Netherlands

1. National context

Dutch prison conditions have the reputation of being generally more humane than other European countries, prisoners’ rights were well developed there relatively early and have been held out as a model for other European societies. The reasons for this humanitarianism include the tradition of Dutch tolerance and more specifically the influence of the so-called Utrecht school which rejected positivistic criminological approaches in favor of a rehabilitative and humane and anti-punitive approach.

Since the early 1990s, there have been a number of changes in the Dutch prison system which have been charted by Easton, Tak and others[1]. Prison buildings in the Netherlands has expanded to meet the increased population. The pressure of prison expansion has meant financial pressure on prison budgets with fewer resources in prison, and more cell sharing. New prisons have been built to meet demand for places and formal limits on prison capacity have been removed. The quality of prison regimes has declined with fewer activities and the degree of penal austerity has increased. There are fewer rehabilitative programmes which are now limited to specific offenders and the rehabilitative ideal has declined but not disappeared as rehabilitation has been combined with more punitive regimes. Faced with more prisoners serving longer sentences and more prisoners with drugs and mental health problems, as well as more aggressive prisoners, there is now more emphasis on security and preventing escapes but also on individualized treatment and detention.

The increase in the number of prisoners and changes in the composition of the prison population since the early 1990s has led to changes in the Dutch system.

The Dutch government has said that it is committed to modernization of the prison system. This modernization agenda 2007-2010 focused on reoffending and aftercare, better treatment of prisoners with psychiatric and addiction problems but also increasing the efficient use of prison capacity to reduce the costs, but also to a more individualized approach. The emphasis was on achieving cost-effectiveness through cell sharing, and simplification of detention regimes, improved screening for mental health and risk factors, and improved allocation procedures to ensure that prisoners serving short sentences and those nearing the end of longer sentences can be housed near their local area. The system of care is also being reorganized with additional care places and to deal with drug dependency.

The Netherlands is one of the countries implied in the smallest number of case. From 1959, the Netherlands had 141 judgments, corresponding to 0,9% of all the judgments.

The Committee on Legal Affairs and Human Rights pointed out the Netherlands as an example of good dialogue with the Court, as well as a State in which the Parliament follows closely the evolution of the Court, in the Contribution to the Conference on the Principle of Subsidiarity, in Skopje, the 1st and 2nd October 2010

Over the years, cases have been brought to Strasbourg by Dutch prisoners challenging aspects of prison conditions within the Netherlands and its overseas territories. According to S. Easton[2], the prisoners’ rights claims have achieved mixed results. A challenge to the treatment of prisoners in a Dutch maximum security prison failed in Baybasin v. The Netherlands Application No. 13600/2 (6 July 2006) on issues other than routine strip-searching. However, in the key case of Van der Ven v. The Netherlands and Lorsé and Others v. The Netherlands Application Nos. 50901/99, 52750/99 (4 February 2003), the applicants were routinely and regularly strip-searched regardless of whether there had been contact with the outside world or any reason to suspect possession of objects which might compromise prison security and a refusal to comply resulted in punishment. The Court found clear breaches of Article 3. The cases also followed criticism by the CPT (see below) of the regimes in high security units in the Netherlands in its reports on 1997 and 2001 visits. One should notice that in the case of Warren v. the Netherlands (October, 6 2010, Dec., n° 21604/02), the Court made it clear under the Article 35 of the Convention that the applicant failed to exhaust of domestic remedies and declared his application inadmissible in that regard. Among others, this case in the Court’s opinion is a reminder of the existence and the pre-eminence of a binding remedies system in the Netherlands.

In the very recent case against the Netherlands (GC Murray v. the Netherlands (no. 10511/10)), the applicant, who suffered from a mental illness, was sentenced to life imprisonment in the Netherlands Antilles in 1980. At his trial, the applicant was diagnosed with various mental health problems. He complained under Article 3 of the imposition on him of a life sentence with no possibility of a review and of the lack of any treatment for his mental disorder. The Court considered that since the applicant’s repeated requests for a pardon were rejected i.a. because of the continued existence of a risk of recidivism, the different aspects of this complaint were interrelated and should therefore be examined jointly (§114). After the applicant passed away in 2014, the Court permitted his son and sister to pursue the application (§80).

The Government posited that the applicant could no longer be considered a “victim” since he had been release on humanitarian grounds in 2014, shortly before he passed away. The Court however considered that this decision of release “did not comprise an acknowledgment of the alleged violation of Article 3” and that there was no indication “of the pardon having been granted as a means of offering redress” (§84). Consequently, the Court dismissed the Government’s objection.

The Court first noted that the applicant’s contention that he was never provided with any treatment for his mental condition during the time he was imprisoned finds some support in various witness testimonies (§118) and in “CPT reports on visits […] to the prisons in Curaçao and Aruba […], according to which mental health care in those two institution was insufficient” (§118). The Court therefore concluded that the applicant was not offered possibilities of rehabilitating himself during the period of his imprisonment. The Court further noted that “it transpires from the decisions of the [domestic courts] that there was a close link […] between the persistence of the risk of the applicant’s reoffending on the one hand and the lack of treatment on the other” (§122). In other words, whereas a psychiatric treatment constituted, in practice, a precondition for the applicant to have the possibility to progress towards rehabilitation, the applicant was not offered such a treatment.

