Smoking policy

The legal basis for smoking policy

The Tobacco and Related Products Act (Tabaks- en rookwarenwet) protects non-smokers, among others, from tobacco smoke. Article 10(1) requires a smoking ban in areas where people work, under point c, and in buildings or institutions used by the government, under point a. This means that prisons, remand centres, police cells and secure treatment institutions for people subject to a hospital order (tbs-instellingen) must also introduce, display and enforce a smoking ban.

There are exceptions. Article 10(2) allows for these. Under Article 6.2(1) of the Tobacco and Related Products Decree (Tabaks- en rookwarenbesluit), this requirement does not apply:

• in areas protected by the right to privacy;
• outdoors.

A person's own living space in a custodial institution may qualify as a private area if they do not have to share it with other residents. However, an exception to the statutory smoking ban does not automatically mean that the institution cannot impose smoking restrictions there. Tobacco legislation does not, in itself, rule out a completely smoke-free institution.

The specific smoking rules are set out in the house rules. These may also include sanctions for breaches.

Protection from exposure to tobacco smoke

The director must ensure that smoke-free areas actually remain smoke-free. Smoke from an area where smoking is permitted must not simply be allowed to cause a nuisance elsewhere. Management must actively seek solutions to protect non-smokers.

The Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming, RSJ) hears appeals in detention cases, among other matters. The Council (RSJ) has ruled that a refusal to make certain communal areas smoke-free may be challenged through the complaints procedure (beklag). This means that a complaint about such a refusal can be considered. In cases where those areas had to be smoke-free under the rules in force at the time and the complainant was affected by smoke, the complaint was upheld.

At the same time, not every instance of exposure to smoke amounts to a failure to meet obligations. According to the Council (RSJ), occasional nuisance is almost unavoidable unless a complete smoking ban applies. Residents may also be expected to make some effort themselves. In a decision of 20 December 2016, 16/3295/TA, the fact that the complainant could have closed his room door when leaving to keep smoke out was taken into account.

Staff must also follow the rules

Smoking rules do not apply only to residents. Management must also act when staff breach them.

In a case of 20 April 2011, KC 2011/019, a staff member smoked on a patio while the door was open. Smoke blew inside as a result. The resident had been complaining about this for more than a year. The complaints committee (beklagcommissie) held management responsible for the breach and upheld the complaint.

A one-off breach does not always lead to the same finding. On 6 June 2023, the Council (RSJ) ruled in case 21/22940/GA that management had not breached its duty of care: the smoking policy for staff was being enforced, despite a one-off breach on the unit.

Prisons and remand centres

Smoking in your own cell

A cell that you do not have to share with others may fall within the exception for private areas. Tobacco legislation therefore leaves room for smoking there. This does not mean that smoking in your own living space is always allowed without restrictions.

Fire safety may, for example, justify a restriction. On 20 December 2007, 07/1788/TA, the Council (RSJ) accepted a ban on smoking in a resident's own living space after lock-up, from 9.30 pm until the following morning. In that case, fire safety required particular care.

Where smoking in a cell is permitted, the institution remains responsible for measures to prevent smoke from causing a nuisance outside that cell.

Sharing a cell with a smoker

Smoking habits must be taken into account when placing people in shared cells. In a letter of 26 May 2011, the State Secretary described the separate placement of smokers and non-smokers as an obligation to make reasonable efforts: the institution must work towards this, but it is not an unconditional guarantee.

Alongside this, there is a clear duty of care. The director must protect a non-smoking prisoner from the unwanted and avoidable harmful effects of tobacco smoke from cellmates. Case law therefore establishes the following:

• As a rule, a non-smoker should not be placed in a cell with a smoker if the non-smoker objects.
• If this happens nevertheless, the director must look for a solution.
• If the director does too little to resolve the situation, this may amount to a serious failure to meet their obligations, and compensation may be awarded.

Only exceptional circumstances can justify a director's failure to act on a report that someone no longer wishes to share a living space with a smoker. This duty of care is reflected, among other decisions, in Council (RSJ) decisions of 17 June 2020, R-19/5447/GA, and 9 April 2015, 15/1066/SGA.

A practical example is the decision of 25 July 2024, KC 2024-018. A non-smoker had been placed with a smoker despite his objection. Management did nothing to end the situation as quickly as possible. The fact that the prisoner did not keep complaining did not relieve management of its responsibility. The complaint was upheld and compensation of € 7.50 was awarded. That amount relates to that specific case.

Smoking in the exercise yard

There is no statutory requirement to ban smoking outdoors. Whether a director may nevertheless introduce a ban there must also be assessed under the rules governing detention.

On 30 January 2019, R-18/51/GA, the Council (RSJ) considered a complete smoking ban in the exercise yard at Ter Apel Prison (PI Ter Apel). According to the Council (RSJ), this ban breached Article 2(4) of the Penitentiary Principles Act (Penitentiaire beginselenwet, Pbw). This article sets out the principle of minimum restrictions: restrictions during detention must remain within the limits of that principle.

