Rethinking sentence transfers: ‘It can mean three, sometimes up to eight years longer in prison’
Research image: Chloe Ep via Unsplash
Dutch nationals convicted in another EU Member State who want to serve their sentence in the Netherlands, are not normally entitled to a court hearing. The Dutch Minister of Justice and Security makes the decision, but new research concludes that this needs to change.
Dutch nationals, or people with a solid ‘relationship’ with the Netherlands, who have been sentenced to prison in another country can request to return home to serve their sentence here. In Dutch, this is called strafovername – the transfer of a custodial sentence. In the Netherlands, it is the Minister of Justice and Security who decides whether such a request will be granted, not a judge.
Together with researchers from Groningen University, Professor of European Criminal Law Jannemieke Ouwerkerk and Professor of Criminal Law and Criminal Procedure Marloes van Noorloos, were commissioned by the Dutch Research and Data Centre (WODC) to examine the WETS-procedure, the Act on the Mutual Recognition and Enforcement of Custodial and Conditional Sentences. They conclude changes are needed in a number of areas.
What is sentence transfer?
Every year, hundreds of Dutch nationals serve prison sentences abroad. Some prefer to complete their sentence in the Netherlands, closer to family. To benefit their rehabilitation, it is sometimes possible to serve the sentence here through a sentence transfer: a legal procedure in which another country takes over the enforcement of the sentence. Non-Dutch nationals who have sufficient ties to the Netherlands may also be eligible.
In the Netherlands, there are two laws governing international sentence transfers: the WETS, for EU countries, and the WOTS, for non-EU countries with which the Netherlands has concluded a treaty. Conditions include, among other things, that the convicted person has demonstrable ties to the Netherlands, that the sentence passed is final, and that both countries agree to the transfer. Research shows that prisoners returning through a sentence transfer are less likely to reoffend than those who return on their own after being released. Sentence transfer is therefore not only a matter of a humane system, but it also serves a broader social interest.
Issues in practice
People in the Netherlands often end up serving longer sentences than they would have in the country they were convicted. One explanation is a legislative amendment in 2021, when the Netherlands tightened the rules on conditional early release. Under the conditional early release scheme (VI-regeling), prisoners here could be released earlier under certain conditions, for example a contact ban. It was seen to support their gradual return to society. However, the rules on this differ widely from country to country.
Since 2021, in the Netherlands – even when a sentence is taken over from another country – you are no longer automatically eligible for conditional early release after serving two-thirds of your sentence. Instead, you may be released at most two years earlier, regardless of the total sentence length. In cases of sentence transfer, the Minister has the authority to take this into account and apply a sentence reduction. However, in practice this rarely, if ever, happens.
A structural pattern
The consequences are clear. Each year, there are around 200 to 300 cases in which the Netherlands takes over a sentence from another EU country, and the impact can be huge. There are no exact figures but, according to Ouwerkerk, there are examples of convicted individuals who have served many more years in prison in the Netherlands than they would likely have done in the country where they were convicted. ‘The judge in that neighbouring country imposes a sentence considering the conditional release scheme that applies there. They’re not going to ask: you’re Dutch, what would the sentence be there?’
Van Noorloos emphasises that this seems to be a structural pattern and no exception. ‘These cases have never been reviewed by a court, so we don’t know exactly how many there are.’ Ouwerkerk adds: ‘Even if it’s only five cases, the differences can still be significant – it can mean three, sometimes eight years longer in prison. So, the consequences are serious, especially because, as a convicted person, you have no way to challenge the decision. It’s decided automatically for you.’
The judge in charge
The solution proposed in the report is clear: remove the decisive role from the Minister and designate it to a judge in the Netherlands. In a revised procedure, the convicted person must be heard, either in writing or orally, and be entitled to legal assistance. Decisions are to be made public. ‘In our recommendation to establish a judicial procedure, we have taken the other perspective into account,’ Van Noorloos explains. ‘It’s feared this could lead to very long, time-consuming proceedings. That’s something that also needs to be avoided.’
The researchers therefore propose using a specialised judge. ‘The numbers are actually too small to expect every judge in the Netherlands to handle such cases,’ says Ouwerkerk. ‘But even having a specialised judge who, from the outset, examines the conditional early release arrangement – to prevent someone from ending up with a longer sentence than in the country they were convicted – would be a major step forward.’
Is change achievable?
Van Noorloos does not expect serious political resistance. ‘I think there’s strong political awareness that this isn’t something we’re doing independently. It’s what countries have agreed on together.’ Moreover, the Court of Justice of the European Union has identified several points so explicitly that some adjustments are unavoidable.
The question now is how far these changes will go, with the greatest uncertainty surrounding the conditional early release system. To structurally solve the problem of people serving overly long sentences, a judge would need to be able to assess the case at the very start of the sentence transfer and determine, on a case-by-case basis, when someone should qualify for early release. But even a partial reform would be an improvement in the current situation. ‘Anything moving in that direction would be better than what we have now,’ Ouwerkerk concludes. ‘Because at present, nothing is actually being done.’
See the full research report: Hervorming van strafovername (Revisiting the transfer of custodial sentences, in Dutch, summary in English).