The Court recalled that “States have a wide margin of appreciation in the determination of what facilities or measures are required in order to give a life prisoner the possibility of rehabilitating himself or herself to such an extent that he or she may one day become eligible for release” (§124). However the court observed that “although the applicant […] was […] prior to being sentenced to life imprisonment, assessed as requiring treatment, it does not appear that any further assessment were carried out – either when he started serving his sentence or thereafter – of the kind of treatment that might be required” (§124).

In view of the foregoing, the Court found that “the lack of any kind of treatment or even of any assessment of treatment needs and possibilities meant that, at the time the applicant lodged his application with the Court, any request by him for a pardon was in practice incapable of leading to the conclusion that he had made such significant progress towards rehabilitation that his continued detention would no longer serve any penological purpose” (§125). In other words, the applicant’s life sentence was not de facto reducible, in breach of Article 3. In this judgment, the Court drew broader conclusions from this case, stating that the State have to comply with a positive obligation “to offer a possibility of rehabilitation” (§104) through parole mechanisms.

2. Bodies in charge of the prisoners’ complaints

In the Netherlands jurisdiction over prison cases is exercised by regular complaints committee which have complete jurisdictions over complaints lodged by prisoners since their creation in 1977. In addition, the Highest administrative is the Council of State is competent for judging and assessing the legality of administrative decisions and acts passed by the government and its administration. In theory, the Deutch Council of State has important powers since they can annul, suspend or squash measures of general application enacted by the public administration including of course the prison administration. However, in reality, the Council of States does not exert this competence in the field of prison.

2.1 Complaints Committee

Consequently, the main source of external control in the Netherlands has until now been the complaints committee that are available in principle for all prisoners having an interest, whatever their categories. The Complaints Committees have important powers since they can annul, suspend and squash measures of general application enacted by the prison administration.

More precisely, the Supervision Boards (Commissie van Toezicht): each prison benefits from a Supervision Board with its complaint committee. These CvT’s are appointed by the Minister of Justice for each correctional institution. They are the first way of lodging a complaint (see below).

The CvT’s – as intended – are compiled as a reflection of society and consist of at least 6 or more persons depending on the number of members determined by the Minister of Justice. Current CvT’s are no longer responsible in the management of the institution. Instead, they are independent thereof. In all cases, each CvT includes a member of the judiciary (in its capacity as independent citizen), a doctor, a lawyer and expert in the social work community. Moreover, everyone can not join, especially those whose independence could be questioned for example by the position they occupy in the justice process (Article 13).

Members monitor the treatment of detainees and may have contact with them to this end, and make suggestions if necessary to the director and possibly give advice to the Minister of Justice. Members have access at all times to all places of the institution and in all places where prisoners are. They regularly stay informed of the lives of inmates, their wishes and feelings (art. 7, paragraph 3 pp). Per month, a member of the CVT is designated “Commissioner of the month”, which means that he provides at least once the duty hours at the office, he perceives letters of complaint, and he first tries to solve these complaints more or less in the intermediate area between inmates and officers of the institution and then reports to the plenary CvT, which meets monthly with the director of the institution. In some (large) institutions, it even requires a “Commissioner of the week”.

2.2 Penal Courts

We can also evoke the jurisdiction of the criminal court when prisoners are victims of an offense. An inmate may also introduce criminal proceedings against a prison officer. It is also conceivable that an inmate accused one or more other inmates (for theft or assault) or one or more wardens (for example, for an abuse in the management of a prisoner who has a dangerous behaviour).

2.3 Other proceedings: non-judicial authorities

The Council for Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming – RSJ): The Council for the Administration of Criminal Justice and Protection of Juveniles is an independent body established by law. The Council has two tasks: giving advice and administering justice. The Council consists of about 75 members or deputy members, including experts on penitentiary law, juvenile and family law, behavioural scientists, members of the judiciary and the legal profession and medical experts.

Advice: The Council gives advice, in the form of recommendations, to the Minister and the State Secretary of Security and Justice and the State Secretary for Health, Welfare and Sport. Recommendations concern issues in the areas of the prison system, the forensic care system and youth protection. The Council gives this advice on its own initiative as well as on request.

Administration of justice: As a Court of Appeal, the Council reviews decisions made regarding persons serving a prison sentence or custodial measure: prisoners, offenders under a hospital order and juveniles in young offenders’ institutions and secure youth care centres. The judgments given by the Council are binding: there are no further possibilities of appeal. In addition to decisions made by the Director of a penal institution, the Council may also be asked to give judgment on the medical treatment given by the institution’s doctor or on the decisions made by the Selection Officer or the Minister of Security and Justice.

Mission Statement of the Council: The Council for the Administration of Criminal Justice and Protection of Juveniles sees to it that the government enforces sanctions in a legally correct manner and in accordance with principles of proper treatment of individuals.

