Sentencing in the Netherlands: the logic behind the verdict

Sentencing in the Netherlands is the reasoned choice a criminal court makes within the limits the legislature has set. Article 1 of the Dutch Criminal Code (Wetboek van Strafrecht) allows punishment only for conduct that the law made an offence before it was committed, and Article 9 lists the penalties the court may impose: imprisonment, detention, a community service order and a fine as principal penalties, with disqualification from certain rights, forfeiture and publication of the judgment as ancillary penalties. Within those limits the court has wide discretion, and Article 359 of the Code of Criminal Procedure obliges it to explain how that discretion was used.

Sentences in the Netherlands therefore look less predictable from the outside than they are. There is no tariff table and no mandatory minimum for most offences; there is a statutory maximum, a set of published reference points, and a duty to give comprehensible reasons. This article sets out the legal framework, the penalties and measures a court can actually impose, the goals of punishment the court weighs against one another, how the reasoning requirement works and where it bites, and the criticisms the system attracts.

The legality principle: no punishment without a prior law

Article 1 of the Criminal Code states the classical rule that no act is punishable except under a statutory provision in force at the time it was committed. The same guarantee appears in Article 7 of the European Convention on Human Rights, which means a defendant can invoke it directly. Three consequences follow, and each of them does real work in practice.

• The offence must exist in advance. A court cannot create liability by analogy, however obviously harmful the conduct was. Where new behaviour falls outside every existing offence description, the answer is legislation, not creative interpretation.
• The offence description must be sufficiently clear. A citizen must be able to foresee, from the text of the provision and the case law on it, which conduct is punishable. Vague offence descriptions are read restrictively.
• Criminal law does not operate retroactively to the disadvantage of the defendant. The second paragraph of Article 1 adds the mirror rule: where the law has changed after the offence was committed, the provisions most favourable to the defendant apply.

The legality principle also governs the penalty. A court may not impose a heavier penalty, or a type of penalty, that the law did not provide for the offence at the time it was committed. That is why the statutory maximum for each offence, and the fine categories in Article 23 of the Criminal Code, are the outer frame of every sentencing decision.

What a Dutch criminal court can actually impose

Dutch criminal law distinguishes three categories of sanction, and confusing them is the most common error in English-language descriptions of the system. There are principal penalties, ancillary penalties and measures. Only the first two are punishment in the strict sense; measures serve a different purpose and follow different rules.

Principal penalties

Article 9 of the Criminal Code lists four principal penalties. Imprisonment (gevangenisstraf) is imposed for serious offences, for a fixed term or, in the gravest cases, for life. Detention (hechtenis) is the custodial penalty for minor offences and is now rarely used. The community service order (taakstraf) consists of unpaid work for the general good; if the offender does not perform it, the court has fixed a period of substitute detention in advance. The fine (geldboete) is set within one of the statutory fine categories, and the court must take account of the financial capacity of the defendant.

A community service order cannot be used as the sole penalty in every case. Article 22b of the Criminal Code prohibits a stand-alone community service order for an offence carrying a statutory maximum of six years or more that caused serious bodily harm to the victim, for certain sexual offences, and where the offender received a community service order for a similar offence within the previous five years. In those cases a community service order is only possible alongside an unconditional custodial sentence or a freedom-restricting measure.

Ancillary penalties

Three ancillary penalties exist: disqualification from certain rights, such as the right to hold public office, to vote or to practise a particular profession; forfeiture of objects connected with the offence; and publication of the judgment. They may be imposed alongside a principal penalty or, in the cases the law allows, on their own.

Measures, which are not penalties

Measures are imposed to protect society, to remove an unlawful situation or to restore the position of the victim, and they are not calibrated to culpability in the way a penalty is. This is the category the popular account of Dutch sentencing usually omits, and it is where much of the practical action lies.

• Confiscation of criminally obtained proceeds under Article 36e of the Criminal Code, dealt with in separate proceedings that follow the conviction.
• Withdrawal from circulation of objects that are dangerous or whose possession is unlawful, under Article 36b.
• The compensation measure under Article 36f, by which the state collects damages from the offender on behalf of the victim.
• Placement in a psychiatric hospital or a hospital order with compulsory treatment (terbeschikkingstelling, TBS) under Articles 37 and 37a, available where a mental disorder existed at the time of the offence and the safety of others requires it.
• Placement in an institution for prolific offenders (ISD) under Article 38m, aimed at persistent offenders whose repeated minor crime is driven by addiction or other underlying problems.
• The freedom-restricting measure under Article 38v, allowing an area ban, a contact ban, a duty to be at a particular place or a reporting duty for up to five years.

Suspended sentences and conditions

Much of the flexibility in Dutch sentencing comes from the suspended sentence. Under Article 14a of the Criminal Code the court can order that a penalty, or part of it, is not to be executed unless the offender reoffends or breaches a condition during a probation period. Article 14c allows the court to attach special conditions to that suspension: treatment for addiction or a mental disorder, admission to a care institution, a contact or area ban, electronic monitoring, a duty to report to the probation service, or a prohibition on using alcohol or drugs. In practice the partly suspended sentence with special conditions is the instrument through which retribution and rehabilitation are combined in a single judgment.

