In the Netherlands, judicial discretion is primarily limited by the maximum sentence prescribed by law. We have a long tradition of very strong judicial discretion which offers the option of imposing no sentence at all, even though the accused is convicted. The government have proposed the introduction of mandatory minimum sentences upon recidivism, but this was met with so much criticism from both academics and professionals that it was withdrawn. But we might still see mandatory minimum sentences coming in through the back door, even if nobody really wants them. The EU Commission has adopted draft legislation which forces minimum sentences down the throat of the Member States.
Last year, the Commission tabled a proposal for a directive on the fight against fraud to the Union’s financial interests by means of criminal law (COM(2012)363). The proposal includes the harmonisation of offences by introducing not only the common minimum-maximum sentence (Member States must threaten certain violations with at least so-and-so many years in prison), but also a minimum sentence. Serious fraudsters shall be imprisoned for at least six months.
The legal reasoning the Commission employs in order to find a legal basis for minimum sanctions in the Treaty is plainly impressive in its creativity, yet it seems to use the Treaty only as a justification for a premeditated outcome. The legal basis of article 325(4) TFEU is, though defendable, definitely disputable as only article 83 TFEU provides the EU with an explicit competence to harmonise criminal law. More dubious however is that the Commission sees a basis for establishing mandatory minimum sentences because paragraph 1 of article 325 TFEU states that measures shall ´act as a deterrent´. It seems difficult to imagine that the Member States should even have considered the possibility of thereby conferring the power to prescribe minimum sentences in EU law. When concluding the Amsterdam Treaty, it was explicitly stated that measures establishing minimum rules relating to penalties “shall not have the consequence of obliging a Member State whose legal system does not provide for minimum sentences to adopt them” (Declaration on Article K.3(e) of the Treaty on European Union). As the wording of the competence has hardly changed in the Lisbon Treaty, it seems reasonable to assume that this reservation is still in place.
The impact assessment states that this directive will cause ’relatively modest’ intrusion in domestic justice systems, and the introduction of minimum sanctions is not ”requiring changes to principles of national law”. Upheaval about the proportionality however already rose in the Commission itself, as Commissioner Mälmstrom objected to the introduction of minimum sanctions. Next hurdle is the Council, who are challenging the legal basis of the proposal and do not seem keen on the minimum sanctions either. So the chances for the proposal to make it into legislation are fortunately rather low.
No one would deny the importance of combating fraud with EU budgets. But do we really need minimum sentences? Under current legislation, fraud fell by no less than 35% in 2011 according to the EU’s own reports (NB: the explanatory memorandum of the legislative proposal only refers to the 2010 numbers, which obviously were significantly higher, even though the 2011 numbers were available at that time). Without an undisputable legal basis and thorough discussion of the impact on the fundamentals of our legal system, mandatory minimum sentences should not be allowed to sneak into our criminal law through the back door.