Arrestant detainees

The prison system: what is an arrestant unit?

An arrestant unit (arrestantenafdeling) is formally a prison unit with a communal regime within a standard-security institution (Normaal Beveiligde Inrichting, NBI). Its main distinguishing feature is the daily programme: during the first eight weeks, no work is offered and 28 hours per week are available for activities and visits.

By comparison, on a regular prison unit the basic programme includes at least 42.5 hours of activities and visits per week. The enhanced programme (plusprogramma) offers 59 hours. These hours are set out in Article 3(2) of the Prison Rules (Penitentiaire maatregel, Pm).

The arrestant programme has existed since 1 January 2014. It arose from budget cuts developed through the Spring Agreement (Lenteakkoord) and the DJI Master Plan 2013–2018. In February 2013, the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming, RSJ) warned that excluding detainees from work conflicted with the statutory right to work at the time. The State Secretary disagreed and introduced the programme without changing the law. The rules on work were changed later.

Arrestant units are located at:

• DC Rotterdam;
• DC Schiphol;
• PI Grave;
• PI Alphen aan den Rijn, Eikenlaan site;
• PI Lelystad;
• Justitieel Complex Zeist.

Who counts as an arrestant detainee within DJI?

Article 1(m) of the Regulations on the Selection, Placement and Transfer of Detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden, Rspog) lists five categories. This list is exhaustive: not everyone who has been arrested may therefore be treated as a DJI arrestant detainee.

People in these groups may be registered with the police for arrest. The police may actively search for them or arrest them during a check. After a stay in a police cell, the police or the Transport and Support Service (Dienst Vervoer & Ondersteuning) takes them to an institution for arrestant detainees.

1. Absconding from detention

This concerns convicted people who have absconded while serving a prison sentence or being held in pre-trial detention (voorlopige hechtenis). It covers people who have already been given a custodial sentence by a court at first instance, even if that judgment is not yet final. People staying in a remand centre (huis van bewaring) do not fall within this category.

One example is someone on a low-security unit (Beperkt Beveiligde Afdeling, BBA) who fails to return from leave.

An order for placement in an institution for persistent offenders (ISD-maatregel) is not a prison sentence. Someone whose order for placement in an institution for persistent offenders (Inrichting voor Stelselmatige Daders) is final and who absconds while on leave therefore does not fall within this category. If this person is nevertheless placed on an arrestant unit after arrest, they must be transferred to an institution for people subject to an ISD order as soon as possible.

2. Enforcing a suspended prison sentence

With a suspended prison sentence (voorwaardelijke gevangenisstraf), a person does not have to serve the sentence as long as they comply with the conditions. In addition to not committing criminal offences, these may include a duty to report or undergo treatment.

If the conditions are breached, the public prosecutor (officier van justitie) may ask the court to enforce the sentence. If the court grants that request while the convicted person is at liberty, they may be registered for arrest.

3. Failure to pay fines or amounts ordered

This category includes different forms of detention. The distinction between detention in lieu of payment (vervangende hechtenis) and detention to compel payment (gijzeling) is essential: detention to compel payment is intended to put pressure on someone to pay, and the obligation to pay remains.

• Criminal fine (strafrechtelijke geldboete): the court sets the amount of detention in lieu of payment that will follow if the fine is not paid. No more than one day may be imposed for every €25, up to a total maximum of one year. Once this detention has been served, the fine no longer has to be paid. This follows from Article 24c(3) of the Criminal Code (Wetboek van Strafrecht, Sr).
• Compensation order (schadevergoedingsmaatregel): the convicted person pays the State, which passes the money on to the victim or surviving relative. Failure to pay may lead to detention to compel payment: a maximum of one day for every €25, up to a maximum of one year. The debt remains, even after the full period of detention has been served. See Article 36f(5) Sr and Article 6:4:20 of the Code of Criminal Procedure (Wetboek van Strafvordering, Sv).
• Traffic fines under the Mulder Act (Wet Mulder): the public prosecutor may ask the subdistrict court judge (kantonrechter) to order detention to compel payment. This lasts no more than one week per fine. Payment remains compulsory. If payment is made during detention, the person must be released immediately under Article 28(4) of the Mulder Act (Wet Mulder).
• Confiscation order (ontnemingsmaatregel): this concerns surrendering the proceeds of criminal offences. The court sets a maximum of one day of detention to compel payment for every €25, up to a maximum of three years. If payment is not made, the public prosecutor may ask the court to apply this detention. The obligation to pay remains; once payment is made, the person must be released immediately. See Article 36e Sr and Article 6:6:25 Sv.

