The Public Prosecution Service Will Make More Use of Criminal Orders

News article | 17-02-2025 | 16:49

Rinus Otte: “The Public Prosecution Service wants to resolve more cases and serve more victims. In a time where we even have to wait too long for the resolution of lighter offenses and even longer for the execution of the sentence, if it occurs at all, it is crucial for a credible rule of law that more facts are detected, prosecuted, and resolved. Our new policy, with more self-imposed sentences and fewer summons for frequently occurring offenses, also allows more court capacity to be freed up for heavier cases. This way, we can make more criminal law possible again, moderately for lighter crimes and firmly for heavier crimes.”

Criminal Law and Execution: Between Legal Ideal and Legal Practice

Detecting, prosecuting, and judging: these are often the main tasks in criminal law. The fourth task, execution, the enforcement of sentences, often falls short in law. While the credibility of a government depends on it. Without proper execution, most corrections die in ambiguity and imposed sentences are worth little. The sentence and its execution are therefore inextricably linked.

Due to a shortage of cells and staff, a black code has recently been in effect for the Dutch prison system. The limit has been reached. And while many hundreds of convicts are still waiting for a call to serve their prison sentence. This group of so-called self-reporters is now so large that it could fill an entire penitentiary institution. But that prison does not exist, nor does the necessary staff. A situation that is unlikely to change in the short term.

As early as the fall of 2023, all parties involved, including the Public Prosecution Service, discussed taking measures such as temporarily releasing certain detainees early to make room for others. At that time, no action was taken, partly because the judiciary immediately stated in a major opinion piece that sentences must be executed as imposed. If that does not happen, the authority of the judge, and thus that of the entire rule of law, is undermined.

But necessity breaks law. Doing nothing also affects the authority of the rule of law. If action is not taken now, a waiting list will arise. An ever-growing group of people who roam freely for years after their conviction, waiting for the day their sentence can finally be executed. This is also detrimental to the rule of law. And moreover, it is inexcusable for a suspect, who ultimately wants to continue with their life, and for a victim, who may see the suspect roaming free for years after their conviction. One of the cores of criminal law is therefore speed. If victims and society do not quickly know who committed the crime and what the government response is, vigilante justice lurks, and criminal law loses its credibility.

Call it a conflict of duties. The duty to execute a judges imposed sentence correctly and in its entirety, against the duty to organize the system so that it can actually be done. These two duties are in tension with each other. And they have been for a long time. In the 1970s, the shortage of cells was so great that several tens of thousands of sentences were not executed at all and ultimately - as it is called - were prescribed. In the 1990s, when the Public Prosecution Service was still responsible for execution (since 2020, this is the Minister of Justice and Security), so-called return-sending prosecutors determined which detainees could be released early if the cell shortage required it.

Internationally, execution problems have always existed. In England, for example, many prison sentences are not executed due to capacity problems. In Spain and Belgium, the same. In that respect, the Netherlands is certainly not the worst student in the class.

Contributing to a Solution

Until five years ago, the Public Prosecution Service was responsible for execution. Since the introduction of the law on the Execution of Criminal Decisions on January 1, 2020, this is now the Minister of Justice and Security. However, as a supplier of sentences, the Public Prosecution Service feels co-responsible for the current execution problems. If only because the law requires us to consider a suspects financial capacity and detention suitability. The Public Prosecution Service must continuously be aware - or become aware - of whether the sentence envisioned by the prosecutor is appropriate, considering the long execution period.

For long prison sentences, for very serious offenses, only the seriousness of the offense matters, regardless of whether there is cell capacity. If necessary, I would sacrifice half of my office for it. But in about 80 percent of our criminal files, it does not concern very serious offenses, but cases where the judge ultimately imposes prison sentences of at most a few weeks or months. If we keep summoning in those cases, it will result in less room for other, heavier cases in the judiciary. If we keep demanding prison sentences in those cases, the capacity problems in the prison system will only worsen, and waiting times will increase further. Then we as the Public Prosecution Service will only contribute to the problem, and not to the solution.

Moreover, it is well known that short prison sentences often have less effect. With longer prison sentences, you can bring more structure and regularity into the life of a detainee. In the past, as a member of supervisory committees and complaint committees, I visited two prisons almost weekly. There, I saw with my own eyes how a routine, a daily rhythm, and a meaningful daily activity can contribute to structuring the life and behavior of a convicted person in a sensible way. In those cases, punishment is much more than just making amends, more than just inflicting suffering.

