Disciplinary punishments

When can a disciplinary punishment be imposed?

The behaviour must disrupt order, safety or the carrying out of detention. A suspicion that you are going to do something is not enough. You must also be personally at fault: collective punishment is not allowed. Helping with or encouraging certain behaviour can, however, be punishable under Articles 47 and 48 of the Criminal Code (Wetboek van Strafrecht).

A disciplinary offence does not have to be a criminal offence under ordinary criminal law. Conversely, a fight, for example, can lead to both a disciplinary punishment and a report to the police.

An order and safety measure (ordemaatregel) has a different purpose: to maintain safety, for example where there is a risk of suicide. It does not require you to be at fault. The measure must end as soon as it is safe to do so. Segregation as a punishment is a last resort: the least restrictive option must be chosen and its duration kept as short as possible.

The procedure: report, hearing and decision

Report and evidence

The staff member who witnesses the incident must personally write an accurate, complete and truthful report. This may be a staff member other than a prison officer. You must be told without unnecessary delay that the incident is being reported to management. Decisions have found delays of both three days and, in the particular circumstances, one and a half hours to be too long.

The director must base their finding that you committed the act on credible facts. Staff reports do not automatically count as statements made under an official oath. If the director witnessed the behaviour personally, a report may not be necessary; a hearing is still required.

Temporary segregation by an officer and the hearing

While a decision is pending, you may be placed in temporary segregation: officer-imposed detention (bewaardersarrest), for a maximum of fifteen hours. This must not be an automatic, standard response. In case KC 2017/013, the complaints adjudicator found that there was no need for immediate segregation.

The director must hear you before deciding on the punishment and, in cases of officer-imposed detention (bewaardersarrest), before those fifteen hours expire. Absence is no excuse: the hearing can also take place by telephone. If you refuse a proper opportunity to be heard, you may prevent the hearing from taking place without the duty to hear you being breached.

In principle, the report must be dealt with within 24 hours of you being notified that it is being submitted. Only exceptional circumstances justify a departure from this rule; organisational problems or making enquiries with staff are not, in themselves, enough.

Written decision and enforcement

You must receive the written decision without unnecessary delay. It must state the specific behaviour, the reasons, the date, the duration of the punishment, the signature, details of the hearing and the options for making a complaint (beklag) and requesting suspension. Simply stating that you ‘disrupted order’ is not enough.

Enforcement must begin without unnecessary delay, possibly immediately after another punishment. Backdating a punishment, increasing it afterwards or converting it into an order and safety measure (ordemaatregel) is not allowed. Time already spent in segregation is not automatically deducted, but management may take it into account.

Prisons

Articles 50 and 51 of the Custodial Institutions Act (Penitentiaire beginselenwet, Pbw) govern disciplinary punishment. Only the director or an authorised deputy may decide on a punishment, not a staff member who has merely been given authority for that purpose (Article 5(4) Pbw).

Which punishments are allowed?

Article 51(1) Pbw contains an exhaustive list:

• Confinement in a punishment cell or another room, such as your own cell: a maximum of two weeks, meaning 14 × 24 hours.
• A ban on visits from specific people: a maximum of four weeks, and only if the incident was connected with their visit.
• Exclusion from specific activities: a maximum of two weeks. Your statutory right to outdoor exercise remains in place.
• Refusal, withdrawal or restriction of your next period of leave.
• A fine: a maximum of twice the current weekly wage in the institution or unit, even if you do not work.

A fine must not be deducted from your institutional account without your consent. Nor may it be used as compensation for damage or as a punishment for refusing a compensation arrangement. If you do not pay, exclusion from programme activities may be allowed as a substitute punishment.

Personal responsibility and circumstances

Prohibited phone use and contact with the media without permission can lead to punishment. Incidents during transport or leave can also be punished if that time outside the institution forms part of your detention.

If prohibited items are found in a shared cell, your own responsibility must be investigated. The Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) overturned a punishment when a cellmate took responsibility for all the items. In other cases, the location where items were found made it plausible that the complainant knew about them. A confession by a cellmate therefore does not automatically rule out your responsibility.

Not every suspicious item justifies a punishment. In a case involving pepper in underwear during a urine test, there was no evidence that it could affect the test; pepper itself was not prohibited (RSJ, 28 April 2021, 21/21086/SGA).

Since the withdrawal of the Sanctions Chart (Sanctiekaart) on 1 July 2021, the focus has been on an individual assessment. Previous sanctions may also be taken into account. Medical circumstances require attention: placement in a punishment cell was found to be unreasonable in a case involving severe claustrophobia because alternatives had not been investigated (KC 2022/009).

Rights during confinement

If confinement in a punishment cell lasts longer than 24 hours, the supervisory committee (commissie van toezicht) and the institution’s doctor must be informed immediately (Article 55(2) Pbw). This includes daily visits and a daily assessment of whether isolation can end. Restrictions must not go further than necessary; access to facilities must be assessed individually.

You retain the right to one hour outdoors every day (Article 55(1) Pbw). Ordinary contact with the outside world may be restricted. Visits and correspondence with your lawyer remain possible, as do telephone calls where necessary and where there is an opportunity. If you are punished by confinement in your own cell, your television may be removed, but this must be stated in the punishment decision.

Camera monitoring must be necessary because of your physical or mental condition. Advice from a behavioural specialist or doctor is required beforehand; in an emergency, that advice must be obtained as soon as possible afterwards. The toilet area must not be recognisably visible on camera.

