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Sentencing without a judge

In the Netherlands judges are not the only ones to impose sentences. The Public Prosecution Service and the authorities can also pass sentences. Experts from Leiden research how these sentencing processes work and how they can be improved in order to protect the legal status of the public.

The introduction of the penalty order

Much has changed over the last 20 years in traditional Dutch criminal procedure. Professor Jan Crijns details the most important changes. ‘For a long time we have been accustomed to not every offence coming to court. If you steal a bike, the Public Prosecution Service deals with it. Since 2008 this has been with what is known as a penalty order. The public prosecutor looks at the case file and imposes an appropriate sentence. This could be a community sentence or a fine. He does this for misdemeanours or offences for which you can receive a maximum term of six years of imprisonment, ranging from road traffic offences to assault.’ If the prosecutor thinks that a prison sentence should be imposed, a case file is then sent to the courts. The judge is the only one who can impose a prison sentence.

The first two times that people steal a bike they are generally fined by the Public Prosecution Service. If they repeatedly reoffend, a judge can give them a prison sentence of about three weeks.

Sentencing in other fields of law

‘The introduction of the penalty order represented a big breakthrough in criminal law, because until that point only judges could impose sentences in criminal law,’ says Crijns. ‘This breakthrough could be made because there was already sentencing without a judge in other areas of law than criminal law. Since the 1980s, various administrative bodies have been able to impose sanctions. This began modestly with administrative fines for minor road traffic or other offences at municipal level, but this power of administrative bodies gradually expanded to other areas. For instance, within the field of competition law the Consumer and Market Authority can impose very high administrative fines on businesses that have formed a monopoly. All sorts of powers that traditionally belonged to criminal law.’

More extensive checks by administrative law judge

Sentences are therefore imposed without a judge both within and outside criminal law. But little is known about what happens during these sentencing processes, which makes research very necessary. Does the Public Prosecution Service’s penalty order meet society’s requirements for sentencing and the manner in which sentences are imposed?

In addition, there is the question of whether the legal status of citizens who are sentenced through administrative law is always guaranteed. Crijns: ‘A criminal law judge looks thoroughly at whether a certain sentence is fitting. The administrative law judge, who checks the sentences imposed by the authorities, traditionally does this only minimally. This has improved recently, but it should be more extensive.’

Crijns and his colleagues conduct various forms of research into sentencing that circumvents the courts. He compares the legal position of citizens within criminal law with that of citizens within administrative law. In addition, Crijns and researcher Renée Kool from Utrecht University have written a report for the annual meeting of the Nederlandse Juristenvereniging (Dutch law society). Here they consider the question of whether sentencing in the classic form of court proceedings has had its day. They further scrutinise not only sentencing by means of the penalty order but also the role of mediation in criminal law. Kool and Crijns advise creating more space for mediation in criminal law with, for instance, the introduction of two stages: first see what the offender and victim can achieve together and then consider this when determining a sentence.

Municipalities may impose fines for minor road traffic offences.

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