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Criminal cases

03

jan
2022

In Criminal Cases

By - F.P. Slewe

Strengthening criminal law approach to undermining crime' Act

On 03, Jan 2022 | In Criminal Cases | By - F.P. Slewe

On 1 January 2022, the Act on Strengthening the Criminal Law Approach to Undermining Crime came into force (Bulletin of Acts and Decrees 2021, 544). According to the legislator, the purpose of this Act is to strengthen the criminal-law approach to subversive crime. This involves, in particular, combating the illegal drugs industry, the associated laundered profits, dangers such as drug labs in residential areas, dumping toxic chemical waste in nature, and threatening local administrators and other public officials.

The law has led to the following legislative amendments.

1. Increase in the maximum sentence for threatening behaviour and an additional ground for punishment

The maximum sentence for threatening people has been increased from two to three years' imprisonment (art. 285 paragraph 1 of the Criminal Code).

Threatening ministers, state secretaries, commissioners of the King, deputies, mayors, aldermen, members of a generally represented body, judicial officers, lawyers, journalists or publicists in the context of news gathering, police officers or special investigating officers can increase the maximum prison sentence by one third (art. 285 paragraph 5 of the Criminal Code).

2. Prohibition on the transport or holding of certain chemical substances (precursors) designated by ministerial regulation

In the Prevention of Substance Abuse Act (Wvmc), a new Section 4a prohibits the transport or possession of certain chemical substances which can be used for the illegal production of psychotropic substances and drugs and for which there are no known legal applications. These are substances which have not been registered pursuant to European regulations, nor have they been placed on a list of non-registered substances within the meaning of Article 9(2) of Regulation 273/2004 or Article 10(2) of Regulation 111/2005. The substances may be designated by ministerial regulation if it has been established that these substances can be used for the illicit manufacture of narcotic drugs or psychotropic substances and no legal use of these substances is known.

The designation takes place by placing a substance on a list by ministerial regulation. The designation of a substance may also be cancelled immediately by ministerial regulation.

Based on the system of European regulations and the new penalty provision, the following situations may arise in practice:

  • A suspect is arrested because of actions involving substances registered in the list annexed to Regulation no. 273/2004 and those listed in Regulation no. 111/2005. If the precursors in question are on the list of registered substances, it may be a matter of importing or exporting them into the customs territory of the European Union without a licence or registration, in violation of Regulation no. 273/2004. If the licensing or registration obligations have not been met, the person concerned will be punishable under Section 2, subsection a, of the Licensing Act and Section 1, subsection 1, of the Economic Offences Act. Depending on his intentions, the suspect may also be punishable pursuant to Section 10a of the Opium Act.
  • a suspect is arrested for actions involving non-scheduled substances that have been designated by ministerial regulation. If the substance has been designated by ministerial regulation, the person concerned is liable to punishment under section 4a, paragraph 1, of the Licensing Act and section 1, subsection 1, of the Economic Offences Act. Depending on his intention, the suspect may also be punishable pursuant to Section 10a of the Opium Act.

3. New penal provision fordrug pushers

By means of a new penal provision, illegal residence in certain logistic areas, such as ports, airports and railway yards, is punishable (art. 138aa Sv). The new penal provision is intended to take firmer action against so-called "hawkers". They are persons who, by order of an organisation, collect drugs (usually cocaine) or other illegal goods after these have been secretly shipped to the Netherlands. They penetrate the secure areas where goods and containers are unloaded and transhipped in all kinds of ways, looking for drugs and other illegal items that are hidden between the legal goods flows.

The maximum prison sentence will be one year. If there is an intrusion, for example if a trafficker uses a false pass or hides in a company car to enter the premises, the maximum prison sentence goes up to 2 years.

Preventive custody is possible for this offence. This allows the prosecution and the police to gather more evidence to link suspects to organised crime.

4. Measure of cost recovery

A new measure has been introduced whereby the costs to be borne by the State in connection with the destruction of items that constitute a serious danger to the environment or to public health may be recovered from the person convicted of possession of or trafficking in such items (cost recovery measure).

The cost recovery measure is included in the Opium Act (art. 13d of the Act), the Economic Offences Act (art. 8, under d, 8a and 14, second paragraph, of the Act) and the Weapons and Ammunition Act (art. 56a of the Act).

The Public Prosecutor's Office can request the imposition of this measure, after which the judge can impose it when delivering the final verdict in the criminal case against the suspect. The proposed measure only relates to costs actually incurred. This means that the recovery of costs cannot be based on estimates.

The judge may reduce the payment obligation in view of the offender's role in the complex of events or if there are several offenders. The judge may also take into account the offender's ability to pay.

If payment is not made, a Criminal Execution Investigation can be demanded and the corresponding powers can be used. If the convicted person does not comply with the obligation to pay the destruction costs, hostage-taking is possible. The hostage-taking does not remove the obligation to pay.

5. Expanding the application of criminal law enforcement (SEO)

Since 1 July 2011, it has been possible to initiate a criminal enforcement investigation (SEO) for the purpose of enforcing the deprivation of illegally obtained benefits measure (deprivation measure). By means of a SEO, the Public Prosecutor's Office can gain insight into the offender's assets during the enforcement phase of the deprivation measure. Certain investigative powers can be used for this purpose.

The new law makes it possible to initiate a SEO also for the purpose of enforcement of the fine, compensation measure and forfeiture.

Book 6 of the Code of Criminal Procedure will have a new fifth title in Chapter 4: 'Investigation of the convicted person's property' (art. 6:4:22 up to and including 6:4:29 Sv). Articles 6:4:10 up to and including 6:4:17 of the Code of Criminal Procedure, which only dealt with the investigation of the assets of a convicted person who has been given an irrevocable deprivation of liberty measure, will be repealed.

 

 

 

 

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