Criminal justice system of the Netherlands
Encyclopedia
The criminal justice system of the Netherlands is the system of practices and institutions of the Netherlands
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, albeit with a significantly more rehabilitative penological focus in nature.
Law enforcement in the Netherlands is provided by 25 regional police forces and the Netherlands Police Agency. The police make use of over 40,000 individuals, employed in a number of regional and specialist departments. The States-General
crafts rules to manage the police, while the Minister of the Interior is responsible for the central administration of the police. The regional chief of police however, is vested with the day-to-day management of the police force.
The judiciary comprises 19 district courts, five 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 actually retire at age 70. The Council of State 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 Hoge Raad der Nederlanden is the highest court
of the Netherlands
, Curacao
, Sint Maarten and Aruba
. The Court sits in The Hague
, Netherlands and presides over civil, criminal and tax-related cases.
(KLPD). In total, the police employ over 40,000 individuals. The 25 regional forces are responsible for police care in their respective region 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. In the event of serious emergencies, the police cooperate with the fire brigade, ambulance
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
crafts rules to manage the police, while the Minister of the Interior is responsible for the central administration of the police. One of the burgomaster
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.
In 1970, the police cleared
forty percent of all crimes; however in 1996 less than eighteen percent of crimes were cleared. This decrease is at least partially caused by the lack of resources and training given police. A recently launched crime-control policy plan aims to change this by providing greater resources to the underfunded police department. The plan specifically calls for the implementation of a rehabilitative approach that focuses on tailor-made punishments to confront offenders, and an increase in the Ministry of Justice's budget to roughly 1.07 billion euro
allocated for law enforcement. The plain aims to place an increased emphasis on the supervision of these offenders in order to decrease recidivism
rates.
The Raad van State (Council of State) 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 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 a court of appeal for citizens against executive branch decisions. The Queen is President of the Council of State, but she seldom chairs meetings. The Vice-President of the Council of State chairs meetings in the Queens' absence. Under Dutch Constitutional Law the Vice-President of the Council is acting Head of State when there is no Monarch
; e.g. if the Royal Family were to become extinct.
For criminal law the independent Hoge Raad is the highest court
of the Netherlands
, the Netherlands Antilles
and Aruba
. The Court was established on 1 October 1838 and sits in The Hague
, 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
s and therefore establishes case law
, 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
. Hence the Netherlands has no constitutional court.
.
After the Dutch gained independence the Napoleonic Code
was largely kept, although the philosophy underlying criminal sanctions changed—specifically, a more humane system replaced French penal philosophy. 19th 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 favor 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 that existed under French rule. The organization's focus was to make prisons more humane by advocating training for offenders, specifically that of a religious and educational nature. These rehabilitative
goals persisted well into the 20th century.
In 1967, the United States Supreme Court case In re Gault
triggered a shift in juvenile criminal justice ideology. The decision played a large role in intellectually influencing Dutch penology, even though the case was of American origin. Gault fundamentally changed the penological landscape because the decision mandated an extension of due process
rights to juveniles. 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 a growing 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 disfavor. These principles theorized that because juveniles possess free will
, 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. Prior to Gault, prosecutors typically dropped charges in cases of petty offenses. In fact, historically, three-quarters of all recorded offenses 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.
is responsible for the incarceration of adults in the Netherlands.
The Netherlands experienced an extended period of decarceration from 1947 until 1974.
Beginning in 1975 however, this trend changed. In approximately the last thirty years since, the incarceration rate in the Netherlands has sextupled. Despite this increase, of the 155,270 sanctions imposed by Dutch courts, only 21,480 or approximately 14% resulted in unsuspended prison sentences in 2000. This data alone however may not support the assertion that the country is more punitive than in the past. Incarceration rates alone, particularly in the Netherlands, are a poor indicator of a country’s purported move towards more punitive sentencing. 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. 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 offenses. Furthermore, there was no guarantee the convicted would ever spend any time in prison, even when prosecutors did not dismiss the offense 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. The Dutch Ministry of Justice
report, Law in Motion, in fact advocated, “[w]hat is at stake is nothing less than the credibility of constitutional government 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. 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
” 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 prisoners. Prosecutors’ prior widespread discretion over cases has declined since the enactment of new penological guidelines. Guidelines previously imposed a presumption in favor 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 aliens
. In fact, after the prison construction boom in the 1990s, the number of illegal aliens 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 just for the detention of illegal aliens.
