1.1. The importance of complaint procedures in prisons from a human rights perspective
Article 3 of the European Convention on Human Rights (hereafter: ECHR) provides that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’, together referred to as ill-treatment. Not only do all member states of the ECHR have a negative obligation to refrain from subjecting their citizens to ill-treatment, they also have a positive obligation to actively protect their citizens against ill-treatment and to effectively investigate claims of ill-treatment.1 The objective that prisoners must be protected against ill-treatment is recognized in various international human rights documents. Protecting prisoners against ill-treatment is an important aim of the Council of Europe’s European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter: CPT) that was set up under the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment that entered into force in 1989. The CPT provides a non-judicial preventive mechanism to protect persons deprived of their liberty against ill-treatment. It thus complements the judicial work of the European Court of Human Rights (hereafter: ECtHR).2 The CPT organizes visits to places of detention, in order to assess how persons deprived of their liberty are treated. These places include prisons, juvenile detention centres, police stations and psychiatric hospitals. After their visits, the CPT draws up a report. Additionally, it brings out a general report every year in which it includes guidelines on how persons deprived of their liberty should be treated. Although they are not binding, these standards and reports are highly valued.3 The Council of Europe also drew up legally non-binding standards of good principles and practices in the treatment of prisoners: the European Prison Rules (EPR), which were substantially revised in 2006.4 Despite their lack of binding effect, they too have strong moral authority amongst ECHR member states.
Rule 70 of the EPR expresses the importance of an effective complaint procedure to enable prisoners to file a complaint when they feel that they are being or have been ill-treated by prison staff or fellow prisoners. Additionally, in 2017 in its 27th general report, the CPT devoted a chapter to such complaint procedures in prisons.5 According to the CPT, complaint procedures serve to protect the human rights of prisoners and can reduce tensions between prisoners and prison staff and contribute to a positive relationship between them. Therefore, complaint procedures in prison should be readily available, accessible and confidential, should provide an effective remedy and should be traceable in official records. However, the CPT found that in many countries there are no complaint procedures or that, if they exist, they display major shortcomings, for example that the complaint bodies do not function independently from the prison authorities.6
1.2. The case of the Dutch complaint procedure
In the Netherlands, a system of complaint and appeal procedures was developed in the 1970s for the realization of the fundamental human rights of prisoners. Legally and theoretically speaking, the Dutch complaint procedure is “picture-perfect”. After all, it complies with (most of) the – partly overlapping – criteria for complaint procedures as determined by the ECtHR and the CPT and the standards of the EPR:7 it is available, the complaint bodies are independent, it allows complainants active participation and legal assistance, it provides redress, it is both a preventive and compensatory remedy, and it offers reasonable prospects of success.8
Consequently, this procedure is one of the very few that has (repeatedly) received positive consideration by the CPT.9 The Dutch complaint procedure was even brought forward by the ECtHR as an example of an effective remedy for prisoners to enforce their human rights.10 Therefore – seemingly – the Dutch complaint procedure could provide an example for other countries of an effective complaint procedure in prisons. So far, it has already inspired Belgium to implement a similar complaint procedure.11 However, in practice the Dutch complaint procedure is dealing with several challenges: it is overflowing with complaints and Dutch prisoners are not satisfied with the way their complaints are dealt with – as the Life in Custody Study (hereafter: LIC Study) shows.12 Therefore, we call for more empirical research to identify the causes of and solutions for these challenges, to improve the Dutch complaint procedure in prisons and to prevent transplanting these challenges into the complaint procedures of countries looking to adopt a similar system – such as Belgium.
This article deals with two subjects in particular, which are both related to the aim of making the Dutch complaint procedure resistant and future-proof. Firstly, we call for more empirical research to investigate why complainants are not satisfied with the – legally good – Dutch complaint procedure and how this could be improved. Looking at previous research as well as at the questionnaire used in the LIC Study, we argue that at least the perceived justice of the outcome as well as the perceived justice of the procedure should be taken into account in this research. Remarkably, the relevance of perceived procedural justice (in prisons) has been researched in numerous studies. However, the perceived justice of the complaint procedure in prisons has not yet been studied in the Netherlands and has been studied only rarely in other countries. Improving the complainants’ perceived procedural justice could prove beneficial for the (perceived) legitimacy and effectiveness of the procedure.
