Dutch Criminal Justice System

Dutch Criminal Justice System

This entry gives a general account of the overall criminal system and outline the political and legal structure and the history of the Dutch criminal justice system to help account for the unique aspects that may help to bind the many parts of this criminal justice system together, and to show the extent to how this criminal justice system plays in the overall social control of the Netherland. The section on crime definitions and statistic provides some basis of “output” of the criminal justice bureaucracies of the country.

General Overview

1. Political System.
The Kingdom of the Netherlands, as defined by
the Constitution, includes the Netherlands, Aruba,
and the Netherlands Antilles. (All statistics in
this report are provided only for the
Netherlands.) The Netherlands itself is divided
into 12 provinces and 672 municipalities. Each
province has an elected representative body known
as the Provincial States. (Hunter, 1991: 905).
The Netherlands is a constitutional and
hereditary monarchy. The Crown is passed down to
the monarch’s first born child, male or female.
The central executive power is vested in the
Crown. The Crown appoints the 28 members and is
president of the Council of State (Raad van
Staat). However, daily executive operations are
carried out by the vice-president.
The central legislative power is vested in
the Crown and Parliament, comprising two bodies or
chambers (Staten-General). The first or upper
chamber is elected by the members of the
Provincial States; the second or lower chamber
is elected by general vote by all Netherlands
citizens who have reached voting age. Members of
both chambers serve 4 years and retire as a body.
The Crown has the power to dissolve one or both
chambers providing a new election takes
place within 40 days and the new chamber(s) is
(are) assembled within 3 months.
Both the Second Chamber and the Crown can
propose bills; the First Chamber may only approve
or reject the bills without amending them.
Legislation is prepared by the appropriate
Ministries, of which there are 13, not including
the Prime Minister. The role of the Ministry of
Justice, in addition to proposing relevant
legislation, is to evaluate legislation by other
ministries to ensure its conformance to the
Constitution and international law. (Hunter, 1991:
905; Netherlands Ministry of Justice: 6).
The most powerful political parties are the
Christian Democratic Appeal, the Labour Party,
People’s Party for Freedom and Democracy, and the
Democrats ’66. Other smaller political parties
hold limited seats in parliament. (Hunter, 1991:
904).
The Netherlands has a unitary governmental
structure. Operation of the federal police, the
Public Prosecutor’s Office, and the correctional
system all fall under the authority and control of
the Ministry of Justice; the municipal police
answer to the Ministry of Internal Affairs. The
application of laws and legal procedures is
consistent across the country.
The principal laws which guide the criminal
justice system in the Netherlands are the
Constitution, the Criminal or Penal Code, the Code
of Criminal Procedure and Special Acts.
Furthermore, the criminal law in the Netherlands
is influenced by European Community law and
European treaties. These treaties must be
approved by parliament, duly published and
incorporated into domestic law. When treaties are
adopted by the Dutch parliament they can be
applied directly by Dutch courts. (Hoyng, 1992:
1).
The criminal justice system is further
organized through a number of federal Acts which
regulate the police (the Police Act of 1957), the
bar association (the 1952 Bar Act), the prison
system (the Principles of Prison Administration
Act of 1953) and the probation service (1986
Probation Regulation). The Police Act is being
rewritten and its implementation is expected by
the beginning of 1994. (Tak, 1993: 7)

2. Legal System.
The criminal justice legal process is divided into pretrial and trial phases. In the pretrial phase, intrusive measures such as telephone taps, searches of the person or premises are conducted to secure evidence. This is tempered through the provision of an attorney and notification to the suspect of the development of the case. The trial phase can be described as an accusatorial process.

The purpose of the trial is to discover the truth.
The court trial lacks some elements of a purely
adversarial process in that while it is the judge
who asks questions at the trial, attorneys are
only allowed to ask supplementary questions,
cross-examination does not exist. (Tak, 1993: 14).
Court decisions serve as a guideline for
lower courts. However, there is no mandatory
provision for a higher court’s decision to be
legally binding upon a lower court. In practice,
though, lower courts will follow the decisions
handed down by the Supreme Court. A reversal of a
judgment of a lower court case by the Supreme
Court does not alter the judgment of the case just
reviewed, but it does affect subsequent judgments.
(Netherlands Ministry of Justice,
1990a: 9,12).
Prosecutors have almost omnipotent powers to
settle cases outside of court through the use of
the conditional waiver and transaction. Both
measures are procedural options available to the
prosecutor and to the police, although on a
much more limited basis. These measures can be
used to dispose of cases without having to bring
them to court. The conditional waiver resembles
an informal system as few conditions exist within
it to limit prosecutorial decisions. The
prosecutor has an almost unlimited flexibility in
the conditions assigned to the accused (more so
than the options available to the judge when
handing down a sentence or attaching specific
conditions when handing down a suspended
sentence.) (Van Kalmthout and Tak, 1992, p. 685).
While transaction exists as a means of keeping
the accused out of the formal court system,
detailed legislative regulations exist to restrict
the transaction procedure. (For a thorough
explanation of conditional waiver and transaction,
see Van Kalmthout and Tak, 1992, pp 680-691.)

