Sentencing in the Netherlands
PENALTIES AND SENTENCING
1. Sentencing Process.
* Who determines the sentence? The sentence is
determined by the judge who delivers the verdict.
* Is there a special sentencing hearing? There is
no special sentencing hearing. There is no
distinction between the trial and sentencing
stages. The judge bases his or her decision
upon the seriousness of the offense and the
specific facts in the case as well as mitigating
or aggravating factors, such as the character and
personality of the offender, his or her employment
record, prior criminal record and social
background. (Lensing and Rayar, 1992: 624)
* Which persons have input into the sentencing
process? In order to aid the judge in the
sentencing decision, the probation service, the
defendant, or the defendant’s attorney may prepare
a “social enquiry report” containing this
information. If necessary, social workers, medical
experts, medical records, or psychiatric
evaluations may be used.
2. Types of Penalties.
* Range of Penalties. The Dutch system of
sanctions is characterized by its wide range of
options given to judges. Although the judge hands
down the sentence, it is the prosecutor who is
responsible for its enforcement. The penalty
system differentiates between principal and
accessory penalties, and between penalties and
measures. (see Tak, 1993: 31-35, Van Kalmthout,
Principal penalties include imprisonment,
detention, community service, and fines. (Penal
Code sections 10-14, 18-20, 22b-23, and 23-24b,
Imprisonment is only imposed for serious
crimes. The minimum sentence is 1 day, the
maximum is 15 years. Murder sentences can be
extended to 20 years. A life sentence may be
imposed for murder or manslaughter with
aggravating circumstances, although this is rare.
Life sentences are always converted to a specified
period of time by way of pardon which allows the
offender to be considered for early release.
Detention is handed down for infractions of the
law. The minimum sentence of detention is 1 day
and the maximum is 1 year.
Community service, officially called “the
performance of unpaid work for the general good,”
was introduced into the sanctions system in 1989
after an 8-year experiment. An order of community
service is given in lieu of an unconditional
prison sentence of 6 months or less, and only
with the consent of the offender. There is no
statutory minimum and the maximum sentence is 240
hours to be served within a 12 month time frame.
Sentences of less than 120 hours must be carried
out within 6 months. Noncompliance may result in
the judicial revocation of the sentence and the
offender being sent to prison.(Tak, 1993: 33; Van
Kalmthout, 1992: 674).
The fine, originally intended only for
infractions, was introduced into the sanctions
system for crimes in the 1983 Financial Penalties
Act. Fines are broken down into six categories
ranging from a maximum 500 guilders for category I
to 1,000,000 guilders for category VI. Category
VI fines can only be imposed upon corporations,
except in the specialized cases of individuals
committing offenses under the Economic
Offenses Act or the Narcotic Drug Offenses Act.
If the offender fails to pay a fine, he or she may
be sentenced to “fine default detention”. The
judge sets the term of the fine default detention
at the time the offender is sentenced to the
original fine. The state generally converts one
day of detention into 50 to 100 guilders. (Tak,
Accessory penalties were originally intended
to accompany principal penalties, although they
may be applied on their own. Accessory penalties
include confiscation or the seizure of possessions
or property of the defendant; dispossession of
certain rights, such as the right to hold office,
serve in the armed forces, or practice certain
professions; complete or partial closure of a
business when a criminal offense has been
committed and where the defendant has been
convicted of an economic crime; and the forfeiture
of a driver’s license. Another less frequently
used accessory penalty involves making the
defendant pay for the cost of the trial. (Van
Kalmthout, 1992: 668-670).
Measures can be imposed upon individuals
where the question of culpability arises. Even in
cases where a defendant is acquitted or released,
the judge can impose measures. These are
enumerated in title IIa of the 1983 Penal Code.
Measures include: a) the seizure of objects from
the possession of an individual if they pose a
threat to public interest or are in conflict with
the law (Penal Code, Section 36a-36d), b)
confiscation of the profits of a crime (Penal Code
Section 36e), c) an order for detention in a
psychiatric hospital for a period of up to 1 year
if the individual presents a danger to him or
herself, to others, or to property (Penal Code
Section 37). Also, an in-patient hospital order
can be imposed for crimes carrying at least a
4-year penalty of imprisonment for the protection
of the individual, others, or property. (Penal
Code Sections 37a-38i). The order may be imposed
for 2 years and then be extended for another year
or two. The final measure, d), is the out-patient
hospital order, which may be combined with
probation services. (Penal Code Section 38-38b).
The judge may determine the conditions. (Tak,
1993: 34-35 and Van Kalmthout, 1992: 670-672).
A suspended sentence can also be imposed.
Suspension may involve all or part of any sentence
(except community service), including a maximum
sentence of 3 years incarceration. Prison
sentences extending beyond 3 years may not be
suspended. A suspended sentence may be
accompanied by any number of conditions, including
placement in a medical facility for the duration
of the suspension, compensation to the victim, a
deposit of bail equal to the amount of a fine, or
the imposition of special conditions. (Van
Kalmthout, 1992: 691-694).
The Code of Criminal Procedure expresses
preference for fines over other forms of custodial
sanctions and requires an explanation be given by
the judge when a custodial sentence is imposed.
Fines, theoretically, can be handed down for any
offense, including murder. They are, however,
generally handed down for infractions, and many
crimes of a nonviolent, nonserious nature.
Incarceration is reserved for more serious
offenses such as murder and manslaughter, rape,
serious property and drug offenses. (Tak, 1993:
* Death Penalty. The death penalty for ordinary
crimes was abolished in the Netherlands in 1870.
Capital punishment for military and war crimes was
abolished in 1983. (Tak, 1993: 32).
Note: this work was completed in 1993
- Criminal Justice
- Legal System
- Dutch Criminal Justice System
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