Secondly, another challenge which undermines the (effectiveness of the) Dutch complaint procedure and probably affects complainants’ satisfaction with the procedure, is the high case load it has been facing over the last years. This high case load has several negative consequences, such as the fact that complaint committees often cannot meet the decision deadline and complaints are not settled within due time. As part of a solution for this high case load we see potential in focusing on improving prisoner-staff relationships and the willingness of all parties involved to deal with complaints at an early stage, trying to prevent a formal complaint procedure.
In this article we first briefly describe the Dutch complaint procedure (Section 2). Secondly, we deal with the first challenge we identify using the outcomes of the LIC Study: complainants’ dissatisfaction with the Dutch complaint procedure (Section 3). We devote some attention to the (possible) relevance of research into the perceived procedural and distributive justice of the Dutch complaint procedure as part of the solution for this problem. Thirdly (Section 4), we focus on the second challenge we identify: the increasingly high case load of the Dutch complaint procedure, which has several negative consequences. We describe these and review to what extent the measures proposed by the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming, hereafter: RSJ) could be an improvement thereof. This will result in directions for research and points to which to pay attention while implementing these measures (Section 5).
2. The Dutch complaint procedure: a “picture-perfect” procedure in the light of European human rights standards
It is important to substantiate why the Dutch complaint procedure could be a good example for other countries to follow – legally speaking. Therefore, we shortly describe the complaint procedure in Dutch prisons and point out reasons for its high quality from a human rights perspective, mostly based on the EPR and the CPT standards. Firstly, according to the CPT, complaint procedures in prison should be readily ‘available’.13 This means that prisoners should be legally entitled to lodge a complaint, other interested parties may act on behalf of the prisoner and complaints that do not concern ill-treatment or any other serious human rights violations may be dealt with through alternative dispute resolution. Secondly, the complaint procedure should be ‘accessible’: prisoners should receive oral, as well as written information about the procedure in a language they understand; the appropriate complaint forms should be easily available and all necessary material to fill in the form should be freely accessible. Special measures should be taken for persons with particular needs. Thirdly, the procedure should be ‘confidential and safe’: filing a complaint should be free from intimidation and reprisals. Fourthly, the procedure should be ‘effective’: it should process complaints promptly, thoroughly and expeditiously. If the complaint is accepted, it should be remedied and followed by a suitable sanction. If necessary, legal assistance should be provided and in case of serious human rights violations, the complaint bodies should be able to initiate proceedings ex officio, without a preceding complaint. The CPT mentions explicitly the perceived fairness of the procedure and that the complaint bodies should be independent. Finally, filed complaints should be ‘traceable’ in official records and statistics.14
In the EPR, Rule 70 is dedicated to an effective complaint procedure in prisons. Rule 70.1 requires that prisoners – and in some cases their relatives (Rule 70.5) – have the ‘opportunity’ to file a complaint to the competent authority, ‘without being punished’ (70.4). They should be entitled to seek ‘legal assistance’ (Rule 70.7) and the prisoner should have the ‘right to appeal’ if their request is denied (Rule 70.3). If possible, ‘mediation’ should be tried first (Rule 70.2).
The Dutch complaint procedure adheres to virtually all of these EPR and CPT standards. In the Netherlands, the prisoner’s right to file a complaint is described in Articles 60–68 of the Custodial Institutions Act (Penitentiaire Beginselenwet, hereafter: CIA). A prisoner is entitled to file a complaint with the Complaint Committee against any decision taken by or on behalf of the governor of the prison. This committee is independent from the prison and consists of members of the general public, as independent representatives of society.
If the complaint is sustained after mediation, one or three members of the Complaint Committee deal with a complaint during a closed hearing (CIA Article 62). During this session, both the complainant (the prisoner) and the respondent (the governor) are allowed to represent their side, produce documents and ask each other questions. Moreover, the complainant is entitled – but not obliged – to be assisted by a lawyer, free of charge and by an interpreter if necessary (CIA Article 65). The basic premises are that complaint procedures have a low threshold, detainees are self-reliant and, as such, do not need legal assistance.15
The Complaint Committee’s decision should usually be communicated within four weeks and will contain a declaration that the complaint is inadmissible, unfounded or well founded. The decision must contain reasons for the decision reached and a report of the hearing, translated if necessary (CIA Article 67). If a complaint is declared to be fully or partly well founded, the Complaint Committee may instruct the governor to take a new decision, take a new decision itself, or merely annul the decision. If the annulment concerns a decision of the governor that has already been implemented and cannot be reversed, the Complaint Committee can determine that the complainant will be compensated. This compensation may be awarded in kind, such as extra visit(s) or telephone calls, but financial compensation is also possible (CIA Article 68).
