What is TBS?
The abbreviation TBS stands for ‘terbeschikkingstelling’ (entrustment order). A judge can impose TBS on suspects who have committed a crime while suffering from a mental disorder or defective development at the time of the offense. The purpose of TBS is to protect society and focuses on preventing the recurrence of criminal offenses. Although TBS can often feel like a punishment, that is not the case. TBS is a measure that can be imposed alongside or instead of a sentence.
What forms of TBS exist?
There are two types of TBS: TBS with conditions and TBS with compulsory psychiatric treatment.
TBS with conditions
With TBS with conditions, a person is not required to stay in a closed clinic. However, that person must adhere to certain conditions. A temporary admission to a clinic can be part of this. Other conditions include, for example: outpatient treatment, a duty to report, a contact ban, a location ban, and a substance ban.
TBS with compulsory treatment
With TBS with compulsory treatment, a person is mandatorily admitted to a closed clinic. The continuation of this measure is reviewed periodically. Usually, this happens every two years, sometimes after one year. It is possible to convert TBS with compulsory treatment into TBS with conditions. TBS with compulsory treatment must always end conditionally.
When can a judge impose TBS?
Before a judge can impose TBS, three conditions must be met:
- there must have been a mental disorder or defective development during the commission of the crime. This is often established through a so-called NIFP report, in which a psychiatrist and psychologist provide their conclusion;
- there is a risk of recurrence of a criminal offense;
- the crime committed carries a prison sentence of at least four years, or it concerns a specifically named offense for which the law has also made TBS possible.
It is not a requirement that there must be (diminished) accountability. Someone who is considered fully accountable can therefore also receive TBS.
What is the maximum duration of TBS?
The answer to this question depends on a number of factors.
Maximum duration of TBS with conditions
TBS with conditions is in principle linked to a maximum term, namely nine years. This may be different if the TBS with conditions is converted into TBS with compulsory treatment. If the judge ruled during the imposition of the TBS with conditions that the duration of the TBS with conditions is uncapped upon conversion to TBS with compulsory treatment, then the TBS with conditions can still be unlimited after conversion. Naturally, a periodic review takes place each time, usually every two years. If the judge ruled that the TBS with conditions is capped upon conversion to TBS with compulsory treatment, the TBS with compulsory treatment can only last for a maximum of four years after conversion.
Maximum duration of TBS with compulsory treatment
TBS with compulsory treatment lasts in principle for a maximum of four years, unless the physical integrity of a victim was affected during the crime. In that case, the TBS with compulsory treatment can continue indefinitely. However, a periodic review takes place each time, usually every two years. Usually, TBS with conditions is initially imposed for a duration of two years. The judge then decides whether the TBS with conditions should be extended and, if so, by one or two years. The duration of TBS with conditions may not exceed nine years, unless a conversion to TBS with compulsory treatment has taken place in the meantime.
When does TBS end?
The answer to this question depends on a number of factors.
- Capped TBS with compulsory treatment always ends conditionally. The judge decides whether the TBS can be terminated conditionally.
- Uncapped TBS with compulsory treatment also ends conditionally. An extension, including a conditional termination, must take place within four years. After four years, the measure ends by operation of law.
- TBS with conditions ends at the moment the judge rules that someone has complied with all conditions and is no longer a danger to society, or when the duration of nine years has been reached.
Can TBS be combined with a prison sentence?
TBS can be combined with a temporary prison sentence, unless there is total lack of accountability. If someone is deemed completely unaccountable, TBS can be imposed, but not a prison sentence.
TBS with conditions can be imposed in combination with a prison sentence of up to five years.
TBS with compulsory treatment can be imposed in combination with a temporary prison sentence, regardless of the duration of that prison sentence. TBS with compulsory treatment can therefore, in principle, not be imposed in combination with a life sentence.
What does the judge do if the suspect refuses to cooperate with the investigation?
It is not mandatory to cooperate with an investigation into the necessity of TBS. However, refusing to cooperate can have consequences. This can be taken into account to someone’s disadvantage in the sentencing, and the judge can still decide to impose TBS even without full cooperation. Not cooperating therefore does not mean that TBS cannot be imposed.
Can you appeal against TBS?
An appeal can be lodged against the verdict in which the TBS was imposed. An appeal can also be lodged against each individual extension decision.
Why is it wise to hire a lawyer if you might be facing TBS?
A criminal law attorney specialized in TBS is crucial during the criminal case in which the TBS may be imposed, as well as during the execution and periodic review of the TBS. The imposition of TBS is subject to strict rules. Not only do strict rules apply to the imposition of TBS, but also to its further execution. In some cases, it can be essential to put forward certain defenses during the criminal case so that a TBS order is capped. This can only be done during the criminal case in which the TBS may be imposed. It is therefore crucial that a criminal law attorney specialized in TBS can raise a defense on this in advance. But it is also important to be assisted by a criminal law attorney specialized in TBS during the TBS itself. Not only for legal assistance at the periodic extension hearings, but also, for example, for obtaining leave or when complaint procedures are conducted during a TBS due to a violation of the Penitentiary Principles Act for TBS-patients. A criminal law attorney specialized in TBS can also represent your interests in those procedures.
At Weening Criminal Law Attorneys, we have lawyers who are also specialized in TBS and the Penitentiary Principles Act for TBS-patients.
