Duty of care in detention

General principles of the duty of care

Religion and beliefs

During detention, you may continue to practise your religion or beliefs, both alone and with others. This right is protected by Article 6 of the Dutch Constitution, Article 9 of the European Convention on Human Rights (ECHR) and Article 18 of the International Covenant on Civil and Political Rights.

The Spiritual Care Service (Dienst Geestelijke Verzorging) provides individual conversations, group meetings, services and support during acute crises. Seven traditions are represented: Roman Catholic, Protestant, humanist, Jewish, Islamic, Buddhist and Hindu.

The institution must arrange enough appropriate spiritual care. If a spiritual care provider is absent for months, someone else must take over their regular duties. A lack of funding does not justify limited replacement cover. Meetings must also be able to take place without disruption, including disturbance from construction work.

Freedom of religion has limits. Article 15(4) of the Dutch Constitution and Article 9(2) ECHR allow restrictions. For example, the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) accepted cell inspections by a female staff member and with a sniffer dog, despite religious objections.

Food and everyday care

The institution must provide food, necessary clothing and shoes, or make enough money available to meet these needs. It must also enable you to maintain proper personal hygiene.

Rule 22 of the European Prison Rules requires:

• three meals a day, at reasonable intervals;
• nutritious food prepared and served hygienically;
• consideration of factors including age, health, physical condition, religion, culture and work;
• access to clean drinking water at all times.

Enough time must be allowed for a hot meal; on average, 35 to 40 minutes is taken into account. The medical service can prescribe a special diet on medical grounds. Without those grounds, there is no entitlement to that diet.

Prisons

Spiritual care and confidentiality

Article 41 of the Penitentiary Principles Act (Penitentiaire beginselenwet, Pbw) requires the governor to make spiritual care available. You state your preference when you arrive. If you later wish to change it or attend a meeting of another tradition, the prison management must consider your request carefully. Your earlier choice does not automatically entitle you to attend another service.

A spiritual care provider attached to the institution has a duty of professional confidentiality: what you discuss in confidence must remain confidential. Correspondence with this provider is not subject to censorship. On 7 January 2020, the Supreme Court confirmed that such a provider has the right to refuse to give evidence under Article 218 of the Code of Criminal Procedure (Sv): they may invoke confidentiality before a judge.

An external spiritual care provider is subject to the ordinary visiting rules under Article 38 Pbw. Correspondence may then be checked. This also applies if, after a transfer, you keep in touch with the spiritual care provider from your previous institution.

Necessary contact must remain possible even in a punishment or isolation cell. Participation in a church service, for example, must be allowed as far as possible, separately if necessary. Your behaviour may be a reason for refusal; staffing problems alone are not.

Religious diets and holidays

Under Article 44(3) Pbw, the governor must take your religion or beliefs into account as far as possible when providing meals. Special food must be provided where reasonably possible.

Kosher food is subject to specific requirements, including requirements for pans, crockery and cutlery. The circular on halal food requires halal food to be provided for practising Muslims when it can be obtained without much difficulty or excessive expense; this obligation does not necessarily apply every day.

Whether you actually practise the religion is taken into account. Merely having a Jewish mother and not eating pork at home was found to be insufficient. Behaviour that conflicts with the dietary rules you have stated may also affect provision. Financial objections are not always decisive either: in one ruling, equal treatment carried greater weight.

Article 8 of the Regulations on Prisoner Labour (Regeling arbeid gedetineerden) provides for exemption from work on Sundays and generally recognised public holidays. You can request a day off work for religious holidays designated annually by the minister. You do not receive a payment in place of wages for these holidays of your own religion. On generally recognised public holidays, that payment equals the basic hourly wage. Participation in a retreat or church conference with the spiritual care provider’s permission may also qualify for an exemption.

Social assistance and return to society

Article 43 Pbw gives you the right to social care and assistance. The governor must allow probation workers and behavioural specialists to carry out their work. If transport is necessary for this assistance, the governor must arrange it, provided this is compatible with carrying out the detention.

A screening takes place after you arrive. This leads to a Detention and Reintegration Plan (Detentie- en Re-integratieplan), which is regularly discussed with the various staff members involved. Within ten working days, a meeting takes place to discuss:

• a valid identity document;
• work and income;
• housing;
• debts;
• care.

The Selection and Detention Guidance Office (Bureau Selectie en Detentiebegeleiding) can assist with leave applications, placement recommendations, interruption of a sentence and social problems. A return officer (terugkeerfunctionaris) can help with matters such as travel documents, finances, luggage and relationships connected with return.

Probation programmes may include skills training or anger management. The Reducing Reoffending programme (Terugdringen Recidive), also called Starting Inside (Binnen Beginnen), is aimed at prisoners with at least four months of their sentence left to serve or a suspended remainder of their sentence aimed at changing behaviour. Refusing to participate may rule out leave or progression to less secure detention regimes. Termination of the programme is a decision against which a formal complaint (beklag) can be made.

For an unconditional prison sentence of at least four months, practical aftercare also comes into play, such as help with housing, work and debt restructuring. People serving short sentences receive more limited social assistance. The Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) has pointed out that this group also faces problems with the basic conditions needed for a return to society.

If you wish to report a crime, the governor must make this possible. This can be done by telephone or online through the reintegration centre; sometimes the police visit the institution.

