The criminal justice system of the Netherlands is the system of practices and institutions of the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
directed at upholding social control, deterring and mitigating crime, and sanctioning those who violate laws with criminal penalties and rehabilitation efforts. The Netherlands' criminal code is based on the
Napoleonic Code, imposed during the time of the
French Empire. The Dutch largely kept the Napoleonic Code after their independence, but tempered it with a significantly more
rehabilitative penological focus.
Law enforcement in the Netherlands
National Police Corps ( nl, Korps Nationale Politie), colloquially in English as Dutch National Police or National Police Force, is divided in ten regional units, a central unit, the police academy, police services center, and national control ...
is provided by the national police force. The police make use of over 50,000 individuals, employed in a number of regional and specialist departments. The
States General The word States-General, or Estates-General, may refer to:
Currently in use
* Estates-General on the Situation and Future of the French Language in Quebec, the name of a commission set up by the government of Quebec on June 29, 2000
* States Gener ...
crafts rules to manage the police, while the
Minister of Justice and Security is responsible for the central administration of the police. The national police commissioner is vested with the day-to-day management of the police force.
The judiciary comprises eleven district courts, four courts of appeal, two administrative courts (Centrale Raad van Beroep and the College van beroep voor het bedrijfsleven) and a Supreme Court that has 41 judges. All judicial appointments are made by the government. Judges are nominally appointed for life, but in practice retire at age 70. The
Council of State
A Council of State is a governmental body in a country, or a subdivision of a country, with a function that varies by jurisdiction. It may be the formal name for the cabinet or it may refer to a non-executive advisory body associated with a head o ...
is a constitutionally established advisory body to the government, which consists of members of the royal family and Crown-appointed members generally having political, commercial, diplomatic, or military experience. The
Supreme Court of the Netherlands is the
highest court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
of the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
,
Curacao,
Sint Maarten
Sint Maarten () is a constituent country of the Kingdom of the Netherlands in the Caribbean. With a population of 41,486 as of January 2019 on an area of , it encompasses the southern 44% of the divided island of Saint Martin, while the north ...
and
Aruba
Aruba ( , , ), officially the Country of Aruba ( nl, Land Aruba; pap, Pais Aruba) is a constituent country of the Kingdom of the Netherlands physically located in the mid-south of the Caribbean Sea, about north of the Venezuela peninsula of ...
. The Court sits in
The Hague
The Hague ( ; nl, Den Haag or ) is a city and municipality of the Netherlands, situated on the west coast facing the North Sea. The Hague is the country's administrative centre and its seat of government, and while the official capital of ...
, Netherlands and presides over civil, criminal and tax-related cases.
Police
Organization
From the end of 1945 until 1993, the Dutch police was composed of the ''gemeentepolitie'' (municipal police) and the ''rijkspolitie'' (state police). In 1993, the police were reorganised into 25 regional forces and the
Dutch National Police Agency (KLPD). In total, the police employ over 40,000 individuals. The 25 regional forces are responsible for police care in their respective
region
In geography, regions, otherwise referred to as zones, lands or territories, are areas that are broadly divided by physical characteristics (physical geography), human impact characteristics (human geography), and the interaction of humanity and t ...
in the Netherlands. Each force comprises a number of regional and specialist departments, such as the Juvenile and Vice Squad, the Criminal Intelligence Service and the Aliens Police. The KLPD is responsible for the supervision and surveillance of the motorways,
airways, and waterways, as well as providing security for the
Royal Family
A royal family is the immediate family of kings/queens, emirs/emiras, sultans/ sultanas, or raja/ rani and sometimes their extended family. The term imperial family appropriately describes the family of an emperor or empress, and the term ...
.
In the event of serious emergencies, the police cooperate with the
fire brigade
A fire department (American English) or fire brigade (Commonwealth English), also known as a fire authority, fire district, fire and rescue, or fire service in some areas, is an organization that provides fire prevention and fire suppression se ...
,
ambulance
An ambulance is a medically equipped vehicle which transports patients to treatment facilities, such as hospitals. Typically, out-of-hospital medical care is provided to the patient during the transport.
Ambulances are used to respond to medi ...
service and other government agencies in the security region that corresponds to the police region. The police in a municipality are available 24 hours every day for basic law enforcement. The Dutch government is keen to put more police "
on the street." The uniformed policemen on the street are those of the patrol service. Surveillance is frequently done from patrol cars, horses, and motorbikes. Since the early 1990s several police regions have been working with neighborhood teams called neighborhood supervisors.
