Strafbare voorbereiding
n 2026, the general criminalisation of preparatory acts (Article 46 of the Dutch Criminal Code, hereinafter DCC) plays a crucial role in combatting serious and organised crime. Additionally, due to (technical) developments in criminal investigation, such as the decryption of encrypted communications, the possibilities for gaining insight into criminal plans at an early stage have increased significantly.
Intervening (ever) earlier in the inchoate phase is not without controversy: the limits to the scope of the general criminalisation of preparatory acts have been subject to ongoing debate since the provision’s introduction, also because the parliamentary documents provide only limited guidance in this regard. This thesis provides insight into the scope of Article 46 DCC and offers a basis for discussion about this scope and its limitations.
The study indicates that the provision has a very broad scope, and that its focus lies – mainly due to the subjective interpretation of the ‘purpose requirement’ (bestemmingsvereiste) – on the actor’s intentions. The emphasis on the subjective side of the offence is further reinforced by the fact that the preparatory conduct – which need not be intrinsically dangerous or criminal – offers little objective counterbalance. The author discusses several possibilities for limiting the scope of Article 46 DCC, for example by requiring an ‘overt act’ (inspired by the criminalisation of conspiracy in the American Model Penal Code) or by imposing higher requirements on the degree of intent, and concludes that this latter option is best placed to limit the broad scope of the provision.