For confiscation orders, the Rspog still refers to the repealed Article 577c Sv. This has been replaced by Article 6:6:25 Sv.

4. Failure to report after a notice to surrender

A convicted person who is not in custody when the judgment becomes final may receive a notice to surrender (zelfmeldbrief). This states where and when they must report to serve their custodial sentence.

Anyone who fails to report loses their voluntary reporting status (zelfmeldstatus) and is registered for arrest. The police may then actively search for this person or arrest them during a check.

5. Revocation of conditional release

Conditional release (voorwaardelijke invrijheidstelling, v.i.) means that someone is released under conditions before serving their full prison sentence. If the conditions are breached, the release and its conditions may be reversed: conditional release is then revoked. Someone who is subsequently arrested may be placed as an arrestant detainee.

Since the Punishment and Protection Act (Wet straffen en beschermen, Wet SenB) took effect on 1 July 2021, different rules apply depending on the date of the judgment.

Judgments before 1 July 2021: conditional release applies to final, unconditional prison sentences of more than one year. For a sentence between one and two years, a person becomes eligible after one year plus one third of the remaining sentence. For sentences of two years or more, this is after two thirds of the sentence. The Public Prosecution Service (Openbaar Ministerie, OM) sets the conditions, but must ask the court to postpone, withhold or revoke conditional release.

Judgments on or after 1 July 2021: for sentences of two years or more, two thirds remains the starting point, but conditional release lasts no more than two years. The OM may itself decide to postpone, refuse or revoke conditional release. The convicted person may challenge these decisions before the district court (rechtbank).

After revocation, the person must serve all or part of the remaining sentence. Anyone who is at liberty may be registered for arrest.

How long may the basic programme last?

A stay on an arrestant unit with a basic programme may last no more than 56 days, or eight weeks. If detention continues beyond that point, a transfer to a regular prison unit must take place no later than day 56. If detention ends earlier, the person is released from the arrestant unit.

During the arrestant period, there is no right to placement within your own judicial district (arrondissement). However, the governor must take account of any interest you have in staying in your home region. This follows from Article 25(8) Rspog and the RSJ decision of 12 June 2019, R-19/3137/GB. After transfer to a regular prison unit, the right to regional placement does apply, under Article 25(7) and (8) Rspog.

Work, income and daily activities

Since 1 July 2021, Article 47 of the Prisons Act (Penitentiaire beginselenwet, Pbw) no longer provides a general right to work. However, the governor has a duty to make work available, with the starting point being that work should be offered to every detainee. A request to work requires a carefully considered decision.

Article 1a of the Regulations on Work for Detainees (Regeling arbeid gedetineerden, Rag) provides exceptions: this duty does not apply during the first two weeks of detention, or during the first eight weeks for arrestant detainees. During that arrestant period, there is also no right to an allowance in place of wages, known as waiting pay (wachtgeld). See Articles 5 and 6 Rag.

On 1 April 2021, the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) recommended offering arrestant detainees work or other meaningful daily activities during this period too. Work provides structure; many arrestant detainees and prison officers felt its absence was a loss. The minister did not adopt this recommendation. For the first two weeks, he referred to settling in, intake, screening, and the detention and reintegration plan. In his view, the longer exclusion for arrestant detainees was intended to encourage voluntary reporting. People who report voluntarily are placed directly in the enhanced programme.