Along with its supervisory role, the RSJ intervenes directly in the process of complaints (see below).

The National Ombudsman can also play an important role for detainees. This is the case if they have a complaint, but they do not (anymore) can contact the complaints committee or appeals committee. Important is the fact that the Ombudsman can only be activated if the regular complaints procedure with the authorities is not satisfactory. This means that a prisoner first have to submit a complaint with the Supervision Board of the establishment concerned (see above). There is no appeal from the decision of the complaints committee, the detainee may appeal to the Ombudsman provided it has an acceptable reason for not appealing. Here you will look at the reasonableness and fairness of the reasons. If the detainee has made no complaint, he can go to the ombudsman. However, the National Ombudsman is not required to conduct an investigation. The detainee will have to explain why he or she did not submit a complaint. If it turns out that it is still open to appeal or complaint, the Ombudsman will forward the request to the competent authority.

In short, the Ombudsman is there for detainees for those issues which the complaint and appeals committee do not have any (more) opinion to give. This is for example the case when there is no determination of a decision by or on behalf of the Director or when someone other than the inmate wants to complain. The National Ombudsman can play a role when it comes to things that are not worthy of his complaint under Article 60 of the Prisons Act. It is also important to mention that the National Ombudsman considers itself not competent to give an opinion on the medical treatment of medical device. However, he can assess the way the director organizes medical care in the facility.

Until a year after the alleged behaviour, there may be a request to be submitted to examination. When the application is admissible and the Ombudsman decided to open an investigation, the penitentiary will have the opportunity to respond. The detainee also get the opportunity to present his application. If the Ombudsman considers that it has sufficient information, he sums it up in his ‘findings’. Then, the parties may respond again. Eventually, the Ombudsman provides an opinion and he can possibly make recommendations to the penitentiary. These recommendations are not binding, but generally the establishments commit to the conclusions.

3. Remedies

3.1 Accessibility of remedies

– access and simplicity of the procedure

Each complaint procedure starts with the lodging of a complaint. Therefore standard complaint form must be available in all penitentiary institutions. Incidentally, it is not obligatory to use this form. The complaint only has to be put in writing.

It is essential that the complaint is verbalized and motivated as well as possible or it could be declared inadmissible. The complaint must specify what decision of the director the detainee complains and the reasons of the complaint.

A complaint does not by all means have to be written in Dutch.

Complaints have to be lodged within seven days after the detainee has taken note of the decision of the director that he wants to challenge. When this term is exceeded the complaint will normally be declared inadmissible.

The complaint must be addressed to the secretary of the complaint committee of the institution. These bodies make decisions which affect not only the complainants individually but affect prisoners more generally in providing a source of standards and recommendations.

Complaints are sent to the Complaints Committee, elected by the Minister of the Supervision Board, and both the Director and the prisoner can appeal against their decision. Complaints should be made within seven days of the incident. So prisoners can complain about being sent to a particular prison or being transferred to a particular institution (Tak, 2008). As well as complaints over disciplinary sanctions, they can complain over refusals relating to prison visits, controls on letters, or any measures which breach the prisoner’s statutory rights. Complaints should be made in writing within one week of receiving the decision. The Complaints Committee meets in private and both parties can give their views to the Committee in person and the prisoner has the right to legal assistance, if required. If the Committee finds in the prisoner’s favour it can quash the decision, order the Director to take a new decision, reject a complaint, or award compensation. Appeals against the Committee’s decision may be made by either party to the Appeal Committee of the Council for the Administration of Criminal Justice and Youth Protection. There are different Appeal Boards for prisoners, mental health law and medical law in which prisoners can challenge decisions and bring complaints. The Appeal Committee is the final stage of Appeal within domestic law before going to court for a criminal procedure, and while prisoners could go to the European Court of Human Rights, and also to the Ombudsman, they are rarely used.

The detainee and director can appeal to the RSJ appeals board at the latest on the 7th day after receipt of the oral or written decision on the complaint. When this term is exceeded the appeal will be deemed inadmissible.

One can only lodge appeal against (a part of) a decision in which a complaint has been declared ill-founded or inadmissible. The appeal must be lodged in writing. On penalty of inadmissibility the appeal writing has to motivate on what grounds the decision of the complaint committee is considered to be incorrect.

The appeal writing can be sent via the prison, like the complaint.

The RSJ board is made up by three RSJ members (about the RSJ, see above). Apart from the board that treats ‘normal’ complaints (complaints concerning director’s decisions) there is a board that deals with complaints about medical treatment, a board that judges decisions on selection and leave, a board that deals with complaints of people with a TBS measure (penal detention measure for the detention of the mentally disturbed) and a board that deals with complaints by juveniles detainees.

Contrary to the complaint committee the appeals board is not connected with one particular penitentiary institution. The RSJ resides in The Hague. The appeals boards deal with appeals concerning all Dutch penitentiary institutions, juvenile institutions and institutions for people with a TBS measure.

Generally the appeal is dealt with the same way as the complaints are by the complaint committee. Nevertheless there are some important differences. In appeal, for instance, mediation no longer takes place. Moreover, the appeal writing is always dealt with by a board of three members and never by one single judge.

