Now that the powder fumes from the huge amount of fireworks set off have cleared, a brief review of the laws and regulations that came into force on 1 January 2020 is in order. 

Increase in penalty caps

The maximum penalty for several offences has been increased. For example, the maximum penalty for incitement to violence, hatred or discrimination has been increased from one to two years; possession of certain firearms goes up from four to eight years; participation in a certain criminal organisation now carries a maximum of 10 years (previously six) and obstructing emergency workers can carry a three-month prison sentence (previously one). The latter article is already effective on 31 December 2019 in view of issues surrounding the turn of the year. The maximum penalty for dangerous driving goes from two to six months' imprisonment, including in cases without injury or damage. Motorists who cause a serious accident through reckless driving can face up to 6 years in prison. Note that if the offences were committed before the increase came into force, the old law applies. 

Criminalisation

Apart from criminal increases, there have also been criminalisation of behaviours that did not previously appear in the Penal Code. Criminal law needs regular updates. Not infrequently, criminal law simply lags behind social developments. For instance, with the laws and regulations in place until 1 January last, it was difficult to prosecute and punish revenge porn. It often involved, at most, a privacy violation, which was not punishable in itself, but should be dealt with under civil law. Thus, the new law also threatens the surreptitious production of sexual images, such as filming under a dress or skirt, with punishment. Possession or disclosure of such -secretly obtained- material is now also criminalised. It is no longer necessary for there to be sexually relevant interaction. This could lead to interesting legal questions in practice. For example, if a face is not in the picture, it does not necessarily mean that the video was made secretly. 

Furthermore, it is now punishable to disclose sexual images of another person, although obtained with the knowledge of the person concerned, for the purpose of harm. While a picture may have been taken with consent, it becomes punishable if such a picture is disseminated, for instance in combination with a name and phone number. In addition, of course, a civil claim can still be made. 

Organisational change

There are also changes on the organisational front. For example, a law came into force this year that transfers responsibility for the enforcement of sentences from the public prosecutor's office (OM) to the minister for legal protection. This is the Revision of Enforcement of Criminal Decisions Act (USB Act). This law was prompted by practice. Too often, there is too much time between the judge's decision and the final execution of the sentence. This does not help the disadvantaged, but neither do convicts who want to put the case behind them as soon as possible and get on with their lives. Convicts could therefore expect to be called to serve their sentences sooner. Furthermore, compliance with conditions imposed under a suspended sentence/ release would be better monitored. To promote cooperation in the chain, the direction of sentence enforcement would be placed in the hands of the minister instead of the public prosecutor . This would give the minister greater oversight of execution. The OM should then be able to focus more on its core tasks, namely the investigation and prosecution of offences. 

These were some of the salient changes from 1 January 2020. But no matter how well thought out a new law will have been in a study room, reality will always continue to surprise. Only in the courtroom will we see how watertight and effective the laws will actually be.

Mr. D.M. Penn