Islj 2009 3-4 - TMC Asser Instituut

cumstances arise, a measure can be altered both to the advantage as
well as to the detriment of the person to whom the measure was handed
out. A measure will be lifted if the measure is no longer necessary
for the prevention of further violations of public order. A person to
whom a measure is handed out can ask the mayor to temporarily lift
(parts of) the measure. A measure from the mayor is an administrative
decision governed by public law and has to comply with certain
legal norms. This means that such a decision can be appealed to and
tested by the courts. Each extension of a measure is also a new decision
and can therefore also be appealed.
The Criminal Code and the Code of Criminal Procedure
Under this law the competences of the prosecutor under the Criminal
Code and the Code of Criminal Procedure are strengthened to deal
with these structural violations of public order. The prosecutor is part
of the public prosecutor’s office and therefore, according to the
drafters of the law, especially equipped to deal with such violations in
anticipation of a verdict by a judge. The prosecutor can hand out a
measure against a person suspected of committing the following
offences: one that resulted in a serious violation of public order and
where there is a serious risk of further violations of public order; or
where there is a serious risk of harmful behavior of the suspect regarding
other persons; or where there is a serious risk of harmful behavior
of the suspect regarding goods. In this case the prosecutor can hand
out an area ban, a contact ban (which means that the suspect is not
allowed to have contact with a person or certain persons), a reporting
duty and/or a counseling duty (this means that the suspect has to
receive counseling that could help him or her refrain from criminal
behavior). The prosecutor can hand out a measure for a maximum
period of 90 days. This period can be extended three times with
another 90 day period, but cannot exceed 360 days. A measure handed
out by a prosecutor will end when there is an irrevocable verdict by
a judge on the suspect’s case. A measure handed out by a prosecutor
has to be seen in the light of the case where the person concerned is a
suspect. Therefore, as soon as there is a binding judgment in the case
against that suspect, the measure of the prosecutor will cease to exist.
The judge, in ruling upon this case, will take the measure of the prosecutor
into account. While the suspect is awaiting his or her trial, the
judge can be asked to review a measure. In this case, the judge can
alter the duration and the content of a measure. If the judge rules that
a measure is no longer needed, the judge can revoke the measure.
Specific football related issues
An area ban can be handed out to a hooligan by both the mayor and
the prosecutor. Such a measure can be for one or more specifically
defined areas within a municipality. However, an area ban has to be
tailored to a degree towards the personal circumstances of the person
concerned, taking into account where that person lives, where that
person works, etc.
A reporting duty can be handed out by both the mayor and the
prosecutor. A reporting duty after amendment by the Second
Chamber of Parliament has become an independent measure, so it
does not have to be attached to any other measure (in the original
proposal a reporting duty had to be attached to an area ban). The
mayor has discretion to decide where a person against whom a reporting
duty is issued has to report. The person, against whom a reporting
duty is issued by a prosecutor, has to report to a predetermined
investigating officer.
A mayor can hand out a group ban. A group in this instance is
defined as a group of three people or more. A mayor can hand out
such a ban when such a group does not have a reasonable goal to be
together, for example outside a football stadium during a match. This
measure enables a mayor to deal with unwanted groups, which repeatedly
violate public order in a certain area. Such a group ban is effective
for a certain, defined area within the municipality.
A prosecutor can hand out a contact ban. This ban ensures that a
suspect of a criminal act does not engage with his or her victims anymore,
or does not intimidate possible witnesses before the case goes to
trial.
The measures mentioned in the proposed law are specifically designed
to deal with the problem of football hooliganism. This can be seen for
example in the fact that a mayor can hand out a reporting duty to a
person who lives in a different municipality and thus has to report in
that different municipality. These measures should also be used to
ensure that football hooligans do not travel to away games of their
team to cause problems there.
Furthermore, after an amendment by the Second Chamber of
Parliament, a new article will be added to the criminal code. This article
stipulates that a person who intentionally provides opportunity,
means or information resulting in violence against goods or persons
will be criminally liable. Under this article, the person who for example
puts a message on a message board calling out other hooligans to
fight at a certain time and place, can be prosecuted.
A violation of a measure is a criminal offense and can result in a
fine or even a prison sentence. The prosecutor and mayor will discuss
what approach to take under this law. In case both the mayor and the
prosecutor want to hand out a measure to a certain person, the mayor
will defer to the prosecutor. Before a measure is handed out, it is crucial
that a dossier is created on the person to whom the measure
would be handed out. This dossier provides details regarding the specific
behavior of the person concerned, the behavior of the group he
or she is a part of, the group structure and dynamic, previous measures
taken against this person or group and whether there is a fear for
further violations of public order. This dossier can include contributions
from for example the police, the prosecutor’s office and other
instances.
A Football Law that solves all problems?
The term Football Law regarding the state of the current proposed
law is a little misleading. The law that is expected to enter into force
soon is a law designed to counteract all sorts of violations against public
order. Football hooliganism is only one of the specific public order
problems that this law is designed to deal with. As can be seen from
the legislative history, football hooliganism was the main focus when
this law was initiated. In the title of the law one can even find a specific
mention of football hooliganism. The Football Law was initiated
as a result of a number of highly publicized football riots that
shocked the general public in the Netherlands. However, as the riots
in Nancy slowly disappeared from the national spotlight, other social
problems received a lot of attention. Most notable are the public order
problems with street youths in the inner cities. What was initially
meant as a law specifically to counteract football hooliganism has
therefore evolved into a sort of catch- all law for all kinds of violations
of public disorder. This does not mean that the Football Law cannot
be used anymore to deal with the problem of football hooliganism.
The Dutch Minister of Justice, in reply to questions raised in the
First Chamber regarding the Football Law, stresses the fact that football
hooliganism by nature brings with it violations of public order
committed by a group of persons and directed by the leaders of that
group. Therefore, the prosecutor and mayor are the most suitable persons
within the Dutch legal system to deal with football hooliganism
within the framework of this law. The Minister of Justice also stresses
the fact that this law is not designed to deal with immediate outbreaks
of public disorder. The Minister states that this law is designed to
counteract a pattern of violations of public disorder, for example by a
group of football hooligans. However, where there is a riot, a mayor
has other means (emergency measures), more specifically designed to
counteract that immediate outbreak of public disorder. This law is
designed to break a structural pattern of public order violations committed
by groups and in some instances by individuals.
This law will not solve the problem of football hooliganism in the
Netherlands. With this law, football hooliganism in the Netherlands
will not disappear. This law does however form a welcome addition to
the current array of legal measures to deal with football hooliganism.
And that is exactly how this law should be viewed - as an addition to
the current legal framework to address football hooliganism, which
gives far-reaching powers to the mayor and prosecutor to deal with
the problems caused by hooligan groups. This law provides the
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