Dutch Conditional Release for Prisoners as far as regulated by Law. Irene Sagel-Grande, Ph.d., LL.M., Groningen University & Association EuroMoS

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1 Dutch Conditional Release for Prisoners as far as regulated by Law Irene Sagel-Grande, Ph.d., LL.M., Groningen University & Association EuroMoS Report in the Framework of the EU Project BigJudges 1. Introduction Since the Dutch Penal Code and some other laws were amended in connection with changing early release into conditional release by Law of December 6th, 2007 (Bull of AOD , 500), in force since the 1st of July 2008 the newly enacted Articles l Dutch Penal Code are applicable. In addition an order was issued on the 12th of June 2008 that regulates the decisions to be taken concerning the conditions and the supervision in cases of conditional release (Implementation Order Conditional Release = IO). 2 The main difference with the former regulation is that the early release now is combined with conditions and that prisoners can be only released early if they behaved well in prison. Prisoners who are with regard to the length of time they stayed in prison almost in a position to be conditionally released can participate in a programme of detention phasing that offers more freedom and a little more leave. 3 The task of the prosecution in connection with early release was enlarged as the prosecutor has to decide now about the special conditions to be combined with the conditional release and to organize and manage the supervision of the probationers who should be watched closely. If a probationer does not fulfil the condition(s) combined with the early release it is the prosecutor who has to react as quickly as possible, the severest means being revoking the conditional release and executing the rest of the prison sentence. In this way the new regulation introduced an important change in the execution of prison sentences judges imposed without changing the lengths of the individually imposed deprivation of liberty. 4 In the new regulation the judge keeps the task to decide about suspending, refraining from and revoking early release although there were proposals made to assign these tasks to the prosecution combined with the possibility to appeal to the court. In order to introduce a law that without doubt keeps in line with the Art. 5 and 6 of the European Human Rights Convention the Dutch Government choose the model with the judge as decision maker in cases conditions were not fulfilled or infringed. 5 An important idea behind the introduction of conditional release is that one wants to make the prisoner responsible for his own future Bulletin of Acts, Orders and Decrees (Staatsblad). Besluit van 12 juni 2008, houdende regels inzake de beslissing over de voorwaarden en het uit te oefenen toezicht bij voorwaardelijke invrijheidstelling (Uitvoeringsbesluit voorwaardelijke invrijheidstelling, Staatsblad 2008, E. Julsing-Nijenhuis, Voorwaardelijke invrijheidstelling, Praktijkwijzer Strafrecht 01, Kluwer 2009 p Brief Minister van Justitie (Letter of the Minister of Justice to the Parliament of) dd E. Julsing-Nijenhuis 2009, p. 42. Ministry of Justice, Factsheet Conditional release, July 2008, F&A 8879.

2 The Law 2007, 500 has a transitional period of five years, that is still running (until July 2013). For those who were sentenced before the 1st of July 2008 the old regulation stays in force until the 1st of July For persons who were convicted before the 1st of July 2008, but who s execution is still running on the 1st of July 2013 the new regulation is applicable. In the following the new regulations are summarized. 2. Range of Applicability Those sentenced to a prison sentence of more than one year (or several short prison sentences lasting altogether one year or longer) and not more than two years, not being a partly suspended sanction, can be conditionally released if their imprisonment lasted at least one year and if at least one third of the remaining prison sentence was served, Art Dutch Penal Code. Those sentenced to more than two years prison sentence, the sentence not being lifelong imprisonment, can be conditionally released after serving two thirds of the whole length of the prison sentence the judge imposed, Art Dutch Penal Code. The probation period is as long as the period of the early release. A prisoner sentenced to 30 years imprisonment for example, theoretically can be released after two thirds of this period, his probation period lasting then for 10 years. In cases the judge decided that the prison sentence or a part of it should not be executed, Art. 14a Dutch Penal Code, the regulations about conditional release, Art and 2 Dutch Penal Code, are not applicable, Art Dutch Penal Code. Calculating the time mentioned in Art and 2 Dutch Penal Code the period the sentenced spent in custody, pre-trial detention or in detention in a foreign country in consequence of a Dutch request for extradition is taken into account as far as it was not considered in connection with another sentence the convicted person already has served, Art Dutch Penal Code. 3. Conditions There are two kinds of conditions: The general condition and special conditions. Conditional release is always combined with the general condition that until the end of the probation period the convicted may not become guilty committing a punishable act, Art. 15a 1 Dutch Penal Code. Next to the general condition, special conditions concerning the behaviour of the convicted person can be imposed, Art. 15a 2 Dutch Penal Code. These special conditions can include programmes of activities focussing on the return of the probationer into society or to undergo special care, such as care and treatment for addicts or measures for the improvement of mental welfare. The special conditions can also include restrictions concerning behaviour and freedom of movement for the convict. Furthermore a special condition can be combined with electronic monitoring as regulated in Art. 1 w Penitentiary Principles Law, Art. 15 a 3 Dutch Penal Code. Special conditions may neither restrict the freedom of the convict s confession nor his or her political freedom, Art. 15a 4 Dutch Penal Code. In relation to every detained who served his prison sentence for the legally fixed part and after this is qualified principally for conditional release there must be examined whether

