Progression through detention

Progression through detention in the prison system

Since the Sentencing and Protection Act (Wet straffen en beschermen) came into force on 1 July 2021, low-security and very low-security prisons (BBI and ZBBI) no longer exist. General leave and regime-related leave have been replaced by reintegration leave: leave that must contribute to a safe return to society. Occasional leave for important events is still available.

Conditional release (voorwaardelijke invrijheidstelling, v.i.) is limited to a maximum of two years. The Public Prosecution Service (Openbaar Ministerie, OM) assesses whether conditional release is appropriate for each prisoner. The duty to work and the right to work have also been abolished: work is no longer compulsory, but access to work is subject to conditions.

You are responsible for making an effort to prepare for your return to society. Your case manager, the probation service and the municipality can support you. Progression through detention is intended to prepare for that return and reduce the risk of further offences.

Your personal plan and application

Your detention and reintegration plan (detentie- en re-integratieplan, D&R-plan) sets out your goals and the steps towards them. Your situation is discussed at a multidisciplinary meeting (multidisciplinair overleg, MDO) at least once every six weeks. Those attending include your case manager, a prison officer, a work supervisor and the medical service. In the Extra Care Unit (Extra Zorg Voorziening), a psychologist must also attend. The head of the unit chairs the meeting.

The MDO advises the prison governor on your plan, activities, promotion or demotion within the prison programme system, and transfer. Your case manager calculates possible dates for progression. These are target dates, not guaranteed start dates. The Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming, RSJ) confirmed this on 24 April 2019 (R-19/2956/GV).

The proposed steps are discussed with you and recorded. The case manager collects documents and advice. After discussion at the MDO and the Leave Committee (Vrijhedencommissie), the governor decides whether to submit a transfer request. The selection officer (selectiefunctionaris), who decides on placement and certain freedoms on behalf of the minister, then assesses the request.

In principle, the governor must start the progression process on their own initiative, as part of their responsibility under Article 2(2) of the Custodial Institutions Act (Penitentiaire beginselenwet, Pbw). You can also submit a request yourself under Article 18 Pbw.

Low-security unit: working outside prison

A BBA is a unit in or near a prison. Towards the end of your sentence, you can work or take part in daytime activities outside prison while staying in this unit, in the region where you will live after detention. This can be combined with education or care.

After working outside the prison, you may receive a Statement of Demonstrated Behaviour (Beschrijving Getoond Gedrag, BGG). You can use this to show a future employer that you have behaved as a responsible employee.

Leave and assessment

To be placed in a BBA, you must have been granted reintegration leave for work outside prison. This follows from Article 2(1) of the Regulations on the Selection, Placement and Transfer of Prisoners (Regeling selectie, plaatsing en overplaatsing van gedetineerden). The leave rules are set out in Articles 20a and 20ab of the Regulations on Temporary Leave from Prison (Regeling tijdelijk verlaten van de inrichting, Rtvi). Daytime education outside prison also falls within the definition of work outside prison.

The selection officer (selectiefunctionaris) decides on this leave on behalf of the minister. Your leave application must include a request for placement in, or transfer to, a particular prison or unit (Article 18(1)(a) Pbw). The governor collects information and must obtain advice from the Placement and Leave Committee (plaatsing- en vrijhedencommissie). The probation service, police or care providers may also give advice (Article 3 Rtvi).

Your leave must support a goal in your D&R-plan. Under Article 15(2) Rtvi, the following are also taken into account:

• your behaviour throughout your detention and your readiness to return to society;
• the options for managing risks;
• the interests of victims, bereaved relatives and others involved;
• your efforts to compensate for the harm caused;
• the purpose, contribution and duration of the leave, and the number of periods of leave needed.

A specific assessment of victims’ interests applies to the first unescorted reintegration leave following a conviction for an offence referred to in Article 51e(1) of the Code of Criminal Procedure (Wetboek van Strafvordering).

The governor may attach additional conditions to leave that has already been granted, such as electronic monitoring. This follows from the decision of the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) of 18 August 2023 (22/27673/GA).

When is it possible, and for how long?

Reintegration leave for work outside prison is possible if your prison sentence is longer than six months. It covers no more than one sixth of the sentence imposed, before possible conditional release or release.

It lasts at least four weeks and no more than twelve months, and its duration is recorded in your D&R-plan. If conditional release does not start after those twelve months, the selection officer (selectiefunctionaris) may extend it by up to 24 months at your request (Article 20ab Rtvi).

When are you excluded?

In addition to the grounds for refusal in Article 4 Rtvi, the exclusions in Article 16 Rtvi apply. You are not eligible if you:

• are in the basic programme or have been demoted;
• are unwilling to cooperate with a payment arrangement;
• have been given a life sentence, a hospital order with compulsory treatment (tbs met verpleging), or a measure for placement in an institution for persistent offenders (ISD-maatregel);
• are held in an extra-secure prison or a terrorist unit.

Participation in a PP also rules out this leave. If you are eligible for both routes, the selection officer (selectiefunctionaris) decides on behalf of the minister (Article 20ab(3) Rtvi). The other exclusions listed also apply to short-term and long-term reintegration leave.

If your leave is ended because of your own actions, you cannot qualify for it again for three months (Article 20ab(5) Rtvi).

Which prisons have a BBA?

There is a BBA at PI Nieuwersluis and PI Ter Peel, both exclusively for women. There are also BBAs at PI Dordrecht, PI Alphen a/d Rijn (Eikenlaan), PI Heerhugowaard (Amerswiel), PI Rotterdam (Hoogvliet), PI Roermond, PI Almelo (De Karelskamp), PI Haaglanden, PI Middelburg and PI Veenhuizen.

