On 25 June 2019, the House of Representatives passed Minister Dekker's 'Punish and Protect' bill. Meanwhile, the bill is before the Senate for consideration. The Senate issued its first report on 6 March 2020, which is now under further discussion. Although it is not yet known when the Bill will enter into force, it is good to hold it up to the light in the meantime,
The main purpose of the bill is to shorten the length of conditional release (VI). Currently, an inmate (with a fully unconditional sentence) can be eligible for VI when he or she has served two-thirds of the sentence. A slightly different arrangement applies to sentences between one and two years. The legislator now wants VI to last longer than two years in no case. For example, if someone is given an 18-year prison sentence, under the current regulation he is eligible for VI after 12 years. With the new scheme, that would therefore be after 16 years only.
The legislator also wants to give the prosecution more powers. Currently, any prisoner with an unconditional sentence longer than one year is eligible for VI unless there are reasons to withhold VI. The prosecutor now still has to submit a request to the court to withhold VI. The court then decides on that application. Under the new scheme, the OM would be given the power to decide whether or not to withhold VI. In relation to each detainee, the prosecutor will have to consider whether they are eligible for VI. The judge would then no longer play a role in this decision. Only when the OM would decide to omit or postpone VI can the detainee file an objection with the court. In addition to the objection option, a detainee has the option for once to apply for conditional release after all, if the VI would not have been granted in the first instance. However, this possibility only arises six months after the decision not to grant the VI was made. The public prosecutor would then have to decide on this new request.
The new scheme will also change the course of detention. Currently, an inmate in the final part of his sentence may be eligible to participate in the penitentiary programme (PP). The detainee can then stay outside the PI with an ankle bracelet. Under the new scheme, participation in the penitentiary programme will only be open to detainees who have received a prison sentence of a minimum of six months and a maximum of one year. In case an inmate has received a prison sentence higher than one year, he would no longer be eligible for participation in the penitentiary programme.
The new VI scheme will only apply to prison sentences handed down and enforced after the new law has come into force. It will therefore not apply to prisoners currently serving an unconditional prison sentence. This may be different if an irrevocably sentenced prisoner wants to be eligible for a penitentiary programme after coming into force. Once the law enters into force, according to the transitional law, an inmate will only be eligible for participation in the penitentiary programme if the execution of that sentence is ongoing for a maximum of 3 years after the law enters into force. Thus, a prisoner who still has to serve 4 years after the new law comes into force before his VI starts does not have to worry about his VI. But participation in the penitentiary programme would no longer be possible for him.
Defendants who are currently awaiting their criminal cases may have an interest in having them disposed of before the new law comes into force. The new regime will apply to all convictions handed down after the date of entry into force. Even if the 'referral date' is before the date of entry into force.
Of course, it is important for lawyers to alert the court to the impact the law will have on sentencing. The development that inmates may be eligible for VI at a later date could be a reason for the court to reduce the sentence. If the court finds that a defendant will have to serve 12 years effectively, it will not impose 18 years, but 14 years after enactment. For the last two years, the convict would be eligible for VI. Even if VI would be rejected, the court can then be asked for its opinion.
So on the face of it, this new bill can again be described as a strong example of symbol politics.
Ms M.F.M. Ortner