One of the most expressive features of the Dutch criminal justice system eliminated in this new movement towards retributivism was the one-cell policy. 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 minimize the hardships on the prisoner. This philosophy emphasizes maximizing 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.
The origins of Dutch juvenile penology lay in the extensive welfare system developed in the 16th century. 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. As the state’s interest in youths grew, Dutch society implemented an educational and rehabilitative system to nurture that interest. The state’s increased paternalistic
role led to the pursuit of a welfare penological philosophy model. The state was now asserting its right, as parens patriae
, to ensure the proper civilization of its youth. 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.”
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
for juveniles was abolished. This Act also reduced the formality of the hearings, in favor of increased privacy for the juvenile.
. Furthermore, three alternative sanctions exist: community service
, reparations
for damages, and the training order. 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. Secondly, while fourteen percent of adults receive unconditional sentences, 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. In 1998, seventy percent of all juvenile cases disposed of in court resulted in an alternative sentence (community service, training order, or reparations). 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. 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. 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 apologizing, or rehabilitative measures like viewing a film or drawing a picture. 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. Secondly, the Netherlands has seen an upsurge in financial investments in institutional treatment directed towards youth. Treatment is not exclusively focused on in-case intervention; follow-up procedures play a significant role in providing continuous observational treatment.
rates have been remarkably stable. A similar trend however is not apparent in the level of juvenile violence over the past twenty years. In the mid 1990s, violence–related offenses surged sixty percent. 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 remarked, "[w]e 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." For example, neither victimization 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 offenses. 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 behavior, or an increase in the frequency of violent crime.
Data indicates that property crime
offenses have stabilized over the last two decades.
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
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
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
, imposed during the time of the French Empire
First French Empire
The First French Empire , also known as the Greater French Empire or Napoleonic Empire, was the empire of Napoleon I of France...
. The Dutch largely kept the Napoleonic Code after their independence, albeit with a significantly more rehabilitative penological focus in nature.
Law enforcement in the Netherlands is provided by 25 regional police forces and the Netherlands Police Agency. The police make use of over 40,000 individuals, employed in a number of regional and specialist departments. The States-General
States-General of the Netherlands
The States-General of the Netherlands is the bicameral legislature of the Netherlands, consisting of the Senate and the House of Representatives. The parliament meets in at the Binnenhof in The Hague. The archaic Dutch word "staten" originally related to the feudal classes in which medieval...
crafts rules to manage the police, while the Minister of the Interior is responsible for the central administration of the police. The regional chief of police however, is vested with the day-to-day management of the police force.
The judiciary comprises 19 district courts, five 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 actually retire at age 70. The Council of State 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 Hoge Raad der Nederlanden is the highest court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
of the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, Curacao
Curaçao
Curaçao is an island in the southern Caribbean Sea, off the Venezuelan coast. The Country of Curaçao , which includes the main island plus the small, uninhabited island of Klein Curaçao , is a constituent country of the Kingdom of the Netherlands...
, Sint Maarten and Aruba
Aruba
Aruba is a 33 km-long island of the Lesser Antilles in the southern Caribbean Sea, located 27 km north of the coast of Venezuela and 130 km east of Guajira Peninsula...
. The Court sits in The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
, Netherlands and presides over civil, criminal and tax-related cases.
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 reorganized into 25 regional forces and the Dutch National Police AgencyKorps landelijke politiediensten
The Korps landelijke politiediensten is the national police force in the Netherlands, responsible for specialist missions that benefit from a centralized approach. It is independent from the regional police forces; but like them, it is subordinate to the Dutch Ministry of the Interior and has a...
(KLPD). In total, the police employ over 40,000 individuals. The 25 regional forces are responsible for police care in their respective region 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
Dienst Luchtvaart Politie
thumb|right|250px|[[MBB Bo 105]] helicopter from the Dienst Luchtvaart Politie on displayThe Dienst Luchtvaartpolitie is the aviation branch of the Dutch Korps landelijke politiediensten . They operate a fleet of fixed-wing aircraft and helicopters for various law enforcement purposes and...
