V. AND OTHERS v. THE NETHERLANDS
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The facts of the cases, as submitted by the applicants, may be summarised as follows. 2. Mr V. is a Netherlands national who was born in 1987. He is currently detained in a custodial clinic in Utrecht. He is represented before the Court by Mr L. van Vliet, a lawyer practising in Amsterdam. 3. On 4 January 2007 Mr V., who was then resident in an institution for persons with developmental problems, sexually assaulted a female member of institution staff, fondling or touching her breasts and lower body against her will. On 22 July 2007, while detained as a suspect in a custodial institution for juveniles, he sexually assaulted a fellow inmate, a fourteenyear-old boy, inter alia by rubbing his crotch. 4. In the course of the criminal proceedings, Mr V. was examined by a psychiatrist and a psychologist. The psychiatrist found the applicant to be suffering from a disorder in the autistic spectrum and mild mental deficiency. The psychologist also found indications of mild mental deficiency, in addition to pervasive development disorder and attention deficit hyperactivity disorder. Neither the psychiatrist nor the psychologist came to the conclusion that criminal responsibility was entirely absent. 5. On 16 December 2008 the Roermond Regional Court (rechtbank) convicted Mr V. of “indecent assault” (feitelijke aanranding van de eerbaarheid, Article 246 of the Criminal Code (Wetboek van Strafrecht)) and “committing lewd acts out of wedlock with a person below the age of sixteen” (met iemand beneden de leeftijd van zestien jaren buiten echt ontuchtige handelingen plegen, Article 247 of the Criminal Code). It ordered him to be placed at the disposal of the Government (terbeschikkingstelling, hereafter “TBS order”) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). The judgment included the following reasoning: “The acts committed by [Mr V.], namely indecent assault and lewd acts with a child, are crimes which according to their statutory definition, carry maximum prison terms of eight years and six years respectively and for which a TBS order may be imposed. In view of the findings of the experts, the nature and seriousness of the acts found proven and the person of [Mr V.], as apparent from the examination of the case at the hearing, the Regional Court considers that a TBS order is justified in this case. [Mr V.] is after all afflicted with a serious disturbance on the basis of which it can be said that the safety of others or the general safety of persons requires the imposition of the measure. Moreover, [Mr V.] has committed criminal acts which admit of the imposition of such a measure. In addition, the Regional Court considers that these grounds justify confinement in a custodial clinic. In view of the above, the Regional Court will follow the advice of the experts and will impose a TBS order with confinement in a custodial clinic. The Regional Court agrees with the public prosecutor and counsel for the defence that it would serve no purpose at all to impose a punitive sentence on [Mr V.] in addition to the TBS order. ...” 6. Neither the prosecution nor the defence appealed against this judgment, which thus became final fourteen days later. The TBS order, which was valid for an initial period of two years, accordingly entered into force on 31 December 2008. 7. On 5 January 2011 the Roermond Regional Court extended the TBS order for a further two years. The decision stated that the crimes committed by Mr V. were indictable offences directed against, or endangering, the physical integrity of one or more persons. No appeal was lodged against it. 8. The TBS order next came up for review two years later, in December 2012. The public prosecutor sought a further extension. Having held a hearing on 13 December 2012, the Roermond Regional Court gave a decision on 27 December 2012 refusing to extend the order further. Its reasoning was as follows: “In order to answer the question whether or not the TBS order is limited in duration, in which event the possibility of indefinite extension does not exist, it is necessary to consider the judgment of the European Court of Human Rights in Van der Velden v. the Netherlands, no. 21203/10, 31 July 2012, and the decision of the Arnhem Court of Appeal of 1 October 2012 (LJN (Landelijk Jurisprudentie Nummer, National CaseLaw Database Number) BX8788). In the present case the TBS order with confinement in a custodial institution was ordered by a judgment of this court of 16 December 2008 in relation to the indictable offences (misdrijven) ‘indecent assault’ and ‘committing lewd acts with a person below the age of sixteen’. This judgment lacks reasoning as referred to in Article 359 § 7 of the Code of Criminal Procedure (Wetboek van Strafvordering). As the European Court of Human Rights held in that judgment, it is not for the court ruling on the extension of the TBS order to determine retrospectively, by interpretation of the judgment of the trial court, whether or not the TBS order was imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons (‘a crime of violence’), and accordingly whether or not the TBS order is limited in duration. If the prescribed reasoning is absent, then the TBS order cannot be unlimited in duration and it must, according to the European Court of Human Rights, be assumed that the TBS order is limited to a maximum duration. The Arnhem Court of Appeal has held in its aforementioned decision that there is no such interpretation if on