In conclusion, as earlier research shows,16 the Dutch complaint procedure complies with (most of) the – partly overlapping – criteria for complaint procedures as determined by the ECtHR and the CPT and the standards of the European Prison Rules (hereafter: EPR). After all, it provides a preventive and compensatory remedy because an external, independent body deals with complaints. This independent body has the competence to issue binding and enforceable decisions. Moreover, it has the power to redress the complainant’s situation or to provide financial or other means of compensation. In addition, the Dutch complaint procedure provides an effective remedy since prisoners can effectively participate in the procedure and they may be assisted by a lawyer.17
3. Challenge and call for action I: research into reasons and solutions for complainants’ dissatisfaction taking into account (at least) perceived procedural justice
3.1. Dissatisfaction with the Dutch complaint procedure
Despite this legally outstanding procedure, according to the results of the LIC Study, as described by Van Ginneken and others, prisoners are not very satisfied with the settlement of complaints in practice, (see Table 1).18 In this study, the quality of life in prison in the Netherlands was measured by administering a wide-scale survey amongst 4,538 prisoners in pre-trial detention and in prisons, in a total of 28 prisons in the Netherlands in the first four months of 2017. To investigate the satisfaction of prisoners with the complaint procedure, prisoners were asked to indicate to what extent they agreed with four statements: 1) the visiting officer on a monthly or weekly basis could be easily reached, 2) the Complaint Committee took the complaint seriously, 3) the complaint was dealt with swiftly and 4) I am satisfied with how the complaint was dealt with.19
The results were fairly low: on a scale from 1–5 (from completely disagree to completely agree), the mean was a little over 2.5, score 2 reflecting somewhat disagree and score 3 reflecting neutral. Twelve out of the seventeen included aspects of prison life scored higher, only four scored lower, being reintegration; shop quality; food quality; and the availability of meaningful activities (see Table 1). By contrast, the respondents were fairly positive concerning safety, relationships in prison and the quality of care.
3.2. Relevance of perceived procedural justice research
Perceived procedural justice
The second and fourth questions of the questionnaire (the Complaint Committee took the complaint seriously and I am satisfied with how the complaint was dealt with) point at the possible relevance of the perceived procedural justice of the complaint procedure to improve complainants’ dissatisfaction. The role of perceived procedural justice in the subjects’ evaluation of a procedure and of the authorities involved has been given an empirical basis by Thibaut and Walker.21 Perceived procedural justice is the fairness and justness of a procedure and of the authorities in charge, as perceived by its subjects, the people undergoing the procedure. Important determinants of perceived procedural justice are trust, respect, neutrality and voice.22 Firstly, trust reflects the subject’s confidence in the (competence of the) decision-making authority and therefore the trustworthiness thereof.23 Secondly, a determinant is respect: the (polite and respectful) treatment of the party by the decision-making authority.24 Thirdly, neutrality reflects the perceived impartiality and objectivity of the decision-making authority. Finally, voice expresses that the party should feel heard and have the opportunity to participate in the process.25
In particular, the relational aspect of perceived procedural justice is important in prisons.26 Interpersonal respect between prison staff and prisoners means, according to Hulley and others, that prisoners are being treated as autonomous, as individuals and without prejudice by the prison staff.27 In the literature, interpersonal, interactive, or interactional justice is sometimes distinguished from perceived procedural justice,28 and is sometimes understood as part thereof. In this article, following amongst others Van den Bos, Van der Velden and Lind,29 we therefore see the interactional element as – an important – part of the concept of perceived procedural justice.