Hearings in appeal are held in the same way as the complaint procedure. However, in appeal the hearing does not always take place in the institution where the detainee is staying. Usually the appeals board collects a certain amount of appeals, concerning several institutions in a specific region of the country. Those appeals are then dealt with at one hearing in a particular institution, situated in that region.

Unlike the complaint committee, the appeals board always passes judgement in writing. The Penitentiary Principles Act stipulates no term within which the board has to decide on the appeal. The decision has to be taken ‘as soon as possible’. In practice the treatment of the appeal takes a period of two to four months. If a hearing takes place, the decision usually follows within six weeks after the hearing.

The decision has to be motivated and can contain three kinds of decisions. In the first place the appeal can be declared inadmissible, for example because the appeal has been lodged too late or without motivation. In the second place the appeal can be declared ill-founded. In that case the complaint committee’s decision is confirmed, if necessary with improvement of the grounds of the decision. In the third place the appeal can be declared well-founded, which means that the decision of the complaint committee is reversed. If it comes to the latter the appeals board provides a new decision to replace the complaint committee’s decision.

According to Dutch law no legal remedies can be applied against decisions of the RSJ appeals board. However, occasionally it is possible to bring complaints before international courts like the European Court of Human Rights in Strasbourg or the Human Rights Committee in Geneva. A necessary prerequisite for the admissibility is that all domestic remedies have been exhausted.

The complaints submitted cover issues including disciplinary sanctions, denial of leave, or medical issues, so in practice this means that prisoners can complain about every decision which implies an infringement or the absence of a decision, but not about the actual rules themselves[3]. This would be the main weakness of the rule.

– Legal aid

Residing under the competence of the Ministry of Security & Justice, an independent governing body called the Legal Aid Board (‘Raadvoor Rechtsbijstand’, LAB) is entrusted with all matters concerning administration, supervision and expenditure as well as with the actual implementation of the legal aid system. This includes matching the availability of legal experts with the demand for legal aid, as well as the supervision and quality control of the actual services provided.

Under the European Convention on Human Rights and the Constitution of the Netherlands, each citizen of the Netherlands has the right to access courts, apply for legal advice and representation and, if means do not suffice, receive state-financed legal aid. The Dutch legal aid system provides legal aid to people of limited means. Anyone in need of professional legal aid but unable to (fully) bear the costs, is entitled to call upon the provisions as set down in the Legal Aid Act (in force since 1994; the last amendment of this law took effect on February 1st,2015). The Legal Aid Act of 1994 replaced the prior statutory system that dealt with the supply of legal aid and dates back as far as 1957.

The Dutch legal aid system is basically a threefold model in that it encompasses three ‘lines’ that provide legal aid:

  • The preliminary provision of the interactive online application called Roadmap to Justice[4] (Rechtwijzer) offers digital help by means of a ‘decision tree’. It helps people to find solutions for their legal problems in an interactive manner. A test of an updated version has been in use since the end of 2014: Roadmap to Justice 2.0 (Rechtwijzer 2.0). The Legal Services Counters (see section 2 below) also have a website that can be seen as a preliminary provision.
  • The Legal Services Counters act as what is commonly known as the ‘front office’ (primary help). Legal matters are being clarified to clients and information and advice given. Clients may be referred to a private lawyer or mediator, who act as the secondary line of legal aid. Clients may also apply for help from a subsidised lawyer or mediator directly. If necessary, clients can also be referred to other professionals or support agencies. The organisation ‘LSC’ was established with 30 offices around the country. These 30 offices share a website and a call centre. They have been evenly set up geographically, so that every Dutch citizen is within easy reach of a Legal Services Counter, at a maximum of approximately one hour journey by public transport, which makes difficult their access for prisoners.
  • Private lawyers and mediators provide legal aid in more complicated or time-consuming matters (secondary help) in the form of certificates. A lawyer (or mediator) submits an application to the LAB on behalf of his client. The Board assesses each application both interms of the client’s income and assets and the (financial) significance of the legal problem in question. In order to qualify for legal aid, the applicant’s income should not be higher than€ 25,600 (single person) or € 36,100 (married persons / single person with children). The applicant’s assets must not exceed € 21,139.If legal aid is granted, a certificate is issued which allows the lawyer in question to deal with the case. Lawyers and mediators are paid by the LAB to provide their services to clients of limited means. Generally they are paid a fixed fee according to the type of case, although exceptions can be made for more time consuming cases.

Each prisoner may consult with a lawyer at any time after his arrest, even before his interrogation by the police. If a person is in police custody, he will be automatically assigned a lawyer free of charge who will assist him while he remains in custody. Each prisoner is also entitled to an interpreter when speaking to his lawyer in custody.

The Dutch Bar Association (Orde van Advocaten) is able to assist prisoners to find the names and contact details of criminal lawyers. Prisoners are entitled to free representation from the moment you enter police custody to the end of their trial, regardless of your income. This lawyer will be assigned to you when you are remanded into custody.

