The Extrajudicial Disposal of Criminal Cases

Abstract

On 1 February 2008, the range of extrajudicial disposal modalities in the Netherlands was expanded. On that date, the Public Prosecution Service (Settlement) Act (Wet OM-afdoening) entered into effect. The Public Prosecution Service (Settlement) Act comes down to an adjustment of the legal basis of the extrajudicial disposal of criminal cases. Whereas the legal structure of the still existing settlement penalty entails that – if the accused fulfills the settlement conditions – the Public Prosecution Service refrains from (further) prosecution, and the settlement penalty therefore serves to avoid (further) prosecution, the concept of the ‘punishment order’ introduced by the Public Prosecution Service (Settlement) Act is a form of actual prosecution. At the same time, the punishment order is a modality of sanctioning. This means that unlike the settlement penalty, the punishment order entails a (positive) opinion on the accused guilt of an offense. Whereas the settlement penalty in the Criminal Code precedes the decision on (further) prosecution, the punishment order is the result of the decision to prosecute. In this state of affairs, unlike in the ‘classical’ system of the law of criminal procedure, the criminal court is in principle no longer involved in the case, unless the accused expresses his wish to have the case settled by the criminal court. This is a fundamental change in the Dutch law of criminal procedure which requires consideration in more detail. In this paper, attention is devoted to the historic backgrounds of the punishment order. Next, several main features of the Public Prosecution Service (Settlement) Act are analyzed and discussed.