Right to Early Placement in a TBS Institution

On 20 October 2010, the Appeals Committee of the Criminal Law Application and Juvenile Protection Council (RSJ) delivered judgment in two appeal cases about early placement of persons sentenced to imprisonment in a TBS-institution on the basis of the so-called Fokkens Programme. The Appeals Committee allowed the appeal in these two cases and quashed the decisions of the State Secretary of Justice and the Minister of Justice, respectively.

Under the Fokkens Programme convicted persons, who were also sentenced to TBS detention by the criminal court, can in principle – after having served a third of their sentence – be placed in a TBS institution. In this way, the treatment of the mental disorder, for which reason TBS was imposed, can be started sooner. In that case, the prison sentence is maintained in addition to the TBS.

On 24 July 2010 the Minister decided to cancel this Fokkens Programme with effect from 4 August 2010. In anticipation of this the State Secretary of Justice decided to end the implementation of the Fokkens Programme effective from 10 November 2009.

The Appeals Committee is of the opinion that in these two cases submitted to her, pursuant to the applicable statutory provision in force before the fourth of August 2010, both persons concerned were entitled to early placement in a TBS institution from the date on which they had served one third of their sentence (in the one case on 8 September 2009 and in the other on 22 June 2010). In both cases this was not effected, solely based on the suspension of the Fokkens Programme, for which a legal basis was lacking. This is seen as unlawful. The abolition of the Fokkens Programme effective from 4 August 2010 cannot undo this unlawfulness with retroactive effect and cannot revoke the legal entitlement to early placement in a TBS institution that existed at the time.

These decisions imply that the persons concerned, who are presently detained in penal institutions, should be placed in a TBS institution after all, according to the Appeals Committee, so that the TBS placement and treatment may commence in addition to the prison sentence.

According to the leave arrangement of the Ministry of Justice for persons placed in a TBS institution, in that case no leave will be granted to the persons concerned before they have served two thirds of their prison sentence (conditional release date). In the one case this date is 8 July 2012 and in the other 18 February 2017.