3 this conditional release is reasonable and, if so, whether special conditions should be imposed. There is no need to impose special conditions in those cases in which the risk of recidivism is relatively low as for example if the convicted was already sufficiently prepared for his early release during the execution of his prison sentence or when his/her personal circumstances make recidivism not really probable. 7 For those individuals who should be early released only under additional special conditions the next question is what special conditions could fit best with the individual person and his/her situation. Presumably in 2010 the Law Special Conditions 8 will come into force that will sum up the applicable special conditions and the consequences of breeching them. Some of these special conditions will be integrated into Art. 15 Dutch Penal Code regulating conditional release. In connection with this future legislation, the Dutch probation service is busy to develop a clear and well organized system with different categories of supervision differing in intensity that does not only aim at control but should at the same time motivate, stimulate and offer sufficient help to the individual probationers. 9 A well balanced combination of control and guidance is needed to make the probation period effective. The draft regulation knows three standard varieties of supervision and control that depend for what concerns their intensity from the height of the risk of 1) recidivism of the individual probationer and 2) of damages. As the special conditions aim to change behaviour supervision of behaviour is of great importance. 4. Institution in charge of choice of special conditions In the new regulation it is the prosecution that decides on the special conditions connected with the individual conditional release, Art. 15a 5 Dutch Penal Code. This decision was taken after a broad discussion in parliament in consequence of the fact that the public prosecution already had a leading role in executing prison sentences, Art. 553 Dutch Code of Criminal Procedure. A consequence of this decision is an extra gearing of one to the other decision maker as there are the Custodial Institutions Agency of the Ministry of Justice, the Department of Public Prosecution and the Probation Services. In order to prevent splitting up and disintegration and to promote a common policy, uniformity and equality in legal practice a central instance was created, the Central Service Conditional Release 10 that is housed at the Public Prosecution Office of the Court of Justice in Arnhem which already had the task of executing early release before this matter was newly regulated by law. 11 The Expertise Centre Special Penitentiary Matters administers the knowledge and expertise about the measures for the prevention of crime and for reformation of offenders, 12 the measure specially developed for career criminals 13 and the transfer of the execution of foreign penal law sentences. 14, 15, Brief Minister van Justitie van See under 9. 9 E. Julsing-Nijenhuis 2009, p Centrale Voorziening voorwaardelijke invrijheidstelling (CViv). 11 E. Julsing-Nijenhuis, Voorwaardelijke invrijheidstelling, Praktijkwijzer Strafrecht 01, Kluwer, Alphen aan de Rijn 2009, p Terbeschikkingstelling (Hospital order/maßregel der Sicherung und Besserung). 13 Inrichting voor stelselmatige daders (Institution for habitual offenders or career criminals). 14 Wet overdracht tenuitvoerlegging strafvonnissen (WOTS). 15 E. Julsing-Nijenhuis 2009, p After the detained came to the Netherlands, the conditional release (including the regulations concerning the special conditions) is also applicable in his case. After staying a certain period in detention in

4 The Central Judicial Collecting Agency 17 has the task to manage the administrative process concerning the conditional release. The Judicial Information Service 18 lays down the decisions concerning conditional release in the Judicial Documentation, adds them to the dossier of the individual probationer and keeps up to date the so called Cross- Reference Index Persons, a central register in use at the Ministry of Justice and serving several official instances. The director of the prison develops recommendations about the kind and content of special conditions using the experience he/she and the prison staff collected during the period the prisoner served his/her prison sentence. The probation service also has a consultative voice, Art. 15a 6 Dutch Penal Code. Yearly about newly conditionally released convicts are expected when the law will be in force for about three years. 