the basis of the conviction, the qualification and the reasoning of the measure, considered in context (in onderling verband en samenhang bezien), it is self-evident to anyone that the crime in issue is a crime of violence. In view of the latter decision of the Court of Appeal the Regional Court must answer the question whether in this case it is self-evident that the facts for which the TBS order was imposed constitute ‘crimes of violence’. In the present case it is not self-evident from the conviction, the qualification and/or the reasoning that the crimes in issue are ‘crimes of violence’. Since such a conclusion could be reached only by way of interpretation of the judgment of 16 December 2008 and – in view of the further circumstances – it cannot be ruled out that the trial court intended to limit the TBS order in duration to a four-year maximum, the Regional Court considers that in this case the TBS order is limited in duration, so that there is no longer any possibility of extending the order further. The public prosecutor’s request for an extension of the TBS order will therefore be refused. The above findings do not alter the Regional Court’s understanding, which is shared by all concerned, including Mr V. himself, that Mr V. will nonetheless need further treatment and/or assistance.” 9. The public prosecutor appealed to the Arnhem-Leeuwarden Court of Appeal (by this time the successor to the Arnhem Court of Appeal). 10. Having held a hearing on 14 March 2013, the Arnhem-Leeuwarden Court of Appeal, sitting in Arnhem, gave a decision on 28 March 2013 extending the TBS order by a further two years. Its reasoning was as follows: “TBS order limited in duration? In the judgment of the Supreme Court (Hoge Raad) of 12 February 2013, LJN BY8434, the view was taken that the sole fact that the sentencing court in its reasoning has not stated in so many words that the TBS order was imposed in connection with a crime of violence does not entail that the measure can no longer be extended if its total duration exceeds a period of four years. The only condition set by Article 38e § 1 of the Criminal Code for the extension of the TBS order is that the measure be imposed in connection with a crime of violence. Whether such is the case can also be deduced from the other content of the final judgment of the sentencing court – whether it be read in context or not – such as the conviction, the evidence relied on, the qualification, the reasoning of the rejection of any defence put forward and the reasoning of the sanction or sanctions imposed. If, on that basis, it is evident that the crime is one of violence, then at the very least it cannot be said that the possibility of extension of the measure beyond four years was not foreseeable for the person subject to the TBS order. The Court of Appeal finds that [Mr V.] – given the conviction and the qualification – was convicted of: indecent assault; committing lewd acts out of wedlock with a person below the age of sixteen. The Court of Appeal has had regard in this connection to the Regional Court’s considerations in imposing the sentence and the measure. On the above grounds, the Court of Appeal considers that it is implicit in the judgment of the Roermond Regional Court of 16 December 2008 that the TBS order was imposed in connection with crimes of violence and that accordingly it cannot be said that the possibility of extension of the measure after four years was not reasonably foreseeable for [Mr V.]. The defence made by counsel is therefore dismissed. Mental disturbance and danger of reoffending It appears from the case file that [Mr V.] is a mentally deficient man with an autism spectrum disorder. The danger of reoffending is estimated to be high absent present levels of security and care. There has lately been a clearly positive development. The clinic indicates that it has been possible to make follow-up arrangements with P., a work and residential institution for young adults with mild intellectual impairment and serious behavioural disorders. The clinic indicates that it is important to prepare the transfer to the successor institution properly and carry it out painstakingly and gradually, in order to limit as far as possible the loss of structure and control. Extension In view of the danger of reoffending, which still exists, and [Mr V.’s] pathology the Court of Appeal considers that the safety of others or the general safety of persons requires the TBS order to be extended. In view of the expected duration of further treatment and resocialisation work the Court of Appeal considers that a two-year extension is indicated. The Court of Appeal assumes that the resocialisation work now begun will be pursued diligently.” 11. Mr Mohamed Elgouille was born in 1978 and has both Netherlands and Moroccan nationality. He is currently detained in a custodial clinic in Nijmegen. He is represented before the Court by Mr F. Holthuis, a lawyer practicing in The Hague. 12. On 17 January 2004 Mr Elgouille punched his girlfriend in the face. When he was arrested later that day, cocaine was found on his body. On 6 February 2004 Mr Elgouille robbed an acquaintance of his bank card and his bunch of keys, assaulted him and cut him with a razor, and then left him in a helpless condition. The acquaintance was later found dead. On 11 February 2004 Mr Elgouille violently forced another acquaintance to hand him cocaine and money. 