The
States General The word States-General, or Estates-General, may refer to:
Currently in use
* Estates-General on the Situation and Future of the French Language in Quebec, the name of a commission set up by the government of Quebec on June 29, 2000
* States Gener ...
crafts rules to manage the police, while the
Minister of the Interior
An interior minister (sometimes called a minister of internal affairs or minister of home affairs) is a cabinet official position that is responsible for internal affairs, such as public security, civil registration and identification, emergency ...
is responsible for the central administration of the police. One of the
burgemeester
Burgomaster (alternatively spelled burgermeister, literally "master of the town, master of the borough, master of the fortress, master of the citizens") is the English form of various terms in or derived from Germanic languages for the chief m ...
s in a region is the force administrator. The chief public prosecutor and the force administrator have the ultimate responsibility for the administration of the police force. The regional chief of police however, is vested with the day-to-day management of the police force. When investigating crime, police follow the instructions of the public prosecutor—a member of the
Public Prosecution Service. The Public Prosecution Service, under the auspices of the Ministry of Justice, is responsible for maintaining order. Police traditionally carry a baton, handcuffs, and a firearm; regulations are in place restricting the use of violence in general and firearms in particular.
Enforcement
![Politie was alert tijdens het 1 april feest in Brielle](https://upload.wikimedia.org/wikipedia/commons/1/1e/Politie_was_alert_tijdens_het_1_april_feest_in_Brielle.jpg)
Basic police work includes responsibility for maintaining a visible presence on the street, on foot, or in a marked car. Police are also responsible for basic detective work, such as investigating thefts and burglaries. Police frequently deal with traffic issues, including those of surveillance, accidents, congestion security, and advising citizens and municipalities. Responsibility also rests with the police to maintain laws and regulations. This may take the form of checking whether foreigners are in possession of the right documents.
In 1970, the police
cleared forty percent of all crimes; however since 2005 around 26 percent of crimes were cleared.
[Van Kempen, P.H.P.H.M.C., Krabbe, M.J.M., & Brinkhoff, S. (Eds.). (2019). The Criminal Justice System of the Netherlands: Organization, substantive criminal law, criminal procedure and sanctions, p. 44. Cambridge: Intersentia. ]
Judicial system
![Supreme Court of the Netherlands, The Hague 09](https://upload.wikimedia.org/wikipedia/commons/8/8f/Supreme_Court_of_the_Netherlands%2C_The_Hague_09.jpg)
The judiciary comprises 11 district courts, four courts of appeal, two administrative courts (Centrale Raad van Beroep and the College van beroep voor het bedrijfsleven) and the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
which has 41 judges. All judicial appointments are made by the Government. Judges are nominally appointed for life, but in practice retire at age 70.
The Raad van State (Council of State) is a
constitutionally
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princip ...
established advisory body to the government, which consists of members of the royal family and Crown-appointed members generally having political, commercial, diplomatic, or military experience. The Council of State must be consulted by the cabinet on proposed legislation before a law is submitted to the parliament. The Council of State Administrative Law section also serves as an appellate court for citizens against executive branch decisions. The
King
King is the title given to a male monarch in a variety of contexts. The female equivalent is queen, which title is also given to the consort of a king.
*In the context of prehistory, antiquity and contemporary indigenous peoples, the tit ...
is Chairman of the Council of State, but he seldom chairs meetings. The Vice-Chairman of the Council of State chairs meetings in the King's absence. Under
Dutch Constitutional Law the Vice-Chairman of the Council is acting Head of State when there is no
Monarch
A monarch is a head of stateWebster's II New College DictionarMonarch Houghton Mifflin. Boston. 2001. p. 707. Life tenure, for life or until abdication, and therefore the head of state of a monarchy. A monarch may exercise the highest authority ...
; e.g. if the Royal Family were to become extinct.
For criminal law, the independent Hoge Raad is the
highest court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
of the
Netherlands
)
, anthem = ( en, "William of Nassau")
, image_map =
, map_caption =
, subdivision_type = Sovereign state
, subdivision_name = Kingdom of the Netherlands
, established_title = Before independence
, established_date = Spanish Netherl ...
, as well as
Aruba
Aruba ( , , ), officially the Country of Aruba ( nl, Land Aruba; pap, Pais Aruba) is a constituent country of the Kingdom of the Netherlands physically located in the mid-south of the Caribbean Sea, about north of the Venezuela peninsula of ...
