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Netherlands: Draft Legislation on Higher Penalties for Violent Acts Committed Under the Influence

(Dec. 6, 2013) On November 13, 2013, the Ministry of Security and Justice of the Netherlands sent draft legislation to the country’s parliament that would impose higher penalties on persons suspected of acts of violent crime, if evidence from an alcohol or drugs test indicated that the suspects acted while under the influence. (Bill to Tackle Perpetrators of Violence to House of Representatives, Ministry of Security and Justice website (Nov. 13, 2013).) The draft law amends the Code of Criminal Procedure by inserting new articles 55d and 56a. (Voorstel van wet [Draft law], No. 33799-2 (Nov. 12, 2013), Tweede Kamer [House of Representatives] website.)

According to the Ministry, an additional merit of the legislation is that it calls for the court to address the matter of whether the suspect used alcohol or drugs and if so, in what quantities, through the use of alcohol and drug tests as evidence. If test results are positive, they could be used to impose punishment in addition to the sentence demanded by the public prosecutor and the penalty set by a judge. (Bill to Tackle Perpetrators of Violence to House of Representatives, supra.) At present, it is not standard practice for police reports to record whether alcohol or drug use was involved in a crime, and so the courts usually do not know if the suspect committed the violent act while under the influence. They therefore cannot take that factor into account in determining the sentence. (Id.)

The alcohol and drugs test will consist of a preliminary investigation (breath analysis or saliva test to determine alcohol/drug use) and a follow-up investigation to specify the amount of alcohol or drugs used by the suspect (e.g., by means of a blood test). (Id.) The Ministry contends that the test will be used only for investigative purposes and where there is suspicion that a violent act that calls for preventive custody has been committed,; the police cannot apply the test “for every act of violence” there must be some indication that the act was committed while under the influence. (Id.)

The Ministry maintains that the criminal courts remain “completely free in imposing the sentence,” and that drug and alcohol abuse is just one among various factors that play a role in sentencing, but thatit will be easier … to establish the amount of drugs or alcohol that was involved.” (Id.) The Ministry further notes that the authorities can impose provisional sanctions – e.g., a ban on alcohol or on access to certain locations – as part of the sentencing for repeat offenses or for addiction, in order to change the perpetrators’ behavior. (Id.)