13. On 4 November 2004 the Regional Court of The Hague convicted Mr Elgouille of “causing bodily harm” (mishandeling, Article 300 of the Criminal Code), “robbery with violence” (diefstal met geweldpleging, Articles 311 and 312 of the Criminal Code), “manslaughter” (doodslag, Articles 287 and 288 of the Criminal Code) and “attempted extortion” (poging tot afpersing, Articles 45 and 317 of the Criminal Code). It sentenced him to 14 years’ imprisonment. 14. Mr Elgouille appealed against this judgment. On 28 September 2006 the Court of Appeal of The Hague quashed the decision of the Regional Court and acquitted Mr Elgouille of the manslaughter in the absence of a proven causal link. It convicted him of the other offences, sentenced him to five years’ imprisonment and imposed a TBS order with confinement in a custodial clinic. The judgment included the following reasoning: “[Mr Elgouille] has committed a property offence, in which he did not recoil from using brute force against the victim by beating and kicking him, in order to deprive him of his bunch of keys and bank card. Furthermore, some days later, [Mr Elgouille] attempted to extort cocaine and money from a person by beating, kicking and threatening the victim. Acts such as these are generally experienced by the victims as exceedingly threatening and moreover these acts also cause anxiety and feelings of insecurity in society. In addition, [Mr Elgouille] assaulted another person and held cocaine in his possession. Besides, it has been established that, according to an extract from the Criminal Records Register dated 16 August 2006 relating to him, [Mr Elgouille] has been convicted of property offences and violent offences before, which apparently did not deter him from committing the present offences.” 15. Mr Elgouille appealed on points of law to the Supreme Court. On 17 June 2008 the Supreme Court quashed the judgment of the Court of Appeal for technical reasons and reduced the term of imprisonment to four years and seven months in view of the excessive length of the proceedings; for the remainder it endorsed the judgment of the Court of Appeal. 16. The TBS order entered into force on 7 August 2008. 17. The Regional Court of The Hague extended the TBS order by two more years by decision of 28 September 2010. The decision stated that the crimes committed by Mr Elgouille were indictable offences directed against, or endangering, the physical integrity of one or more persons. Appealing against this decision, the applicant asked for a new diagnosis; in the alternative, for a conditional suspension of his compulsory confinement; in the further alternative, for an extension of only one year not two. His appeal was dismissed and the Regional Court’s decision was confirmed by the Arnhem-Leeuwarden Court of Appeal on 2 May 2011. 18. The Regional Court of The Hague extended the TBS order by a further two years on 9 October 2012. The Arnhem-Leeuwarden Court of Appeal confirmed this decision on 25 April 2013. 19. On 9 October 2012 the Regional Court of The Hague reviewed if further extension for two more years was allowed. The court answered this question in the affirmative. Its reasoning was as follows: “The measure of placement in a custodial clinic has been applied in respect of: - theft, preceded and accompanied by violence against persons, committed with the intention of preparing and facilitating this theft; - attempted extortion; - assault; - deliberately acting in breach of the prohibition contained in Article 2, paragraph 1, under C of the Opium Act. Accordingly, crimes (of violence) that are directed against and endanger (the physical integrity of) persons. Pursuant to the foregoing, the court considers that the safety of others and the general security of persons or property demand the extension. Since it appears from the advice and the deliberations in chamber that the treatment involving learning new behaviour is still in the early stages and no start has yet been made with the rehabilitation, the court is of the opinion that the TBS order should be extended for two more years. The court sees no reason to give the clinic indications concerning the way in which the treatment should take place.” 20. The Arnhem-Leeuwarden Court of Appeal confirmed this decision on 25 April 2013. The court considered the following: “Custodial placement not limited in duration The Court of Appeal finds that the judgment of the Court of Appeal of The Hague of 28 September 2006 convicted [Mr Elgouille] of, inter alia: - theft, preceded and accompanied by violence against persons, committed with the intention of preparing and facilitating this theft; and - attempted extortion. In accordance with the judicial findings of fact, the qualification and the reasons given for the imposition of the penalty and measure, considered in their interrelationship, that judgment implies that the TBS order has been imposed in connection with crimes of violence within the meaning of Article 38e § 1 of the Criminal Code and that on that account it cannot be said that the possibility of extension of the measure after four years has not been reasonably foreseeable for [Mr Elgouille]. Moreover, the Court of Appeal takes into consideration that both offences involved physical violence against the victim by among other things beating and kicking the body. Counsel’s defence was rejected.” 21. Mr Edward Cornelis Willem Leonardus Kuiters is a Netherlands national who was born in 1968. He is currently detained in a custodial clinic in Poortugaal. He is represented before the Court by Mr P. Scholte, a lawyer practising in Amsterdam. 