The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Chapter IV
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
According to Sect. 553 CCP, the prosecution service implements sentences imposed by courts. The power to implement sentences is, however, restricted as far as it concerns prison sentences. The implementation of prison sentences is rather a matter of the Ministry of Justice. In as far as the sentences concern a deprivation of liberty, the so-called department individual cases prison system implements the sentence. The Dutch system of specialised penal institutions for adults requires that prisoners have to be selected for different types of prisons. The selection is carried out by a selection officer from the before mentioned department.
Sentences are to be implemented. There is no service vested with the power to decide not to implement sentences. In the framework of a deal with criminals, the public prosecutor may not offer non-implementation of a sentence in exchange for the information on a serious crime provided by the criminal (HR 6 April 1999, NJ 1999, 565). In day-to-day practice it quite often happens that prison sentences are not or only partially implemented. The first reason for the prosecutor for non-implementation of the prison sentence, is that a prison sentence is imposed, which conflicts with the law (e.g. a prison sentence exceeding the statutory maximum of the sentence) or the competence of the court (e.g. the single court judge who may impose a 12 months prison sentence as maximum, imposes a longer sentence). The second reason is the lack of prison capacity. In 2002, due to capacity problems, 4,800 prisoners were released prior to the time of their statutory early release.
In relation to the implementation of prison sentences, the public prosecutor is vested with the right to give instructions that he shall be consulted before a decision on granting liberties to the prisoner may be taken. This instruction, however, is not binding.
The main task of the prosecution service in relation to the implementation of prison sentences, is to take care that the sentence will be implemented without delay.
Early release
The prosecution service may play a role in relation to early release.
New release legislation (Sects. 15-15d CC) came into force on January 1, 1987. The essence of the release rules is that:
- prisoners serving a sentence up to a maximum of one year must be released after having served six months plus one third of the remaining term, and
- prisoners serving a sentence of more than one year must be released after having served two-thirds.
Early release may be postponed or refused when:
- the prisoner, because of mental disorder, is serving his sentence in an entrustment order treatment institution and the continuation of his treatment is deemed necessary, or
- the prisoner is sentenced for an offence for which the statutory punishment is imprisonment of four years or more, provided that the offence was committed whilst serving a sentence eligible for release, or
- the prisoner has been guilty of very grave misconduct (according to the case law of the penitentiary division of the court of appeal in Arnhem this means: being suspected of a criminal offence for which pre-trial detention would be allowed) after the commencement of serving the sentence, or
- the prisoner, after the commencement of serving the sentence, has removed himself from execution or attempted to do so.
The power to refuse or postpone early release rests with the penitentiary division of the court of appeal in Arnhem. The penitentiary division decides whether the release should be postponed or refused on the request of the public prosecutor.
Recently, on May 1, 2003, the Board of Prosecutors-General has issued an instruction on cases in which the public prosecutor shall request a postponement or refusal of early release. Such a request shall, for example, be lodged when a prisoner has committed a crime for which pre-trial detention may be applied or, when a prisoner has escaped or attempted to escape prison under the threat of violence (State Journal 2003, 60).
Suspended sentence
As far as it concerns suspended prison sentences, the prosecution service plays a more extended role.
The effectiveness and credibility of the suspended sentence depends very much upon the control over compliance with the conditions attached to the suspended sentence. The prosecution service has to exercise control over compliance, and the probation service may be ordered by the court to help and assist the convicted person to comply with the conditions imposed. The probation service keeps the prosecution service and the court informed about the progress of the suspended sentence through progress reports (Sect. 12 Probation Rules).
Non-compliance with the conditions attached to the suspended sentence may lead the court to revoke the suspended sentence on request of the public prosecutor. The court may decide partially to revoke the suspended sentence, to extend the probation period, or to add or change the condition(s) attached to the suspended sentence.
Task penalty
Furthermore, the prosecution service plays a role in the implementation of the task penalty. This penalty (taakstraf) is a distinct sanction option considered to be a restriction of a person’s liberty that is less severe than the custodial sentence, and more severe than a fine. A task penalty may consist of a work order, a training order or a combination of both orders.
A task penalty may not exceed a total of 480 hours, of which the work order is 240 hours maximum. The task penalty must be completed within twelve months. Extension of the completion term is possible.
When imposing a task penalty, the court has to state the term of default detention, in case the task penalty is not complied with. The default detention is at least one day and the maximum is eight months.
The prosecution service is responsible for overseeing compliance with the task penalty, and information may be requested from individuals and organisations involved in probation work for this purpose. In appropriate cases, the prosecution service may change the nature of the work to be carried out, or the kind of education to follow.
