International laws and regulations

Which international rights apply in detention?

Human rights apply to everyone, regardless of nationality, sex or religion, for example. Even in detention, you have the right to humane treatment, privacy, medical care and the practice of your religion.

Not every international rule has the same legal effect. Treaties are binding, while recommendations and minimum standards often fall under soft law: guidelines that are not legally binding in their own right. Courts may, however, take these standards into account when making their decisions.

The European Convention on Human Rights

The European Convention on Human Rights (ECHR) also applies in the Netherlands. The following provisions are particularly relevant to people in detention:

• Article 3 ECHR: prohibits torture and inhuman or degrading treatment or punishment. There are no exceptions to this prohibition, not even for security reasons.
• Article 5 ECHR: protects liberty and personal security. Any deprivation of liberty must be lawful.
• Article 6 ECHR: guarantees a fair trial, including a public hearing within a reasonable time before an independent and impartial court.
• Article 8 ECHR: protects private and family life, the home and correspondence.
• Article 14 ECHR: prohibits discrimination, for example on grounds of race, sex or religion.

When detention conditions are assessed, several problems taken together can amount to a violation of Article 3 ECHR. A violation does not necessarily have to result from one individual measure.

The prison system

Only necessary restrictions

Losing your liberty does not mean losing all your other rights. The principle of minimum restrictions means that restrictions must not go further than necessary. This principle is reflected in Article 15 of the Dutch Constitution (Grondwet) and partly in Article 2(3) of the Custodial Institutions Act (Penitentiaire beginselenwet, Pbw).

Under Article 2(3) of the Custodial Institutions Act (Penitentiaire beginselenwet, Pbw), restrictions may be imposed only to the extent necessary for the purpose of detention or for order or security within the institution. Detention must also contribute as much as possible to preparing for a return to society.

The International Covenant on Civil and Political Rights (ICCPR) also provides protection:

• Article 7 prohibits torture and cruel, inhuman or degrading treatment or punishment.
• Article 10(1) requires humane treatment and respect for the dignity of people in detention.
• Article 10(3) states that treatment within the prison system must focus primarily on reform and social rehabilitation.

The Netherlands is also bound by the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Nelson Mandela Rules

The United Nations adopted the Standard Minimum Rules for the Treatment of Prisoners in 1955. The revised version was approved in December 2015 and is known as the Nelson Mandela Rules.

These minimum standards cover matters such as accommodation, food, medical care, disciplinary punishments and contact with the outside world. They are not a binding treaty, but they provide important guidance worldwide on proper detention conditions.

European Prison Rules and having your own cell

The European Prison Rules (EPR) are European recommendations on the treatment of prisoners. They were adopted in 1973 and revised on 1 July 2020. Topics include healthcare, security, disciplinary punishments, restraints, the right to complain, and staff training and organisation.

Many of these safeguards are also covered by Dutch detention law. However, there are differences. Rules 18.5, 18.6 and 18.7 take a cell of your own as the starting point, unless there are good reasons for prisoners to share accommodation. The Netherlands allows shared cells.

The EPR therefore do not automatically give you an enforceable right to your own cell. They are non-binding recommendations. However, the European Court of Human Rights regularly takes the EPR and the standards of the European monitoring committee CPT into account in its judgments.

Case law on overcrowding

In İlerde and Others v. Türkiye, the European Court ruled in 2023 that Article 3 ECHR had been violated in respect of nine prisoners. Overcrowding and the related poor conditions were decisive. Türkiye had to pay individual awards of between € 2,000 and € 11,000. These amounts relate to those specific cases and are not a general compensation rate for poor detention conditions.

Serving a sentence in another country

In certain cases, a sentence transfer allows Dutch prisoners to serve their foreign prison sentence in the Netherlands. This makes it possible to support their return to Dutch society. Foreign prisoners in the Netherlands may also qualify for a transfer.

There are two statutory schemes for this:

• The Transfer of Enforcement of Criminal Judgments Act (Wet overdracht tenuitvoerlegging strafvonnissen, WOTS) applies to transfers involving countries with which an applicable treaty exists. These include more than sixty countries that have signed the Convention on the Transfer of Sentenced Persons.
• The Mutual Recognition and Enforcement of Custodial and Suspended Sanctions Act (Wet wederzijdse erkenning en tenuitvoerlegging vrijheidsbenemende en voorwaardelijke sancties, WETS) has applied since 1 November 2012 to transfers within the EU involving countries that have implemented the relevant EU rules.

Foreign prisoners in the Netherlands may qualify if their conviction is final and at least ten months of their sentence remain when they apply. Other transfer conditions also apply. A request can be submitted to the Individual Affairs Division, International Transfer of Criminal Judgments unit (Divisie Individuele Zaken, Internationale Overdracht Strafvonnissen, DIZ IOS). IOS handles the applications; the procedure takes an average of six to twenty months.

Young people and youth custodial institutions

Detention as a last resort

The UN Convention on the Rights of the Child (CRC) protects children and young people under eighteen. Article 37 CRC requires detention to be used only as a last resort and for the shortest possible time.

For each child, there must be an individual assessment of whether detention is necessary and how long it should last. The child's best interests must be a primary consideration under Article 3(1) CRC. The ECHR also applies: Article 5 protects against unlawful detention, and Article 8 protects family life, among other things.

Care, education and protection

A child in detention must still be able to exercise their basic rights. These include suitable living conditions, necessary medical care, education, religious practice and family contact. Article 37(c) CRC is relevant here. Article 16 CRC protects privacy.