20 Probably most cases will be related to prison sentences between one and two years. In cases the offender was relatively long on remand, the period that rests for conditional release is only short and therefore the decision about it then must be taken quickly. Consequently the time for advice is very short and consultations by phone call sometimes offer the only possibility to decide in time. 21 The advice of the local public prosecution is performed by the execution-indicator, 22 but the CViv can also decide to ask the local prosecution for advice The decision about the special conditions to choose must be always guided by consideration about the most effective means to prevent recidivism and at the same time to improve security in society. The special conditions required according to the opinions of the prison director and the probation office are talked about with the prisoner who should be willing to behave accordingly as otherwise the chance that the probationer will fulfil them, is not great. The meeting with the prisoner to talk about the special conditions, however, is not a negotiation in which the prisoner can refuse conditions he does not like. The prisoner s opinion about the special conditions he will have to fulfil, will be taken into account in connection with stipulating the supervision in his case. 24 In her letter of July, 12th the State Secretary of Justice wrote that the supervision on conditionally released persons will be differentiated according to a certain variety of execution modalities each related to the presumed extent of recidivism risk. The guidance and a foreign country, special conditions can be rather helpful to improve the possibility to integrate again in Dutch society (J. Julsing-Nijenhuis 2009, p Centraal Justitieel Incassobureau. 18 Justitieel Informatiedienst. 19 Verwijzingsindex Personen (VIP). 20 E. Julsing-Nijenhuis 2009, p E. Julsing-Nijenhuis 2009, p Art. 1 sub c Peniteniary Order (Penitentiaire maatregel): An entry (note) of the public prosecution in connection with handing a judgement to the Minister of Justice in order to be executed that declares that the prosecution wants to advise about possible decisions about different kinds of freedoms to give to a certain detainee. 23 E. Julsing-Nijenhuis 2009, p Explanatory Government Note (Nota van Toelichting), Bulletin of Acts, Orders and Decrees 2008, Lower House (Kamerstukken II) , , no. 14.

5 supervision should be regulated already before the release and they should start not later than two days after the release. 26 The prisoner has to express his/her willingness to behave and act according to the conditions. There is no right of appeal against the prosecutor s decision on special conditions. 27 The department of public prosecution has the right to supplement, change or terminate existing conditions. The probationer must be immediately informed in written about such changes of special conditions, Art. 15a 7 Dutch Penal Code. In cases the prosecution decides that the early release must be combined with special conditions, it has to decide also whether these are combined with electronic monitoring or not, Art. 2 IO. 28 The public prosecution is obliged to take the reasoned advices of the prison directors and of the probation into account. In its advice the probation always includes advice about the kind and intensity of the supervision needed in each individual case, Art. 2 3, 4 IO. All advices sent to the prosecution should also state the prisoner s point of view concerning the special conditions. Furthermore the public prosecution has to consider the special conditions that resulted from other criminal cases, the probation period of which start or continue at the moment of the conditional release, Art. 3 7 IO. Changes in the circumstances of the probationer can cause changes of special conditions, Art. 4 1 IO. 5. Institution in charge of supervising fulfilment of stipulations The supervision of the fulfilment of the conditions is task of the prosecution, Art. 15b 1 Dutch Penal Code. The probation service and the police both play an important role in supervising probationers in practice. 1) Probation services The prosecution generally asks the probation service -one of the associations for the care and resettlement of offenders/ex-prisoners -to accompany and supervise the probationer during his probation period. The supervision exists of controlling activities such as regular contact with the probationer, including house calls, regular contact with the surrounding of the released, for example with his/her parents, the school, the employer, the mental health hospitals and the local police, but also of the exchange of information about the convicted with the police and the public prosecution. Another very important task of the probation is to stimulate and motivate the probationer regularly to do his/her best to act in line with all conditions. The probation service fulfils its tasks in accordance with the orders of the prosecution and under the prosecution s responsibility. At any time, the prosecution can let the supervision come to an end, Art. 5 IO. 29 In connection with its supervising tasks the probation service develops a plan of approach for every probationer in which the kind and intensity of supervision is stipulated. The content of the special conditions is developed on an in depth diagnosis with scientific tested instruments such as the Recidivism Assessment Scales. 30 The factors that cause criminal behaviour are identified and weighed. Advisors of the prosecution, probation and prisons will have to prepare their E. Julsing-Nijenhuis 2009, p. 22. Ministry of Justice, Factsheet Conditional release 2008, F&A Implementation Order Conditional Release of June 12th, 2008, Bull of AOD 2008, 218. Implementation Order Conditional Release. Recidive Inschattingsschalen (RISc)