With short prison sentences, that does not work. That time is often too short to provide meaningful support to a detainee. For about a hundred years, the legislator has therefore been doing everything possible to reduce the number of short prison sentences. With punishment modalities such as conditional sentences, fines, community service, electronic monitoring, and the Public Prosecution Service criminal order (OMSB). Nevertheless, the Netherlands still ranks among the top in Europe in terms of the number of short prison sentences.

Less Summoning, More Criminal Orders

Considering all of this, we as the College of Prosecutors General recently stated: we want to maximize the possibilities offered by the criminal order - the criminal order that the Public Prosecution Service can impose without the intervention of a judge. In other words: we will summon less and impose more criminal orders. Not because we take on the capacity problems of the judiciary and the DJI, but because we are choosing the original motive and goal of the legislator. The legislator has already given us the authority to handle lighter offenses with the OMSB in 2008. Although the main goal was to relieve the judiciary, that has not been our consideration.

The OMSB has existed for seventeen years now, and all that time we have not maximized its possibilities. In too many cases, especially police court cases, we have unnecessarily continued to summon. We will do it differently. It is time for the criminal order to mature. In frequently occurring crime, starting with simple thefts, summoning will be the exception. Only if it really cannot be helped. This may be the case with certain scams, where there is deliberate abuse of an established trust and the vulnerability of victims. But in all other cases, a criminal order will be imposed.

This will result in such offenses being punished less frequently with a prison sentence - because that remains the monopoly of the judge - and more often settled with a fine or community service. Other forms of frequently occurring crime, but also more serious offenses - offenses with a maximum penalty of six years - can be settled with a criminal order according to the law, and thus punished differently than with a prison sentence. We want to do that more often. We must always keep in mind that these six-year offenses, of course, do not involve murder and manslaughter. For serious assault, for example, there is a maximum of eight years. Therefore, the criminal order is not an option for that. Those cases will always be brought before the judge. But for theft or simple assault, offenses with a maximum penalty of four and two years, respectively, it is different.

Although the new approach is nothing more than using the criminal order as the legislator has always intended, to relieve the judiciary, it is practically a revised course we are going to follow. Our own chief prosecutors are positive, and responses from other criminal justice organizations are predominantly positive and understanding. However, the legal profession sets an important condition that legal assistance must not be compromised. Understandably, just as in court, this must also be well arranged at ZSM (the Public Prosecution Service department where most reports of frequently occurring crime are received and assessed). We will monitor that.

Community Service versus Prison Sentence

Will offenses such as theft and simple assault be less severely punished from now on? With a criminal order, the Public Prosecution Service can only impose a fine or community service, not a prison sentence. The question arises whether a short prison sentence is necessarily heavier than a substantial community service. Not everyone will experience it that way. Some shrug off a month in prison. Others feel heavily burdened by a community service of 100 hours. In short, how everyone experiences their punishment or how heavy the different penalties turn out to be, we do not know. It is different for everyone. It is easy to claim that a punishment is too light, but what ultimately matters is how the convicted person experiences that punishment and what the execution circumstances are like. It makes a significant difference whether a prison sentence is served hundreds of kilometers from your home, making visits more difficult, or in your hometown where your family resides. The crux is that we - judges, Public Prosecution Service, and society - cannot optimally understand that in advance.

What I do know is that the still widely held belief that community service is a joke, that convicts do not or hardly experience it as punishment, is not true. Being forced to work, sometimes for weeks, for nothing, and then the kind of work you probably would not choose for yourself, simply does not align with our natural desire for freedom. Most people do experience that as punishment. And whether a short prison sentence is recorded on your criminal record or a substantial community service, you will be marked in a way that affects, for example, whether or not you will receive a certificate of conduct later on. All of this does not alter the fact that a suspect cannot always evade a short prison sentence; sometimes it cannot be helped, and that is also justifiable.

