Inchoate Offences: Differences in the United States and the Netherlands
If you are considering moving to the Netherlands with a prior criminal conviction in the United States, it should be noted that the respective countries have differing standards of conviction. A conviction for an attempt of certain criminal offenses may not be considered a criminal conviction in the Netherlands.
Attempt in the United States
In the United States, there is no generally applicable federal law defining attempt. More than half of the U.S. states have borrowed the Model Penal Code definition of an attempt as an act or omission that constitutes a substantial step toward the commission of a crime[Model Penal Code § 5.01(2)]. The prosecutor must prove beyond reasonable doubt that the defendant specifically intended to commit the crime, and their action must be “strongly corroborative of [their] criminal purpose.”[4.18.00 Attempt]
For example, in the case of Evans v. State (216 Ga. App. 21 (1995)), the Georgia Court of Appeals used the substantial step test to convict the defendants of an attempt to enter an automobile. In this case, the defendants had discussed stealing stereo equipment from parked vehicles. They acquired tools including screwdrivers and pliers and drove around the parking lots of several shopping centers searching for a car to break into. They drove away without leaving their car or entering any vehicle as they were followed by undercover police officers, who later arrested them on the suspicion of loitering. The Court held that there was sufficient evidence to demonstrate a substantial step taken towards entering an automobile with the intent to commit theft. The Court held that the defendants went beyond mere preparation by driving to the parking lots in search of a suitable car. These actions, taken in sum, corroborate the criminal intent to enter an automobile and commit theft.
Apparently, in many cases in the United States, an individual can be found guilty of an attempt for acts that would not meet the standard for a criminal attempt in some other jurisdictions.
Nevertheless, laws in the U.S. can vary state by state. Other U.S. states may use a proximity test to determine how close the defendant is to completing the offense, (Commonwealth v. Hamel, 2010)(People v. Dillon, 2010). This is a test to determine if the defendant clearly stopped progressing toward completion of the offense, (Hamiel v. Wisconsin, 2010) or a probable desistance test to measure how far the defendant has progressed toward commission of the crime (U.S. v. Mandujano, 2010).
Attempt in the Netherlands
In the Netherlands, attempts are confined to felonies or indictable offences (“misdrijven”). An attempt to commit a misdemeanor non-indictable offence (“overtreding”) is not an offence in itself. Article 45 of the Dutch Criminal Code provides that an ‘an attempt to commit a serious offence is punishable where the offender’s intention manifests itself by a beginning of completion [of the intended offence].’(Pelser, C.M. (2008))(Hoge Raad 6 February 1951, NJ 1951, 475)(Hoge Raad 7 May 1906, W 8372)
Dutch courts typically test whether conduct is a criminal attempt if, by its outward manifestation, it can be considered aimed at the completion of a criminal offence (Hoge Raad 8 December 1992, NJ 1993, 321).
Under this test, ringing the doorbell of an employment agency, while being armed and in disguise and holding an empty overnight bag, is an attempt to commit aggravated robbery; while ‘casing’ a bank from a car with the engine running, in which weapons and disguises are hidden, is not. (Hoge Raad 8 September 1987, NJ 1988, 612)
The test is flexible. The outcome is partly dependent on the elements of the offence. Aggravated offences, for example, will more readily constitute a criminal attempt, as starting to execute the aggravated circumstance is already an attempt. (e.g. the breaking and entering as part of an attempted burglary).
The leading Dutch case on the matter comes from the Grenswisselkantoor case. In this case, two men planned to rob a bank, however, a bank employee became suspicious of their car, as he saw it the day before, and notified the police. The question in the court arose as to whether the intention of the perpetrators to commit a crime was clear before the employee called the police. The answer to this question could not be proven to be yes because the employee’s act of notifying the police stopped the men from acting. Subsequently, the men were found to be not guilty.
Therefore, in some cases in the Netherlands, completing the preparation needed for a criminal act may not be enough to be criminally convicted for an attempted crime. Due to Article 46 of the Dutch Criminal Code, the outcome is dependent on the gravity of the case and on whether criminal intent can be reasonably proven.
Differing Outcomes in Similar Cases
This difference between the U.S. and Dutch laws may mean that some individuals who were convicted of attempted crimes in the United States may not be guilty of a commensurate offence according to Dutch criminal standards.
Had the aforementioned case of Evans v. State (216 Ga. App. 21 (1995) been tried in the Netherlands, the defendants may have been found not guilty for attempted robbery depending on whether or not it could be proven that the defendants’ intent to complete the criminal offence was clear before they were arrested. The defendants' acts may not have been enough to reasonably prove their intent, by its outward appearance, was an attempt at a crime. (Hoge Raad 8 September 1987, NJ 1988, 612)
The inverse may be true as well. Had the Grenswisselkantoor case been tried in the United States, the defendants could have been found guilty of an attempted crime. The two men’s actions could be considered a substantial step towards committing the crime and may have resulted in a guilty verdict in the U.S.
It is important to note that offences committed abroad may only be a bar against admission into the Netherlands if the criminal act is also considered a crime under Dutch criminal law. Therefore, if an individual can prove that their criminal conviction in the United States would not have been upheld under a Dutch court, they are not barred from immigrating to the Netherlands.
However, each case is context specific and may still be considered a crime in both countries. If you think this may be the case please read our Moving to the Netherlands with a Prior Criminal Conviction article to clear up any potential confusion.
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