Since the entry into force of the Long-Term Supervision Act in 2018, it has become increasingly common for the court to impose a behavioural and freedom-restricting measure (CSM) on a certain group of convicts. 

This law aims to mitigate social unrest and feelings of insecurity that would arise when persons convicted of serious violent or sexual offences return to society. The law aims to allow convicted persons, even after their release, to be placed under lifelong(!) probation supervision, if necessary, to further curb any repeat risk. Below, I will explain why the soup may not be as hot to eat as it is served. 

When can a GVM be imposed?

The judge can impose a GVM if tbs (with or without conditions) is imposed. The judge also has this power, for example, if someone is convicted of a violent or sexual offence, while it carries a sentence threat of four years or more.  

The two-stage rocket

Because the judge, at the time of imposing the GVM measure, does not yet know at all whether there is still a risk of recurrence by the end of the detention or tbs measure, a kind of two-stage rocket has been built in. An imposed GVM is only enforced if the judge actually decides to do so towards the end of the sentence or measure.  

The public prosecutor must then have filed an application to that effect in time. When the court issues an order to enforce the previously imposed GVM, it determines the duration of the GVM, which can be two, three four, or five years (with the possibility of extension) and sets the conditions. These could include a ban on the use of narcotics, location and/or contact ban, staying in an institution or participating in behavioural intervention. 

Implementation of the GVM

The enforcement decision is subject to appeal. Also against any extension decision. It is also possible to request termination or modification of the conditions, against which a further appeal can be lodged. The court's imposition of the behavioural and freedom-reducing measure does not necessarily mean that it will actually be enforced after the deprivation of liberty. The court may ultimately refrain from doing so if it is successfully argued that any recidivism risk has been sufficiently contained. 

And if the GVM conditions are not met?

The court shall determine in the judgment the duration of the substitute detention to be enforced at most for each failure to comply with the measure. The duration of this substitute custody shall be at least three days. The total duration of the substitute custody shall not exceed six months per period imposed. 

Future of the GVM?

Since the court or tribunal has the option to do so, the GVM is being imposed with increasing frequency. Perhaps it is also made easy for the court or tribunal because the imposition does not have to be final because of the two-stage racket. Because years pass before the end of a lengthy sentence or measure comes to an end, it has been decided at most a few times that the GVM should actually be enforced.

Whether supervision is necessary is highly questionable. It seems mainly a political tool to reassure society with the idea that the released offender is still under supervision. Whether the remedy can pass muster will undoubtedly be referred to a European Court at some point. After all, it is at odds with the right to respect the private life of someone who has already had his sentence. 

Mr. D.M. Penn