TBS order

Terbeschikkingstelling, or TBS, is a criminal law measure for someone who had a mental disorder at the time of the offence and whose treatment is required for the safety of others. Unlike a sentence, the measure is aimed not at retribution but at protection and treatment.

Legal basis

Article 37a of the Dutch Criminal Code sets the conditions: a disorder at the time of the offence, an offence carrying four years’ imprisonment or more or one of the offences listed in the Act, and a danger to the safety of others or to general safety. Article 37b governs TBS with compulsory treatment and Article 38 TBS with conditions. Imposition requires advice from at least two behavioural experts, one of them a psychiatrist, who have examined the defendant. The measure lasts two years and is extended each time by the district court; for offences directed against or endangering persons there is no maximum duration, while for other offences the measure ends after four years.

How it works in practice

The extension hearing is the heart of practice. The clinic issues advice, and every six years an independent report follows. Treatment proceeds in stages, from supervised leave through unsupervised and transmural leave to trial leave and conditional termination of compulsory treatment. If the defendant refuses to cooperate with examination, the court may rely on other material under the rules on uncooperative subjects.

Where it goes wrong

Defendants refuse to cooperate believing that TBS cannot then be imposed; that is incorrect. A second problem is the absence of leave authorisations, which stalls treatment and prolongs the measure. Third, insufficient counterweight is offered to the clinic’s advice at the extension stage.