3. History of the Criminal Justice System.

The French Napoleonic Penal Code was the
governing body of law in the Netherlands between
1810 and 1886. With the foundation of the Kingdom
of the Netherlands in 1813, the Constitution
stipulated that Codes shall regulate substantive
and procedural criminal law. Numerous attempts to
draft a penal code were presented to the
parliament. However, a lack of agreement on a
system of sanctions prevented any of these
drafts from being adopted.
The Dutch Criminal Code (also referred to as
the Penal Code), which contained elements from the
French, English and German systems, was adopted by
parliament in 1886. It emphasized imprisonment as
the principal disposition for serious, intentional
criminal offenses. Less serious offenses and
infractions were given sentences of detention.
While the Criminal Code provided for a system of
fines, the fines were intentionally kept so low by
the legislators that this virtually prohibited
them from being handed down, except in
the most minor cases. Even with an emphasis on
incarceration, sentences remained short and the
Netherlands penal system was, and still is,
characterized as a relatively lenient system.
(Tak, 1993: 5;.van Kalmthout, 1992: 663).
The Criminal Code remained relatively intact
until 1945. Since that time reforms have been
introduced which have created new criminal
offenses (e.g., hijacking, environmental
pollution, computer-hacking, invasion of privacy
and discrimination) and have decriminalized other
acts (e.g., adultery, consensual homosexual acts
between an adult and a juvenile over the age of
16).
Major reforms in the philosophy of punishment
and the actual sanctions were introduced into the
Criminal Code after 1945. One of the most
important was the 1983 Financial
Penalties Act, which expanded the court’s ability
to apply financial and accessory penalties. This
introduced a shift in punishment philosophy from
an emphasis on deprivation of liberty to a
preference for fines and other penalties. Other
reforms included introduction of suspended
sentences (1986), automatic release from prison
after having served 2/3 of a prison sentence
longer than one year (1986), and the introduction
of community service as a principal penalty
(1989). (Tak, 1993: 3).
Additionally, since not all crimes have been
included in the Criminal Code, other statutes have
been enacted and by-laws passed, which also cover
criminal offenses. The main statutes are the
Narcotics Drug Act of 1928, the Road Traffic Act
of 1935, the Economic Offenses Act of 1950, and
the Arms and Munitions Act of 1989. Violation of
any of these statutes, laws, or by-laws
constitutes a criminal offense with the exception
of minor traffic violations, which constitute an
administrative infraction amounting to a small
financial penalty. (Tak, 1993: 4).
The French Napoleonic Code of Criminal
Instructions served as the predecessor to the
Dutch Code of Criminal Procedure. The Dutch Code,
reflecting the Napoleonic Code with some
modifications, was adopted in 1838. This
inquisitorial code remained intact, despite
numerous reform attempts, until 1926, when it was
supplanted by the present Code of Criminal
Procedure. Reforms introduced since 1945
have included the 1974 Act on Pretrial Detention
and a 1983 reform introducing the “transaction.”
The transaction gives the prosecution the
authority to decide on an out-of-court monetary
settlement for an offense whose maximum penalty is
6 years, if the offender agrees to pay a certain
amount of money to the Treasury.
Other major influences on the Dutch Code of
Criminal Procedure have been introduced through
the European Convention for the Protection of
Human Rights and Fundamental Freedoms (ratified
1954) and the International Covenant on
Civil and Political Rights (ratified 1979).
Neither document requires parliamentary
ratification for implementation in Dutch courts.
These documents supersede all other Dutch law.
Other European Conventions concerning procedural
law are to be found in the conventions on the
Mutual Assistance in Criminal Matters, on Transfer
of Proceedings in Criminal Matters, on
Extradition, on the International Validity of
Criminal Judgments, and on the Transfer of
Sentenced Persons. In addition, the European
Court of Human Rights in Strasbourg, France, also
determines the standards (anonymous witnesses,
habeas corpus, undue delay) to be
applied in Dutch courts. (Tak, 1993: 5-6)
Specific acts also determine procedural law.
The Economic Offenses Act and the Narcotic Drugs
Act dictate the procedural application of search
and seizure in these specific instances which
deviate from the standard established in the Code
of Criminal Procedure.

Note: this work was completed in 1993

Resources

See Also

  • Criminal Justice
  • Legal System
  • Criminology
  • Criminal Justice System

Further Reading

  • Cole, George F., S. J. Frankowski, and M. G. Gertz, (1987) Major Criminal Justice Systems. Beverly Hills: Sage.
  • David, R. and J. E. Brierley (1968) Major Legal Systems of the World Today. London: Free Press.
  • Fairchild, E. (1993), Comparative criminal justice systems. Belmont, CA: Wadsworth.
  • Feeley, Malcolm M. (1973), “Two models of the criminal justice system”. Law and Society Review, 7(3): 407-425.

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