Criticism of the penalty order? ‘I am more positive about it than many others’

Lawyers in Groningen recently warned on RTV Noord about the increasing use of penalty orders by the Public Prosecution Service (OM). According to several lawyers, suspects do not realise the consequences. But according to PhD candidate Maarten Knol (32), who has been researching this measure for the past six years, the penalty order is a very useful instrument.

Let's go back in time. The penalty order was introduced in 2008. It allows the Public Prosecution Service to impose sanctions such as fines, community service or compensation for common offences carrying a maximum prison sentence of six years, without the involvement of a judge.

Much criticism

Since then, the penalty order has often been criticised, both by the legal profession and by politicians and academics. The fact that many cases do not come before a judge is said to undermine the rights of suspects and the sense of justice in society. Moreover, the Public Prosecution Service is said to impose heavier penalties than the courts.

For his doctoral research, Knol looked at history: how did things work before the penalty order? And he compared the penalty order with the administration of justice. His conclusion: 'There are certainly things that could be improved, but I am more positive about it than many people.'

Let's explain. There were two reasons for introducing penalty orders: firstly, the courts had (and still have) too many cases on their hands, and secondly, there was a desire to improve the old rules.

Ideal

Knol: 'The ideal is that all criminal cases are dealt with by the court. But that has never been the case: there has never been enough time and capacity, at least not since the 16th century.'

Until the introduction of the penalty order, the Public Prosecution Service worked with settlements or conditional dismissals. 'The public prosecutor would say: I want to bring you before the court, but if you meet certain conditions, I won't. If you, as the suspect, met those conditions, that was the end of it. The advantage for suspects was that it was not officially established that a criminal offence had been committed.'

Knol immediately adds a caveat to that advantage. 'Suppose a suspect was given a high fine or a high community service order, then that suspect could say: we have complied with the settlement, but we have not committed a criminal offence. I don't think that's desirable.'

Major disadvantages

There were also major disadvantages to the old method. 'The suspect was only moderately protected. Few strict requirements were imposed on the public prosecutor's actions.' Moreover, if a suspect did not respond to the proposal, the case would ultimately have to go to court, which mainly caused additional delays.

This has changed with the penalty order. 'Stricter requirements are imposed on the penalty order, which can be monitored. This makes it easier to check what the public prosecutor decides. As a suspect, you can also easily object if you disagree with the penalty imposed, in which case the case will still be brought before the court.

And if the suspect does not lodge an objection but refuses to comply with the penalty order, the decision is enforceable: in the case of a fine, the bailiff can be called in.

That does not mean that everything is now perfectly organised. 'I fully agree with lawyers who insist that a penalty order must be carefully considered. That is why it is important that the penalty order is adequately supervised.'

This is currently done in various ways. First of all, the Public Prosecution Service does this itself. In addition, there is also cross-case supervision by the National Ombudsman and the Attorney General at the Supreme Court. This means that in some respects, the supervision of penalty orders is better regulated than within the judiciary. 'The Attorney General now occasionally conducts random checks to see whether the public prosecutor is doing his job properly. That control mechanism does not exist in the judiciary.'

Supervision could be improved

But that supervision could be even better. First of all, it would be good if the judge assessed the content of the penalty order. ‘That is not currently the case. If a suspect lodges an objection , the judge sets aside the penalty order and reviews the case from scratch. This makes it difficult to learn lessons.’

In addition, the Public Prosecution Service could be more transparent about its internal supervision. ‘This could be more structured, allowing the Public Prosecution Service to show the outside world more clearly how supervision is organised.’

But all in all, he mainly sees the advantages of the penalty order. 'It is an illusion to think that the judge handles all criminal cases. The supervision of the penalty order has its strengths and weaknesses, but overall, it is quite well organised, certainly in comparison with the past.'