6 advice following a fixed but not limitative list of special conditions. For the future one plans to integrate a list with possible special conditions in the Penal Code. The probation has to make sure that the supervision starts at the moment the detained is released, Art. 6 IO. 31 The probationer has to obey the orders of the probation service, Art. 7 IO. As soon as the probation service notices that de probationer does not fulfil a condition, the probation informs the prosecution immediately and works out an advice for the prosecution answering the questions whether a. the breech makes additional conditions, changes of conditions or revoke of conditions necessary and b. the probation period has to be revoked, Art. 8 IO. After the probation period with special conditions ended, the probation service sends as quickly as possible a report about the probation period and the ending of the supervision to the prosecution service, Art. 9 IO. The public prosecution is planning to develop and handle a consequent and strict policy concerning the supervision. 32 2) Police Since the new regulation of conditional release came into force, in all cases the police is obliged to check regularly whether a suspect is a probationer. In these cases the suspect contravened the general condition in force in connection with his conditional release and that means that the conditional release can be abolished. 6. Probation period The probation period starts the day of the conditional release, Art. 15c 1 Dutch Penal Code. The general condition is in force as long as the period of early release, but at least one year, Art. 15c 2 Dutch Penal Code. A special condition is in force during a period that is determined for the individual convicted by the prosecution, but has a maximum that is as long as the period of the early release, Art. 15c 3 Dutch Penal Code. The probation period does not run while the convicted is de lege deprived of his/her freedom, Art. 15c 4 Dutch Penal Code. 7. Suspension of, or refrain from conditional release (1) Conditional release does not take place in cases a) that the convicted person is transferred from prison to an institution for detention under a hospital order due to his mental faculties. b) Furthermore conditional release is suspended or refused if the convicted misbehaved seriously after the start of the execution of his/her prison sentence Implementation Order Conditional Release E. Julsing-Nijenhuis 2009, p. 25.

7 This misbehaviour can exist in 1) serious troubles or a conviction after committing a crime (allowing pre trial detention) 2) behaviour during the execution of the prison sentence causing several times the infliction of disciplinary sanctions. 33 c) The convicted person escaped or tried to escape from prison after the execution of the sentence started. The policy decisive in these cases is formulated in Instruction Conditional Release of the 16th of June 2008, in force until the 30th of June Extension of this period is principally possible. d) There are no conditions available that would probably influence the convict and would restrain him from committing crimes again, or the convict is not willing to fulfil the condition(s). In these cases the reporting from prison and from the probation service are of great importance. e) If the convict was irrevocably sentenced by a foreign judge and the execution was taken over in accordance with the appropriate treaty, early release can be omitted if the extradition was obviously based on the existence of the possibility to refrain from any kind of early release. 34 (2) Furthermore conditional release can be suspended or be refused in consequence of the doings or circumstances described in (1) sub b), c) or d) took place during the period which according to Art Dutch Penal Code is deducted from the length of the prison sentence. Based on instruments as the risk assessment scales developed for the Probation Service 35 well-founded advice can be reported to the prosecution. In consequence the prosecution is able to deliver for each individual tailored demands that offer the judge the possibility to make adequate decisions Public Prosecutor s motion for judgement If the public prosecution is convinced that there exist grounds of the kind summarized in Art. 15d 1 Dutch Penal Law to suspend the conditional release for a certain period or to revoke it, the public prosecution immediately sends a written motion for suspending or revoking the conditional release to the court that decided on the concerning offence in first instance and convicted the probationer to the prison sentence now being executed. The motion includes its reasons. A copy of the demand is sent to the probationer, Art. 15d 4 Dutch Penal Code. The prosecution sends all documents belonging to the motion to court, Art. 15e 11 Dutch Penal Code. The prosecution s motion must be received principally at the court at least 30 days before the date of the conditional release of the person in question, Art. 15d 4, 1 Dutch Penal Code. After the motion arrived and the admissibility of 33 In connection with this regulation policies must be developed about the role that disciplinary sanctions have to play in the reports and advices prepared for the public prosecution. 34 Dutch Parliament, Kamerstukken II , nr. 3 Explanatory Memorandum (Memorie van Toelichting). 35 Diagnosis instrument of the Dutch probation service with 12 scales each focussing on one important factor conductive to crime. An evaluation of this instrument took place some years ago that resulted in the conclusion that RISc does deliver correct (not to low) results, except with offenders who commit crimes very often, quasi continuously, L. M. v. d. Knaap, L. E. W. Leenarts, L. T. J. Nijssen, Psychometrische kwaliteiten van de Recidive Inschattingsschalen, Cahier , Ministry of Justice, Scientific Research and Documentation Centre (WODC), Den Haag, E. Julsing-Nijenhuis 2009, p. 27.