,
Curaçao
Curaçao ( ; ; pap, Kòrsou, ), officially the Country of Curaçao ( nl, Land Curaçao; pap, Pais Kòrsou), is a Lesser Antilles island country in the southern Caribbean Sea and the Dutch Caribbean region, about north of the Venezuela coast ...
and
Sint Maarten
Sint Maarten () is a constituent country of the Kingdom of the Netherlands in the Caribbean. With a population of 41,486 as of January 2019 on an area of , it encompasses the southern 44% of the divided island of Saint Martin, while the north ...
.
The Court was established on 1 October 1838 and sits in
The Hague
The Hague ( ; nl, Den Haag or ) is a city and municipality of the Netherlands, situated on the west coast facing the North Sea. The Hague is the country's administrative centre and its seat of government, and while the official capital of ...
, Netherlands.
The jurisdiction of the Supreme Court is limited primarily to civil, criminal and tax-related cases. The Court has the authority to overturn rulings by
appellate court
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
s () and therefore establishes
case law
Case law, also used interchangeably with common law, is law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a l ...
, but only if the lower court applied the law incorrectly or the ruling lacks sufficient reasoning; facts are no longer subject of discussion.
The Court may not rule on the constitutionality of laws passed by the
States-General and
treaties
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...
. Hence the Netherlands has no
constitutional court
A constitutional court is a high court that deals primarily with constitutional law. Its main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e. whether they conflict with constitutionally established ...
.
[According to article 120 of the ]Constitution of the Netherlands
The Constitution for the Kingdom of the Netherlands ( nl, Grondwet voor het Koninkrijk der Nederlanden) is one of two fundamental documents governing the Kingdom of the Netherlands as well as the fundamental law of the European territory of the ...
, judges will not rule on the constitutionality of laws passed by the States-General and treaties.
Penal system
History of Dutch penology
The origins of the current Dutch criminal code date back to 1811 when the Netherlands was incorporated into the
French Empire. After the Dutch gained independence, the
Napoleonic Code was largely kept but the philosophy underlying these criminal sanctions changed. Specifically, a more humane system replaced
Criminal Justice System of France
The criminal justice system of France, or the French legal system, is derived from Roman law. It is not only a feudal system in the Middle Age, but also a representative of the civil law system. France is committed to the judicial system which ...
. Nineteenth century Dutch prisons did not distinguish between adult and juvenile offenders; offenders regularly resided in common quarters. Subsequent to Dutch independence, these practices grew out of favour as they failed to conform to the Dutch conception of punishment. A group of concerned citizens assembled the Dutch Association for the Moral Improvement of Prisoners to combat the frequently harsh prison environment. The organisation's focus was to make prisons more humane by advocating training for offenders, specifically that of a religious and educational nature.
[Van Kempen, P.H.P.H.M.C., Krabbe, M.J.M., & Brinkhoff, S. (Eds.). (2019). The Criminal Justice System of the Netherlands: Organization, substantive criminal law, criminal procedure and sanctions, p. 31. Cambridge: Intersentia. ] These
rehabilitative goals persisted well into the 20th century.
The origins of Dutch juvenile penology lay in the extensive welfare system developed in the 16th century.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 295. Chicago: University of Chicago Press, 2004. ] In preindustrial Dutch society, child upbringing was the responsibility of the parents, not the state. This meant that the state did not intervene in issues classified as the responsibility of the family. However, when children moved out of the home and into the factory, the state asserted a greater interest in their well-being.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 305. Chicago: University of Chicago Press, 2004. ] As the state's interest in youths grew, Dutch society implemented an educational and rehabilitative system to nurture that interest.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 304. Chicago: University of Chicago Press, 2004. ] From the late 19th century to early 20th century, a variety of practices were created to stress a rehabilitative model for juveniles. The 1901 Penal Children's Act highlighted this trend by requiring the rehabilitation of delinquent children.
Consequently, youth was now perceived as a mitigating factor in sentencing, and the
death penalty
Capital punishment, also known as the death penalty, is the state-sanctioned practice of deliberately killing a person as a punishment for an actual or supposed crime, usually following an authorized, rule-governed process to conclude that t ...
for juveniles was abolished. This Act also reduced the formality of the hearings, in favour of increased privacy for the juvenile. The state's increased
paternalistic
Paternalism is action that limits a person's or group's liberty or autonomy and is intended to promote their own good. Paternalism can also imply that the behavior is against or regardless of the will of a person, or also that the behavior expres ...
role led to the pursuit of a welfare penological philosophy model. The state was now asserting its right, as
parens patriae
''Parens patriae'' is Latin for "parent of the nation" (lit., "parent of one's country"). In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to ...
