National Ombudsman and Children's Ombudsman

What does the National Ombudsman do?

The National Ombudsman independently and impartially investigates how public authorities act. These include the Custodial Institutions Agency (DJI), ministries and the police. Investigations concern how public duties are carried out, such as the way a complaint is handled or medical care is organised.

The office has existed since 1982 and is established in Article 78a, paragraph 1, of the Constitution (Grondwet). Other legal rules are set out in the National Ombudsman Act (Wet Nationale ombudsman) and Title 9.2 of the General Administrative Law Act (Algemene wet bestuursrecht, Awb).

An investigation may begin with an individual complaint. The ombudsman can also start an investigation on his own initiative, for example following recurring complaints, media reports or concerns raised by civil society organisations. An investigation may lead to a public report with findings and recommendations. These are not binding: the authority is not required to follow them. In practice, it often does.

Complaining to the National Ombudsman

Complain to the authority concerned first

In principle, the following conditions apply to a request for an investigation:

• Your complaint concerns the actions of a public authority.
• You have first complained to that authority itself.
• No formal detention complaint procedure (beklag) or appeal procedure remains available. An exception applies to complaints about a failure to make a decision or a delay in making one.

The ombudsman is therefore not a replacement for the ordinary formal detention complaint (beklag) and appeal procedures.

When will there be no investigation?

Article 9:17 and subsequent articles of the General Administrative Law Act (Awb) set out when an investigation is not possible or may be declined. The ombudsman has no power to investigate complaints about:

• a ruling by an administrative court;
• a matter currently before a court;
• the content of a law or rule.

The ombudsman may also decide not to investigate if:

• the complaint is unfounded;
• the complaint or the complainant's interest is not sufficiently significant;
• the complaint concerns someone other than the complainant;
• a court has already ruled on the complaint;
• the public authority dealt with the complaint more than a year ago.

If the conditions are met and no exception applies, the ombudsman must, in principle, investigate.

How is a complaint handled?

Many complaints are resolved through contact with the complainant and the authority. A practical problem can sometimes be resolved through discussion or informal mediation, without a detailed report. A short investigation may also show that the authority acted with due care, or lead to the authority acknowledging a mistake itself.

During a more extensive investigation, both the complainant and the authority may explain their positions. Public authorities must cooperate with the investigation. The ombudsman sets out the information collected in a statement of findings: an overview of what the investigation has established. Those involved may respond to it. The ombudsman then gives an opinion, possibly with recommendations.

The prison system: complaints about the facility and the Custodial Institutions Agency (DJI)

Formal detention complaints and appeals come first

When someone in detention makes a complaint, the ombudsman first checks whether a formal detention complaint (beklag) or an appeal is possible under the detention framework acts (beginselenwetten), which govern people's legal position during detention. If so, he must forward the complaint to the supervisory committee (commissie van toezicht) or the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ). This duty to forward complaints is set out in Article 9:19 of the General Administrative Law Act (Awb).

If the ombudsman may handle the complaint himself, he considers which approach is appropriate. Sometimes he involves the supervisory committee (commissie van toezicht) to find a practical solution. The committee knows the local circumstances and can reach the person in detention more easily. If no solution is found, an investigation may still follow.

Privacy and confidential information

In report 2017/047, the ombudsman investigated a leak of information from a prison file. It remained unclear who had leaked it. However, the information appeared to have become public through a public authority. The Custodial Institutions Agency (DJI) used an outdated system in which access could not be adequately restricted. Nor were records kept of which information was shared with other authorities. Extra care was needed because of the individual concerned and the media-sensitive nature of the case. The complaint was upheld: the person's privacy had been violated.

Report 2022/186 concerned confidential information that had become known to fellow prisoners. At first, the complainant could not get anyone to examine the substance of his complaint. The Custodial Institutions Agency (DJI) considered it unlikely that staff had shared the information, but provided no evidence to support that view. Staff and fellow prisoners had not been questioned. The ombudsman found that the agency had not investigated sufficiently and had wrongly denied the man his right to complain.

Preparing for medical care

Report 2018/095 concerned a seriously ill man who had to serve 30 days of detention in default (vervangende hechtenis). He had repeatedly been arrested and released because suitable care was unavailable. Despite arrangements being made, when he was finally admitted he did not receive medication until the second day, and had to wait two weeks for the special diet he needed.

The ombudsman found that the Custodial Institutions Agency (DJI) had not adequately prepared for his admission and had failed to provide proper medical care. The complaint was upheld.

Shop prices and the shop system

Following complaints about high prices and price differences between facilities, the ombudsman started an investigation on his own initiative in 2015. This led to recommendations on reasonable shop prices. In 2016, the State Secretary explained how he intended to implement them.

The introduction of the In-Made shop system also prompted intervention. The ombudsman asked for clarification in 2017. In June 2018, he noted improvements but still considered the system's performance inadequate. The Custodial Institutions Agency (DJI) promised further improvements. As the same problems continued to be reported, the ombudsman wrote to the minister again in June 2020.

Pardons and care for veterans

In December 2019, the ombudsman upheld complaints by a person serving a life sentence about the role of the Public Prosecution Service (Openbaar Ministerie) in a pardon procedure (gratieprocedure). In May 2021, he again called for a procedure with sufficient safeguards, looking beyond the existing legal framework.

An investigation into veterans in detention began in October 2020. The Veterans Act (Veteranenwet) of 2014 places a special duty of care on the government. The Veterans Ombudsman found that specialist care for veterans was not sufficiently accessible in detention. He pointed to possible links between behaviour and trauma suffered during deployments, and called for better cooperation and specific agreements on suitable care and aftercare.

