TBS-measure is law, but facilities are lacking

POSTED: 03/11/14 12:40 AM

WILLEMSTAD – “It is not a point of discussion whether we should have a TBS-clinic. The moment you include a TBS-measure in your own penal code, the country has to make sure that the facilities are there,” says Annemarie Marchena-Slot, the dean at the Law Faculty of the University of Curacao. TBS is the Dutch abbreviation for “ter beschikking stelling.” Subjected to such a measure by the court, a defendant is put at the disposal of the government and locked up in a psychiatric hospital for obligatory treatment. The need in Curacao is as high as it is in St. Maarten.

Since the fifties of last century, there has been a law in Curacao waiting to implement TBS. “That law has never gone into effect with the argument that there were no facilities. The introduction of the new penal code in 2011 anticipated this,” the dean told Caribisch Netwerk-reporter Leoni Leidel-Schenk.

The only thing that is still missing is the execution law and the necessary facilities. “I think that everyone working in the criminal justice system is of the opinion that these facilities should have been there already yesterday.”

The Public Prosecutor’s Office also says that the facilities are lacking to treat inmates with a development disorder or a psychiatric disorder. The prosecutor’s office brings a few recent examples to mind. Moustapha Khalesi stabbed a female fellow-student to death during a psychotic attack in July 2012. There is no adequate help available for him. In January of last year, a Frenchwoman killed her husband and her autistic son before committing suicide in prison. But the most well-known example is James Murray.

Murray murdered 6-year old Darley Lai in 1979 and he was sentenced to life in prison. The new penal code contains, apart from the TBS-measure, also the option for early release for inmates with a life sentence. In 2011, Murray’s case came to court. During the 33 years of his detention, he has never been treated for his anti-social personality disorder. This was one of the reasons to deny his request for early release.

Murray’s attorney Claudia Reijntjes-Wendenburg already files a complaint with the European Human rights court before Curacao introduced its new penal code. But the European Court did not rule on the question whether the government is obliged to offer adequate psychiatric of psychological treatment to someone who has been sentenced to a lengthy stay in prison because he has a mental disorder.

Reijntjes-Wendenburg is not sure whether Murray’s chances for early release would have improved if the court had handled the issue. “Of course it was not possible in 2011 the let him loose on the street just like that. He did not even ask that. Our proposal was to create a transition period under strict supervision.”

“The problem is that Curacao completely lacks forensic expertise, especially when it concerns cases like that of Murray,” the attorney says. “The fact that there is a psychiatrist of a psychologist available in the prison is not equal to providing treatment.”

Marchena-Slot agrees with this point of view. “The authorities use the Forensic Observation Treatment Department (Foba) for lack of another closed facility. That is not the right place for everyone who needs treatment.”

Ernst Hirsch Ballin, a former Minister of Justice in the Netherlands, said in 2008 that a TBS-clinic would be useful for Aruba. He also foresaw a facility for youth-TBS clients in Curacao and a psychiatric forensic institute in St. Maarten. Six years later, only the facility for young detainees in Curacao is a work in progress. Marchena-Slot is happy with this. In 2012, she obtained her doctorate with a thesis entitled Detention of Youths in Curacao.



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