22. On 20 June 2007 Mr Kuiters smashed the windows of the house of his neighbour, one Mr de V., with a baseball bat. At the relevant time, Mr de V. was present on the first floor of his house. It is noted that apart from this incident, Mr Kuiters had on an earlier occasion shot through the windows of Mr de V.’s car with a crossbow. 23. The Breda Regional Court convicted Mr Kuiters on 15 October 2007 of “threatening grievous bodily harm” (bedreiging met zware mishandeling, Article 285 of the Criminal Code) and “carrying a weapon” (een wapen dragen, section 27(1) of the Arms and Ammunition Act (Wet wapens en munitie)). As relevant to the case before the Court, it imposed a TBS order with confinement in a custodial clinic. 24. Mr Kuiters appealed against this judgment to the ‘s-Hertogenbosch Court of Appeal. On 20 January 2009 the Court of Appeal quashed the judgment of the Regional Court on a technicality and gave a new judgment. As had the Regional Court, it convicted Mr Kuiters of threatening grievous bodily harm and carrying a weapon. Finding that Mr Kuiters could not be held criminally responsible, it excused him punishment but imposed a TBS order with confinement in a custodial clinic. The judgment included the following reasoning: “The Court of Appeal finds, in view of the circumstances set out above and also taking earlier events into account: that the suspect’s violent behaviour was highly threatening for Mr de V.; that Mr V. had good reason to conclude that if he did not give in to the suspect’s wishes, he ran a serious risk of incurring grievous bodily harm that the suspect’s intent was directed to this end, at any rate inasmuch as he understood that such would be the necessary consequence of his behaviour.” and “Having regard to the foregoing, particularly having regard to [Mr Kuiters’s] fascination with weapons in combination with his long-term mental disorder, the Court considers that the likelihood of reoffending should be estimated high and that, to reduce this chance, clinical psychiatric treatment is required.” and “In the view of the Court of Appeal, [the safety of others and/or the general safety of persons or goods] necessitates a TBS order and also requires [Mr Kuiters] to be confined in a custodial clinic. In so finding, the Court of Appeal has also considered the content of [the various reports] that have been prepared on the subject of [Mr Kuiters’s] personality, in addition to the seriousness of the first criminal act found proven [i.e. threatening grievous bodily harm]. That act is an indictable offence (misdrijf) that, according to its statutory definition, carries a prison sentence of more than four years.” 25. The TBS order entered into force on 4 February 2009. 26. After an initial period of two years, the Breda Regional Court extended the TBS order with two more years on 11 February 2011. Mr Kuiters did not object to such an extension. It is reflected in the decision that the institution in which Mr Kuiters was being held did not expect that it would be possible to terminate the TBS order after the end of that term. 27. The TBS order came up for review again in early 2013. The public prosecutor sought a further two-year extension. 28. Having held a hearing on 12 February 2013, the Zeeland-West-Brabant Regional Court (by this time the successor to the Breda Regional Court) gave a decision extending the TBS order by one year. Its reasoning included the following: “Is the TBS order limited in duration? First of all, the Regional Court must ascertain whether or not the TBS order in the present case is limited in duration. Therefore, the question must be answered whether the TBS order was imposed in connection with a crime of violence within the meaning of Article 38e § 1 of the Criminal Code. The Regional Court will first determine the framework for review on the basis of which this question should be answered. In this respect, recent developments in case-law are of particular importance. Article 38e § 1 of the Criminal Code provides that the total duration of a TBS order with confinement in a custodial clinic shall not exceed a period of four years, unless the TBS order is imposed in connection with a crime that is directed against, or endangers the physical integrity of one or more persons. Article 359 § 7 of the Code of Criminal Procedure provides that, if the confinement in a custodial clinic has been imposed in connection with a crime that is directed against, or endangers, the physical integrity of one or more persons, the judgment shall state the reasons for so doing. The Court of Appeal of Arnhem, referring to the judgment of the European Court of Human Rights (ECHR) of 31 July 2012 [Van der Velden v. the Netherlands], has held in its decision of 1 October 2012 [see below] that it is not for the court ruling on the extension of the TBS order, in the event that the judgment or decision in which the imposition of the TBS order has been given does not contain the reasoning as referred to in Article 359 § 7 of the Code of Criminal Procedure, to determine retrospectively, by interpretation of the judgment of the trial court, whether or not the TBS order was imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons, and accordingly whether or not the TBS order is limited in duration. The Court of Appeal has furthermore considered that it is not a matter of interpretation of the judgment of the court which imposes the TBS order if, on the basis of the judicial finding of facts, the qualification and the reasons given for the imposition of the penalty or measure, it is self-evident