Camera surveillance

Camera surveillance and your privacy

With continuous camera observation, the whole cell can be watched 24 hours a day. Article 10 of the Dutch Constitution and Article 8 of the European Convention on Human Rights (ECHR) protect privacy. Any restriction must have a legal basis and be necessary for a permitted purpose, such as safety, protecting health or protecting others.

Article 3 ECHR also prohibits inhuman or degrading treatment. Camera surveillance does not automatically amount to such treatment. A high threshold of severity applies: the observation must demonstrably cause serious harm to physical or mental health.

The Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) considers, among other things, appeals and requests to suspend camera surveillance. Case law shows that personal circumstances and less intrusive alternatives must be carefully weighed up.

Camera surveillance in prisons

Isolation cells and punishment cells

The Prisons Act (Penitentiaire beginselenwet, Pbw) provides several legal bases:

• Article 24a Pbw: camera surveillance in an isolation cell as part of a measure to maintain order.
• Article 51a Pbw: camera surveillance in a punishment cell as part of a disciplinary punishment.
• Article 34a Pbw: camera surveillance under an individual regime or during a stay in the Extra Secure Institution (Extra Beveiligde Inrichting, EBI).

A disciplinary punishment penalises conduct for which someone can be held responsible. A measure to maintain order serves order or safety and may also be needed to protect someone from themselves. It does not require blameworthy conduct.

In an isolation or punishment cell, camera surveillance must be necessary to protect the person's mental or physical condition. Examples include a risk of suicide, self-harm or possibly having swallowed prohibited items. The governor must provide sufficient grounds to show this necessity. A reason for isolation alone is therefore not enough: camera observation must also be justified separately.

The placement in isolation or a punishment cell must itself also meet the legal requirements. Article 24a Pbw cannot serve as a basis unless an isolation measure has been imposed. A conditional measure to maintain order is not permitted either. The RSJ confirmed this on 6 March 2024 in case 22/29610/GA, concerning conditional isolation with camera surveillance during a hospital stay.

Expert advice and the right to be heard

Under Articles 24a paragraph 2 and 51a paragraph 2 Pbw, the governor must first seek advice from a behavioural specialist or the institution's doctor. In an emergency, this may be done afterwards, but as soon as possible. This exception must not become routine practice. The advice does not have to be in writing.

You must also be given an opportunity to express your views. This is called the duty to hear you (hoorplicht) and, in this situation, follows from Article 57 paragraph 1, point j, Pbw. Failure to comply with the duty to seek advice or to hear you can lead to a complaint being upheld. For camera surveillance without prior expert advice, the appeals committee's standard compensation amounts specify € 5 per day.

Individual regime and EBI

Article 34a Pbw allows continuous observation outside an isolation or punishment cell, but only under an individual regime or during a stay in the EBI. Broader grounds apply here. Camera surveillance may be necessary:

• to maintain order or safety in the institution;
• to ensure that detention proceeds without disruption;
• to protect your mental or physical condition;
• because an escape or harm to health could cause major public unrest or serious damage to international relations.

The last ground may concern serious violent or sexual offences, terrorist offences or offences against state security. The decisive factor is the significance of the public or international unrest for safety and the implementation of detention.

Any reliance on your health as a reason must be supported by specific information. In case 16/3187/GA, the RSJ awarded compensation of € 25, partly because the grounds relating to the person's physical condition had not been sufficiently substantiated. Danger can also come from outside; information from the Detainee Criminal Intelligence Point (Gedetineerden Recherche Informatie Punt, GRIP) may be taken into account.

Prior expert advice and an assessment of the impact on privacy are also required here, except in an emergency. The duty to hear you is set out in Article 57 paragraph 1, point i, Pbw. Under Article 10c of the Regulations on Accommodation Requirements for Penal Institutions (Regeling eisen verblijfsruimte penitentiaire inrichtingen), the institution's doctor or an affiliated behavioural specialist must check on your condition at least once a week.

Duration and extensions

In a punishment or isolation cell, the duration of camera surveillance is linked to the stay there. Under Article 34a Pbw, a maximum of two weeks per decision applies. Each extension may last no more than two weeks, provided it is necessary and follows consultation.

The doctor or behavioural specialist must be involved in the decision to extend surveillance. The governor must take their information into account, although it does not always have to be decisive.

Repeated use of the same standard wording is not enough. In case 16/3707/GA, the RSJ required a fresh assessment based on current facts and events from the preceding two weeks. The longer surveillance continues, the more carefully the interests involved must be weighed.

Less intrusive checks and relevant rulings

Routine camera surveillance because staff are not present on the wing does not meet the legal requirements. Sometimes, checking through the cell hatch at night, with the light switched on briefly, may be sufficient. This so-called night-check procedure (nachtstaatprocedure) interferes less with privacy than continuous observation.

A camera outside a cell cannot simply be pointed at the inside of the cell either. Case 17/0205/GA concerned prolonged observation to find a mobile phone. According to the RSJ, there was no legal basis and less intrusive methods were available: a phone detection device or a cell inspection under Article 34 Pbw. Article 8 ECHR had been violated.

A suspicion that someone has swallowed prohibited items must also be sufficiently substantiated. In KC 2015/040, it was not sufficiently clear how staff had established that the detainee was drinking from their visitor's cup. The footage had not been checked and it was unclear whether an expert had been involved. The complaint was upheld.

Using the wrong legal basis can lead to a complaint being upheld or a decision being suspended. For example, Article 34a Pbw cannot be used if someone is not under an individual regime or staying in the EBI. However, citing the wrong article does not mean that the decision is set aside in every case: in case 23/34780/GA, the RSJ considered the camera surveillance reasonable despite that error.

