Public Prosecutors and Discretion: A Comparative Study

By Julia Fionda | Go to book overview

4 The Dutch Openbaar Ministerie: The Kingpin Sentencers

1. INTRODUCTION

PROSECUTORS in the Netherlands have always been recognized as important players in the field of criminal justice. Their influence is wide and their powers extensive in the determination of the penalty imposed upon an offender in any particular case; indeed, such is the effect of prosecution policy on other branches of the criminal justice system that Jan van Dijk was inspired to describe the prosecution service, Openbaar Ministerie, as the 'spider in the web' of the criminal process. Further, albeit within a smaller, more close-knit system than other European prosecution systems,1 Dutch prosecutors can, and do, have a much more clearly defined and open influence on the sentencing policy of judges.

The wider variety of powers available to prosecutors in all aspects of their job are listed and described in some detail in Downes' study of the Dutch criminal justice system.2 For the purposes of this chapter, however, attention will be focused specifically on those powers and duties which particularly illustrate the prosecutors' influence over sentencing policy, such as the waiving of prosecutions (conditionally or unconditionally) on policy grounds, recommending sentences in court, deciding which charges will be brought in any case, and issuing fines or 'transactions', out of court settlements. This list of powers may not at first appear extraordinary; indeed, apart from the duty to recommend a sentence during court proceedings, the list contains no powers that do not also exist, for example, in the Scottish procurator fiscal service. However, what is remarkable, particularly in contrast to the Scottish system, is the amount of discretion in the hands of the prosecutor within the perimeters of those powers and their vast application to all manner of cases. It is this wide discretion which has rendered the prosecutor so important in the Dutch criminal justice system

____________________
1
There are only around 300 prosecutors in the Netherlands.
2
See D. Downes, Contrasts in Tolerance: Post-war penal policy in the Netherlands and England and Wales ( Oxford, 1988), 13-16. See also L. H. Leigh and J. E. Hall Williams, The Management of the Prosecution Process in Denmark, Sweden and the Netherlands (Leamington Spa, 1981), ch. 5, 53-64.

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