The Council (RSJ) considered it important that a complete outdoor smoking ban went further than the situation in society outside detention. The ban did not pass that test. The Council (RSJ) was able to assess this complaint itself because it concerned the ban introduced by the director, rather than general supervision of compliance with tobacco legislation.

Young offender institutions

Age and smoking times

Since 1 January 2014, tobacco may no longer be sold to young people under 18. Young people under 18 are also not allowed to smoke in young offender institutions.

For young people aged 18 and over, there are set smoking times. They can smoke during outdoor exercise. There are also often other times when they can briefly go outside to smoke.

Smoking is completely prohibited in residents' own rooms and in the residential groups. This also applies to young people who are old enough to be allowed to smoke. E-cigarettes are prohibited in young offender institutions for safety reasons.

Both age and location therefore matter: being 18 or older does not mean that a young person may smoke anywhere or at any time.

Secure treatment institutions and forensic care

Smoke from patients' rooms

If patients are allowed to smoke in their rooms, the clinic must protect non-smokers from the effects. When complaints are considered, the measures actually taken are examined.

In a case of 17 July 2018, KC 2019/012, a patient complained about smoke from other patients, visitors and staff. The clinic had extraction systems in the rooms, house rules and additional attention to his situation. Other patients were reminded that they must not smoke in doorways. There was insufficient evidence that the clinic had failed to meet its obligations; the complaint was not upheld.

The outcome was different in the decision of 19 January 2019, KC 2019/002. Under the house rules, the room door had to remain open by about 10 centimetres during visits. This conflicted with the efforts needed to protect non-smokers. There was no evidence of additional measures against smoke nuisance. The complaint was upheld, with compensation of € 10.

A completely smoke-free secure treatment institution

Having your own patient room does not give you an unconditional right to continue smoking. FPC Dr. S. van Mesdag introduced a general smoking ban on 15 April 2024, initially with an exception for patients' rooms. That exception was also removed from 1 October 2024.

On 21 March 2025, in cases 24/41923/TA and 24/41927/TA, the Council (RSJ) ruled that a complete smoking ban is not required under tobacco legislation, but is in itself permitted.

When balancing the interests involved, protecting the physical health and healthy living and working environment of non-smoking patients and employees could outweigh the freedom of choice of patients who smoke. The Council (RSJ) also found it sufficiently plausible that a partial smoking ban was not feasible in this institution. The Council (RSJ) proceeded on the assumption that the institution provides appropriate help and support with quitting smoking where needed.

This decision concerns a different situation from the smoking ban in the exercise yard at Ter Apel Prison. A ruling about one institution therefore cannot automatically be applied to every other institution.

Complaining about smoking policy or exposure to tobacco smoke

General supervision by the NVWA

The Netherlands Food and Consumer Product Safety Authority (Nederlandse Voedsel- en Warenautoriteit, NVWA) monitors compliance with the Tobacco and Related Products Act (Tabaks- en rookwarenwet). You can submit a complaint to it about a breach of that Act. This supervision concerns smoking policy and enforcement within an institution in general, rather than the assessment of individual smoking disputes.

Complaints to the Supervisory Committee

You can also use the complaints procedure (beklag) through the Supervisory Committee (Commissie van Toezicht). Here, the distinction between a general rule and an individual decision is important.

The Penitentiary Principles Act (Penitentiaire beginselenwet, Pbw), the Young Offender Institutions Principles Act (Beginselenwet justitiële jeugdinrichtingen, Bjj) and the Hospital Orders (Care) Principles Act (Beginselenwet verpleging ter beschikking gestelden, Bvt) do not allow complaints (beklag) against a general rule as such. A complaint directed solely at the existence of a general smoking ban will be declared inadmissible: this means its substance will not be considered.

A decision about how the rules are applied to you can, however, be challenged. For example, this may involve a situation where one person is allowed to smoke and another is not. A refusal to take measures against the smoke affecting you may also be challenged through the complaints procedure (beklag).

The statutory grounds for a complaint (beklag) about an individual decision by management are:

• Article 60(1) of the Penitentiary Principles Act (Penitentiaire beginselenwet, Pbw);
• Article 65(1) of the Young Offender Institutions Principles Act (Beginselenwet justitiële jeugdinrichtingen, Bjj);
• Article 56(1) of the Hospital Orders (Care) Principles Act (Beginselenwet verpleging ter beschikking gestelden, Bvt).

What does this mean for you?

If you smoke: check the house rules to see where and when smoking is allowed. Do not assume that the exception for your own room or outdoor areas automatically means that every smoking restriction is prohibited.

If you are affected by tobacco smoke: report exactly where the smoke comes from, when it affects you and what measure you are asking for. Management must not only set rules but also ensure compliance and seek a solution where necessary.

If you are a non-smoker placed in a cell with a smoker: make it clear that you object. Your objection is relevant to the director's duty of care. You do not have to keep complaining for that responsibility to continue.

If you want to lodge a complaint (beklag): make clear which decision, refusal or application of the smoking rules affects you personally. This distinction may determine whether the substance of your complaint is considered.

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