Leiden Law Blog

Another inconvenient truth – The conditional release of Volkert van der Graaf

Another inconvenient truth – The conditional release of Volkert van der Graaf

In May of this year Volkert van der Graaf will have served two thirds of his eighteen-year prison sentence, which means he will be entitled to be released conditionally. Both Dutch society and Dutch politicians have repeatedly shown they feel very uncomfortable with this fact. That is why several options have recently been suggested to prevent Van der Graaf's return to Dutch society. A few months ago the Dutch State Secretary of Security and Justice had declined Van der Graaf's request for twenty-four hour probationary release from prison, until the Council for the Administration of Criminal Justice and Protection of Juveniles ordered otherwise that Van der Graaf could leave the institution every month for one day. Now the Dutch public prosecutor’s office seems to be considering the legal options available to postpone or even cancel Van der Graaf’s conditional release in May. In fact, there are some possibilities for such a postponement or cancellation of the conditional release under certain circumstances, for instance if the prisoner has tried to escape or if his (bad) behaviour during his detention gives reason for such a decision. But both these reasons certainly do not apply to Volkert van der Graaf's case.

Risk of recidivism

Another reason for postponing or cancelling the conditional release, however, is the real risk the offender will commit new crimes after his release from prison. Now this might be interesting since (as far as we know) until now Van der Graaf has given no sign of regretting his crime, which might be seen as a sign that there is a real risk he might commit a similar crime if similar circumstances occur. That is why the public prosecutor’s office has ordered new psychological research in order to determine whether or not there is a real risk of recidivism.

The exception that proves the rule

What to think of this? First of all we should not forget that every prisoner has a right to conditional release after serving two thirds of their sentence. Of course, this is a right that can be forfeited under the aforementioned circumstances, but it still remains a basic right. This means that postponing or cancelling the conditional release of a prisoner should be the exception that proves the rule. One may doubt whether Volkert van der Graaf’s case gives cause for such an exception. Of course, there is always a certain risk a former prisoner will commit new offences, but is this risk more significant in the case of Volkert van der Graaf compared to other prisoners? This does not seem to be the case. Instead, it looks like  several possibilities are being used to meet broadly shared objections to  the sentence of eighteen years imprisonment that many perceive as being too mild. This, however, is unlawful. The provision to postpone or cancel a prisoner’s conditional release is definitely not intended to reopen the debate with the judge who determined the sentence.

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