The new Punishment and Protection Act that came into force on 1 July last has caused a lot of unrest in recent months. Not only do the law and related regulations mean a deterioration in the legal position of detainees, they also excelled in lack of clarity. And that while the Minister had indicated in response to Parliamentary questions that detainees would be informed and advised regarding the new law. Unfortunately, it turned out that precise consequences of the law were often unclear even for case managers and selection officers. Case managers suspended selection requests or did not even consider them. Recommendations that did get sent were almost all kept 'in portfolio' by the selection officer, whereas the selection officer should have decided within six weeks. A wrong course of action that led to much unnecessary delay and frustration.
On 28 June, the Council for Criminal Justice and Youth Protection (RSJ) held its first ever ruling done in a case related to the new law. Here we had complained about, among other things, idle case managers and selection officers as well as the lack of transitional law. The RSJ agreed with us on a number of points. For instance, the Council is of the opinion that no distinction may be made between detainees residing in a ZBBI on 1 July 2021 and detainees on a waiting list on 1 July 2021. The RSJ said:
"The Appeals Committee is additionally of the opinion that, even after 1 July 2021, the defendant's decisions on requests for placement in a ZBBI must still consider whether detainees were already eligible for this before 1 July 2021, provided that the detainee made this request to the director or the defendant in a timely manner (i.e. in any case before 1 July 2021).(...)
Indeed, even delays in the facility or in Individual cases should not, in the opinion of the Appeals Committee, be borne by the detainee."
This transitional arrangement provides a little more clarity. However, as far as the RSJ is concerned, the law need not be declared non-binding. The RSJ considered:
"the appeals committee understands that this (A new law with later phasing, DP) is equally frustrating for the complainant. She also finds it undesirable in this context that the court was unable to take this into account when sentencing, but neither can this changed method of enforcing the custodial sentence imposed be regarded as contrary to the principle of legality as enshrined in (inter alia) Article 7 ECHR."
According to the RSJ, Article 7 of the European Convention on Human Rights (ECHR) would not apply because although the manner of execution of the sentence changes, but not the (level of the) sentence itself. And Art. 7 ECHR would not deal with the manner of implementation. The law would therefore pass the ECHR test. This position of the RSJ was rejected by the court in summary proceedings followed.
Yet this reasoning seems to open the door to an effective pardon. After all, this new law often means that prisoners cannot claim freedoms until months or years later. Moreover, those freedoms are being curtailed. For example, with the new v.i. regulation. The new law and its consequences were often not foreseeable to the judge at the time of the decision. If the consequences of the law had been known at the time, the judge might have imposed a different (lower) sentence. Through a pardon request, a reassessment of the sentence can be requested. Perhaps the new law gives rise to (partial) remission of the sentence. The first decisions on pardon appeals are yet to come. The new law may also affect the amount of the (net) sentence in pending cases.
Thus, the implications of the new law are still evolving. To be continued, no doubt.
Mr. D.M. Penn