, and waterways, as well as providing security for the Royal Family. In the event of serious emergencies, the police cooperate with the fire brigade, ambulance
Ambulance
An ambulance is a vehicle for transportation of sick or injured people to, from or between places of treatment for an illness or injury, and in some instances will also provide out of hospital medical care to the patient...
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
Beat (police)
In police terminology, a beat is the territory and time that a police officer patrols. Beat policing is based on traditional policing and utilizes the close relationship with the community members within the assigned Beat to strengthen Police effectiveness and encourage cooperative efforts to make...
." 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
States-General of the Netherlands
The States-General of the Netherlands is the bicameral legislature of the Netherlands, consisting of the Senate and the House of Representatives. The parliament meets in at the Binnenhof in The Hague. The archaic Dutch word "staten" originally related to the feudal classes in which medieval...
crafts rules to manage the police, while the Minister of the Interior is responsible for the central administration of the police. One of the burgomaster
Burgomaster
Burgomaster is the English form of various terms in or derived from Germanic languages for the chief magistrate or chairman of the executive council of a sub-national level of administration...
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
Openbaar Ministerie
The Public Prosecution Service is the body of public prosecutors in the Netherlands. Together with the judges, it forms the judiciary in the Dutch criminal justice system....
. 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
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
Clearance rate
In criminal justice, clearance rate is calculated by dividing the number of crimes that are "cleared" by the total number of crimes recorded. Clearance rates are used by various groups as a measure of crimes solved by the police....
forty percent of all crimes; however in 1996 less than eighteen percent of crimes were cleared. This decrease is at least partially caused by the lack of resources and training given police. A recently launched crime-control policy plan aims to change this by providing greater resources to the underfunded police department. The plan specifically calls for the implementation of a rehabilitative approach that focuses on tailor-made punishments to confront offenders, and an increase in the Ministry of Justice's budget to roughly 1.07 billion euro
Euro
The euro is the official currency of the eurozone: 17 of the 27 member states of the European Union. It is also the currency used by the Institutions of the European Union. The eurozone consists of Austria, Belgium, Cyprus, Estonia, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg,...
allocated for law enforcement. The plain aims to place an increased emphasis on the supervision of these offenders in order to decrease recidivism
Recidivism
Recidivism is the act of a person repeating an undesirable behavior after they have either experienced negative consequences of that behavior, or have been treated or trained to extinguish that behavior...
rates.
Judicial system
The judiciary comprises 19 district courts, five courts of appeal, two administrative courts (Centrale Raad van Beroep and the College van beroep voor het bedrijfsleven) and a Supreme Court (Hoge Raad) which has 41 judges. All judicial appointments are made by the Government. Judges are nominally appointed for life, but actually retire at age 70.The Raad van State (Council of State) 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 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 a court of appeal for citizens against executive branch decisions. The Queen is President of the Council of State, but she seldom chairs meetings. The Vice-President of the Council of State chairs meetings in the Queens' absence. Under Dutch Constitutional Law the Vice-President of the Council is acting Head of State when there is no Monarch
Monarchy of the Netherlands
The Netherlands has been an independent monarchy since 16 March 1815, and has been governed by members of the House of Orange-Nassau since.-Constitutional role and position of the monarch:...
; e.g. if the Royal Family were to become extinct.
For criminal law the independent Hoge Raad is the highest court
Supreme court
A supreme court is the highest court within the hierarchy of many legal jurisdictions. Other descriptions for such courts include court of last resort, instance court, judgment court, high court, or apex court...
of the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, the Netherlands Antilles
Netherlands Antilles
The Netherlands Antilles , also referred to informally as the Dutch Antilles, was an autonomous Caribbean country within the Kingdom of the Netherlands, consisting of two groups of islands in the Lesser Antilles: Aruba, Bonaire and Curaçao , in Leeward Antilles just off the Venezuelan coast; and Sint...
and Aruba
Aruba
Aruba is a 33 km-long island of the Lesser Antilles in the southern Caribbean Sea, located 27 km north of the coast of Venezuela and 130 km east of Guajira Peninsula...