8 the public prosecution was ascertained, the chairman of the court appoints the day for the judicial inquiry without delay, Art. 15e 1 2 Dutch Penal Code. Pending the judgment of the court the convicted stays in prison, Art. 15e 2 Dutch Penal Code. The conditional release can each time be suspended once again for a certain period or after it was suspended, be revoked, Art. 15 d 7 Dutch Penal Code. 9. Court Proceedings It is the court that decides on the prosecutor s motion. In any case the decision is taken in a public hearing. A judge sitting singly can decide. 37 The convicted can be assisted by a defence counsel. The chairman can order the bureau for legal aid to assign a lawyer on request of the detained, Art. 15e 3 Dutch Penal Code. Before the beginning of the inquiry the convicted and his/her lawyer can take notice of the documents, Art. 34 Dutch Code of Criminal Procedure, Art. 15e 3 Dutch Penal Code. The public prosecutor and the convicted can summon witnesses and experts, Art. 15e 4 Dutch Penal Code, Art. 260, 263 Dutch Code of Criminal Procedure. The court decision is well motivated. If the court follows the demand of the public prosecutor, it determines that the convicted will be released the day fixed in the prosecutorial demand, Art. 15f Dutch Penal Code. If the court does not follow the prosecutor s motion, it determines the time the convicted is conditionally released, Art. 15f 2 Dutch Penal Code. The court can recommend certain special conditions in connection with its decision, Art. 15f 3 Dutch Penal Code. The court decision is pronounced in public. The convicted is immediately informed in written by the public prosecutor, Art. 15f 4 Dutch Penal Code. According to Art. 15f 5 there exists no right to appeal against the court decision. 10. Consequences of contravening conditions If the probationer does not fulfil the conditions, a quick reaction takes place. Depending from the seriousness of what happened, it can result in the ending of the early release, in changes of the special conditions or, in cases of very small violations, in a warning, Art. 15g Dutch Penal Code. The general condition is already violated when the probationer committed a petty offence. In these cases a revocation will not be regularly necessary but in cases that the petty offence is related to the kind of offence that caused the sentencing that is now conditionally released, the situation can possibly justify partly revocation. A problem in the area of petty offences is that most of them are settled totally automatically and are therefore difficult to recognize. 38 Because it is extremely important for the authority, effectiveness and credibility of conditional decisions in general, breach of conditions needs strict consequences. A draft law, that will offer the possibility to send those who are guilty breeching conditions immediately to prison is prepared. At present those who violated conditions cannot be imprisoned as long as the judge did not decide on the motion of the prosecutor to execute the (rest of the) sentence Enkelvoudige kamer/einzelrichter. E. Julsing-Nijenhuis 2009, p Press report of June, 22nd 2009:

9 If there are serious reasons to presume that the conditionally released violated conditions so seriously that the conditional release will be recalled the public prosecution can order his/her arrest, Art. 15h 1 Dutch Penal Code. If the suspicion was not based on good reasons the arrested is released. If the public prosecutor stays convinced of the necessity to arrest a probationer he/she asks the examining magistrate immediately to suspend the conditional release, Art. 15h 2 Dutch Penal Code. The magistrate then has to decide within three times 24 hours after the person was arrested, Art. 15h 3 Dutch Penal Code. The arrested person is then heard by the judge. A lawyer can be present and take notice of the relevant documents. If the magistrate follows the demand of the public prosecutor the suspension of the conditional release is ordered, otherwise he/she orders the prolongation of the conditional release, Art. 15h 5 Dutch Penal Code. The public prosecutor informs the convicted immediately in written about the decision taken by the judge, Art. 15h 6 Dutch Penal Code. If the Minister of Justice expresses the opinion that a conditionally released did not fulfil a condition in such a way that the conditional release must be partly or even totally be revoked, he