the burden shouldered by the victims in the context of the VIS and VSO in the US scheme is of a less intrusive nature.The VIS and VSO were introduced to pursue procedural justice, providing the courts with an opportunity 'to craft an appropriate sentence' . 113While a therapeutic dimension is acknowledged, it is of a subsidiary nature.Indeed, proponents such as Cassell and Erez state that the VIS must not imply a victim's right to censure the offender. 114Thus the outcome that the effect of victim voice is modified by professionalism and rationalism has not attracted substantial criticism. 115Due to the rather limited range of the VIS and the VSO, in conjunction with the interrogation of the victim being a no-go area, the risks for repeated victimization appear to be less prominently present.The argument that the VIS and VSO do not create a 'real-world' effect has not aroused substantial support. 116 final aspect that needs to be taken into account is the role of the courts.The procedural dilemmas underlying pursuit of procedural justice by means of (extended) victim voice will demonstrate itself at the level of adjudication.Indeed, it is up to the courts to reconcile conflicting interests, while avoiding an imagery of prejudice, by adequately executing the guarantees for a fair trial.Obviously, the legal traditions will influence the application of victim voice within criminal trial proceedings.As mentioned, the setting of bifurcated trial proceedings used in US criminal trial proceedings appears to hold better guarantees to prevent an imagery of prejudice.In contrast, the opportunities for victim voice are rather limited, as victims are merely sentencing participants.Indeed, compared to the Dutch discourse, the US approach might be evaluated as rather 'poor' .Nevertheless, there is less risk of repeated victimisation since no 'false expectations' are raised.This design does not appear to result in a loss of procedural justice; it may be safe to say that the US legal tradition influences victims' evaluations of procedural justice arrangements.
With regard to the Dutch discourse, the incentive to further procedural justice, issued by the Dutch Government, puts an obvious burden on the Dutch courts.The quasi-judicial design leaving room for manoeuvre, the Dutch courts have been able to manage the political and social expectations that flow from victim participation adequately.The introduction of an adviesrecht, however, represents a major challenge to the courts.Since the adviesrecht affects the full scheme of issues addressed by the courts, the courts' responsibility to uphold the threshold of a fair trial increases.Indeed, allowing the defence to question the victim is but one of the thresholds that must be taken into account to avoid an imagery of prejudice. 117Next, the amendment also contains an obligation for the court to provide for extended reasoning in case the sentence imposed differs substantially from the victim's recommendation.Although such a clarification can increase transparency, one can foresee the efforts the courts will have to take to provide for a balanced reasoning and the challenge this implies for procedural justice.It comes as no surprise that judicial authorities expect the introduction of an adviesrecht to complicate their 'impartial role at the hearing with a sufficiently empathetic attitude towards the victim' . 118he need to extend the opportunities for victim voice is, however, generally agreed upon in the Netherlands.Nevertheless, the objections raised represent a warning that even the apparently suitable Dutch design features inherent limitations to extended victim voice.Taking into account the major implications for the law's systemic design caused by the introduction of an adviesrecht as well as the heterogeneous nature of victims' needs, a more modest change is preferable.The suggestion by the Council for the Judiciary to loosen the regime of the oral VIS, providing the courts with room for manoeuvre, having them to decide how to handle the right to be heard and the limitations that go along with this on a case-by-case basis provides an acceptable alternative.In order to prevent unequal treatment, such an extension of the courts' discretionary power should be accompanied by a clear instruction on how to interpret the right to make use of the oral VIS.119

Conclusion
The Dutch amendment to introduce an adviesrecht being the cause for this paper, we analysed the Dutch policy from a procedural justice perspective, relating this to victimological findings and legal tradition.Studies show that victims appreciate extended opportunities to communicate; they do not, however, support a univocal and strong pursuit of outcome-control as envisaged in the Dutch amendment.On the contrary, contemporary victimologists emphasise the need to acknowledge the heterogeneous nature of victims' needs.What victims wish for in terms of procedural justice is to be acknowledged from the early stages onwards, enabling them to be heard during the pre-trial and trial proceedings.
In the absence of such clear evidence-based victim support for an adviesrecht, one may wonder what instigated the amendment.Although traditionally maintaining a discourse designed to exclude victim participation, it appears the Dutch are becoming front runners with regard to victim voice.Paradoxically, the traditional setting orientated towards the exclusion of victims' participation is now used to host extended victim voice.Such a change did not come overnight.Indeed not, some fundamental changes have been introduced within the past decades, illustrating that the Dutch are open to the victims' needs with regard to procedural justice showing the presence of 'procedural flexibility' within Dutch criminal trial proceedings.Public trust in the judicial authorities being a traditional benchmark of Dutch society, the quasi-judicial procedural setting flows from having accommodated a social and political change with regard to the position of the victim within trial proceedings. 120his change, however, is not without repercussions.Indeed, if we fail to take the inherent limitations of the criminal justice discourse into account, the pursuit of victim voice might turn out to have reverse effects; it could result in a disturbance of the delicate balance underlying the criminal law, simultaneously generating victims' deception.Victimologists already express concern that an overly eager appeal towards victim voice can result in 'victim fatigueness' . 121Indeed, symptoms of 'victim fatigueness' have already been noticed within the Dutch discourse. 122According to (critical) victimologists, the proponents of victim rights need to develop a critical internal perspective on procedural justice, addressing questions as to what works for which victim and under what conditions. 123We need to seriously consider the possibility that the introduction of the adviesrecht will not enhance procedural justice, but instead will result in a double loss, harming the perception of procedural justice from both the victim's and the defendant's perspective.¶

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Staatsblad 2004, 382.35 Slachtofferhulp Nederland is an NGO financed by the Department of Security and Justice.This NGO executes multiple tasks, with regard to assistance to draw up a written VIS; victim-assistants in the service of Slachtofferhulp Nederland are detached at the office of the local Prosecution Service.36 Only documents that are relevant for the case (decision-making, sentencing or for the victim's claim for compensation) can be added.Where the Prosecution Service composes the dossier, the decision to accept is theirs; a refusal can be appealed against.If the request is made at the trial session it is the court that decides.37 Staatsblad 2010, 1. 38 Staatsblad 2012, 45. 39 Lens et al., supra note 11; Leferink & Vos, supra note 17.Where written statements (as a rule) are formulated with the assistance of a victim-assistant, such transgressions are prevented.40 Lens et al., supra note 11, Chapter 4.Although an annual growth in the use of VIS is anticipated, the use of the instrument is still relatively low, the estimated use lies within the range of 230 to 260 cases annually.There are similar findings for England & Wales: Roberts & Manikis, supra note 16; Ministry of Justice, Breaking the circle.Effective punishment, rehabilitation and sentencing of offenders, London: HMO 2010, Para.75-77.Note that statistics show that the written VIS has been used about 3,000 times in the past few years.