Door gevaarlijke gekken omringd

Hardly a day goes by that I'm not reminded of the title of W.F. Hermans' Door Gevaarlijke Gekken Omringd, or - somewhat less poetically - in English: Surrounded by Dangerous Lunatics. Today, the most insane story I heard was the ruling of the Court of Appeals in The Hague, holding that it is still unlawful to remove squatters from their "homes" without a court order. Unlike the court of first instance, the appellate court found that the relevant provision of the Act on Squatting, which just entered into force, violated the ECHR's protection of the home. Unfortunately, the full judgement is not yet available, but the press release is.

First of all, how is this not a classic case of abuse of right? (Cf. art. 17 ECHR) These people simply hide behind the protection of the home to get away with stealing someone else's property. (Cf. art. 1 of Protocol 1)

Secondly, why not put them in jail? Art. 138a Sr, the new provision on squatting, is expressly included in the list of art. 67(1)(b) Sv of crimes that warrant detention pending trial despite the fact that the don't carry a penalty of at least 4 years. (Squatting carries a maximum sentence of a year in prison, though it will often be increased by a third under art. 138a(3) Sr when the crime is committed by two or more individuals working in concert. Adding in the aggravating factor of use of threats under art. 138a(2) Sr, the maximum penalty is 2 years + 1/3 * 2 years = 2 years and 8 months.) Just for clarity, Sr denotes the Penal Code and Sv refers to the Code of Criminal Procedure.

Of course, even when detention is theoretically authorised, it is not always possible. Under art. 67(3) Sv, it is only allowed when there are "serious concerns" about the defendant. But I would think - though the Dutch judiciary undoubtedly does not - that the fact that the defendant will undoubtedly re-offend once he walks out of the police station would qualify. Squatter gets arrested --> Squatter gets released pending trial --> Squatter goes back to his squat. How is that not a serious concern?

In the alternative, how hard can it be to find a few that qualify for the aggravating factor of art. 138a(2), the threat of violence or other manners to induce fear. It must be possible to round up a few particularly serious offenders, who would qualify for detention pending trial, and who could serve "pour encourager les autres".

Sigh...