asks the public prosecution to place a corresponding motion, Art. 15i 1 Dutch Penal Code. The public prosecutor does the same in cases he/she is convinced that a breech of condition(s) happened. The court that decided the case in first instance is also competent to revoke the conditional release. If the conditional release must be revoked because the released committed another crime during the probation period, the court that has jurisdiction concerning the new offence has to decide also about the revocation of the conditional release, Art. 15i 3 Dutch Penal Code. The public prosecution sends all documents to the court that has jurisdiction. If the court decides in accordance with the public prosecutor s motion the court orders that the part of the prison sentence that was not executed due to the conditional release now still must be partly or totally executed. Art. 15j 1 Dutch Penal Code. In its decision the court can also give advice about possible special conditions. In cases the conditional release is revoked after it was suspended the execution of the prison sentence is considered to restart the day the probationer was arrested according to Art. 15h 1 Dutch Penal Code. The court decision is reasoned and announced in public. The public prosecutor immediately informs the convicted about the court decision, Art. 15j 3 Dutch Penal Code. For so far as the court decision is only related to the conditional release concerning the former prison sentence there exists no possibility to appeal, Art. 15j 4 Dutch Penal Code. 11. Indemnification In cases a prosecutor s motion to revoke a conditional release is dismissed or the public prosecution s motion is declared not allowed, the trial court being the last to decide about the motion can assign a compensation to the account of the state for the damages caused by the deprivation of liberty according to Art. 15h 5 Dutch Penal Code, Art. 15k Dutch Penal Code. The damage to be compensated is not only damage to property but also damage in time as a consequence of the period the convicted stayed in prison after the examining magistrate ordered, following the prosecutor s demand, that the conditional

10 release be suspended. The judge only allows the probationer the compensation if compensation in view of all circumstances is reasonable. In connection with these considerations the question is important whether the probationer somehow gave the impression that he/she probably would violate conditions Shortage of prison cells Art. 15l Dutch Penal Code offers the possibility that during a certain period (maximum: 6 months, prolongation with another 6 months possible) certain categories of prisoners can be conditionally released earlier (maximum: 3 months) than regulated in Art. 15 Dutch Penal Code if there is a shortage of prison cells. 41 If the Minister of Justice wants to make use of this regulation he has to publish this in the Government Gazette and to inform both chambers of Parliament, Art. 15l 2 Dutch Penal Code. This regulation is based on the experience one had during recent years in connection with a shortage of prison cells that forced prisons to send home suspects who actually had to undergo pre-trial detention. For the same reason also prisoners were sent home before the prison sentence was fully executed. In these cases a relatively short part of the prison sentence was not executed although the day that early release became principally allowed had not yet come. This procedure was named Incidental Accelerated Release 42. There were no conditions combined with this kind of release. If a prisoner is released according to the Incidental Accelerated Release without conditions, a certain period later, at the time qua date the application of the conditional release becomes possible, conditions can be imposed. Between the two forms of release there emerges consequently a period without conditions, something that is not desirable. Therefore the Minister was authorized by law to let by way of exception and under certain conditions conditional release start earlier E. Julsing-Nijenhuis 2009, p. 48. Art.15 1 Dutch Penal Code: Prison sentences of more than one and not more than two years: At least one year prison sentence must be executed; Art Dutch Penal Code: Prison sentences longer than two years: At least 2/3 of the prison sentence must be executed. 42 Incidenteel Versneld Ontslag (IVO). 43 E. Julsing-Nijenhuis 2009, p. 51.