Prison programme: living outside prison under supervision

During a PP, you stay at an approved address outside prison. Legally, you remain a prisoner, and you remain registered with a custodial institution (penitentiaire inrichting, PI). The governor remains responsible (Article 8(1) of the Prison Rules (Penitentiaire maatregel, Pm)). A senior case manager stays in contact and supervises you; the probation service or other organisations may also be involved.

The PP consists of activities that support your return to society and help prevent further offences (Article 4 Pbw). You must spend at least 26 hours a week on these activities (Article 5(1) Pm). They may include work, education, social skills or care, such as outpatient addiction treatment.

The programme must build on the work you have already done towards your D&R goals concerning work, income, housing, your home situation and your social network. It is therefore a next step, not a separate process.

Conditions and duration

The admission conditions include the following:

• You are an adult or are subject to adult criminal law.
• Your unconditional custodial sentence is at least six months and no more than one year.
• At the start, you have at least four weeks and no more than one year left to serve.
• You take part in the enhanced programme (plusprogramma).
• You have valid identification, a citizen service number (BSN) and an approved residential address.
• You are working towards your D&R goals and have at least 26 hours of work or daytime activities a week.
• You will have an income within the foreseeable future.
• You sign the participation declaration containing the conditions and agreements.
• No other circumstances prevent participation.

The PP runs directly up to your release and, under Article 4(2) Pbw, lasts no more than one sixth of the custodial sentence imposed.

Custodial sentences also include detention or substitute detention (hechtenis or vervangende hechtenis), military detention and juvenile detention or substitute juvenile detention. A pending appeal or appeal in cassation does not automatically rule out participation. In that situation, the release date is calculated on the basis of the conviction being challenged.

Who decides?

The governor may recommend you to the selection officer (selectiefunctionaris), including advice from the probation service and, where required, the Public Prosecution Service (OM) (Article 7 Pm). You may also request participation yourself under Article 18(1)(b) Pbw.

The selection officer (selectiefunctionaris) decides and takes into account, among other things, the offence, uncertainty about your release date and the availability of an acceptable address.

Electronic monitoring, for example through an ankle tag, is not automatically required. The selection officer (selectiefunctionaris) decides on this based on your behaviour, specific risks and the protection of victims (Article 7a Pm).

Exclusions and rules during participation

Article 6 Pm rules out participation in the following situations:

• a hospital order with compulsory treatment (tbs met verpleging) is due to start after the custodial sentence;
• you are required to leave the country after your sentence or are to be extradited;
• you are placed in an extra-secure prison or a BBA;
• you have been given a measure for placement in an institution for persistent offenders (ISD-maatregel).

During the PP, you must follow supervision instructions, report any change in where you are staying and not commit any offences (Article 9(1) Pm). Special conditions may, for example, restrict drug or alcohol use, contact with certain people or your presence at certain locations. Electronic monitoring is also possible.

Breaches or failure to follow the programme may lead to a return to prison. Depending on the seriousness, the governor may issue a warning, change the conditions or recommend ending participation. In urgent cases, the governor may end participation themselves (Article 9a Pm).

In the decision of the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) of 8 November 2023 (23/34683/GB), the termination of participation because of cannabis use was upheld. The participant had reported the use himself. The conditions were clear and had been signed; his past history was also taken into account.

Other circumstances that affect progression

Pending criminal cases may be an obstacle if a hearing in the near future could change your release date during your current detention. In that situation, the time left to serve is not sufficiently certain (Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 25 May 2022, 22/25105/GB). The assessment may be different for a continuing offence, such as removing a child from parental authority. Simply denying an offence is not a reason to refuse progression.

Coercive detention (lijfsdwang) is not a custodial sentence within the meaning of the Custodial Institutions Act (Penitentiaire beginselenwet, Pbw). Progression through detention is not possible when you are held on that basis. However, coercive detention immediately following a prison sentence does not necessarily prevent progression. Substitute detention for failure to comply with a compensation order does count as a custodial sentence and as time left to serve; progression may therefore be possible.

Complaints about the handling of your progression process

Collecting advice and documents takes time. Allow about eight weeks for preparation. This is not an official processing deadline. Whether matters are being handled promptly enough depends on your circumstances. Missing a target date does not automatically mean that the prison has failed in its duties.

You can lodge a complaint (beklag) with the Supervisory Committee (commissie van toezicht) if your case is not handled with sufficient care or speed. The case manager acts on behalf of the governor in this process. However, you cannot lodge a complaint (beklag) about the content of the governor’s selection recommendation or how that recommendation was prepared (Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 8 January 2019, 17/3121/GA).

The case manager may not simply reject a PP application without processing it because you do not yet meet all the conditions. You decide whether you want your request to be submitted for a decision. Failure to process it may amount to a serious failing by the governor (Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 13 December 2023, 22/30614/GA).

The case manager must also investigate any uncertainty about your plans and goals during and after the PP by checking with the parties involved (Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 7 February 2022, 21/24167/GB).

What does this mean for you?

Discuss with your case manager in good time which route fits your sentence and goals. Ask about your target dates, missing documents and the advice needed. Provide information yourself about your residential address, work or daytime activities: your cooperation also affects how quickly preparation can take place.

Make sure your D&R-plan clearly explains why you need freedoms and how they support your return to society. Read the conditions before signing and discuss anything that is unclear. Even while living outside prison, you remain subject to detention rules and supervision.

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
• Camera surveillance
• Compensation
• Complaints procedure (beklagprocedure)
• Compulsory treatment