The behavioural and freedom-restricting measure

On 1 January 2017, the first part of the Act of 25 November 2015 on long-term supervision, influencing behaviour and restricting freedom entered into force (Bulletin of Acts and Decrees 2015, 460). The second part will enter into force on 1 January 2018. The second part of the Act introduces the so-called behavioural influencing and freedom restricting measure (GVM). The Act makes it possible for sex offenders, violent offenders and former internees to remain under intensive supervision for a longer period of time after their return to society and for their resocialisation to be subject to conditions. This will enable a certain category of offenders with a high level of risk of recidivism to remain under long-term or even lifelong supervision.

According to the new law, the judge can impose a behavioural and freedom restricting measure on posted persons whose posting has ended and on serious violent and sex offenders whose imprisonment has ended or whose conditional release has ended after imprisonment. The court can already impose the measure in the judgment in which the accused is made available or sentenced for serious acts of violence and indecency.

In the context of the behavioural and freedom restricting measure, the following conditions may be imposed:

1. a prohibition on the use of narcotics or alcohol and the obligation to cooperate in blood tests or urine tests for the purpose of compliance with this prohibition;
2. inclusion of the convicted person in a healthcare institution;
3. an obligation to undergo treatment by an expert or healthcare institution;
4. staying in an institution for assisted living or social care;
5. participating in a behavioral intervention;
6. a ban on volunteering of any kind;
7. other conditions, the conduct of the convicted person;
8. a restraining order;
9. a restraining order;
10. a duty to report;
11. a restriction on the right to leave the Netherlands;
12. an obligation to move or a prohibition to settle in a certain area.

The conditions may be imposed separately or in combination. They may also be subject to electronic supervision.

Enforcement of the behavioural and custodial measure shall only take place if the Public Prosecution Service submits a claim to that effect to the court that has taken cognizance in the first instance of the offence in respect of which the measure was imposed. In principle, the claim must be submitted no later than ten weeks before the termination of the tbs or prison sentence imposed.

When the Public Prosecutor submits a claim, the judge assesses whether he sees a reason to enforce the measure. This is the case if serious account must be taken of the fact that the convicted person will once again commit a crime for which the independent measure can be imposed or if this is necessary to prevent seriously prejudicial behaviour towards victims or witnesses.

The probation service gives advice on the risk of recidivism and/or the need to protect the victims or witnesses in the event of a claim for imposition and in the event of a claim for enforcement or extension of long-term supervision. If the measure is imposed on the condition of admission to a healthcare institution, it must also be based on a medical certificate.

Where the court orders enforcement, it shall lay down in its judgment the conditions of enforcement and the duration of the measure. Enforcement of the measure shall be immediately enforceable.

A charge to implement the measure may be issued for a period of not less than two and not more than five years and may be renewed by the courts for further periods of not less than two and not more than five years at a time. Lifelong supervision is therefore possible.

The Public Prosecutor's Office or the convicted person may request the court to lift or amend the measure.

An appeal may be lodged with the Arnhem-Leeuwarden Court of Appeal against the order to implement the measure. An appeal is equally possible against the extension of the duration of the measure, against its repeal and against the amendment of the conditions laid down therein.

Replacement detention of up to six months may be applied if the sentenced person does not comply with the measure. However, the substitute detention shall not be regarded as a substitute for the measure imposed. Each time the measure is renewed, a new maximum period of six months' alternative detention shall run.

The procedure for imposition and enforcement will be regulated in the Fourth Section of Title IIA of the Penal Code (art. 38z-38ag Sr).

The other amendments which enter into force on 1 January 2018 are as follows:

• The minimum length of the probationary period for the special conditions of conditional release (v.i.) is equal to the minimum length of the probationary period for the general condition. The minimum length of the probationary period for the special conditions of conditional release is therefore at least one year (Article 15c of the Penal Code, second paragraph).
• The arrangement for conditional release includes the possibility of extending the probationary period once by a maximum of two years.
• In addition, the conditional sentence may be extended by a maximum of two years each time if and as long as it must be seriously considered that a moral or serious offender will once again commit a crime aimed at or threatening the inviolability of the body of one or more persons or if this is necessary to prevent seriously prejudicial behaviour towards victims or witnesses (art. 15c of the Criminal Code, third paragraph (new)).