, to ensure the proper civilisation of its youth.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 315-316. Chicago: University of Chicago Press, 2004. ] This new system infringed on the once unfettered access parents had to raise their children. For example, now, parental abuse and maltreatment of children could result in the temporary elimination of their rights. Actions taken by the criminal justice system were charged to be “in the best interest of the child.”
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 305-306. Chicago: University of Chicago Press, 2004. ]
In 1967, the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
case
In re Gault triggered a shift in juvenile criminal justice ideology. The American decision played a large role in intellectually influencing Dutch penology. Gault fundamentally changed the penological landscape because the decision mandated an extension of
due process
Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
rights to juveniles.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 318-319. Chicago: University of Chicago Press, 2004. ] This shift in ideology saw juveniles as a source of rights; and from that point on, the once virulent dividing line between juvenile and adult penology faded. The intellectual groundwork underlying Gault helped catalyze an insurgence of
retributive principles, which influenced the penological debate in the Netherlands. Principles of
proportionality permeated into the system as policies which previously advocated the rehabilitation of juvenile delinquents grew to disfavour.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 318. Chicago: University of Chicago Press, 2004. ] These principles theorised that because juveniles possess
free will
Free will is the capacity of agents to choose between different possible courses of action unimpeded.
Free will is closely linked to the concepts of moral responsibility, praise, culpability, sin, and other judgements which apply only to actio ...
, they should therefore be responsible for the choices that they make in life. Accordingly, concerns over the reintegration of offenders into society should be subordinate to ensuring that offenders receive their
"just deserts".
These retributive principles marked a sharp divergence from the rehabilitative and therapeutic philosophies that preceded them. This sharp ideological divergence transformed Dutch prosecutorial charging guidelines.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 319-323. Chicago: University of Chicago Press, 2004. ] Prior to Gault, prosecutors typically dropped charges in cases of petty offences.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 320-321. Chicago: University of Chicago Press, 2004. ] In fact, historically, three-quarters of all recorded offences in the Netherlands were eventually dismissed. After the United States Supreme Court's 1967 decision however, the Dutch reversed course; prosecutors dramatically decreased the number of routine dismissals.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 321. Chicago: University of Chicago Press, 2004. ]
Sanctions in adult penology
Fines and transactions
The most often used Dutch sanction is the
fine
Fine may refer to:
Characters
* Sylvia Fine (''The Nanny''), Fran's mother on ''The Nanny''
* Officer Fine, a character in ''Tales from the Crypt'', played by Vincent Spano
Legal terms
* Fine (penalty), money to be paid as punishment for an offe ...
.
[Tak, P.J.P. (2003) ''The Dutch Criminal Justice System: Organization and Operation'', p. 74. Boom Juridische Uitgevers, 2003. ] The fine's popularity stems from the 1983 Financial Penalties Act (FPA), which stresses the use of the fine over that of incarceration. Dutch courts imposed the fine in 51,280 cases, representing approximately one-third of all sanctions. Section 24 of the FPA stresses that a court should consider an offender's ability to pay and the nature of the crime when deciding on an appropriate amount of the fine.
[Tak, Peter, J. (2001) ''Sentencing and Punishment in The Netherlands'', p. 161. New York: Oxford University Press, 2001. ] Despite the fine's popularity in the Dutch system, a substantial number of fines go unpaid every year.
[Tak, Peter, J. (2001) ''Sentencing and Punishment in The Netherlands'', p. 162. New York: Oxford University Press, 2001. ] Similarly, transactions play a large role in the sentencing protocol of the Netherlands.
[Tak, Peter, J. (2001) ''Sentencing and Punishment in The Netherlands'', p. 156-157. New York: Oxford University Press, 2001. ] A transaction is a sanction whereby the offender is required to pay a fine or assume certain financial conditions.
[Tak, Peter, J. (2001) ''Sentencing and Punishment in The Netherlands'', p. 153. New York: Oxford University Press, 2001. ] Transactions are popular in the Netherlands because they provide an alternative sanction to punish offenders without congesting the jails.
[Tak, Peter, J. (2001) ''Sentencing and Punishment in The Netherlands'', p. 156. New York: Oxford University Press, 2001. ] Specifically, transactions permit an offender to pay a fine to avoid further prosecution.