To obtain the assistance from a lawyer, prisoners can tell the police to notify their arrest to a lawyer of their own choice. The legal assistance from this chosen lawyer will then also be free of charge as long as this lawyer participates in the legal aid system. This is the case for most Dutch criminal defence lawyers. Lawyer will provide prisoners with legal advice and represent them in court, based on the evidence gathered by the prosecution and given by any witnesses that are called. They can also request that the prosecution conducts further investigations and/or that the court calls witnesses or gathers specific evidence, but this will be at the discretion of the court.

Prisoners are entitled to change lawyers at any time, even if they are publically funded. If prisoners want to make a complaint about their lawyer, they must send a letter outlining your complaint to the Dutch Bar Association

3.2 Characteristics of the procedure

– Speed

According to the law the complaint committee has to decide on a complaint as soon as possible, but in any event within four weeks after the receipt of the complaint. That term can be prolonged with another four weeks. In practice the term to finish the procedure is often exceeded. (…)

The complaint committee first has to determine whether the complaint is admissible. Complaints that have been lodged too late or do not concern the director’s decisions are declared inadmissible. If the complaint is declared admissible the complaint committee decides whether the decision of the director concerned is:

  1. contrary to a regulation that is in force in the prison or a provision in a treaty that is in force in the Netherlands or
  2. unreasonable or unjust, if all interests in the case are balanced.

The test as meant under a is a test of the decision on lawfulness, the test under b is a test on reasonableness. If a decision is judged unlawful or unreasonable, the complaint will be declared well founded. The committee can then destroy the decision concerned, but can also take a decision themselves which then replaces the director’s decision. The director can also be demanded to take a new decision, taking the decision of the committee into consideration. If the director’s decision has been judged lawful and reasonable, the complaint will be declared ill-founded.

If the complaint committee has decided in favour of the detainee and the decision of the director is overruled wholly or partly, the director has to execute this decision of the committee immediately. Even when he appeals against the decision of the committee he has to do so, for lodging appeal does not suspend the complaint committee’s decision. Only a given compensation does not have to be paid pending the appeal.

The Deutch Penitentiary Principles Act stipulates no term within which the board has to decide on the appeal. The decision has to be taken ‘as soon as possible’. In practice the treatment of the appeal takes a period of two to four months. If a hearing takes place, the decision usually follows within six weeks after the hearing.

As described above, the settlement of a complaint or appeal takes a lot of time. In the complaint procedure the time limit to decide on complaints is almost always exceeded. Because decisions on complaints as well as appeals use to be taken after a rather long time, it is – from a point of view of legal protection – very important that temporary provisions can be asked and taken. The penitentiary Principles Act provides for a procedure for temporary provisions.

– Contradictory

Before any hearing, the secretary of the complaint committee may also use the possibility to hand over the complaint to a member of the Supervision Board, the so-called month commissioner, with the request to try to reach a friendly settlement between the detainee and the director. In practice the possibility of mediation is not used frequently by all complaint committees.

The committee always holds its sessions within the penitentiary institution. In principle the hearings are not in public, but the chairman can decide that the hearing has to take place in public, for instance because of article 6 of the European Convention for the Human Rights requires a hearing in public.

At the hearing are, apart from the members of the complaint committee, the following present: an official secretary of the committee, a staff member (the unit director or assistant director), the plaintiff and, possibly, in his wake a lawyer or other trusted representative. Sometimes guards are present. The detainee and director are not obliged to be present at the hearing.

According to the law the plaintiff and the director can make oral remarks about the complaint during the hearing. Moreover, they have the opportunity to provide the questions they want to pose each other via the chairman. Often the committee also leaves room for any other business.

For detainees the law lacks a possibility to summon witnesses and hear then under oath. After all the burden of proof, in view of their powerless position in the prison, is very problematic. This difficult position could be compensated a little bit if detainees could summon and hear witnesses.

In this respect the criminal procedure, according to Dutch law, offers much more guarantees than the penitentiary procedure.

At the hearing the detainee can be assisted by a legal advisor or another trusted representative who has got the complaint committee’s permission to assist.

Generally the appeal is dealt with the same way as the complaints are by the complaint committee. Nevertheless there are some important differences. In appeal, for instance, mediation no longer takes place. Moreover, the appeal writing is always dealt with by a board of three members and never by one single judge.

Hearings in appeal are held in the same way as the complaint procedure. However, in appeal the hearing does not always take place in the institution where the detainee is staying. Usually the appeals board collects a certain amount of appeals, concerning several institutions in a specific region of the country. Those appeals are then dealt with at one hearing in a particular institution, situated in that region.

Unlike the complaint committee, the appeals board always passes judgement in writing. The Penitentiary Principles Act stipulates no term within which the board has to decide on the appeal. The decision has to be taken ‘as soon as possible’. In practice the treatment of the appeal takes a period of two to four months. If a hearing takes place, the decision usually follows within six weeks after the hearing.

According to Dutch law no legal remedies can be applied against decisions of the RSJ appeals board. However, occasionally it is possible to bring complaints before international courts like the European Court of Human Rights in Strasbourg or the Human Rights Committee in Geneva. A necessary prerequisite for the admissibility is that all domestic remedies have been exhausted.