that the crime in issue is such as referred to in Article 38e § 1 of the Criminal Code. In its judgment of 12 February 2013, the Supreme Court held that the aforementioned judgment of the Court of Appeal of Arnhem is partly incorrect. The Supreme Court considers, first and foremost, that it is the court which imposes the TBS order that decides whether or not this order is limited in duration. The Supreme Court furthermore considers that it will be relatively simple to establish whether the order has been imposed in connection with a crime of violence if the court which imposed the TBS order, in giving reasons for so doing, has stated that the measure was imposed in relation to a crime of violence. If such explicit reasoning is missing, this does not mean that the measure cannot be extended, if this means that the TBS will last longer than four years. What is important is whether the TBS order has been imposed for a crime of violence. Whether or not this is so can also be deduced from the other contents of the final judgment of the court that imposed the TBS order – considered in context if need be –, such as the judicial findings of fact, evidence, qualification, reasoning of the rejection of defences put forward and reasons given for the sanctions imposed. If on that basis it is evident that the crime was one of violence, it cannot be said in any event that the possibility of extension of the measure after four years was not foreseeable for the person subject to the TBS order. If explicit reasoning is absent and it is not evident from the judgment of the court that imposed the TBS order that it concerns a crime of violence, the court that decides on the request for extension of the TBS order will have to form an opinion about the question whether – having regard to all the facts and circumstances that were known at the relevant time – the crime can be regarded as such a crime of violence. In so doing the court that decides on the request for extension has to take into account all relevant circumstances; in addition, information besides that mentioned in the final judgment can also be taken into account. In the case of a threat the court that decides on the request for extension can take into consideration whether the threat was preceded, accompanied or followed by non-verbal aggressive behaviour towards the threatened person, or was in any (other) way reinforced, and also whether it was plausible at the relevant time that the threat would be carried out. According to the Supreme Court, the point is that the finding of the court that decides on the request for extension that the TBS order was originally imposed for a crime of violence should be reasonably foreseeable and thus should not come as a surprise for the person subject to the TBS order. ... Agreeing on this point with defense counsel, the Regional Court is of the opinion that it is not self-evident from the judgment of the Court of Appeal that the crime in issue was a crime of violence. The Regional Court will interpret the judgment of the ‘s-Hertogenbosch Court of Appeal on the basis of the relevant facts and circumstances. The Regional Court deems the following of importance. The ‘s-Hertogenbosch Court of Appeal, in its special considerations regarding the evidence, held that on 20 June 2007 in Prinsenbeek Kuiters had smashed the windows of the house of Mr de V. with a baseball bat. He had, given the parked car in front of the door, drawn the conclusion that V. was at home and wanted to make a statement. A reporting officer observed that the glass was scattered over a distance of 10 metres. The Court of Appeal has furthermore taken notice of the history between Kuiters and Mr de V. On 16 May 2003 Mr de V. reported attempted manslaughter and destruction. One night a brick had been thrown through his bedroom window, which brick landed next to him on his bed. On 4 February 2007 he furthermore reported destruction and threat, after Kuiters had shot through the windows of Mr de V’s car with a crossbow. Furthermore, the ‘s-Hertogenbosch Court of Appeal has found, inter alia, that [Mr Kuiters’s] violent actions had been highly threatening for Mr de V. and that for him there were good grounds to conclude that, if he did not yield to the desires of [Mr Kuiters], he would run a serious risk of sustaining serious bodily injury. The Regional Court concludes from the foregoing that the Court of Appeal was of the opinion that there was a justified fear that at some point Kuiters would direct his aggression directly against Mr de V. and that the latter would run a risk of sustaining serious bodily injury. In view of that, and the circumstances cited by the Court of Appeal, the history and the terms used, the Regional Court is of the opinion that the Court of Appeal meant to impose the TBS order in connection with an indictable offence directed against, or endangering, the physical integrity of a person as referred to in Article 38e § 1 of the Criminal Code. Having regard to the foregoing, in the view of the Regional Court it cannot be said that, in the light of the judgment of the Supreme Court, it was not reasonably foreseeable that the TBS order was imposed in connection with such a crime of violence. This means that the TBS order with compulsory treatment in the present case is not limited in duration.” 29. Mr Kuiters appealed to the Arnhem-Leeuwarden Court of Appeal. Having held a hearing on 6 June 2013, the Court of Appeal gave a decision on 20 June 2013 endorsing the Regional Court’s decision, including its reasoning, in its entirety. 