Prosecutors have tremendous discretion to dispose of crimes through the use of transactions.
However, transactions can only be offered in cases where the maximum statutory prison sentence is less than six years. Approximately 90% of crimes can be appropriately disposed of via a transaction. Yet, in practice, roughly 30% of all cases are settled through the use of a transaction, with prosecutorial guidelines established to minimise arbitrariness.
[Tak, Peter, J. (2001) ''Sentencing and Punishment in The Netherlands'', p. 157. New York: Oxford University Press, 2001. ] Transactions provide an opportunity for offenders to forgo the stigmatisation that results from the more traditional disposition of cases. Critics however allege that transactions coerce the arrested to forgo the procedural safeguards required by trials.
As a result, they contend arrested individuals may plead to crimes they did not commit because the risk of conviction outweighs the transaction fee.
Semi-indeterminate detention
A semi-indeterminate detention of offender (TBR order) is a sanction ordering the placement of an offender in a secure clinic for an indeterminate period of time.
[Downes, David. ''Contrasts in tolerance: post-war penal policy in the Netherlands and England and Wales'', p. 44. Oxford: Clarendon Press, 1993. ] The frequent use of these TBR orders exemplified the rehabilitative culture of the Netherlands following World War II. In 1955 alone, one-third of all incarcerated prisoners were in
mental institutions. Critics lamented their overuse, and argued the Dutch rehabilitative philosophy permitted any offence to be sanctioned by a TBR order. A shift in penological philosophy over the next two decades dramatically decreased the use of TBR orders; by 1970, only one-tenth of all incarcerated prisoners occupied mental institutions.
[Downes, David. (2007) ''Visions of Penal Control in the Netherlands'', pp. 95-96. University of Chicago Press, 2007. .]
Incarceration
The
Custodial Institutions Agency The Custodial Institutions Agency ( nl, Dienst Justitiële Inrichtingen, , DJI) is responsible for the incarceration of adults in the Netherlands. It is subordinate to the Ministry of Public Safety and Justice. The agency has its headquarters in T ...
is responsible for the incarceration of adults in the Netherlands.
The Netherlands has a much lower prison population rate than The United States. America's prison occupancy level is at an extreme 103.9%, while the Netherlands prison occupancy is a mere 68.1%. The Netherlands has a relatively low prison population rate compared to that of the U.S., at 59 per 100,000 of the nation's population. To put this number into perspective, the U.S.’s prison population rate is 666 per 100,000. To be specific, the official prison capacity of the Netherlands is at 15,074, which is far less than America’s prison population of 2,145,100.
[“Netherlands.” World Prison Brief, Institute for Criminal Policy Research, 1 Jan. 1970, www.prisonstudies.org/country/netherlands. “United States of America.” United States of America , World Prison Brief, Institute for Criminal Policy Research, 1 Jan. 1970, www.prisonstudies.org/country/united-states-america.]
Breaking these numbers down into smaller categories, the World Prison Brief website shows that pre-trial detainees make up 20.3% of the prison population in the Netherlands. According to World Prison Brief, female prisoners make up 5.4% of the prison population. In the U.S., this number is much higher at 9.7%. Juveniles make up only 0.2% of the prison population in the Netherlands. The prison administration of the Netherlands is called the National Agency of Correctional Institutions, or NACI. The Netherlands’ prison population has been steadily declining since 2006. They have so much extra room that they take in prisoners from other countries. In fact, 19.1% of their prisoners are foreigners. In the U.S., this number is only 5.2%.
Not only can prisons in the Netherlands house all of their prisoners comfortably, but they can also help out with overcrowding in other countries.
The Netherlands experienced an extended period of decarceration from 1947 until 1974.
[Downes, David. (2007) ''Visions of Penal Control in the Netherlands'' , p. 93. Chicago: University of Chicago Press. ] Beginning in 1975 however, this trend changed.
Between 1975 and 2005, the incarceration rate in the Netherlands has consistently increased.
[Van Kempen, P.H.P.H.M.C., Krabbe, M.J.M., & Brinkhoff, S. (Eds.). (2019). The Criminal Justice System of the Netherlands: Organization, substantive criminal law, criminal procedure and sanctions, p. 39. Cambridge: Intersentia. ] In 2005, the number of people that were in Dutch prisons on the basis of a criminal law decision was 15,206.