– Establishment of the facts

Article 64 paragraph 4 of the Prisons Act states that the complaints committee can also hear persons other than the complainant and the supervisor and may request oral or written information to establish facts. If the complaints committee decides to hear other people, it can ask to to the complainant or the management which person they would like to see placed on them. The content of the statement of the witness can be included in the decision.

The complaints committee is not able to force witnesses to appear and really make a statement. If the defaulting witness is a member of the establishment staff, it is conceivable that the absence of this witness leads to the application of the principle of presumption of innocence of the accused. The RSJ held that since the witnesses of an incident cannot be heard by the board, the statement of the complainant had to be considered plausible[5].

With the increased use of cameras as a security means the complaints committee may sometimes confronted with the question of seeing to study camera footage. The complaints committee uses this opportunity. Thus RSJ ruled that sufficient suspicion arose after examining the camera images with regard to the complainant and his appeal must be dismissed as unfounded. The complaint committee would in such a case in position to ask the prison management for transmitting the camera images when they are viewed in advance of the hearing. When the prison governor bases his decision on the camera images viewed by him, it is according to the complaint committee essential that those images are stored on behalf of an ongoing beklag- and appeal[6]

3.3 Powers of the judge:

Prisoners have access to an independent complaints committee from which they can appeal to a central body.

If a decision is judged unlawful or unreasonable, the complaint will be declared well founded. The complaint committee can then destroy the decision concerned, but can also take a decision themselves which then replaces the director’s decision. The director can also be demanded to take a new decision, taking the decision of the committee into consideration.

If a complaint is judged wholly or partly well-founded the director has to undo his decision. If that is not possible any more, the chairman of the committee can award compensation to the plaintiff.

The compensation can be given in kind, for instance as an extra visit or extra telephone call, but the compensation can be financial too. The compensation does not have the character of a real or full compensation but rather has a symbolic character. For complete compensation the civil judge can be approached.

If the complaint committee has decided in favour of the detainee and the decision of the director is overruled wholly or partly, the director has to execute this decision of the committee immediately. Even when he appeals against the decision of the committee he has to do so, for lodging appeal does not suspend the complaint committee’s decision. Only a given compensation does not have to be paid pending the appeal.

The detainee and director can appeal to the RSJ appeals board at the latest on the 7th day after receipt of the oral or written decision on the complaint. When this term is exceeded the appeal will be deemed inadmissible.

One can only lodge appeal against (a part of) a decision in which a complaint has been declared ill-founded or inadmissible. The appeal must be lodged in writing. On penalty of inadmissibility the appeal writing has to motivate on what grounds the decision of the complaint committee is considered to be incorrect.

The appeal writing can be sent via the prison, like the complaint.

The decision has to be motivated and can contain three kinds of decisions. In the first place the appeal can be declared inadmissible, for example because the appeal has been lodged too late or without motivation. In the second place the appeal can be declared ill-founded. In that case the complaint committee’s decision is confirmed, if necessary with improvement of the grounds of the decision. In the third place the appeal can be declared well-founded, which means that the decision of the complaint committee is reversed. If it comes to the latter the appeals board provides a new decision to replace the complaint committee’s decision.

First, it is possible for the detainee to ask the chairman of the appeals board to suspend the execution of the decision of the director totally or partly pending a complaint procedure. At the risk of being deemed inadmissible the suspension can only be requested after a complaint has been lodged or is lodged simultaneously with the submission.

The lodging of an appeal writing does not suspend the execution of the decision of the complaint committee, except from the part of the decision that concerns compensation. However, the person who has lodged appeal against a decision of the complaint committee can ask the chairman of the appeals board (the suspension chairman) to suspend a decision of the complaint committee entirely or partly pending the appeal procedure. In the decision of the complaint committee this possibility should be pointed out.

The National Ombudsman can also play an important role for detainees. This is the case if they have a complaint, but they do not (anymore) can contact the complaints committee or appeals committee. Important is the fact that the Ombudsman can only be activated if the regular complaints procedure with the authorities is not satisfactory. This means that a prisoner first have to submit a complaint with the Supervision Board of the establishment concerned (see above). There is no appeal from the decision of the complaints committee, the detainee may appeal to the Ombudsman provided it has an acceptable reason for not appealing. Here you will look at the reasonableness and fairness of the reasons. If the detainee has made no complaint, he can go to the ombudsman. However, the National Ombudsman is not required to conduct an investigation. The detainee will have to explain why he or she did not submit a complaint. If it turns out that it is still open to appeal or complaint, the Ombudsman will forward the request to the competent authority.

In short, the Ombudsman is there for detainees for those issues which the complaint and appeals committee do not have any (more) opinion to give. This is for example the case when there is no determination of a decision by or on behalf of the Director or when someone other than the inmate wants to complain. The National Ombudsman can play a role when it comes to things that are not worthy of his complaint under Article 60 of the Prisons Act. It is also important to mention that the National Ombudsman considers itself not competent to give an opinion on the medical treatment of medical device. However, he can assess the way the director organizes medical care in the facility.