When the prosecution service is satisfied that the task penalty has been carried out properly, it must notify the person convicted as soon as possible.
If the person convicted has not carried out the task penalty properly, the prosecution service may order implementation of the default detention mentioned in the sentence, taking into account the number of hours of the task penalty that has been carried out properly. The person convicted can file an appeal against the order to implement the default detention. The appeal is dealt with by the court which imposed the task penalty. The order to implement the default detention must be given within three months of the end of the completion period.
Fines
The implementation of fines and other judicially imposed financial penalties rests entirely with the prosecution service. Fine recovery is done by the Central Bureau of fine collection (Centraal Justitieel incassobureau) on behalf of the prosecution service.
The prosecution service may agree to payment of fines in instalments. The total amount of the fine is to be paid within two years and three months after the court imposed the fine. Non-payment of the fine leads to an automatic increase of € 10,-. Non-payment after the second order to pay, leads to an increase of the fine by one fifth.
If the person convicted does not pay the fine, the fine may be recovered from the offender's property. If the prosecution service rejects recovery as an option, default detention will be enforced. The term of the default detention is set by the court when imposing the original fine. In practice, a conversion rate of € 25,- to € 45,- for one day default detention, is usually applied.
The statutory minimum duration of fine default detention is one day, and the maximum is twelve months. A fine default detainee can be released if he pays the fine while in prison.
In order to reduce the need for prison capacity for fine default detention, a more effective way of recovering fines imposed for crimes forms part of the present sentence implementation policy. Aim of this policy is to recover 95% of the fines within a year of being imposed.
Crime should not pay. The public prosecutor, therefore, may request the court to confiscate the proceeds of crime. The prosecution service has a special office in Leeuwarden – the proceeds of crime office – to advise public prosecutors in these matters. In case the court decides to confiscate the proceeds of crime, recovery is carried out by the Central Bureau of fine collection.
Pardon
Finally, the prosecution service plays a role in the pardon procedure.
As a rule, the prosecution service and the court which imposed the sentence are to be consulted before the pardon may be granted. Pardon may involve a complete or partial remission of the sentence, suspension of implementation of the sentence or conversion of the sentence into a less serious one, such as a task penalty. A pardon decision can be made conditional. The conditions of a conditional pardon are similar to the conditions of a suspended sentence.
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
According to Sect. 553 CCP, the prosecution service implements sentences imposed by courts. The power to implement sentences is, however, restricted as far as it concerns prison sentences. The implementation of prison sentences is rather a matter of the Ministry of Justice. In as far as the sentences concern a deprivation of liberty, the so-called department individual cases prison system implements the sentence. The Dutch system of specialised penal institutions for adults requires that prisoners have to be selected for different types of prisons. The selection is carried out by a selection officer from the before mentioned department.
Sentences are to be implemented. There is no service vested with the power to decide not to implement sentences. In the framework of a deal with criminals, the public prosecutor may not offer non-implementation of a sentence in exchange for the information on a serious crime provided by the criminal (HR 6 April 1999, NJ 1999, 565). In day-to-day practice it quite often happens that prison sentences are not or only partially implemented. The first reason for the prosecutor for non-implementation of the prison sentence, is that a prison sentence is imposed, which conflicts with the law (e.g. a prison sentence exceeding the statutory maximum of the sentence) or the competence of the court (e.g. the single court judge who may impose a 12 months prison sentence as maximum, imposes a longer sentence). The second reason is the lack of prison capacity. In 2002, due to capacity problems, 4,800 prisoners were released prior to the time of their statutory early release.
In relation to the implementation of prison sentences, the public prosecutor is vested with the right to give instructions that he shall be consulted before a decision on granting liberties to the prisoner may be taken. This instruction, however, is not binding.
The main task of the prosecution service in relation to the implementation of prison sentences, is to take care that the sentence will be implemented without delay.
Early release
The prosecution service may play a role in relation to early release.
New release legislation (Sects. 15-15d CC) came into force on January 1, 1987. The essence of the release rules is that:
- prisoners serving a sentence up to a maximum of one year must be released after having served six months plus one third of the remaining term, and
- prisoners serving a sentence of more than one year must be released after having served two-thirds.
Early release may be postponed or refused when:
- the prisoner, because of mental disorder, is serving his sentence in an entrustment order treatment institution and the continuation of his treatment is deemed necessary, or
- the prisoner is sentenced for an offence for which the statutory punishment is imprisonment of four years or more, provided that the offence was committed whilst serving a sentence eligible for release, or
- the prisoner has been guilty of very grave misconduct (according to the case law of the penitentiary division of the court of appeal in Arnhem this means: being suspected of a criminal offence for which pre-trial detention would be allowed) after the commencement of serving the sentence, or
- the prisoner, after the commencement of serving the sentence, has removed himself from execution or attempted to do so.