[Van Kempen, P.H.P.H.M.C., Krabbe, M.J.M., & Brinkhoff, S. (Eds.). (2019). The Criminal Justice System of the Netherlands: Organization, substantive criminal law, criminal procedure and sanctions, p. 39. Cambridge: Intersentia. ] Since 2005, the number of people that are in Dutch prisons on the basis of a criminal law decision has been decreasing to 8,806 in 2016.
[Van Kempen, P.H.P.H.M.C., Krabbe, M.J.M., & Brinkhoff, S. (Eds.). (2019). The Criminal Justice System of the Netherlands: Organization, substantive criminal law, criminal procedure and sanctions, p. 39. Cambridge: Intersentia. ] Incarceration rates alone, particularly in the Netherlands, are a poor indicator of a country's purported move towards more punitive sentencing.
[Tak, P.J.P. (2003) ''The Dutch Criminal Justice System: Organization and Operation'', pp. 11-12. Boom Juridische Uitgevers, 2003. ] Measuring changes in prison capacity alone is an insufficient measure of punitiveness in the Netherlands because these numbers do not accurately represent the incarceration needs of the Dutch.
[Tak, Peter, J. (2001) ''Sentencing and Punishment in The Netherlands'', p. 151. New York: Oxford University Press, 2001. ] Notably, in the 1970s Dutch prisons operated at full capacity. Incarceration rates were kept artificially low in this era because the Dutch declined to construct the required number of prisons to suit the demands imposed by their criminal justice system.
This problem was alleviated on the front-end by dismissing three-quarters of all recorded offences.
Furthermore, there was no guarantee the convicted would ever spend any time in prison, even when prosecutors did not dismiss the offence and the offender was subsequently convicted and sentenced to prison. Individuals were still sent to prison even in the absence of capacity.
To remedy this shortfall in capacity, the Netherlands established
waitlists for prisons.
If the prison incarcerated more perilous offenders than the convicted, then the convict was placed on a waitlist until their crime was deemed sufficiently severe. The reason behind these waitlists was purely practical: the Dutch simply did not have enough available space in their prisons.
These waitlists were not developed for rehabilitative reasons. In fact, prison sentences were voided if the convicted spent too long on the waitlist. Over 5,000 unsuspended prison sentences were voided in 1995 alone due to a lack of space in prisons.
Fundamental changes in penal philosophy resulted from the national concern that was registered over these ever-escalating prison waitlists.
[Downes, David. (2007) ''Visions of Penal Control in the Netherlands'', pp. 113-115. Chicago: University of Chicago Press. ] The
Dutch Ministry of Justice
The Ministry of Justice and Security ( nl, Ministerie van Justitie en Veiligheid; JenV) is the Dutch Ministry responsible for justice, imprisonment and public security. The Ministry was created in 1798 as the ''Department of Justice'', before i ...
report, ''Law in Motion'', in fact advocated, “
at is at stake is nothing less than the credibility of
constitutional government
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princip ...
and its democratic and social values…Our highest policy priority is, of necessity, to combat crime by preventive and repressive means…
In response to the concerns of the populace, a substantial increase in the construction of prisons was undertaken in the 1980s and again in the 1990s.
[Tak, P.J.P. (2003) ''The Dutch Criminal Justice System: Organization and Operation'', p. 11. Boom Juridische Uitgevers, 2003. ] Increased incarceration capacity was a direct result of criticism emanating from burgeoning prison waitlists.
The far severer sentencing of offenders also increased the need for additional prison capacity. Approximately 13,000 unsuspended prison sentences were imposed totaling 2,100 detention years in 1970. Yet, in 2000, while the number of unsuspended prison sentences doubled, the number of detention years imposed increased nearly eightfold to 16,000.
Following the prison construction boom of the 1980s, prison capacity increased from 3,300 occupants to approximately 12,800. In the 1990s, capacity was further increased by an additional 3,500 individuals, bringing the total prison capacity to approximately 16,300 persons.
This trend is likely to continue into the future. At least one commentator has noted that the enactment of a “
three strikes law
In the United States, habitual offender laws (commonly referred to as three-strikes laws) have been implemented since at least 1952, and are part of the United States Justice Department's Anti-Violence Strategy. These laws require a person who i ...
” has the potential to raise the Dutch incarceration rate to that of American levels.
For 2002, the incarceration rate was 93 inmates per 100,000 citizens. Prosecutors’ prior widespread discretion over cases has declined since the enactment of new penological guidelines.
Guidelines previously imposed a presumption in favour of dismissal, whereas now the guidelines impose a presumption to not dismiss cases.
