Compact rewrite of an extensive article on the nudists’ trials in Delft. Original in Dutch on the website of Rob Meerwijk: (note: much text, translations might be off as I used Google translate to do a lot of the work for me. Note: Mr Spong is a famous Dutch barrister/lawyer).
Today I read the news that Mr. Spong is defending the eight people who had been convicted in the Delft case. That is beautiful. I have the feeling that we are making a big error in thinking all together. I have no legal qualifications, but I have been given a reasonable dose of common sense, so this is my attempt.
I think our biggest mistake is in it that we do not sufficiently recognize article 430a of the criminal law. The suspects were in Delft in January before the criminal court and not the civil or administrative courts. The job of a criminal court is to determine whether a law in the Criminal Code has been violated, and whether this can be legally and convincingly proven And that is precisely the heart of the whole story.
The criminal Code
Article 430a says : He who is outside an area designated as suitable for unclothed public recreation by the council place , undressed on or to public traffic which is not suitable for unclothed recreation, shall be punished by a fine of the first category .
In the 1st 3 points is not a discussion :
* not designated. Confirmed in the case Delftse Hout by the administrative court, although it was designated , but not reconfirmed after Article 430a was in force
* undressed and
* open to public traffic
So that part of the burden of proof is clear and no one disputes . All suspects confess to these counts in the indictment .
It is therefore a question that especially the last point should be , that the place is not suitable . Still proved by the prosecution and it is hereby expressly for this to be proven otherwise you as a suspect innocent. However, we expect in general from the judge that he explains the suitable place , or at least that’s our starting point . These are two completely different viewpoints and they don’t match with each other . Therefore, we might conducted to date technically the wrong defense. A criminal court will never be able to rule a place suitable, but is at best capable to conclude that the prosecution failed to prove that a place is unsuitable.
The model from 2012: Only if the nature of the place or the circumstances are such that reasonably can be assumed that the area is adequate, the fact retains a certain degree of punishablity. The Minister of Justice a number of factors, which in his view shoudl be considered whether there is a suitable place for unclothed recreation, namely:
- the fact that the great majority of those present on the spot should have no objection to undressed recreation
- local conditions and circumstances
- (sometimes ) the time of the day
In particular, the first bullet is never proven, unless the police is planning to hold a poll to among the people present to see if they are offended and when they may verbalized those who were there before the vote? The other two points seem moot to me.
Declared proven or not
The multiple council chamber of the court (quite a high court) was very clear about the burden of proof in the case Spong as far as legal language can be clear: Whatever it be, the court is of the opinion that the present case does not contain sufficient evidence that the relevant section of Almeerderzand it is not suitable for public unclothed recreation. The mere fact that an adjacent section for such recreation is appropriate , which is clear from the legislative history, is in itself insufficient .
The core is in the point : ” the mere fact ” . It’s not about numbers, but also about not visible or otherwise. The number given is in fact sufficient grounds for reasonable doubt and therefore not proven. Mr . Spong was smart enough to submit his defense. Precisely to the point.
And did you win, is the question? It may still feel as unjust , but hey, you’re found not guilty of an offense, and within the criminal law is that really the best possible.