Case law on the number of activity hours

On 2 January 2023, a complaints committee (beklagcommissie) upheld a complaint about the arrestant programme (KC2023/009). The committee held that the Pm did not provide an exception to the minimum of 42.5 hours. It awarded €40 in compensation.

The governor appealed, and on 5 June 2023 the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) ruled in the governor’s favour (23/31414/GA). The RSJ held that exclusion from work did not conflict with higher-ranking legislation. The programme assessed, which provided 26.5 hours, did in fact depart from Article 3(2) Pm, but the RSJ considered that departure justified. The ruling also found that the unavailable work did not have to be replaced by other activities.

Promotion and transfer requests

Detainees can normally become eligible for promotion to the enhanced programme after six weeks of good behaviour, under Article 1d(3) Rspog. Since the Punishment and Protection Act (Wet SenB), however, arrestant detainees have been excluded from the promotion and demotion policy under Article 1e Rspog.

As an arrestant detainee, you therefore have no right to a decision assessing your behaviour. A promotion decision is nevertheless possible, allowing you to enter the enhanced programme immediately after transfer. Without such a decision, or following a decision based on undesirable or unacceptable behaviour, you will be placed in the basic programme.

You may also ask, through the governor, to be transferred to a particular institution or unit. Article 18(1) of the Prisons Act (Penitentiaire beginselenwet, Pbw) also applies to arrestant detainees. The case manager must handle that request on the governor’s behalf.

This also applies to a request to take part in a penitentiary programme (penitentiair programma, pp). In the RSJ decision of 24 January 2020, R-19/4109/GA, the governor was not allowed to refuse to process a request on the grounds that he could not request a RISC screening. He had to process the request, provide a recommendation and submit it to the selection officer (selectiefunctionaris).

Complaints or objections about delays

The governor must ensure that a selection recommendation for transfer is sent to the selection officer (selectiefunctionaris) within eight weeks. The case manager arranges this on the governor’s behalf.

The route available depends on where the delay occurs:

• At the institution: if your stay is too long because of negligence by the case manager, you can lodge a complaint (beklag) with the Supervisory Committee (Commissie van Toezicht). Failure to act promptly enough, making it likely that the eight-week limit will be exceeded, may also be grounds for a complaint (beklag).
• With the selection officer (selectiefunctionaris): once the selection recommendation has been sent, responsibility shifts. If a decision is late or the actual transfer takes too long, you can lodge an objection (bezwaar) with the selection officer (selectiefunctionaris).

This division of responsibility follows from the RSJ decision of 8 June 2020, R-19/3833/GA. The possibility of complaining about a failure to act promptly enough is also shown by the RSJ decision of 11 August 2022, 21/23779/GA.

What does this mean for you?

First check why you have been placed as an arrestant detainee: you must fall within one of the five categories. This deserves particular attention if you are subject to an order for placement in an institution for persistent offenders (ISD-maatregel).

Also keep track of the eight-week limit. Ask your case manager in good time when the selection recommendation will be sent and which unit is proposed for your transfer. Explain your interest in being placed in your home region. If the process stalls, ask who currently has your request: this determines whether a complaint (beklag) to the Supervisory Committee (Commissie van Toezicht) or an objection (bezwaar) to the selection officer (selectiefunctionaris) is the appropriate route.

If you are detained for non-payment, distinguish between detention in lieu of payment (vervangende hechtenis) and detention to compel payment (gijzeling). Serving detention to compel payment does not mean that the debt disappears.

This page draws on the expertise of Mr. S.P.C. (Stan) Broekmans, a specialist in detention law at Hameleers Antonides Advocaten. Do you have a question about your own situation? Please get in touch; an initial assessment is free.

Other topics

• Belongings
• Camera surveillance
• Compensation
• Complaints procedure (beklagprocedure)
• Compulsory treatment
• Contact between parent and child