At the other end of the scale, Article 9a of the Criminal Code allows the court to find the offence proven and the defendant guilty while imposing no penalty at all, where the circumstances of the offence or of the offender make that appropriate. It is used sparingly, but its existence shows that conviction and punishment are separate decisions in Dutch law.

Why we punish: the goals a Dutch court weighs

Dutch statute law does not lay down a hierarchy of sentencing goals. The goals come from legal doctrine and case law, and the court weighs them together in each case. Four recur in reasoned judgments.

Retribution

Retribution rests on the idea that a wrong calls for a response proportionate to its seriousness, and that imposing a penalty symbolically restores the legal order that the offence violated. It is the goal that carries most weight in serious offences against the person, and it is the goal that answers most directly to the need of victims and of society for the wrong to be recognised. Retribution sets a ceiling as well as a floor: a penalty out of proportion to the culpability of the offender is not justified by any of the other goals.

General deterrence

General deterrence is directed at everyone other than the offender. By imposing and enforcing penalties for an offence, the courts signal that the conduct carries a cost. Judgments invoke it most often for offences that are frequent, that are difficult to detect or that cause widespread unease: burglary, violence in the night-time economy, driving under the influence, and organised drug crime. The empirical evidence suggests that the certainty of being caught deters more effectively than the severity of the sentence, which is a reason for courts to treat the deterrence argument with some restraint.

Special prevention

Special prevention is directed at the individual offender and aims to prevent reoffending. It operates in three ways: incapacitation, because a detained offender cannot offend outside; individual deterrence; and behavioural change through treatment, supervision or training. It is the goal that most often shapes the form rather than the length of a sentence, producing partly suspended sentences with treatment conditions rather than longer terms of imprisonment.

Rehabilitation and the return to society

Rehabilitation goes further than preventing the next offence: it aims at a return to society as a functioning participant, through education and work during detention, help with debt and addiction, and aftercare on release. It weighs most heavily with young offenders and where treatment is realistic. It also produces the sharpest internal tension in the system, because long custodial sentences are recognised to damage the very prospects that rehabilitation depends on.

How the goals conflict

These goals are not always compatible, and the judgment has to resolve the conflict rather than paper over it. A long custodial sentence satisfies retribution and general deterrence while damaging rehabilitation. A community service order with treatment conditions may be the most effective way of preventing reoffending while falling short of what the seriousness of the offence appears to demand. A first offender who caused a fatal accident while over the limit needs little individual deterrence, yet the general deterrent argument in that field is strong.

There is no formula. What the law requires is that the court makes the choice consciously and explains it, which is why the reasoning requirement matters more in Dutch sentencing than any tariff would.

How the court arrives at a figure

Within the statutory maximum, the court considers the offence, the offender and the proceedings. Judgments group the factors in much the same way each time.

Factors relating to the offence include its seriousness and the consequences for the victim, the degree of culpability, whether the offence was committed with intent or through negligence, the role of the defendant as principal, accomplice or instigator, the use of violence or weapons, the vulnerability of the victim and whether the offence was planned. Statutory grounds that reduce or exclude criminal responsibility, such as excessive self-defence or diminished accountability, are weighed here as well.

Factors relating to the offender include age and personal circumstances, the criminal record extract, remorse and willingness to make amends, conduct during the proceedings, and any addiction, mental disorder or debt problem. Where the court orders a report, the findings of the probation service or a behavioural expert usually carry considerable weight. Article 63 of the Criminal Code requires the court to take into account penalties imposed in earlier proceedings for offences committed before that earlier judgment, so that the total does not exceed what could have been imposed had all the offences been tried together.

Factors relating to the proceedings include a breach of the reasonable time requirement in Article 6 of the European Convention on Human Rights, which normally leads to a reduction of the sentence, and irregularities in the investigation, which under Article 359a of the Code of Criminal Procedure can lead to a reduction of the sentence, the exclusion of evidence or, exceptionally, a bar on prosecution.

Proportionality

Proportionality is the organising principle. The penalty must be reasonably proportionate to the seriousness of the offence, the circumstances in which it was committed and the person of the defendant, and Dutch appellate judgments state that formula almost verbatim. The Court of Appeal of Arnhem-Leeuwarden used it in this form in a 2016 judgment on a violent offence (ECLI:NL:GHARL:2016:3906), setting out that in determining the penalty it had regard to the seriousness of the offence, the circumstances of its commission and the person of the defendant, and that it had weighed retribution and both forms of deterrence.

Reference points and guidelines: two different things

Two sets of published starting points shape Dutch sentencing, and they come from different institutions. The Public Prosecution Service has its own prosecution guidelines (richtlijnen voor strafvordering), which determine what the prosecutor will demand. Separately, the judiciary maintains its own sentencing reference points (orientatiepunten), agreed within the national consultative body of criminal law judges, which describe a starting point for common offence types and the factors that move a case up or down from it.