Protection must reflect the individual child's vulnerability. Age, development and sex may make a difference. Article 37(a) CRC protects against torture and other unlawful treatment. Children must also be protected against violence, sexual abuse and neglect by staff or other detainees.

Specific international standards

Alongside the CRC, there are the Beijing Rules on juvenile justice, the Havana Rules for children deprived of their liberty, and the Riyadh Rules on preventing juvenile delinquency.

Rules 64–67 of the Havana Rules require, among other things, that:

• corporal punishment is prohibited;
• solitary confinement is not used;
• measures to maintain order, use force or exercise control are used only where there is a legal basis and they are necessary.

These standards are not legally binding. The CRC is binding, but relying on it does not automatically lead to a favourable court decision. Its application in Dutch case law has developed, with arguments based on children's rights more often leading to a positive outcome.

The Netherlands has made reservations to the CRC. For example, adult criminal law can be applied to sixteen- and seventeen-year-olds; the Dutch reservation to Article 37(c) CRC is relevant here.

Immigration detention

An administrative measure, not a punishment

Immigration detention is intended to keep someone available for removal from the country. It is not a criminal punishment. The Aliens Act 2000 (Vreemdelingenwet 2000) regulates matters including entry, residence and removal.

Article 9(2) of the Custodial Institutions Act (Penitentiaire beginselenwet, Pbw) allows placement in a remand centre (huis van bewaring). Special immigration detention centres, such as Schiphol, Rotterdam or Zeist, are preferred. Detention is permitted only under certain conditions and may not last longer than eighteen months.

Assess less intrusive options first

Article 5(1) ECHR puts liberty first. In certain circumstances, detention may be used with a view to removal or to prevent unauthorised entry.

Under the Return Directive, immigration detention must be an ultimum remedium: a last resort when less intrusive alternatives are not possible. For each person, an assessment must be made of whether detention is necessary and proportionate to its purpose.

Without a reasonable prospect of removal, continued detention is not justified. Article 15(4) of the Return Directive then requires release. In A.A. v. Greece of 22 July 2010, the European Court also stressed the principle of detention as a last resort.

Conditions and European directives

The Council of Europe's Twenty Guidelines on Forced Return, adopted in 2005, are based on a clear distinction between immigration detention and punishment. People without a right of residence must not be treated as criminals. Neither the building nor the daily regime may be punitive in character.

There are also European directives on procedures for refugee status and minimum standards for the reception of asylum seekers. Reception standards also apply in closed immigration centres. EU directives bind Member States as to the result to be achieved; national rules set out how that result is achieved.

M.B. v. the Netherlands

In M.B. v. the Netherlands of 23 April 2024, no. 71008/16, immigration detention immediately followed detention under criminal law. The asylum application had not yet been fully examined. The Netherlands relied on public-order interests.

The European Court ruled that such interests alone did not provide sufficient grounds for this immigration detention under Article 5(1) ECHR. No steps had been taken to assess the asylum application during the earlier criminal detention. As a result, an adequate connection with preventing unauthorised entry had not been shown. The detention was arbitrary and unlawful; the Netherlands had to pay compensation.

TBS: waiting for a treatment place

In Nelissen v. the Netherlands of 5 April 2011, no. 6051/07, a person had to wait more than thirteen months after his prison sentence for placement in a forensic psychiatric treatment clinic under a court order (tbs-kliniek). The European Court recognised that immediate placement is not always possible, but found this waiting period unacceptable under Article 5 ECHR.

Following Brand v. the Netherlands, the Dutch Supreme Court (Hoge Raad) had ruled that holding someone for more than four months while awaiting placement was unlawful. Nelissen's separate complaint about the lack of a speedy judicial review did not result in a finding of a violation.

International and national monitoring

The CPT, the European Committee for the Prevention of Torture, seeks to prevent violations by visiting places including prisons, detention centres, police facilities and psychiatric institutions. Independent experts examine how people are treated. Reports are made public with the consent of the country visited, together with a government response. A report and a Dutch government response were published following the visit to the Netherlands in May 2022.

Since 2024, the Netherlands Institute for Human Rights (College voor de Rechten van de Mens) has acted as the National Preventive Mechanism (NPM). This follows from OPCAT, the Optional Protocol to the UN Convention against Torture, which the Netherlands ratified in 2010.

The NPM visits facilities, examines conditions and advises on legislation and prevention. Areas of attention include human contact during isolation and the use of restraints. Its work also covers young people and immigration detention. The NPM reports annually to the Subcommittee on Prevention of Torture, but does not handle individual complaints or investigate incidents.

Complaining about violations

The European Court of Human Rights in Strasbourg examines specific complaints by individuals or states about violations of the ECHR. Unlike the CPT, the Court reviews matters after they have occurred.

For young people, Article 37(d) CRC requires access to legal and other appropriate assistance. They must know their rights and be able to make complaints in practice. In the Netherlands, the right to complain is set out in Article 65 of the Youth Custodial Institutions Act (Beginselenwet justitiële jeugdinrichtingen).

What does this mean for you?

• If restrictions are imposed: have someone assess why they are necessary for the purpose of detention, order or security.
• If conditions are poor: also describe how different problems affect your situation when taken together.
• In youth detention: include necessity, duration, development, care and family contact in the assessment.
• In immigration detention: have someone check whether alternatives are possible and whether there is still a reasonable prospect of removal.
• When relying on international rules: distinguish between binding treaty rights and recommendations. Both can be relevant, but they do not have the same legal effect.

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