Individual responsibility in collective crimes

The presumption of innocence is an essential principle of criminal law. This establishes that everyone should be presumed innocent until proven guilty. According to Nan, that is the legal challenge in prosecuting groups for crimes such as this. "The system is built on individual liability and procedural due diligence standards, such as the presumption of innocence. As much as possible, criminal law should avoid punishing the wrong, i.e. an innocent person. If you start tinkering with that for cases like this, there is a good chance that the balance will be lost."

Collective responsibility

While Dutch criminal law emphasises individual liability, Nan says some provisions assume collective action, such as conspiracy and participation in a criminal organisation. "Belonging to such a group then leads to criminal liability at some point and somewhat faster. But even then, someone will always have to make a sufficient contribution to the collective himself and the eventual actions of the collective. However, that contribution may, therefore, be somewhat less than in the case of individual liability and co-perpetration of criminal offences", the Professor explains.

According to Nan, who is ultimately held responsible for committing a criminal offence and who is not is an evidentiary and substantive criminal law issue. "Ultimately, can it be sufficiently established who did what approximately to hold him 100 per cent liable for a particular consequence, such as in this case, the victim's death? Has a contribution of sufficient weight been made to that?"

Nan explains that there is little room within Dutch criminal law to convict a group for life crimes if individual acts cannot be attributed to specific members of the group. "Someone must then have made a contribution of sufficient weight aimed at the death of the victim. For that, it must be established that someone really and intentionally contributed to it."

Criminal law dilemmas

The Professor explains how it is possible that there is such a big difference when it comes to the verdict of different judges. "That depends on weighing of available evidence by the respective judges. Judges regularly think differently about the probative value of images, statements and exhibits than the previous judge."

Stricter legislation does not offer a solution, according to Nan. This is because you would then run into other criminal law boundaries. "In the heat of the moment, I do not believe that perpetrators of violence will let themselves be stopped. So then it would mainly be to make it easier to punish people afterwards for the actions of others from which they did not dissociate themselves in time. That is the biggest drawback: moving towards 'you were there, so you are involved'. An advantage is that it becomes easier to hold someone accountable in evidence. Perhaps this invites them just to tell what would have happened. This, in turn, is at odds with the principle that you are allowed to remain silent as a suspect and do not have to cooperate with your conviction."

Nan argues that it is more common for a group of suspects not to tell what happened. For example, Nan mentions the Hells Angels case involving a life crime in the clubhouse. In that case, it also remained unclear who was responsible for it. 

The legal battle

The prosecution can still pursue several avenues, but Nan explains that disputing evidence in cassation is complex. "The problem is that a different weighting of evidence and the fact that a conviction would also have been possible cannot be challenged in cassation. Incidentally, this is no different with a conviction. Perhaps the prosecution might argue that certain evidentiary considerations are not plainly understandable. But that is a difficult fight. As a cassation lawyer, I know that like no other."