Until a year after the alleged behaviour, there may be a request to be submitted to examination. When the application is admissible and the Ombudsman decided to open an investigation, the penitentiary will have the opportunity to respond. The detainee also get the opportunity to present his application. If the Ombudsman considers that it has sufficient information, he sums it up in his ‘findings’. Then, the parties may respond again. Eventually, the Ombudsman provides an opinion and he can possibly make recommendations to the penitentiary. These recommendations are not binding, but generally the establishments commit to the conclusions.

3.4 Preventive remedies

– Adequacy to structural problems

According to the Penitentiaire Beginselenwet, detainees have the right to present a reasoned objection to the decision of placement transfer. They can also contest the end of their participation in a penitentiary program (art. 17). The request of a placement in special locations or the participation in a program is also possible (art 18).

The body searches (art. 27 & ss), the use of CCTV’s (art 34) and of disciplinary sentences (Ch IX) are subject to strict regulations.

The penitentiary law also provides different rules concerning:

  • Contacts with the outside (Ch VII);
  • Care, work and other activities (Ch VIII)
  • Information to the detainees (Ch X)
  • The right of complaint (Ch XI).

The Penitentiaire Maatregel (PM) of 2014 rules the following areas: the regimes and the penitentiary program, the medical treatments, the monitoring of telephone calls, the spiritual and religious care, the personal data collection limits.

Concerning the Surveillance committees (Lünnemann & Raijer, 2004), they are authorized to handle appeals against the decisions of wardens in particular about:

  • imposition of a disciplinary sanction
  • restricting movement inside the prison
  • restriction of the contact with the outside world
  • the entry of a child in the prison
  • withdrawal of (trial) prison leave or any decisions involving a curtailment of any right conferred by law or any official rule

Inmates can also contest decisions of “placement-officers” concerning:

  • the extension of the placement term
  • their placement or transfer
  • the participation in education and training programs
  • the use of force/violence or use of restraints resources

As surveillance committees have a doctor in their teams, she/he treats all health care related queries.

The matters targeted by the complaints made by prisoners includes no less than 47 units from medical and disciplinary problems to the contestation of isolation measures or urine tests, through light problems, mail or contacts with journalists[7].

Although these principles give to the complaints committee the possibility of dealing with and tackling structural problems, the CPT (when visiting the Netherlands prison of Tilburg, institution which hosts Belgian detainees on the basis of an interstate agreement) has pointed out some problems, including : the large number of beds in the dormitories (which promotes inter-prisoner violence); the presence of bunk beds in solo-cells; the bad food quality; the reduced supply of activities in the education, professional, training and cultural fields; medical and nursing staff shortages; distribution of drugs by non-medical staff; non-respect of medical confidentiality; slow night interventions in the dormitories; bad access to the file in case of disciplinary proceedings; lack of multilingual information[8]

3.5 Compensatory remedies

If the Complaints Committee finds in the prisoner’s favour it can quash the decision, order the Director to take a new decision, reject a complaint, or award compensation. Prisoners can therefore obtain compensation from the Complaints Committee (see above). If a complaint is judged wholly or partly well-founded the director has to undo his decision. If that is not possible any more, the chairman of the committee can award compensation to the plaintiff.

The compensation can be given in kind, for instance as an extra visit or extra telephone call, but the compensation can be financial too. The compensation does not have the character of a real or full compensation but rather has a symbolic character. For complete compensation the civil judge can be approached.

4. Procedures regarding disciplinary issues

Disciplinary authorities

The prison governor or the board may, pursuant to Article 50 jo. 51 of the Prisons Act (PBW), Article 54, first paragraph and 55 first member of the Young Offenders’ Institutions (Bjj) and Article 48 and 49 of the Hospital opposites available (BVT) impose disciplinary sanctions for committing acts which are incompatible with the order or security in the device or with the uninterrupted implementation of the deprivation of liberty.

Prisoners have seven days to challenge and complaint about the disciplinary sanction ( Article 58, fourth paragraph, of the Custodial Institutions, Article 62, paragraph four of the Bjj and Article 54, paragraph three of the BVT).

Disciplinary decisions decided by the prison governor can be squashed by the complaints committee following an appeal made by prisoners (see above). The complaints committee during the evaluation of an executive decision in a complaint case and in appeal to the appeals Committee checks whether the decision is motivated regarding notably the evidence of the offense.

Release

The public prosecutor is responsible for ensuring that sentences are carried out and s/he must consider whether or not a prisoner should be released after they have served two-thirds of the sentence. This decision can be challenged.

5. Prisoners’ rights protection and early release/alternative measures’ procedures

The complaints committees are responsible for handling appeals against the decisions of wardens in particular about:

  • imposition of a disciplinary sanction
  • withdrawal of (trial) prison leave or any decisions involving a curtailment of any right conferred by law or any official rule

6. Concrete state of the protection of prisoners’ rights

Regardless of the information given by legal remedies, we can notice that De Ministerie van Veiligheid en Justicie published in 2012 the results of a survey of the entire prison population[9]. This survey presents (among others) the contrasting results of a satisfaction survey of inmates (including institutions by institutions) about issues such as security; compliance with the rules; follow up complaints; rehabilitation work; contacts with the outside; the relationship with the children etc.[10]

The problems that arise today in custody in the Netherlands have evolved since the late 1980. As highlighted by Kruttschnitt & Dirkzwager[11], the Dutch are today more influenced by the English than before. They “became increasingly supportive and have more repressive attitudes towards offenders. (…) [They] call for punishment instead of treatment” (288).