. The Court was established on 1 October 1838 and sits in The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
, 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
Appellate court
An appellate court, commonly called an appeals court or court of appeals or appeal court , is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal...
s and therefore establishes case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
, 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
States-General of the Netherlands
The States-General of the Netherlands is the bicameral legislature of the Netherlands, consisting of the Senate and the House of Representatives. The parliament meets in at the Binnenhof in The Hague. The archaic Dutch word "staten" originally related to the feudal classes in which medieval...
and treaties
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
. Hence the Netherlands has no constitutional court.
History of Dutch Penology
The origins of the current Dutch criminal code date back to 1811 when the Netherlands was incorporated into the French EmpireFirst French Empire
The First French Empire , also known as the Greater French Empire or Napoleonic Empire, was the empire of Napoleon I of France...
.
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
was largely kept, although the philosophy underlying criminal sanctions changed—specifically, a more humane system replaced French penal philosophy. 19th 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 favor 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 that existed under French rule. The organization's focus was to make prisons more humane by advocating training for offenders, specifically that of a religious and educational nature. These rehabilitative
Rehabilitation (penology)
Rehabilitation means; To restore to useful life, as through therapy and education or To restore to good condition, operation, or capacity....
goals persisted well into the 20th century.
In 1967, the United States Supreme Court case In re Gault
In Re Gault
In re Gault, 387 U.S. 1 , was a landmark U.S. Supreme Court decision that held that juveniles accused of crimes in a delinquency proceeding must be afforded many of the same due process rights as adults, such as the right to timely notification of the charges, the right to confront witnesses, the...
triggered a shift in juvenile criminal justice ideology. The decision played a large role in intellectually influencing Dutch penology, even though the case was of American origin. Gault fundamentally changed the penological landscape because the decision mandated an extension of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
rights to juveniles. 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 a growing insurgence of retributive
Retributive justice
Retributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society....
principles, which influenced the penological debate in the Netherlands. Principles of proportionality
Proportionality (law)
Proportionality is a principle in law which covers two distinct concepts. Within municipal law it is used to convey the idea that the punishment of an offender should fit the crime...
permeated into the system as policies which previously advocated the rehabilitation of juvenile delinquents grew to disfavor. These principles theorized that because juveniles possess free will
Free will
"To make my own decisions whether I am successful or not due to uncontrollable forces" -Troy MorrisonA pragmatic definition of free willFree will is the ability of agents to make choices free from certain kinds of constraints. The existence of free will and its exact nature and definition have long...
, 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. Prior to Gault, prosecutors typically dropped charges in cases of petty offenses. In fact, historically, three-quarters of all recorded offenses 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.
Fines and transactions
The most often used Dutch sanction is the fine. 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. Despite the fine’s popularity in the Dutch system, it is not a panacea—not even for minor criminal offenses. A substantial number of fines go unpaid every year. Similarly, transactions play a large role in the sentencing protocol of the Netherlands. A transaction is a sanction whereby the offender is required to pay a fine or assume certain financial conditions. Transactions are popular in the Netherlands because they provide an alternative sanction to punish offenders without congesting the jails. 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 minimize arbitrariness. Transactions provide an opportunity for offenders to forgo the stigmatization 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 plea 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. 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 offense 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.Incarceration
The Custodial Institutions AgencyCustodial Institutions Agency
The Custodial Institutions Agency is responsible for the incarceration of adults in the Netherlands. It is subordinate to the Ministry of Public Safety and Justice...
is responsible for the incarceration of adults in the Netherlands.
The Netherlands experienced an extended period of decarceration from 1947 until 1974.
Fundamental changes in penal philosophy resulted from the national concern that was registered over these ever-escalating prison waitlists. The Dutch Ministry of Justice
Ministry of Justice (Netherlands)
The Ministry of Security and Justice is the Dutch ministry of justice. Until 14 October 2010, the ministry was just called Ministry of Justice , but at the start of the Rutte cabinet, the name changed because it had taken over some public safety duties from the Ministry of the Interior...
report, Law in Motion, in fact advocated, “[w]hat is at stake is nothing less than the credibility of constitutional government 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. 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
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...