30. As relevant to the case, the Criminal Code provides as follows: Article 37a “1. The court may impose a TBS order on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if: 1º the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more, ... and 2º the said measure is necessary in the interests of the safety of others or the general safety of persons or goods. ... 4. In giving an order under paragraph 1, the court shall take account of the statements contained in the other opinions and reports made concerning the suspect’s personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences.” 31. The offences of which the applicants were variously found guilty include, in each case, at least one indictable offence carrying a maximum sentence of four years or more. Article 37b “1. The court may order that a person who is subject to a TBS order shall be confined in a custodial clinic if this is necessary in the interests of the safety of others or the general safety of persons or goods. ...” Article 38d “1. A TBS order shall remain in force for a period of two years, counting from the day on which the judgment imposing it has become final. 2. Except as provided in Article 38e ..., the duration of the TBS order can be extended, on the application of the public prosecution service (openbaar ministerie), for either one year or two years at a time, if the safety of others or the general safety of persons or goods requires such extension. A second extension is possible only when an order as mentioned in Article 37b ... has been given.” Article 38e “1. The total duration of the TBS order shall not exceed a four-year period, unless the TBS order is imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons. 2. If the total duration of the TBS order is not limited in time, the duration of the TBS order can be extended periodically, if the safety of others or the general safety of persons requires such extension.” 32. As relevant to the cases, the Code of Criminal Procedure provides as follows: Article 359 “1. The judgment shall state the charges and the public prosecutor’s sentence request (vordering). 2. The decisions referred to in Articles 349 § 1 [preliminary issues] and 358 §§ 2 and 3 [substantive issues] shall be reasoned. If the decision deviates from positions explicitly argued by the suspect or the public prosecutor, the judgment shall indicate, in particular, the reasons (geeft ... in het bijzonder de redenen op) for so doing. ... 4. If Article 9a of the Criminal Code [the decision not to impose a sentence or non-punitive measure] or Article 44a of the Criminal Code [reduction of sentence in exchange for giving evidence against another suspect] is applied, the judgment shall state the special reasons (geeft.... in het bijzonder redenen op) that have led to that decision. 5. The judgment shall state, in particular, the reasons (geeft in het bijzonder de redenen op) that have determined the sentence or led to the non-punitive measure. 6. In imposing a sentence or non-punitive measure involving deprivation of liberty, the judgment shall state, in particular, the reasons (geeft ... in het bijzonder de redenen op) which have led to the choice of this type of sentence or non-punitive measure. In addition, the judgment shall indicate, as far as possible, the circumstances taken into account in setting the length of the sentence. 7. If a TBS order with an order for confinement in a custodial clinic has been imposed in connection with an indictable offence directed against, or endangering, the physical integrity of one or more persons, the judgment shall so indicate, giving reasons (geeft het vonnis dit onder opgave van redenen aan). 8. All on pain of nullity.” 33. The following passages are excerpts from the drafting history of Article 38e of the Criminal Code and Article 359 of the Code of Criminal Procedure (Wetboek van Strafvordering): “... I [i.e. the Deputy Minister of Justice (Staatssecretaris van Justitie)] propose to let the court which imposes the TBS order with confinement in a custodial clinic decide whether that order is subject to a maximum or not. That court knows the case file well and is best placed to get an idea of the interaction between the act and the actor (daad-dadercomplex). It will then be determined from the outset whether it is subject to a maximum or not. Moreover, it is desirable both from the perspective of treatment and from that of the legal position of the person subject to the order that it be foreseeable at the time when the TBS order is imposed whether the TBS order is subject to a maximum or not. The treatment plan can be drawn up accordingly. The person subject to the TBS order will then know, if the order is subject to a maximum, what its maximum duration will be. ... The court which imposes the TBS order with confinement in a custodial clinic will have to decide, giving reasons, whether the crime in issue is one that is directed against, or endangers, the physical integrity of one or more persons. ... In opting for this solution it will have to be taken as part of the deal that in a number of cases the question whether the TBS order is subject to a maximum or not will be the object of an appeal or an appeal on points of law.” (page 9) and “The proposed amendment of Article 359 [of the Code of Criminal Procedure] can be seen as a logical consequence (pendant) of the proposed amendment of Article 38e of the Criminal Code. The court which imposes the TBS order with confinement in a custodial clinic must indicate