The relatively open borders and easy international mobility of the Netherlands makes it an attractive destination for immigrants. As a result, the Dutch have also encountered a substantial increase in the infiltration of illegal immigration.
In fact, after the prison construction boom in the 1990s, the number of illegal immigrants detained for removal increased from 2,000 to 9,600 in only eight years—a 380 percent increase.
As a result, 10 percent of all prison capacity is required for the detention of illegal immigrants.
One of the most expressive features of the Dutch criminal justice system eliminated in this new movement towards retributivism was the one-cell policy.
[Downes, David. (2007) ''Visions of Penal Control in the Netherlands'', p. 119. Chicago: University of Chicago Press, 2007. ] Dutch penal policy historically permitted only one prisoner per cell out of a concern for basic dignity. However, as the Dutch crime rate sextupled in the last decade, concerns for human dignity became subservient to crime control policies. As a result, Dutch penal policy was amended to permit more than one prisoner in a cell in 2003. This change notwithstanding, the Dutch incarceration philosophy stresses the need to minimise the hardships on the prisoner.
[Downes, David. (2007) ''Visions of Penal Control in the Netherlands'', p. 117. Chicago: University of Chicago Press, 2007. ] This philosophy emphasises maximising prisoner contacts with family and the preservation of community ties.
Prisoners are able to enjoy many of the benefits of life on the outside. For example, inmates can receive visitors once a week, talk on the phone, and participate in sports. Rehabilitative measures, however, such as the procurement of education to prisoners, have been severely curtailed in recent years.
Sanctions in juvenile penology
Currently, the police exercise largely discretionary powers over juvenile matters. Police have three options available when confronted with a juvenile matter: take no further action, dismiss the case after speaking with the child's guardians, or direct the matter to the prosecutor.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 316-317. Chicago: University of Chicago Press, 2004. ] Juvenile offenders are primarily subject to two main sanctions: the fine and
detention. Furthermore, three alternative sanctions exist:
community service
Community service is unpaid work performed by a person or group of people for the benefit and betterment of their community without any form of compensation. Community service can be distinct from volunteering, since it is not always performed ...
,
reparations
Reparation(s) may refer to:
Christianity
* Restitution (theology), the Christian doctrine calling for reparation
* Acts of reparation, prayers for repairing the damages of sin
History
*War reparations
**World War I reparations, made from G ...
for damages, and the
training order.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 327. Chicago: University of Chicago Press, 2004. ] Fines are an available alternative, but judges do not typically impose fines on juveniles; they are not considered an appropriate sanction because juveniles rarely end up paying the fines themselves.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 331. Chicago: University of Chicago Press, 2004. ] Only three percent of juvenile incarceration is unconditional. Juvenile detentions are typically conditional and coincide with community service orders.
The community service order was implemented for juveniles after its successful introduction into adult penology.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 327-328. Chicago: University of Chicago Press, 2004. ] In 1998, seventy percent of all juvenile cases disposed of in court resulted in an alternative sentence (community service, training order, or reparations).
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 322-323. Chicago: University of Chicago Press, 2004. ] Juveniles between the ages of 12 and 16 can be sentenced up to twelve months, whereas individuals between 16 and 18 years old can be sentenced up to 24 months.
A number of sanctions have been introduced for children under the age of 12.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 330-331. Chicago: University of Chicago Press, 2004. ] The Dutch system does not regard these children as criminally responsible for their actions, and rehabilitative programs have been developed to tend to their delinquency. Two notable programs, HALT and STOP, were developed to respond to juvenile delinquency. STOP was developed to confront the onset of delinquency in juveniles under the age of 12, whereas HALT is for older children.
[Junger-Tas, J. (2004)''Youth Justice in the Netherlands'', pp. 319-320. Chicago: University of Chicago Press, 2004. ] These programs combine strains of rehabilitative and
restorative justice to confront the onset of delinquency. Under the programs, police officers who encounter minor juvenile indiscretions can contact the offender's parents, or may propose action to be undertaken by social workers. Sanctions include restorative measures such as apologising, or rehabilitative measures like viewing a film or drawing a picture.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 334-335. Chicago: University of Chicago Press, 2004. ] Besides programs like HALT and STOP, a number of additional rehabilitative trends have emerged. First, the Netherlands has reintroduced youth police, to specifically deal with juveniles. Additionally, many police departments employ a social worker to counsel on juvenile matters.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 332-333. Chicago: University of Chicago Press, 2004. ] Second, the Netherlands has seen an upsurge in financial investments in institutional treatment directed towards youth.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 333. Chicago: University of Chicago Press, 2004. ] Treatment is not exclusively focused on in-case intervention; follow-up procedures play a significant role in providing continuous observational treatment.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 333-334. Chicago: University of Chicago Press, 2004. ]
Delinquency rates
Over the last twenty years,
juvenile delinquency
Juvenile delinquency, also known as juvenile offending, is the act of participating in unlawful behavior as a minor or individual younger than the statutory age of majority. In the United States of America, a juvenile delinquent is a person ...