Clothing, laundry, showers and shopping

Article 44 Pbw protects your right to wear your own clothing and shoes. An exception applies where there is a risk to order or safety. Clothing must also meet reasonable requirements. Special clothing may be compulsory during work or sport. The Judicial Centre for Somatic Care (Justitieel Centrum voor Somatische Zorg) is an exception to the general rule that you may wear your own clothing.

As a rule, laundry is done at your own expense and risk. However, the duty of care includes providing washing powder free of charge.

Article 4.4 of the Regulations on Model House Rules for Penal Institutions (Regeling model huisregels penitentiaire inrichtingen) states that you:

• can shower at least twice a week;
• can, on request, have a haircut once every six weeks at the institution’s expense;
• receive shampoo, soap, toothpaste, a toothbrush, a comb and toilet paper if you wish;
• receive shaving equipment, sanitary pads or care products for children where applicable.

Shop purchases are limited to € 100 per week, including telephone cards, provided you have enough money in your account. The amount also depends on your wages or the payment you receive in place of wages. Items that are not available may be ordered through the outside shop with permission.

The governor remains responsible if a national shop provides a poor delivery service. The shop’s own complaints procedure does not remove this duty of care, according to ruling 17/2842/GA of the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ).

Juvenile detention institutions

Spiritual and social support

Article 46 of the Juvenile Custodial Institutions Principles Act (Beginselenwet justitiële jeugdinrichtingen, Bjj) protects the practice of religion and beliefs. The director must make appropriate spiritual care, personal contact and participation in meetings possible. Article 43 Bjj applies to external spiritual care providers.

Article 48 Bjj gives young people the right to social assistance. The director must allow social workers from certified organisations, probation workers and behavioural specialists to provide this assistance. Necessary transport for assistance must be arranged where this is compatible with carrying out the deprivation of liberty.

Support focuses on upbringing, development and return to society. Methods such as YOUTURN, TOPs! and WorkWise develop everyday skills, responsible behaviour and moral awareness. Aftercare may include family treatment and help with finances, education, work and housing. This requires coordination between the institution and the care providers involved.

Everyday care

Article 49 Bjj governs food, clothing, shoes and hygiene. Young people may wear their own clothing, unless it poses a safety risk or does not meet reasonable requirements. Specified clothing may be compulsory during activities or sport.

The house rules state when young people can shower, how often they can have a haircut and who pays. Young people can use their own money once a week to buy permitted items through the shop or an order list.

The institution must take religious dietary rules into account. In KC 2010/022, a young person received a dessert containing pork gelatine, although his religion prohibited pork products. The complaint was upheld: the institution could not place responsibility entirely on him, even though alternatives were available.

Forensic psychiatric institutions under a TBS order (tbs-inrichtingen)

Article 40 of the Principles Act on the Care of Persons Subject to a TBS Order (Beginselenwet verpleging ter beschikking gestelden, Bvt) governs spiritual care. The head of the institution must arrange enough appropriate support. Participation in meetings may be prohibited for reasons of order or safety. Article 37 Bvt applies to contact with external spiritual care providers.

Article 43 Bvt requires the head to provide social assistance, personal development, education, recreation and sport, insofar as the care and treatment plan does not already provide for these.

Social workers support contact with family and visitors and help with benefits, housing and education. They also explore a person’s life history and are involved in monitoring and evaluating leave. Restorative mediation may make contact between the victim and the offender possible. An individual resocialisation plan can help prepare someone for life outside the clinic.

Article 42 Bvt governs food, necessary clothing, shoes and personal hygiene. Wearing your own clothing is the general rule, unless it poses a risk to order or safety. The clinic’s house rules determine shop purchases and spending limits.

The options for making a formal complaint (beklag) are more limited than in prisons. Article 56(4) Bvt excludes formal complaints (beklag) about the way the duty of care is carried out. A formal complaint (beklag) may be possible if that duty is not carried out at all. In KC 2012/134, a complaint about the imam’s absence was not considered on its merits.

Complaining about inadequate care

In prisons, a failure to provide care may fall under Article 60(1) Pbw. Complaints about care duties generally require the prisoner to allege that the governor has repeatedly and significantly failed to fulfil those duties. Without a sufficient interest in the complaint, it is declared inadmissible: this means the substance of the complaint is not assessed. This is separate from the question of whether the events actually happened, as emphasised in ruling 24/40108/GA of the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ).

For missed spiritual care, the general starting point is at least three problems in the three months before the formal complaint (beklag). The nature and seriousness of the problems also matter. Case law shows differences:

• Two missed imam services in four weeks: not enough to establish a persistent failure, Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 23/32443/GA.
• Insufficient availability of a pandit: a persistent and significant failure was established, Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 22/27692/GA.
• A one-off cancellation because the imam was ill: circumstances beyond the institution’s control, with no breach of Article 41 Pbw.
• Eight weeks without contact with an imam in the Extra Secure Institution (EBI): compensation of € 60 was not considered unreasonable, Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), 23/38068/GA.

Refusal of a change in spiritual care, religious food or a religious day off work may also be grounds for a formal complaint (beklag). Article 59a Pbw also allows you to request formal mediation.

What does this mean for you?

Be specific about your needs: what conversation, care or assistance is missing? Check the house rules for practical arrangements on requests, showers, clothing and shopping.

Keep your requests and the responses, and record when care is not provided. Also describe how this affects you. For a complaint about repeated failures, the frequency, seriousness and personal consequences are particularly important. When choosing a complaints route, bear in mind the different rules for prisons, juvenile detention institutions and TBS clinics.

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