Improvements proposed for out-of-court settlements of criminal offences

Large transactions will only be able to take place after Court of Appeal approval. It will also be possible to impose a suspended sentence in the event of a penalty order. These proposals and more can be found in the draft legislative proposal that the Minister of Justice and Security, Ferdinand Grapperhaus, is submitting for internet consultation today, following the evaluation of the Public Prosecution Service (Settlement) Act (Wet OM-afdoening).

The Public Prosecution Service can impose a punishment or measure by means of a penalty order, without the intervention of the court. This option was introduced when the Public Prosecution Service (Settlement) Act came into force on 1 February 2008. This allows the Public Prosecution Service to impose a fine, a driving disqualification or community service of up to 180 hours, if it is determined that an offence or crime has been committed, punishable by a prison sentence of up to six years. Imposing a prison sentence remains a court task. Penalty orders issued by the Public Prosecution Service have now become an integral part of the criminal justice system. But there is an important option which is still missing.

Reducing processing times

In practice, the fact that the Public Prosecution Service cannot impose conditional sentences in the event of a penalty order is considered a shortcoming. If a public prosecutor finds imposing a suspended sentence to be desirable, the suspect currently must be summoned to appear in court before the single-judge division. Judges can indeed impose suspended sentences. This is not conducive to a balanced distribution of cases between the Public Prosecution Service and the courts, since this leads to lighter cases being dealt with in court, while heavier cases with unconditional sentences are handled by the Public Prosecution Service. A balanced distribution of cases could contribute to reducing processing times in criminal cases. This is extremely significant in view of the structural backlog of criminal cases.

Judicial review for large transactions

In practice, large transactions in financial-economic criminal cases involving legal entities are an alternative to adjudication in court. An example is the EUR 775 million transaction offer accepted by ING Bank N.V. following the bank's serious negligence in preventing money laundering. Such major transactions are negotiated entirely outside the courts.  In order to increase the transparency of the settlement process and strengthen its legitimacy, the draft legislative proposal introduces a judicial review for high-value transactions.

Increasing efficiency

All in all, the amendments to the regulations for transactions and penalty orders contribute to realising the main objectives of the Public Prosecution Service (Settlement) Act: increasing the efficiency of out-of-court settlements, strengthening their legal basis, and profiting from the available capacity of the judiciary to handle cases more suited to being dealt with in court.