Abstract
In the Netherlands, the criminal court can impose the tbs-order (a sort of penal hospital order) on dangerous offenders with mental disorders. The offender is subsequently committed to a forensic mental health facility, which aims to offer treatment to the offender and protect society from the offender until the recidivism
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risk is successfully reduced. The offender will then gradually receive more freedom to return to society. Every one or two years, the court decides whether the tbs-order should be extended considering the legal criterium that the protection of specific individuals, or the protection of persons and goods in general requires such extension. In most cases, the tbs-order has no maximum duration and can be extended as long as the safety of persons is at stake. The judicial review is therefore an important safeguard for both society and the offender. On the one hand, the tbs-order may not be terminated before the recidivism risk is reduced to an acceptable level. On the other hand, the tbs-order may not last longer than necessary in light of the offender’s rights.
The purpose of this study is to explore the court’s considerations regarding the extension of the tbs-order. This study combines doctrinal legal methods and empirical research methods. The doctrinal legal research methods include the review and analysis of laws and regulations, parliamentary documentation, jurisprudence and literature. The empirical research project was conducted at nine courts throughout the Netherlands. In 64 cases, the court records were studied and the court hearing was observed. Based on these data, a questionnaire and two vignettes (hypothetical scenarios) were developed. These were discussed during nine group interviews with three judges each.
This study drafts a picture of judges who rely heavily on the input of mental health experts. However, neither these experts nor judges have any certainty as to whether the offender will reoffend after the tbs-order has been ended. It is, therefore, crucial that judges are aware of these uncertainties and continue to critically review the expert’s opinions. This is even more important when the offender loses hope and perspective on a life in freedom due to serious delays during the execution of the tbs-order. The judges are reluctant to intervene in those situations and even if they want to, their options are limited. This study argues that judges should be more critical towards the proportionality of the tbs-order, and look more actively at whether other safety measures could be taken to maximize the freedom of the offender without putting society at risk. Finally, some general recommendations are made regarding the laws and regulations that apply to the tbs-order.
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