in its judgment, giving reasons, whether it considers that the crime in issue is one that is directed against, or endangers, the physical integrity of one or more persons. It is thus clear from the start whether the TBS order is subject to a maximum or not. As a rule, it will be enough for the court to point to the nature of the indictable offence as found proven and qualified. The prescribed reasoning will therefore not normally be subject to such stringent requirements. However, in certain circumstances the court will have to give reasoning setting out the specific facts or circumstances.” (page 13) “The court which imposes the [TBS order with confinement in a custodial clinic] at the same time decides whether it shall be limited in time or not. The court to which it falls to consider whether the order should be extended or not is dispensed from making that choice.” (pages 1-2) and “The current maximisation arrangement [i.e. the arrangement existing until the entry into force of the legislation here in issue] differs from that proposed as regards the moment at which it is decided whether the duration of the TBS order shall be determined in advance or not. The decision on the question whether the TBS order is subject to a maximum will be taken, pursuant to the proposed Article 38e of the Criminal Code, when the order is imposed and is to be based on the trial court’s view of the nature of the crime. In considering the request to extend the TBS order it is no longer an issue whether the crime belongs to the exceptions enumerated in the first paragraph of Article 38e; the court which imposed the order will already have determined that, giving reasons in accordance with the additional requirements set out in Article 359 [of the Code of Criminal Procedure]. The current arrangement allows the court [which decides on the extension of the TBS order] to express its views on the seriousness of the crime for which the order was imposed in its decision.” (page 5) 34. The Explanatory Memorandum gives a non-exhaustive enumeration of indictable offences for which the maximum four-year term is not intended to apply. Offences listed include, amongst others, rape (Article 242 of the Criminal Code), indecent assault (Article 246 of the Criminal Code); committing lewd acts out of wedlock with a person below the age of sixteen (Article 247 of the Criminal Code); manslaughter (Article 287 of the Criminal Code); murder (Article 289); causing grievous bodily harm (Article 302 of the Criminal Code); and robbery with violence (Article 312 of the Criminal Code). 35. In a decision of 1 October 2012, LJN BX8788, the Arnhem Court of Appeal, reversing its earlier case-law in response to the Van der Velden judgment of this Court, held that it was not for the court called upon to decide on the extension of a TBS measure (on appeal) to supplement the judgment of the trial court by interpretation and decide, retrospectively, whether or not a TBS order had originally been imposed in connection with a crime of violence. 36. However, it was not “interpretation” to find that in view of the conviction, the qualification and the reasoning on which the sentence and/or the TBS order was grounded, considered in context, it was self-evident to anyone that the crime in issue was one of violence. 37. The case itself concerned a person convicted of threatening to kill someone with a knife. 38. The Procurator General (procureur-generaal) to the Supreme Court lodged an appeal on points of law “in the interests of the law” (cassatie in het belang der wet) against the Court of Appeal’s decision of 1 October 2012. 39. The Supreme Court gave judgment on 12 February 2013 (LJN BY8434). As relevant to the case before the Court, it held as follows: “4.1. The points of law argue essentially that the Court of Appeal erred in refusing the request to extend the TBS order or did so on inadequate grounds. 4.2. The Supreme Court notes that the [Van der Velden judgment] concerned a case in which the court which imposed the TBS order (opleggingsrechter) had not expressed a view on the question whether the indictable offence in issue had been one directed against, or endangering, the physical integrity of one or more persons (referred to hereafter, for the sake of brevity, as a ‘crime of violence’), and in which the court which had initially decided on the request for extension of that measure (verlengingsrechter) had found that the crime in issue was not a crime of violence in that sense. It was only the court which was called upon on appeal to consider the extension of the TBS order which came to a different conclusion and found the criminal act in connection with which the measure had been imposed to be a crime of violence. The Supreme Court understands this decision of the European Court of Human Rights, in which the interest of legal certainty is stressed where it concerns deprivation of liberty, in the sense that the conditions which must be met for a deprivation of liberty to be considered ‘lawful’/’régulière’ within the meaning of Article 5 § 1 of the Convention must be clearly circumscribed and that the way in which they are applied must be reasonably foreseeable. This means, in cases such as the present, that the view taken by the court which imposes the TBS order concerning the question whether the TBS order is imposed in connection with a crime of violence is decisive for the question whether the measure is amenable to extension by the court which decides on extension of the measure, as provided for by Articles 38d