TBS - veroordeeld tot vooroordeel: een visie na analyse van historische fundamenten van recente knelpunten, het systeem en buitenlandse alternatieven

textabstractIn 2005 there was a re-offense by a TBS (Dutch entrustment) patient on leave, which lead to upheaval in society and a parliamentary inquiry commission into the TBS-system, which reported in 2006. This trend of continuing changes in policy and legislation since the last major revision of the TBS-provisisions in 1988 called for a rethinking of the system, addressed through the following question: What form should the TBS system – or the reaction to dangerous mentally disordered offenders – take, considering an analysis of historical bases of recent issues, the system and foreign alternatives? Through a ‘discourse analysis’, the issues under discussion since 1988 were identified in chapter 2. They were placed on the following domains: societal and political context, legal orientation, nature of the criminal measure, criteria for imposition, regulation of the execution and practice of the execution. In chapter 3 these issues were traced back to the genesis of the system (1795-1928) and in chapter 4 to its developmental history (1928-1988). An analysis in chapter 5 led to the conclusion that the TBS has shown to be a pre-eminently responsive sanction, of which the regulation was formulated in an open manner to ensure consensus between parties and positions on the primary aim of safety. Most of the issues under discussion can be derived from the multi-interpretable manner in which the provisions are formulated. Solutions proposed for certain problems in the discourse are usually derived from a perspective on the TBS-system as a whole. In recent years these positions may be best divided in an emphasis on safety, treatment or legal protection. As an extreme position on any of these dimensions, which balance the system, would lead to its abolishment, for alternatives one should look abroad. As a final method therefore, a legal comparative analysis with the historical development of forensic mental health systems in other countries was done. Sweden, Germany, England (& Wales), Scotland and Canada were selected, as they are the countries the Netherlands seems to take example from in policy plans and are therefore deemed comparable. As the development of systems is driven by moral, criminal politics, scientific evidence and jurisdiction-specific culture in society and single incidents, the Dutch system did not look too bad. Comparable measures in Sweden and England had less effect, because of less investments in sociotherapeutic milieu and less attempts of rehabilitation, while other than a German measure the rehabilitative approach was endorsed by the European Court of Human Rights. Lessons for the Netherlands included the possibilities of treatment in prison and the possibilities for supervision in society. A covering conclusion is that the open formulation of the TBS-provisions have brought about that the measure is ‘convicted to preconviction’ (as the entrustees are), in a sense that it is doomed to be interpreted by different positions in a way that fits their ideology. New provisions are advised which are adapted to current insights, as well as a name change. From general assumptions, solutions for individual issues are also proposed, such as abolishment of the formal longstay-modality, less political involvement in the procedure for granting leave and stimulating the judiciary to determine the conditions for imposition (including disorder) in cases in which the defendant has refused evaluation.

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