Neither set binds the court. The prosecution guidelines are not addressed to the court at all, and the reference points of the judiciary are explicitly starting points rather than rules; departing from them is permitted and does not by itself require special reasoning. Together with the case law of the Supreme Court and of the courts of appeal, they produce a working degree of consistency without turning sentencing into a calculation.

The duty to give reasons

Article 359 of the Code of Criminal Procedure requires the judgment to state the reasons that determined the penalty or measure. Three layers of that duty matter in practice.

The general duty is modest. The Supreme Court holds that the court need only give insight into its reasoning to a limited extent, because the assessment involves many factors that cannot all be made explicit. What is required is that the reasoning is comprehensible and not internally contradictory. Cassation review of sentencing is correspondingly restrained: the Supreme Court does not reassess the severity of a sentence and intervenes only where the reasoning cannot support the decision.

The enhanced duty arises where a party has put forward an expressly substantiated position, in the sense of the second paragraph of Article 359, and the court departs from it. A reasoned argument by the defence that the sentence should not exceed the time already spent in pre-trial detention, supported by the personal circumstances of the defendant, is such a position; if the court imposes more, it must set out the reasons that led it to depart. The Supreme Court applied that test in a judgment of 5 July 2022, holding that the court of appeal had adequately explained why a heavier sentence was warranted given the seriousness of the offences and the conduct of the defendant after an earlier release (ECLI:NL:HR:2022:975). Failure to respond to such a position renders the judgment void.

A specific duty applies to custodial sentences and measures involving deprivation of liberty: the judgment must set out in particular the circumstances that led to that choice. The point is that depriving a person of liberty is not the default outcome and has to be justified as such.

Where the system is criticised

The Dutch approach is defensible, but it has recognised weaknesses, and a criminal defence practice sees all of them.

Brevity of reasoning. Sentencing reasons are often short, and for the person convicted and for the victim it can remain unclear why the sentence is three years rather than two or four. The Supreme Court has been reluctant to tighten the requirement, out of deference to the trial court that heard the case and saw the defendant. The counterweight available to a defendant is procedural: an expressly substantiated position, put on the record, forces a response.

Variation between courts. Wide discretion produces differences between courts and between individual judges for comparable offences. Reference points and appellate case law limit the spread but cannot remove it, and it is an open question how much uniformity is desirable in a system built on individual assessment. In practice this is one reason an appeal on sentence alone is sometimes worthwhile: the court of appeal decides the case afresh.

The position of the victim. The right of the victim to address the court under Article 51e of the Code of Criminal Procedure has been progressively widened, and victims can join the proceedings as an injured party to claim compensation. Their influence on the sentence nevertheless remains indirect. The right to speak exists so that the perspective of the victim is heard, not so that the victim sets the penalty, and the court is not bound by what is said. The tension between recognising the harm suffered and keeping sentencing consistent across cases has not been resolved and is unlikely to be.

After the sentence: how it is enforced

A sentence is not the last decision in the case, and the enforcement stage changed significantly with the entry into force of the Custodial Sentences and Protection Act (Wet straffen en beschermen) on 1 July 2021.

Conditional release (voorwaardelijke invrijheidstelling) is no longer close to automatic and no longer runs from a fixed fraction of a long sentence without limit. It is granted for a maximum of two years, and it is a decision taken in the individual case in which behaviour during detention, the risks to society and the interests of victims are weighed. Conditions can be attached, and breaching them can lead to the remainder being enforced.

Custodial sentences and financial sanctions are enforced by the Central Judicial Collection Agency and the custodial institutions agency on behalf of the Public Prosecution Service. Where a compensation measure was imposed, the state collects the amount from the offender and pays it to the victim, and an advance scheme applies where collection fails within the statutory period. For a defendant, the practical consequence is that the enforcement regime should be part of the sentencing argument, not an afterthought: the difference between an unconditional and a partly suspended sentence, or between a fine and a community service order, determines what actually happens after the judgment.

The logic behind sentencing

What this means if you are facing sentencing

The practical lesson of the Dutch system is that the sentence is argued, not calculated. Because the court has wide discretion and a duty to explain how it used it, the material a defence lawyer places before the court, and the way it is placed there, changes outcomes. A properly documented account of the personal circumstances, an expert or probation report, a concrete and workable proposal for conditions, evidence of steps already taken towards treatment or towards compensating the victim, and an expressly substantiated position on the record all force the court to engage rather than to reach for a reference point.

Law and More acts for suspects and defendants at every stage of Dutch criminal proceedings, from the first police interview through trial and appeal, and for victims who wish to exercise their rights in the process. We assess the charge and the evidence, prepare the sentencing case, and advise on the consequences of a conviction that reach beyond the sentence itself, including the certificate of conduct, professional consequences and residence status. If you are facing prosecution or want a second opinion on a judgment, contact our criminal law team. Our guide to victims rights after a criminal case covers the position on the other side of the courtroom.