According to Tyler, the perceived procedural justice of an authority’s decision-making procedure adds to the overall legitimacy of and trust in that authority even more than the decision itself, leading people to be more likely to voluntarily accept and comply with the decisions of this authority.30 Nowadays, the importance of perceived procedural justice is researched by many authors in many different settings – as well as in a correctional setting. Research on perceived procedural justice in prisons in various countries shows that increasing perceived procedural justice can have many positive effects. For instance, research by Franke and others shows that positive experiences in prison not only improve prisoners’ perceived justice – and thus their acceptance – of the procedures they are involved in, but also prisoners’ feelings of the legitimacy of the entire justice system.31 Perceived procedural justice in prison has also been linked to lower levels of reoffending after release from prison.32 Moreover, legitimacy of the prison system and order in prison seem to be related.33 According to both Beijersbergen and others,34 and Reisig and Meško,35 prisoners who feel that they are being treated fairly, misbehave less often.
Competing with the notion of perceived procedural justice, is the notion of distributive justice. The latter dictates that the outcome of a decision-making procedure, the final decision, is important for the subject’s feeling of justice: when a decision is taken that benefits the subject, this feeling of having obtained justice is greater than when the decision negatively affects the subject. Several authors emphasize the importance of the outcome rather than the process.36 There is reason to believe that, especially in prisons, distributive justice is very important as well – and maybe even more important than perceived procedural justice. For instance, Boone and Kox point at the relevance of distributive justice (individual treatment) in prison.37
What matters most in complaint procedures in prisons?
Although a lot of research into procedural justice has been carried out, complaint procedures in prisons have rarely been investigated – and not yet in the Netherlands. So far, we have only found the work of Bierie38 and Jenness and Calavita.39 Bierie connects the levels of violence amongst prisoners to the procedural justice of how complaints are dealt with.40 According to Bierie, ‘violence within a given prison does increase significantly with the volume of late replies as well as substantive rejections of complaints’,41 of which he sees the latter as leading to procedural injustice. However, he does not measure prisoners’ perceptions of procedural justice. Interestingly, the research of Jenness and Calavita, the only authors – as far as we could find – who studied the importance of prisoners’ perceived procedural justice of a prisoner grievance system (in California) in prison found, in contrast to Bierie, that the outcome of the procedure mattered more than its perceived procedural justice.42 According to these authors, this can be explained by the high stakes that are in play for these prisoners.43
Following on from this the Dutch complaint procedure, as described in Section 2, includes aspects that could be said to be procedurally just. For instance, the possibility for complainants to defend their case and react to propositions that have been forwarded by the prison board and to have (free) legal assistance – which is increasingly used44 – grants them active participation and a voice. Additionally, complaints are dealt with by an independent, impartial and neutral body in two instances. Nevertheless, apparently this (legal) procedural justice is not perceived by complainants – at least, they are not satisfied with the current procedure. Following perceived procedural justice theory, this dissatisfaction could have a negative impact on the legitimacy and effectiveness of the Dutch complaint procedure. We therefore argue that the causes of and solutions for this dissatisfaction should be investigated in more depth. Additionally, it is not yet sure whether the perceived justice of the complaint procedure itself or of its outcome matters most. Research should take place in order to find out what matters most while trying to improve complaint procedures in prisons.
4. Challenge and call for action II: focus on resolving conflicts at an early stage
4.1. The Dutch complaint procedure under pressure
Another reason for dissatisfaction amongst complainants is reflected in the third question of the LIC Study’s questionnaire (the complaint was dealt with swiftly). This points at another – maybe even more pressing – challenge with which the Dutch complaint procedure is dealing: the high case load which the Dutch Complaint and Appeal Committees in virtually all prisons are currently facing.45 The number of complaints has been increasing over the years and remains high. In 2018, a total of 21,341 complaints were lodged with the Complaint Committees in all Dutch prisons.46 This is a high number, especially since the numbers of prisoners in the Netherlands has been decreasing continuously since 2005.47 In 2018 there was an influx of 30,845 prisoners (see Table 2),48 and a prison population of 33,200 in total.49
|Number of complaints||20.217||22.767||19.798||19.361||21.653||21.341|
|Influx of detainees||39.653||41.400||38.446||33.056||31.625||30.854|
It is generally accepted that the high number of complaints has had a bearing on the Dutch system of complaint procedures for prisoners. Due to the high number of complaints, Complaint Committees in virtually all prisons report that they are unable to deal with all the complaints within the set time limit of four weeks.51 The LIC Study reveals that at that time (in 2017), prisoners were already critical of the time it took for their complaint to be dealt with and there is reason to believe that, because of the increasing number of complaints and workload, the time it takes for complaints to be dealt with has only gone up since then.