The power to refuse or postpone early release rests with the penitentiary division of the court of appeal in Arnhem. The penitentiary division decides whether the release should be postponed or refused on the request of the public prosecutor.
Recently, on May 1, 2003, the Board of Prosecutors-General has issued an instruction on cases in which the public prosecutor shall request a postponement or refusal of early release. Such a request shall, for example, be lodged when a prisoner has committed a crime for which pre-trial detention may be applied or, when a prisoner has escaped or attempted to escape prison under the threat of violence (State Journal 2003, 60).
Suspended sentence
As far as it concerns suspended prison sentences, the prosecution service plays a more extended role.
The effectiveness and credibility of the suspended sentence depends very much upon the control over compliance with the conditions attached to the suspended sentence. The prosecution service has to exercise control over compliance, and the probation service may be ordered by the court to help and assist the convicted person to comply with the conditions imposed. The probation service keeps the prosecution service and the court informed about the progress of the suspended sentence through progress reports (Sect. 12 Probation Rules).
Non-compliance with the conditions attached to the suspended sentence may lead the court to revoke the suspended sentence on request of the public prosecutor. The court may decide partially to revoke the suspended sentence, to extend the probation period, or to add or change the condition(s) attached to the suspended sentence.
Task penalty
Furthermore, the prosecution service plays a role in the implementation of the task penalty. This penalty (taakstraf) is a distinct sanction option considered to be a restriction of a person’s liberty that is less severe than the custodial sentence, and more severe than a fine. A task penalty may consist of a work order, a training order or a combination of both orders.
A task penalty may not exceed a total of 480 hours, of which the work order is 240 hours maximum. The task penalty must be completed within twelve months. Extension of the completion term is possible.
When imposing a task penalty, the court has to state the term of default detention, in case the task penalty is not complied with. The default detention is at least one day and the maximum is eight months.
The prosecution service is responsible for overseeing compliance with the task penalty, and information may be requested from individuals and organisations involved in probation work for this purpose. In appropriate cases, the prosecution service may change the nature of the work to be carried out, or the kind of education to follow.
When the prosecution service is satisfied that the task penalty has been carried out properly, it must notify the person convicted as soon as possible.
If the person convicted has not carried out the task penalty properly, the prosecution service may order implementation of the default detention mentioned in the sentence, taking into account the number of hours of the task penalty that has been carried out properly. The person convicted can file an appeal against the order to implement the default detention. The appeal is dealt with by the court which imposed the task penalty. The order to implement the default detention must be given within three months of the end of the completion period.
Fines
The implementation of fines and other judicially imposed financial penalties rests entirely with the prosecution service. Fine recovery is done by the Central Bureau of fine collection (Centraal Justitieel incassobureau) on behalf of the prosecution service.
The prosecution service may agree to payment of fines in instalments. The total amount of the fine is to be paid within two years and three months after the court imposed the fine. Non-payment of the fine leads to an automatic increase of € 10,-. Non-payment after the second order to pay, leads to an increase of the fine by one fifth.
If the person convicted does not pay the fine, the fine may be recovered from the offender's property. If the prosecution service rejects recovery as an option, default detention will be enforced. The term of the default detention is set by the court when imposing the original fine. In practice, a conversion rate of € 25,- to € 45,- for one day default detention, is usually applied.
The statutory minimum duration of fine default detention is one day, and the maximum is twelve months. A fine default detainee can be released if he pays the fine while in prison.
In order to reduce the need for prison capacity for fine default detention, a more effective way of recovering fines imposed for crimes forms part of the present sentence implementation policy. Aim of this policy is to recover 95% of the fines within a year of being imposed.
Crime should not pay. The public prosecutor, therefore, may request the court to confiscate the proceeds of crime. The prosecution service has a special office in Leeuwarden – the proceeds of crime office – to advise public prosecutors in these matters. In case the court decides to confiscate the proceeds of crime, recovery is carried out by the Central Bureau of fine collection.
Pardon
Finally, the prosecution service plays a role in the pardon procedure.
As a rule, the prosecution service and the court which imposed the sentence are to be consulted before the pardon may be granted. Pardon may involve a complete or partial remission of the sentence, suspension of implementation of the sentence or conversion of the sentence into a less serious one, such as a task penalty. A pardon decision can be made conditional. The conditions of a conditional pardon are similar to the conditions of a suspended sentence.
