CRIMINAL LAW
- Part of Public Law
SUBSTANTIVE CRIMINAL LAW
® Body of rules that govern criminal behaviour and addresses the limits of criminal
liability
® Found in Criminal (Penal) Code
Goals of Criminal Law:
1. Retributive justice:
- penalise offender to a similar degree (proportionally between deed and punishment)
- law of talion (retaliation authorised by law)
- aimed towards past
2. Prevention (changing behaviour):
- do not punish to avenge deed, but to prevent future crime.
- either general (deterrence) or specific (recidivism of offender)
- aimed towards future
Based on two key principles:
a) Principle of Legality
Nulla poena sine lege: no penalty without law, reason must be written in statute (to
prevent absolute power)
e.g. Art. 1(1) PC, art. 16 C, art. 7(1) ECHR
Ideas of POL:
- Lex scripta: need to have a written description of the guilty act (no customary law)
- Lex praevia: no retroactive effect
- Lex certa: precise legislation needed for criminal behaviour (fixed penalties w a max
punishment, well-defined law)
- Lex stricta: no reasoning by analogy allowed - cannot say that one behaviour looks
like another which is punishable, apply the provision (can extensively interpret
legislation)
exceptions:
- art. 7(2) ECHR- can retroactively punish if the state finds that the crime was a
violation of the general principles of law , e.g. war crimes so horrific that they
weren’t laid down in statutes
- art. 1 (2) PC – retroactive punishment can occur, if this new punishment would work
in favour of the offender
b) Presumption of Innocence (art. 6 (2) ECHR)
Sources of substantive law:
1. Penal code (book 1- general provisions, 2 – serious, 3 – minor/infractions)
2. Separate statutes
, 3. Secondary legislation
Statutes – summary offense and serious offense (opium act)
Can find summary offenses in lower levels of legislation (by-laws)
Book 2 vs. Book 3 PC:
1. Book 3 summary offenses – Complicity (accessory), attempt is not punishable
2. Crimes can only be made by acts of parliament (whereas infractions (book 3) can
be made by lower legal bodies) (Art. 154 Municipality Act)
3. Competence of court: Book 2 – tried in first instance in criminal division of district
court, book 3 - cantonal court (Art. 45 Act of Judicial Organisation / 382 CCP)
4. Extraterritoriality – in serious offences committed outside NL by Dutch Nationals,
the Dutch PC will apply (art.5 PC)
5. Coercive measures (pre-trial detention) only applicable to book 2 serious offenses
(art. 67 CCP)
Offenses:
® Serious vs. summary
® Conduct vs. result
Conduct – focuses on the punishable act or behaviour, no concern of result (speeding, theft)
Result – focuses on the result of the action (e.g., manslaughter – don’t care how victim died,
but that there is a victim, who is now dead)
Basic offense can have other (aggravating components) offenses built on it. E.g., theft has a
max. penalty of 4 years imprisonment – but theft with violence has 9 years imprisonment
® Qualified vs. preferential offence
Qualified – apn offence which has additional aggravating components
Preferential offence – an offence which has mitigating components
® Offence by action vs. offence by omission
Description of offense:
a) components of provision
b) indictment or charge
c) writ of summons / subpoena (art. 261 CCP)
Perpetratorship:
Perpetrator = person who commits an offence by himself (all components)
- Part of Public Law
SUBSTANTIVE CRIMINAL LAW
® Body of rules that govern criminal behaviour and addresses the limits of criminal
liability
® Found in Criminal (Penal) Code
Goals of Criminal Law:
1. Retributive justice:
- penalise offender to a similar degree (proportionally between deed and punishment)
- law of talion (retaliation authorised by law)
- aimed towards past
2. Prevention (changing behaviour):
- do not punish to avenge deed, but to prevent future crime.
- either general (deterrence) or specific (recidivism of offender)
- aimed towards future
Based on two key principles:
a) Principle of Legality
Nulla poena sine lege: no penalty without law, reason must be written in statute (to
prevent absolute power)
e.g. Art. 1(1) PC, art. 16 C, art. 7(1) ECHR
Ideas of POL:
- Lex scripta: need to have a written description of the guilty act (no customary law)
- Lex praevia: no retroactive effect
- Lex certa: precise legislation needed for criminal behaviour (fixed penalties w a max
punishment, well-defined law)
- Lex stricta: no reasoning by analogy allowed - cannot say that one behaviour looks
like another which is punishable, apply the provision (can extensively interpret
legislation)
exceptions:
- art. 7(2) ECHR- can retroactively punish if the state finds that the crime was a
violation of the general principles of law , e.g. war crimes so horrific that they
weren’t laid down in statutes
- art. 1 (2) PC – retroactive punishment can occur, if this new punishment would work
in favour of the offender
b) Presumption of Innocence (art. 6 (2) ECHR)
Sources of substantive law:
1. Penal code (book 1- general provisions, 2 – serious, 3 – minor/infractions)
2. Separate statutes
, 3. Secondary legislation
Statutes – summary offense and serious offense (opium act)
Can find summary offenses in lower levels of legislation (by-laws)
Book 2 vs. Book 3 PC:
1. Book 3 summary offenses – Complicity (accessory), attempt is not punishable
2. Crimes can only be made by acts of parliament (whereas infractions (book 3) can
be made by lower legal bodies) (Art. 154 Municipality Act)
3. Competence of court: Book 2 – tried in first instance in criminal division of district
court, book 3 - cantonal court (Art. 45 Act of Judicial Organisation / 382 CCP)
4. Extraterritoriality – in serious offences committed outside NL by Dutch Nationals,
the Dutch PC will apply (art.5 PC)
5. Coercive measures (pre-trial detention) only applicable to book 2 serious offenses
(art. 67 CCP)
Offenses:
® Serious vs. summary
® Conduct vs. result
Conduct – focuses on the punishable act or behaviour, no concern of result (speeding, theft)
Result – focuses on the result of the action (e.g., manslaughter – don’t care how victim died,
but that there is a victim, who is now dead)
Basic offense can have other (aggravating components) offenses built on it. E.g., theft has a
max. penalty of 4 years imprisonment – but theft with violence has 9 years imprisonment
® Qualified vs. preferential offence
Qualified – apn offence which has additional aggravating components
Preferential offence – an offence which has mitigating components
® Offence by action vs. offence by omission
Description of offense:
a) components of provision
b) indictment or charge
c) writ of summons / subpoena (art. 261 CCP)
Perpetratorship:
Perpetrator = person who commits an offence by himself (all components)