rates have been remarkably stable.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', pp. 296-297. Chicago: University of Chicago Press, 2004. ] A similar trend however is not apparent in the level of juvenile violence over the past twenty years.
In the mid 1990s, violence-related offences surged sixty percent.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 296. Chicago: University of Chicago Press, 2004. ] Most citizens, including those most intimately involved in the criminal justice system—specifically, police officers, prosecutors, and judges—believe that violent crime has increased in the Netherlands.
As
Michael Tonry
Michael H. Tonry, an American criminologist, is the McKnight Presidential Professor of Criminal Law and Policy at the University of Minnesota Law School. He is also the director of the University of Minnesota's Institute on Crime and Public Polic ...
explained, "
know that ordinary citizens base their opinions on what they know about crime from the mass media and as a result that they regard heinous crimes and bizarre sanctions as the norms. They believe sentences are much softer than they are, and they believe crime rates are rising when they are falling. As a result majorities nearly always report that judges' sentences are too lenient."
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 339. Chicago: University of Chicago Press, 2004. ] For example, neither
victimisation
Victimisation ( or victimization) is the process of being victimised or becoming a victim. The field that studies the process, rates, incidence, effects, and prevalence of victimisation is called victimology.
Peer victimisation
Peer victimisa ...
surveys nor hospital records show an increase in violent crime over the last decade. This increase may be because police have become less tolerant of violent acts, and the public has become more vigilant in reporting these offences. Therefore, like the adult system, it is impossible to know whether the increase in the juvenile violent crime rate is largely the result of changes in police and citizen behaviour, or an increase in the frequency of violent crime.
[Junger-Tas, J. (2004) ''Youth Justice in the Netherlands'', p. 307. Chicago: University of Chicago Press, 2004. ]
As of 2004, data indicates that
property crime
Property crime is a category of crime, usually involving private property, that includes, among other crimes, burglary, larceny, theft, motor vehicle theft, arson, shoplifting, and vandalism. Property crime is a crime to obtain money, property, o ...
offences have stabilised over the last two decades.
Footnotes
References
Downes, David. (2007). ''Visions of Penal Control in the Netherlands''. in Michael Tonry (ed.). “Crime, Punishment, and Politics in Comparative Perspective”. Chicago: University of Chicago Press.
Junger-Tas, J. (2004). ''Youth Justice in the Netherlands''. in Michael Tonry and Anthony Doob (eds). “Youth Crime and Youth Justice: Comparative and Cross-National Perspectives”. Chicago: University of Chicago Press, 2004.
Tak, P.J.P. (2003). ''The Dutch Criminal Justice System: Organization and Operation''. Boom Juridische Uitgevers, 2003.
Tak, Peter J. (2001). ''Sentencing and Punishment in The Netherlands''. in Michael Tonry and Richard Frase (eds). “Sentencing and Sanctions in Western Countries”. New York: Oxford University Press.
Tonry, Michael, and
Catrien Bijleveld
Catharina Christina Johanna Hermina "Catrien" Bijleveld (born 1958) is a Dutch criminologist. She is a professor of Research Methods in Criminology at the Vrije Universiteit Amsterdam. Since August 2014 she is director of the Netherlands Institute ...
. (2007). ''Crime, Criminal Justice, and Criminology in the Netherlands''. in Michael Tonry and Catrien Bijleveld eds. “Crime and Justice in the Netherlands”. Chicago: University of Chicago Press, 2007.
Van Kempen, P.H.P.H.M.C., Krabbe, M.J.M., & Brinkhoff, S. (Eds.). (2019). ''The Criminal Justice System of the Netherlands: Organization, substantive criminal law, criminal procedure and sanctions.'' Cambridge: Intersentia.
External links
Custodial Institutions Agency
{{DEFAULTSORT:Criminal Justice System Of The Netherlands
Penology
Law enforcement in the Netherlands
Penal system in the Netherlands