De kans op een VOG en ruimte voor maatwerk in (hoger) beroep aan de hand van een systematische jurisprudentieanalyse

The Netherlands endorses a unique criminal record system in which every job applicant can request the government to provide a risk assessment determining whether he or she is fit for a given job, known as the Certificate of Conduct (CoC). Yet, little is known about how these state-conducted risk and assessments are made. To fill this gap, we systematically analysed all case law on CoCs published online since 2004. We found surprisingly low chances of successfully winning a CoC by appealing against its denial (1.6%). Moreover, although judges have ample room for discretion and individualised assessment, only exceptional personal circumstances may lead to a reversal of the denial. In particular, cases with only one offence committed a long time ago or involving a professional assessment stating a low recidivism risk. These findings indicate a strong focus on risk prevention, oftentimes favouring public protection above the individual’s rehabilitation and socio-economic interests. This puts due process at stake, especially since very few applicants (0.6%) appeal the denial of a CoC.