In the Netherlands, the Public Prosecutor’s Office [Openbaar Ministerie] (“PP”) is exclusively responsible for prosecuting criminal offences. The decision to prosecute falls within the discretionary power of the PP. This power is restricted by prosecution guidelines issued by the Board of Procurators General [College van Procureurs-Generaal], which is in charge of the PP, since suspects may invoke these guidelines directly.

The PP must comply with these guidelines. That means that if the applicable guideline so prescribes, the PP must offer a suspect an out-of-court settlement [transactie] rather than proceed to trial. In principle, if the PP brings the case before the court despite the relevant guideline, the prosecution is barred. According to established case law rendered by the Supreme Court however, the presence of special circumstances may have the effect that such consequence (a bar to the prosecution) does not take place (see, inter alia, Supreme Court 13 June 2017, ECLI:NL:HR:2017:1083). According to the Supreme Court, the harm that a suspect may incur in such cases can be sufficiently offset if, at the trial, the PP seeks a penalty that is in fact similar to the out-of-court settlement that should have been offered, and the court, when imposing a penalty, takes the PP’s default into account (see, inter alia, Supreme Court, 15 November 2005, ECLI:NL:HR:2005:AU3126).

The question that arises is whether the same rules apply if, based on a guideline, the PP must in principle issue a penalty order [een strafbeschikking]. There is not a lot of case law on this subject, and what little there is seems contradictory. In its decision of 12 April 2017, the Court of Appeal of Amsterdam dismissed an appeal filed by the accused arguing that the prosecution was barred (ECLI:NL:GHAMS:2017:1831). According to the defence, the PP should have offered a penalty order pursuant to two different guidelines. The Court of Appeal found that the guidelines in question allowed the PP leeway for deviation. Whether to dispose of a case through a penalty order is a decision that falls within the scope of the principle of opportunity [opportuniteitsbeginsel] and, according to the Court of Appeal, it is up to the PP “in all cases to decide whether to dispose of a case in or out of court”. This (generally phrased) finding is difficult to interpret. In any case, the PP is not unreservedly free to decide to bring a case before the court if a guideline, in principle, prescribes disposal via an out-of-court settlement. In such cases, there must be extraordinary circumstances that justify proceeding to trial. Nor does the Court of Appeal motivate why this would be different when the OM must impose a penalty order.

The Court of Appeal of Arnhem-Leeuwarden has opted for another approach (Court of Appeal of Arnhem-Leeuwarden, 22 November 2017, ECLI:NL:GHARL:2017:10292). This Court of Appeal referred to Supreme Court case law on the relationship between prosecution guidelines and out-of-court settlements, and implicitly assumed that this case law also applies to penalty orders. In this case, the PP did not bring forward any extraordinary circumstances to substantiate the choice to proceed to trial, which circumstances could support the conclusion that the prosecution was not barred. Apparently, an “administrative error” was involved. On appeal, even the advocate aeneral concurred with the defence’s position that the PP’s case should be dismissed. The Court agreed and barred the prosecution.

This latter approach is also consistent with the Opinion delivered by Advocate General Harteveld on 18 April 2017 (ECLI:NL:PHR:2017:441). He did note that the difference between disposing of a case through a penalty order imposed by the PP on the one hand, and disposal through trial on the other, is less pronounced than the difference between an out-of-court settlement and disposal through trial. The penalty order imposed by the PP is also a form of prosecution that (in the judicial records) is equated with a conviction. For this reason, there may be less need in practice to have the prosecution barred.