In its 2002 Report, the CPT found no evidence of torture or inhuman or degrading treatment in the prisons it visited, but did recommend offering more work and education activities in high security prisons (Council of Europe, 2002). It also wanted clearer criteria for allocation to high-security prisons. It has subsequently expressed concern at increased pressure on staff with the number of prisoners although the government responded with a commitment to increase staff recruitment and training, but as the emphasis now is on electronic monitoring and surveillance there may be less contact between staff and prisoners. If a prisoner is disruptive he can be held in isolation for two weeks during which time he cannot work or take part in recreational activities, but must still have access to fresh air for one hour a day, be allowed to attend religious services and have access to visits unless the disruptive behaviour is related to visits.

In its 2007 report, the CPT expressed some concern about the use of double cells and recording of disciplinary sanctions in prison, the lack of provision for recreation and other facilities fort short-term prisoners and the problems with the growns provided for prisoners who were in isolation (Council of Europe 2008). It also criticized, among other things, the physical conditions, the lack of activities and overcrowding in prisons in Aruba and ill-treatment and medical care in the prisons of the Netherlands Antilles. The Government provided information about those issues in its response to the CPT.

The Court relied on the 2007 report to substantiate its judgments. For example, in the cases of Van der Ven, Lorsé and Others, Mathew and Murray v. the Netherlands, the CPT reports were explicitly supported by the Court. Especially on facilities situated in the Netherlands overseas territories such as Aruba, it provides a description of bad conditions of detention in those facilities.

In its last report of 2011, the CPT made specific comments and recommendations toward prison establishments:

  • lifers and other long-term prisoners should not be systematically segregated from other prisoners.
  • Although measures has been taken after ECtHR cases regarding strip searches (see above), the 2011 report shows again that complaints about the frequency of strip searches were found

As underlined in the annual report of the Netherlands Institute for Human Rights[12], suspects and convicted persons can be restricted in their freedom, but do not lose all claims to the protection of their human rights. When it concerns detention conditions, medical and other facilities for detainees and the application of interrogation methods, the requirements that have been developed in the case law regarding article 3 of the ECHR play an important role. The treatment of and care for detainees has been investigated by various supervisory bodies. Their reports show that the Netherlands does not come off badly with regard to the conditions in detention, but that there is still room for improvement. Despite the fact that things are relatively well in the Netherlands, there are certainly still some points that require improvement, in particular regarding the detention of aliens.

Persons with a prison sentence or who are treated in a forensic hospital come under the responsibility of the state and entirely depend on the state during their deprivation of liberty, which means that they are potentially in a vulnerable position. In order to see to it that this does not lead to a situation in which inhuman or degrading treatment takes place (which is forbidden by article 3 of the ECHR, amongst others), there is national and international supervision of detention conditions.


[1] Boone, M. & Moerings, M. (eds) Dutch Prisons BJu Legal Publishers: The Hague, 2007; Easton, S., Prisoners’ rights: Principles and Practice, Routeledge: Abingdon, 2011, 279 p.; Tak, P.J.P., The Dutch criminal justice system, Publisher: Willem-Jan van der Wolf and René van der Wolf, 2008.

[2] Easton, S., Prisoners’ rights: Principles and Practice, Routeledge: Abingdon, 2011.

[3] Serrarens, J., “Complaint procedures” in Miranda Boone & Martin Moerings, Dutch prisons, BJU – Boom Juridische uitgevers, 2007, 318 p.

[4] See www.rechtwijzer.nl

[5] RSJ 30 maart 2012, 11/4331/GA.

[6] KC 2012/117, 8 mei 2012 en RSJ 25 juli 2014, 14/1325/GA.

[7] See Rapport toenemend appel – RSJ

[8] See: http://www.cpt.coe.int/documents/nld/2012-21-inf-eng.pdf

[9] Henneken-Hordijk, I. & van Gemmert, A.A., Gedetineerd in Nederland 2011, Een survey onder gedetineerden in het Nederlandse gevangeniswezen, Den Haag Directie Bestuursondersteuning, 2012.

[10] See : Rapport Gedetineerd in Nederland 2011 – Dienst Justitiele Inrichtingen

http://www.dji.nl/Perskamer/publicaties/#paragraph3

[11] Kruttschnitt, C. & Dirkzwager, A., “Are there still Contrasts in tolerance? Imprisonment in the Netherlands and England 20 years later”, Punishment and Society, 2011, vol. 13, No 3, p. 288.

[12] Annual Status Report Human Rights in the Netherlands 2012, Netherlands Institute for Human Rights, http://www.mensenrechten.nl/