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<strong>Child</strong> PornograPhy First report oF the Dutch NatioNal rapporteur
judgment. In the future, this amendment should prevent the situation in which, in the judgment,
a special condition stating merely ‘compliance with the instructions from probation and after-care
services’ is deemed sufficient. On the one hand, this amendment serves the interests of legal certainty,
and on the other hand, the intention is to contribute to the effectiveness of probation and after-care
supervision. According to the government, the judgment – and therefore, to a significant extent, the
conditions – need to be described as specifically as possible. The legislative proposal sets out to reflect
current practice as much as possible, especially with regard to the special conditions in the form
in which they can currently be imposed, which in some instances only involves a codification. The
legislative proposal provides for an extension to the list of special conditions, which remains nonexhaustive.
This list includes a location ban, amongst other things. In the event of a location ban, the
convicted perpetrator is not allowed to go to a certain place or the surrounding area, for example if
the offender lives in the vicinity of a victim (this condition is regularly imposed in the event of sexual
abuse in particular). A location ban is usually imposed in combination with electronic monitoring.
Besides this, the list also provides for a location order. An example of this is the imposition of house
arrest. Another possibility is that the convicted perpetrator is not allowed to leave the Netherlands
without the approval of probation and after-care services. This can be the case in the event that the
suspect has committed criminal offences abroad. This special condition can be imposed in the case of
child sex tourists. 548 Besides this special condition, the list also includes the opportunity to impose an
obligation to report and outpatient treatment. The list does not include any explicit conditions that
are specifically associated with monitoring computer use and access to the Internet. Partly in light of
international developments, such as those outlined above, more detailed research is required in order
to reveal the extent to which imposing these conditions would be contrary to fundamental rights, the
effects that such special conditions could have, and whether or not imposing these special conditions
would also be able to be implemented in terms of capacity, both of the police and of probation and
after-care services.
The proposed special conditions also differ from the proposed legal measure of an exclusion order, contact
ban or an obligation to report 549 in the sense that they have different purposes. Whereas the suspended
sentence with special conditions is intended to permanently influence the behaviour of the convicted
perpetrator, the legal measure is intended to restore the system of law and order that has been breached.
The legal measure is specifically intended for those cases in which the court does not wish to or is not
able to influence behaviour through the imposed sanction, but does want to restore the legal order by
a restriction of freedom. Special conditions have a greater scope than the legal measure, as their focus
is on exerting a lasting influence on behaviour. This is therefore also the reason why, in the legislative
proposal, there is no provision for supervision of the probation and after-care services in connection
with the legal measure. 550
548 See also Parliamentary Papers II 2010/11, 32 319 no. 7, note with reference to the report, p.20. No judgments
can be found on www.rechtspraak.nl in which a de facto ban on travel has been imposed.
549 For which a legislative proposal has been submitted, namely Amendment of the Dutch Criminal Code
and the Dutch Code of Criminal Procedure in connection with the implementation of a legal measure
restricting freedom (legal exclusion or contact order), Parliamentary Papers II, 32 551. An amended proposal
of law was sent to the Upper House on 26 April 2011 and is currently being dealt with, Parliamentary
Papers I, 2010/11, 32 551 no. A.
550 Parliamentary Papers II 2010/11, 32 319 no.7, note with reference to the report, p.6 (2 February 2011).