Supervisory committee

A stay in an isolation or punishment cell lasting more than 24 hours must be reported to the supervisory committee (commissie van toezicht), under Articles 24 paragraph 6 and 55 paragraph 2 Pbw. Article 34a paragraph 4 Pbw requires observation under an individual regime to be reported. The visiting committee member for that month (maandcommissaris) may give attention to the detainee concerned during a visit.

Camera surveillance in young offender institutions

Only to protect the young person

For young people, Article 25a of the Young Offender Institutions Act (Beginselenwet justitiële jeugdinrichtingen, Bjj) applies to isolation, and Article 55a Bjj to a punishment cell. Continuous camera surveillance is only possible in a punishment or isolation cell and must be necessary because of the young person's physical or mental condition.

Examples include a risk of suicide, self-harm or the need for regular observation when taking heavy medication. The placement in isolation or a punishment cell must itself also be justified. The need to continue surveillance must be reassessed each time. In case 12/1853/JZ, the RSJ ruled that the camera did not need to remain on during a body examination.

Decision and safeguards

Before making the decision, the governor must seek advice from a behavioural specialist or the institution's doctor. If an emergency means this cannot be awaited, advice must be sought as soon as possible afterwards. In case R-19/3773/JA, the lack of advice led to the complaint being upheld and compensation of € 10.

The following requirements also apply:

• The young person must be heard beforehand: Article 61 paragraph 1, point m, Bjj.
• The decision must be communicated in writing without delay, with reasons, a date and a signature: Article 62 Bjj.
• According to the RSJ, only the governor may decide on camera surveillance during isolation imposed as a measure to maintain order.

How long can it last?

The duration is linked to the stay in isolation or a punishment cell. Article 25 paragraph 1 Bjj sets a maximum of one or two days for isolation, depending on age. The governor may extend this by one or two days, again depending on age.

For a disciplinary punishment, Article 55 paragraph 1, point a, Bjj sets a maximum of four days for young people under sixteen and seven days for those aged sixteen or over. These time limits do not automatically make camera surveillance permissible: it must still be necessary.

Camera surveillance in tbs institutions

Protecting the patient themselves

Article 34a of the Act on the Care of Persons Subject to a Hospital Order (Beginselenwet verpleging ter beschikking gestelden, Bvt) permits camera observation during isolation (afzondering) or seclusion (separatie), if this is necessary for the patient's mental or physical condition. Surveillance must stop as soon as it is no longer necessary. Less intrusive measures must be considered in the assessment.

Protecting staff or other people is not enough on its own. In case R-20/8436/TA, the RSJ ruled that camera surveillance was unlawful because the need to protect the patient themselves had not been sufficiently demonstrated.

The isolation or seclusion must itself also be justified. Article 32 paragraph 1 Bvt lists:

• protecting society from the danger posed by the patient;
• maintaining order or safety in the institution;
• preventing serious danger to the patient's health.

In case 21/24515/TA, camera surveillance was linked to prohibited items, unusual behaviour and possible health risks. The RSJ did not consider the decision unreasonable; the measure stopped when the danger and the need for it had passed. In case 24/38771/TA, initially brief reasons could still be made sufficient by providing a further explanation.

Advice, the right to be heard and written notification

Under Article 34a paragraph 2 Bvt, prior advice is required from the treating psychiatrist or a doctor affiliated with the institution. In an emergency, this must be obtained as soon as possible afterwards. Prior telephone consultation with the treating psychiatrist may be sufficient.

Articles 53 paragraph 1, point g, and 54 Bvt govern the right to be heard and written notification. The patient must be heard individually; a group discussion is not enough. The dated and signed notification must be handed to the patient without delay, usually within 24 hours.

Duration and continuation

Camera surveillance is linked to isolation or seclusion. Article 34 paragraphs 2 and 4 Bvt sets a maximum of four weeks, with an extension of no more than four weeks following written authorisation from the Minister. Without that authorisation, isolation cannot be extended.

The need to continue remains the deciding factor. However, according to the RSJ, Articles 34 and 34a Bvt do not impose a duty to have a psychiatrist assess continued surveillance every day.

Making a complaint and requesting suspension

You can lodge a formal complaint (beklag) against camera surveillance: a complaint about the decision. While it is being considered, you can also request suspension, meaning a temporary halt to surveillance.

• Prisons: formal complaint (beklag) under Article 60 Pbw; suspension under Article 66 Pbw.
• Young offender institutions: formal complaint (beklag) under Article 65 paragraph 1, point m, Bjj; suspension under Article 71 Bjj.
• Tbs institutions: formal complaint (beklag) under Article 57 paragraph 6 Bvt; suspension under Article 64 Bvt.

In the prison system, the RSJ makes a provisional assessment of the suspension request. Suspension has been granted, for example, because the wrong legal basis was used or expert advice was missing.

What does this mean for you?

Ask what specific reason there is for camera surveillance and which legal provision is being applied. Check whether you have been heard, whether expert advice has been sought and whether any extension is genuinely based on current circumstances. Keep the decisions you receive and note how surveillance affects you physically or mentally.

Also discuss whether less intrusive checks are possible. A camera in the cell does not always mean it is switched on. In KC 2011/047, the camera was switched off, this had been explained, and a transfer took place the same day on request. The complaints committee (beklagcommissie) did not consider the actions of the management unreasonable in those circumstances.

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

• Arrestant detainees
• Belongings
• Compensation
• Complaints procedure (beklagprocedure)
• Compulsory treatment
• Contact between parent and child