Duration, combined punishments and suspended punishments

A punishment may not be extended. A new offence can, however, lead to a new punishment. Confinement and exclusion from activities for the same act may last no more than two weeks in total. An uninterrupted stay of 28 days in a punishment cell resulting from consecutive punishments has been found unreasonable. The maximum duration was also exceeded when one day of segregation as an order and safety measure (ordemaatregel) was converted into fourteen days in a punishment cell.

A punishment may be wholly or partly suspended: whether it is enforced then depends on compliance with conditions. Article 53 Pbw allows a probation period of no more than three months, starting on the day after the punishment is imposed. The conditions and probation period must be recorded in writing.

Punishment and promotion or demotion within the prison regime are separate decisions, but unacceptable behaviour can also lead to demotion or a refusal to promote you.

Young offenders’ institutions

Articles 54 and 55 of the Young Offenders’ Institutions Act (Beginselenwet justitiële jeugdinrichtingen, Bjj) apply to young people. Only the director or an authorised deputy may impose punishment (Article 4(4)(l) Bjj). Examples of punishable behaviour include refusing a urine test, causing noise disturbances at night, possessing prohibited items, smoking in a cell and involvement in an argument.

Punishments and age limits

Article 55(1) Bjj permits:

• Confinement in a punishment cell or another room: a maximum of four days for those under sixteen; a maximum of seven days for those aged sixteen or over.
• Exclusion from specific activities: the same age-dependent maximum periods.
• A ban on visits from specific people: a maximum of four weeks, and only where there is a connection with their visit.
• Refusal, withdrawal or restriction of the next period of leave.
• A fine: a maximum of one week’s pocket money as referred to in Article 51(3) Bjj.

Combined confinement and exclusion from activities must not exceed four or seven days in total, depending on age. Withdrawing leave for a longer period as a punishment is not allowed. A restriction on visits for refusing a urine test was also found unlawful because the required connection with visits was missing (KC 2017/034).

Special safeguards

Officer-imposed detention (bewaardersarrest) in a segregation cell requires an immediate need for segregation (Article 25(4) Bjj). The fifteen-hour period also runs during the night. The director must conduct the hearing personally and may not leave it to another staff member (Article 61(1) Bjj). The written decision must be handed to you without delay, and in any event within 24 hours.

If segregation lasts longer than 24 hours, parents or a guardian, a stepparent or foster parents must also be informed immediately, in addition to the supervisory committee (commissie van toezicht) and the doctor. The right to one hour of outdoor exercise each day and the special arrangements for contact with a lawyer remain in place.

Camera monitoring must be needed to protect your physical or mental condition and requires prior specialist or medical advice, unless the urgency makes any delay impossible (Article 55a Bjj).

A suspended punishment is possible, with a probation period of no more than two months, starting on the day after the punishment is imposed (Article 57 Bjj).

Forensic psychiatric treatment centres (tbs-klinieken)

Articles 48 and 49 of the Act on the Care of Persons Subject to a Hospital Order (Beginselenwet verpleging ter beschikking gestelden, Bvt) govern disciplinary punishments. Only the head of the institution or an authorised deputy may impose them. Forensic psychiatric treatment centres (tbs-klinieken) use order and safety measures (ordemaatregelen) more often, because these generally fit better with treatment. Here too, punishment requires personal fault.

Permitted punishments

Article 49(1) Bvt permits only:

• Segregation in your own room, for the whole day or for certain hours: a maximum of two weeks.
• Restriction of freedom of movement to the unit: a maximum of two weeks.
• A fine: up to the maximum set by the minister.
• A ban on visits from specific people: a maximum of two weeks, where there is a connection with their visit.
• Exclusion from communal activities or work: a maximum of two weeks, if the incident was connected with those activities or work.

Segregation and exclusion from activities may last no more than two weeks in total. The Bvt does not provide for wholly or partly suspended disciplinary punishments.

Segregation and rights

Where urgently necessary, the head of the unit may impose isolation for a maximum of fifteen hours (Article 34(3) Bvt). These are consecutive clock hours, including the night. Article 53(1) Bvt governs the hearing; Article 54(1) Bvt governs the written decision.

The right to time outdoors every day remains in place (Article 43(3) Bvt). Visits, correspondence and, where necessary, telephone contact with your lawyer also remain possible. Camera monitoring may be necessary to protect health, for example if prohibited items are suspected to have been swallowed.

Complaining about a disciplinary punishment

You can lodge a complaint (beklag) within seven days. The written decision must mention this option. The complaints committee (beklagcommissie) assesses the evidence, your responsibility and whether the punishment is reasonable in all the circumstances. Similar cases should receive similar punishments. On appeal, the appeals committee of the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) reviews the case.

Direct your complaint against the punishment decision itself. Include procedural errors, such as not being heard or receiving the decision too late. Complaining only about such a procedural error may lead to your complaint being declared inadmissible: its substance will then not be considered.

You can also lodge a complaint (beklag) against officer-imposed detention (bewaardersarrest). During the complaints procedure, you can request suspension: a temporary halt to all or part of the enforcement of the punishment. This is not possible for a suspended punishment.

Evidence can be decisive. In KC 2020/029, management refused to show camera footage and the description was not sufficiently clear. The complaint was upheld and compensation was awarded.

What does this mean for you?

• Keep the punishment decision and note when you were notified of the report, when segregation began, when you were heard and when the decision was handed to you.
• Explain specifically what you believe is incorrect and which witnesses or camera footage support your account.
• Report any medical or personal circumstances that make the punishment particularly difficult for you.
• Check the type of punishment, its duration and any required connection with, for example, visits.
• Do not let the seven-day deadline pass and, if necessary, discuss a request for suspension with your lawyer.

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