Young offender institutions and the Children's Ombudsman

Who is the Children's Ombudsman for?

The Children's Ombudsman helps children and young people under 18 stand up for their rights. She is part of the office of the National Ombudsman but has her own duties and powers. Her work covers both public authorities and private organisations.

Children and young people can approach her with questions about their rights, and with complaints or concerns about children's rights in government, healthcare, education, childcare and youth care. The United Nations Convention on the Rights of the Child (Internationaal Verdrag inzake de Rechten van het Kind, IVRK) is an important basis for this work.

Attention to deprivation of liberty

The Children's Rights Monitor tracks developments in legislation and policy, and compliance with children's rights. The first edition appeared in 2012. In the fifth monitor, published in 2016, the Children's Ombudsman identified ten fundamental areas of concern.

One of these was the deprivation of liberty of minors. The Children's Ombudsman advocated alternatives to detention. She also warned that falling capacity made it harder to place young people in a young offender institution (justitiële jeugdinrichting, JJI) close to their home environment. Together with low staffing levels, this put pressure on services.

How should a complaints procedure for young people work?

In the February 2016 report ‘Take me (and my complaint) seriously!’, the Children's Ombudsman set out ten principles for complaints procedures where young people are deprived of their liberty:

• Young people know about the procedure and understand how it works.
• They can actually use the procedure.
• No complaint is ruled out for discussion in advance.
• Informal handling is the starting point, with the young person being heard.
• Complaints are handled independently and without bias.
• The approach is suited to young people.
• Young people receive clear information about progress and the outcome.
• Complaints are dealt with as quickly as possible.
• An upheld complaint leads to steps to put things right and lessons for the future.
• The young person can also take the complaint to a second, independent body.

Youth detention in default of compensation payments

In the 2018 report ‘Don't leave me locked up’, the Children's Ombudsman investigated youth detention in default (vervangende jeugddetentie) in connection with a compensation order (schadevergoedingsmaatregel). Her recommended starting point was not to use this form of detention for minors unless there was a reason to make an exception. This is a recommendation, not a general legal prohibition.

Children with a parent in detention

For the project ‘Do you see me?’, the Children's Ombudsman and Exodus Nederland spoke in 2017 with children and young people whose parent was or had been in detention.

The recommendations included visiting rooms that better meet children's needs. The Children's Ombudsman also called for more support for parents in detention and their children, so they can maintain a parent-child relationship that is as normal as possible.

Complaints from family members, visitors and others

Start with the complaints desk of the Custodial Institutions Agency (DJI)

Visitors, bereaved relatives and people who have already been released cannot use the formal detention complaints procedure (beklagregeling) under the detention framework acts (beginselenwetten). They can take complaints about the actions of a facility or its staff to the complaints desk of the Custodial Institutions Agency (DJI). If they are unhappy with the way the complaint is handled, they can turn to the National Ombudsman.

People involved in a professional capacity, such as lawyers and interpreters, can also submit complaints to the ombudsman.

Complaints after release

Report 2009/203 concerned mail that had allegedly not been sent or delivered during detention. After her release, the woman could no longer lodge a formal detention complaint (beklag) with the supervisory committee (commissie van toezicht). The director should therefore have handled her complaints under the General Administrative Law Act (Awb). As it remained unclear, among other things, whether the facility had received her complaint letter, the ombudsman gave no opinion.

Refusal of visits and entry checks

In report 2017/072, the ombudsman found that visitors had been refused entry without a proper reason. There was also no clear explanation.

In report 2022/020, the refusal of the visit itself was justified, but the complaint had not been handled with due care. The Custodial Institutions Agency (DJI) had not spoken to the visitor personally or allowed him to respond to staff statements.

Not every investigation results in an opinion. In a complaint about removing a blazer during an entry check, the visitor and prison officers gave conflicting accounts. A witness did not confirm her account, and no camera footage was available. The ombudsman could not establish what had happened and did not give an opinion (report 2008/146).

Bereaved relatives after a death

An investigation that began in 2011 found that investigations into deaths in detention were not sufficiently independent, complete or coordinated. Sometimes there was no investigation at all. Bereaved relatives also received too little attention, and too little was learned from the findings (report 2012/037).

In an individual case from 2017, the investigation into the death was complete and independent. Even so, the ombudsman recommended keeping bereaved relatives better informed (report 2017/054).

Lawyers and interpreters

An interpreter was not allowed to take her handbag into a higher-security facility. She had not demonstrated that she needed the bag for her work. Her complaint was rejected (report 2015/170).

A complaint by a lawyer who could not leave a locked consultation room on her own was upheld. Less intrusive measures, such as extra supervision, could have been tried first to maintain order and security (report 2009/103).

What does this mean for you?

• Are you in detention? First check whether your complaint must be handled through a formal detention complaint (beklag) or an appeal. The ombudsman does not take over these procedures.
• Does your complaint concern other actions by the Custodial Institutions Agency (DJI)? Complain to the authority concerned before approaching the ombudsman.
• Are you a visitor, a bereaved relative or someone who has already been released? The route is through the complaints desk of the Custodial Institutions Agency (DJI), followed, if necessary, by the National Ombudsman.
• Does the matter concern children's rights? The Children's Ombudsman can answer questions and address complaints or concerns about wider, recurring problems.
• Are you expecting a solution? An intervention may result in practical steps to put things right or an opinion. Recommendations are not binding, and if the facts are not sufficiently clear, no opinion may be given.

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