The Act entered into force

On 1 November 2012, the Act on Mutual Recognition and Enforcement of Custodial and Conditional Sanctions (the "Act") entered into force.

The purpose of this law is that Dutch nationals imprisoned in another EU country can be transferred to the Netherlands more quickly than before in order to serve their further sentence here. Conversely, the same applies to EU nationals who are imprisoned in the Netherlands.

In addition, the Act aims to ensure that Dutch citizens who have received an alternative or suspended sentence in another EU country can execute it in the Netherlands. Conversely, the same applies here, too, to EU nationals who have been given such a penalty in the Netherlands.

Sanctions involving deprivation of liberty

Under the Act, a Dutch national who is imprisoned in another EU country can serve his prison sentence in the Netherlands. In short, the procedure is as follows:

• The convicting country should take the initiative to examine whether a sentence can be transferred. If there are questions about the convicted person's bond with the Netherlands, the country will contact the Netherlands to check this. Sufficient connection with the Netherlands is in any case present if the convicted person is Dutch and has his or her place of residence or domicile here.
• If the binding appears to be sufficient, the convicting country sends the verdict and a standard certificate with all the necessary information to the IOS Department of the Ministry of Security and Justice.
• If all the information is complete, the IOS department will consider the court ruling and the certificate. From that moment on, the Minister of Security and Justice must decide within 90 days whether the Netherlands acknowledges the judgment or not. Only under exceptional circumstances or if the certificate does not meet a number of formal requirements can this period be postponed.
• The IOS Department sends the court ruling and the certificate to the Advocate General of the Arnhem Procurator General's Office. The latter immediately submits the judgment and the certificate to the Penitentiary Chamber of the Arnhem Court of Appeal.
• The Court of Appeal assesses whether, on the basis of the certificate, there are objections to the sentenced person serving his or her prison sentence in the Netherlands.
• If there are no objections, the Court determines the penalty that the prisoner still has to serve in the Netherlands. In principle, the Court will not adjust the penalty imposed in the Netherlands according to Dutch standards, unless the duration of the penalty exceeds the statutory maximum for the offence.
• This is only different if the Netherlands has previously surrendered a Dutch citizen to the other EU country for the purpose of criminal prosecution under the guarantee of surrender. In that case, it will be considered whether the prison sentence imposed corresponds to a penalty that would have been imposed in the Netherlands for the offence in question. However, the issuing member state's views on the seriousness of the offence are taken into account.
• If it is sufficiently certain that the sentenced person would have been released early in the sentencing country at an earlier point in time than two thirds of the prison sentence served, the conditional release shall in principle take place at that point in time.
• The Court will decide within six weeks. It shall send its opinion to the IOS Department in writing, stating the reasons for its decision.
• Ultimately, the Minister of Security and Justice decides, taking into account the opinion of the Court of Appeal of Arnhem, whether the detainee is allowed to go to the Netherlands.
• Within 30 days of the decision to recognise, the detainee must be transferred to the Netherlands.

Alternative or conditional sanctions

Dutch nationals who have received an unconditional alternative or suspended sentence in an EU country can carry it out in the Netherlands. The Public Prosecutor's Office decides within 60 days whether the Netherlands will take over the punishment.

The Public Prosecutor's Office may refuse recognition if the community service sentence imposed lasts less than 80 hours or the obligation imposed or the probationary period lasts less than 6 months.

Framework decisions

The Act implements three Framework Decisions of the Council of the European Union (2008/909/JHA; 2008/947/JHA; 2009/299/JHA). Not all countries within the EU have yet implemented these Framework Decisions. The Act therefore only applies in relation to other EU countries that have implemented the Framework Decisions in their legislation. It is expected that all EU countries will have implemented the Framework Decisions by the end of 2014.

Wots

Dutch nationals imprisoned outside the EU may also be eligible for a transfer of their sentence. It is not the Act that applies to these persons, but the Transfer of Enforcement of Criminal Judgements Act (Wots). The main difference with the Wots is that the detainee who wishes to qualify for a transfer must take the initiative himself. Moreover, countries are not bound by time limits. As a result, it takes considerably longer for the detainee to qualify for a transfer.

Incidentally, the Wots also apply to EU countries that have not yet implemented the Framework Decisions in their laws.