” 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 prisoners. Prosecutors’ prior widespread discretion over cases has declined since the enactment of new penological guidelines. Guidelines previously imposed a presumption in favor 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 aliens
Alien (law)
In law, an alien is a person in a country who is not a citizen of that country.-Categorization:Types of "alien" persons are:*An alien who is legally permitted to remain in a country which is foreign to him or her. On specified terms, this kind of alien may be called a legal alien of that country...
. In fact, after the prison construction boom in the 1990s, the number of illegal aliens 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 just for the detention of illegal aliens.
One of the most expressive features of the Dutch criminal justice system eliminated in this new movement towards retributivism was the one-cell policy. 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 minimize the hardships on the prisoner. This philosophy emphasizes maximizing 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.
Juvenile Penology
The origins of Dutch juvenile penology lay in the extensive welfare system developed in the 16th century. 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. As the state’s interest in youths grew, Dutch society implemented an educational and rehabilitative system to nurture that interest. The state’s increased paternalistic
Paternalism
Paternalism refers to attitudes or states of affairs that exemplify a traditional relationship between father and child. Two conditions of paternalism are usually identified: interference with liberty and a beneficent intention towards those whose liberty is interfered with...
role led to the pursuit of a welfare penological philosophy model. The state was now asserting its right, as parens patriae
Parens patriae
Parens patriae is Latin for "parent of the nation." 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 act as the parent of any child or individual who is in need of protection...
, to ensure the proper civilization of its youth. 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.”
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 in the Netherlands
Capital punishment in the Netherlands was first abolished in 1870, though only in criminal law, by the Dutch justice minister Van Lilaar. Following the abolition of the death penalty, life imprisonment was made an official punishment in 1878...
for juveniles was abolished. This Act also reduced the formality of the hearings, in favor of increased privacy for the juvenile.
Sanctions
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. Juvenile offenders are primarily subject to two main sanctions: the fine and detentionDetention (imprisonment)
Detention is the process when a state, government or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to criminal charges being raised against the individual as part of a prosecution or to protect a person or property...
. Furthermore, three alternative sanctions exist: community service
Community service
Community service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions....
, reparations
Reparation (legal)
In jurisprudence, reparation is replenishment of a previously inflicted loss by the criminal to the victim. Monetary restitution is a common form of reparation...
for damages, and the training order. 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. Secondly, while fourteen percent of adults receive unconditional sentences, 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. In 1998, seventy percent of all juvenile cases disposed of in court resulted in an alternative sentence (community service, training order, or reparations). 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. 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. These programs combine strains of rehabilitative and restorative justice
Restorative justice
Restorative justice is an approach to justice that focuses on the needs of victims, offenders, as well as the involved community, instead of satisfying abstract legal principles or punishing the offender...
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 apologizing, or rehabilitative measures like viewing a film or drawing a picture. 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. Secondly, the Netherlands has seen an upsurge in financial investments in institutional treatment directed towards youth. Treatment is not exclusively focused on in-case intervention; follow-up procedures play a significant role in providing continuous observational treatment.
Delinquency Rates
Over the last twenty years, juvenile delinquencyJuvenile delinquency
Juvenile delinquency is participation in illegal behavior by minors who fall under a statutory age limit. Most legal systems prescribe specific procedures for dealing with juveniles, such as juvenile detention centers. There are a multitude of different theories on the causes of crime, most if not...
rates have been remarkably stable. A similar trend however is not apparent in the level of juvenile violence over the past twenty years. In the mid 1990s, violence–related offenses surged sixty percent. 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 remarked, "[w]e 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." For example, neither victimization 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 offenses. 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 behavior, or an increase in the frequency of violent crime.
Data indicates that property crime
Property crime
Property crime is a category of crime that includes, among other crimes, burglary, larceny, theft, motor vehicle theft, arson, shoplifting, and vandalism. Property crime only involves the taking of money or property, and does not involve force or threat of force against a victim...
offenses have stabilized over the last two decades.