and 38e of the Criminal Code. It is thus the court which imposes the TBS order which decides – in brief – whether the TBS order imposed by it is limited in duration or not. 4.3. It will, as a rule, be relatively simple to establish that decision if the court which imposed the TBS order, in giving reasons for so doing – preferably in the words of Article 359 § 7 of the Code of Criminal Procedure –, has stated that the measure was imposed in relation to a crime of violence, or not as the case may be. That is of particular importance if the crime in relation to which the TBS order was imposed cannot without further explanation be characterised as a crime of violence – i.e. as an indictable offence that was directed against, or endangered, the physical integrity of one or more persons – as in the case of threatening (bedreiging, Article 285 of the Criminal Code), or stalking (belaging, Article 285b of the Criminal Code), in relation to which the measure here in issue can be imposed pursuant to Article 37a § 1 (a) of the Criminal Code. 4.4. The sole fact that the sentencing court in its reasoning has not stated in so many words that the TBS order was imposed in connection with a crime of violence does not entail that the measure can no longer be extended if its total duration exceeds a period of four years. The only condition set by Article 38e § 1 of the Criminal Code for the extension of the TBS order is that the measure be imposed in connection with a crime of violence. Whether such is the case can also be deduced from the other content of the final judgment of the sentencing court – whether it be read in context or not – such as the conviction, the evidence relied on, the qualification, the reasoning of the rejection of any defences put forward and the reasoning of the sanction or sanctions imposed. If, on that basis, it is evident that the crime is one of violence, then at the very least it cannot be said that the possibility of extension of the measure beyond four years was not foreseeable for the person subject to the TBS order. 4.5. The opinion of the Court of Appeal that, except in cases as referred to above, it is not for the court that decides on the extension of the measure to determine retroactively ‘by interpretation of the judgment of the court which imposed the TBS order’ whether or not the TBS order was imposed in relation to a crime of violence is not, however, borne out by the said judgment of the European Court of Human Rights and moreover cannot be accepted as correct. There is no rule of law that prevents the court which decides on the extension of the TBS order from coming to the conclusion, based also on other information than that contained in the final judgment [of the trial court] – such as the proceedings of the hearing of the court which imposed the TBS order, as apparent from the official record made of that hearing – that the TBS order was imposed in relation to a crime of violence; it cannot, moreover, be ruled out that other documents available to the court which imposed the TBS order are conclusive on this point. 4.6. Consultation of these documents will be indicated especially if the final judgment does not contain sufficiently clear reasoning as referred to in Article 359 § 7 of the Code of Criminal Procedure or otherwise does not give sufficient pointers (aanknopingspunten) to conclude that the fact for which the TBS order was imposed must be characterised ipso facto as a crime of violence, like the threat of lethal violence held proven in the instant case. In such a situation the court that decides on the extension of the TBS order will have to arrive at a conclusion as to whether – in view of all the facts and circumstances that were known at the time – the threat constituted such a crime of violence. In this connection, it is worth noting that – contrary to the point of departure that seems to have been chosen by the Court of Appeal – the court which decides on the extension of the TBS order must take into consideration all relevant circumstances. In so doing it will be in a position to consider, among other things, whether the threat was preceded, accompanied, or followed by non-verbal aggressive behaviour against the person threatened or in some (other) way reinforced, and whether at the time it was likely that the threat might be carried out. There is no rule of law that prevents the court which decides on the extension of the TBS order from considering the finding that the crime in issue was one of violence implicit in the final judgment of the court which imposed the TBS order. In this way, it can be avoided that in those cases in which the court which imposed the TBS order failed to provide adequate clarity, either as prescribed by Article 359 § 7 of the Code of Criminal procedure or in some other way, as to whether the TBS order was limited in duration, this oversight (verzuim) by itself should prevent the measure from being extended, even if it is clear to all concerned that the TBS order was imposed for a crime of violence and it therefore merely concerns an oversight by the court which imposed the TBS order. What is decisive in cases such as the present is that the finding of the court which decides on the extension of the TBS order that the TBS order was at the time imposed in relation to an indictable offence that was directed against, or endangered, the physical integrity of one or more persons should be reasonably foreseeable and therefore should not come as a surprise to the person on whom the order was imposed.”