What does our new approach mean for victims, with whom a criminal case often begins and ends? In many cases, there is a claim for damages that the victim demands. Until now, it has been customary for the complainant to substantiate the damages suffered with all kinds of receipts and documents. We have also said that we will do it differently. In the future, we want to work with a tiered compensation guide at ZSM, thus not at the hearings of the criminal judge, which will be drawn up in consultation with Victim Support Netherlands and in which we want to work with standard amounts. For a so-called dry slap (pain, no injury), you might say: 400 euros. Combining the criminal order with such a new compensation system will ensure that victims are compensated much faster for the damages they have suffered than is currently the case.

Laborious

All in all, we believe we are making a good choice as the College. We serve the interests of victims and suspects by punishing faster. Moreover, we relieve the judiciary without letting suspects get away with their actions. This way, we also respond to the tight court capacity and can have heavier crimes judged sooner by the criminal judge.

Nevertheless, it remains laborious. That is simply the nature of criminal law. Criminal law should be laborious. The way we punish people will always be subject to discussion. And that is fine. On the one hand, because we do not do everything perfectly, because mistakes are made, but on the other hand, because we as a society expect too much from criminal law. We think too much in terms of goals. If criminal law does what it is supposed to do, society becomes safer, so the reasoning often goes. That is not so. People are weak, they are limited, they do not always have the best inclinations for whatever reason, and they are tempted to make wrong choices. The criminal law does not change those character traits or environmental factors.

And of course, my story also has the disclaimer that the entire law is imbued with normative dimensions. This means that there is always a choice involved that could also have been made differently. Since the inception of law, we have been trying to make choices that may become outdated or unworkable over time, and that alone requires adjustment. But that we must make choices is beyond doubt. Because not everything is possible. No matter how hard we all work, there is always more crime than can be solved, prosecuted, and judged. Especially in times of permanent scarcity. And every choice hurts.

Ideally, the available execution possibilities should play a minor role in the considerations of the prosecutor in demanding a sentence or for the judge in imposing a sentence. After all, the judiciary primarily looks at the seriousness of the offense and an appropriate sentence, also considering similar crimes and offenders. Because the equality before the law must be served as well as possible.

In that melting pot of fair interests, of law enforcement, timely prosecution, judgment, and execution, to equality before the law, the choice will turn out somewhat differently each time. It is important to remember that there is rarely something wrong or right. Our average judgments about the government often turn out to be sharper than is good for the image of the rule of law. Hence this concluding disclaimer.

Responsibility for Good Execution

People often distinguish between left and right criminal policy. Where left criminal policy is more based on criminogenic causes that lead a suspect to criminal behavior - growing up in a disadvantaged neighborhood, surrounded by bad friends and examples - which requires many judicial investments to put the suspect on a better path. Right criminal policy is more based on the free and wrong choice of a suspect and has less high expectations of a punishment, except that it should be severe. The Public Prosecution Service does not want to get caught in such a dichotomy. We are neither left nor right; we are the judiciary. We want to serve equality before the law, one of the pillars of our rule of law and of the Public Prosecution Service, while at the same time imposing or demanding a punishment that meets the requirements of legality and proportionality. These two requirements should always be kept in mind by every member of the Public Prosecution Service when assessing a criminal case. These same requirements also mean that detection, prosecution, judgment, and execution must not take too long. Otherwise, the effect of criminal law intervention is lost and the motive to punish, especially in lighter cases, may fade.

The view that a sentence must be served until the last day is correct and, in the opinion of the Public Prosecution Service, at the same time risky due to that time lapse. Therefore, we make a different consideration in this melting pot. A consideration that fits within our powers and possibilities and can contribute to creating more court space and more cell space for the heavier cases.

Moreover, the execution of sentences is formally no longer the responsibility of the Public Prosecution Service, but in material terms, it is unthinkable for the Public Prosecution Service not to consider whether the execution of intended demands or imposition is feasible, humane, and compliant with treaty law. The law also requires that. This responsibility for good execution never goes away and characterizes a good magistrate.

The art is to do as much as possible in terms of law enforcement even in times of scarcity. So that the victim is served. So that a suspect is detected and prosecuted. So that a timely correction follows in the form of a punishment and a possible compensation. If all that happens, then we as a society can harbor as much resentment, dissatisfaction, and anger as we want, but then we are, in my opinion, not doing anything wrong.

Rinus Otte, Chairman of the College of Prosecutors General of the Public Prosecution Service

February 17, 2025