A review of sentence justification: The case of the Netherlands

This chapter presents the development of approaches to sentence justification in the Netherlands and various initiatives which have been taken to improve it. It is argued that in terms of enhancing sentence justification, two approaches can be taken. On the one hand, a top-down change is possible through the law by the legislator or the jurisprudence of a higher authority (Supreme Court). Which of the two approaches is successful depends heavily on how the sentence justification is regulated. In this chapter, the Netherlands will serve as a case study. It is illustrated that a top-down approach is unsuccessful for the case of the Netherlands due to a lack of sentencing rules in the law and the fact that the Dutch Supreme Court is not willing to impose stricter requirements on the sentencing justifications of first-instance and appellate courts. It is noted that these conclusions may be different for other countries where, for example, a comprehensive regulation of sentencing and sentence justification is laid down in the law. Although the Netherlands is not a post-communist country, it is likely the only country that developed and tested multiple approaches to enhancing the quality of sentence justification. Dutch experiences are thus beneficial for anyone thinking about improving the quality of sentence justification, including the post-communist region. The aim of this chapter is thus to describe what efforts have been taken in the Netherlands to improve sentencing motivation, to highlight what is needed to improve sentencing justifications and to consider by what routes this could be achieved. After a short outline of the general legal framework and the ways in which sentencing discretion is structured in the Netherlands, it discusses the legal provisions and jurisprudence of the Supreme Court relating to sentence justification. Attempts from both within and outside of the judiciary to improve sentence justification bottom-up are examined next, with a specific focus being given to the “Promis” project (Project on Improving Sentencing Justification) and the Committee on the Unity of Law, whose role it was to improve the explanation of the verdict. Given that the quality of sentence justification has not reached a sufficient level of quality, the last part of the chapter presents recent proposals on how sentence justification could be further improved and possible reasons for this failure.