In an attempt to deal with complaints more swiftly, nowadays complaints are often assessed by one member of the Complaint Committee, rather than the usually required three members.52 On the one hand, this may result in a more efficient way of working, resulting in dealing with complaints more quickly. On the other hand, however, this may negatively affect the complainants’ trust that their complaint is dealt with adequately, professionally and competently.
A markeddownside of the long processing time for complaints is that late replies to complaints are often ineffective, as the complainant may already be out of prison.53 The speed of decision making has also been related to the perceived procedural justice and the perceived legitimacy of the procedure, since a low decision-making speed invokes uncertainty.54
One of the reasons for the high case load may be the shortage of prison staff which Dutch prisons are dealing with.55 Due to the closure of several prisons and the insecurity and the fear of dismissal, many prison staff members have left. Due to these shortages, prison staff and management are not able to invest sufficient time in informing prisoners about the rules, rights and procedures in prison and in building relationships with prisoners.56 Therefore, prison staff have insufficient time to devote attention to the prisoners and to build a relationship with them. According to the RSJ, this staff shortage could (in part) explain the increased number of complaints. Due to these staff shortages, prisoners occasionally miss certain activities if, for instance, a staff member is on sick leave. As a result, prisoners may be more likely to file a complaint, adding to the high case load which the Complaint Committee is already facing.57
Thus, it seems to be the case that the shortage of prison staff in the Netherlands can lead to dissatisfaction amongst prisoners, leading to more complaints, which, in turn, could lead to more dissatisfaction amongst prisoners concerning the way their complaints are dealt with, causing an ongoing downward spiral.
4.2. Review of proposed measures for improvement
To relieve the pressure on the Dutch complaint procedure, trying to decrease the number of complaints, the RSJ has proposed several measures for improvement in a report of December 2019. These measures are (partially) approved by the Minister of Justice and Security. We argue that to prevent the Dutch complaint procedure from collapsing under its own success, different ways should be explored to prevent the system from (further) overflowing. To reach this goal, not only the procedure should be perceived as procedurally just, but also the treatment by prison staff, to prevent issues from actually reaching the formal complaint procedure. Here, in particular, the interrelational aspect of perceived procedural justice could play an important role, as well as the presence of informal possibilities to resolve conflicts when they occur.
In the following paragraphs, we will describe these measures and review to what extent they may or may not improve prisoners’ satisfaction with the Dutch complaint procedure, using perceived procedural justice theory. We note that other factors may play a role as well, such as the outcome of the case, which we do not review here due to practical reasons. Further research will be needed to show whether and to what extent these measures are an improvement on the current complaint procedure. Our review of the measures will result in points of attention that should be further investigated in their potential to reduce the high number of complaints.
(Intensified) use of mediation
Firstly, a possible solution that is brought forward by the RSJ is the extended use of mediation. Mediation is already current practice and was formalized by law as from 1 January 2021. Before that date, it was already common practice that a commissioner of the Supervisory Committee visits the prison on a monthly or even a weekly basis. This commissioner will talk and listen to the prisoners and will try to solve any existing problems informally. On the basis of the new legislation that entered into force on 1 January 2021, prisoners can ask (this is not obligatory) for mediation themselves concerning a complaint for which an official complaint procedure can be commenced and concerning the conduct of prison staff and government officials (CIA Article 59a).58 If requested, mediation will be performed by any member of the Supervisory Committee, who will enable both the prisoner and the governor of the prison to orally express their point of view, if possible in each other’s presence (CIA Article 59a, sec. 4). On the basis of this mediation, the member of the Supervisory Committee aims to propose a solution that is acceptable to both parties within four weeks (CIA Article 59a, sec. 3).
Evaluating this new legislation concerning the use of mediation in the complaint procedure based on a perceived procedural justice framework, mediation can prove beneficial for the relationship between prisoners and prison staff. This relationship is an important element of perceived procedural justice in a broad sense, encompassing interactional justice.59 Additionally, mediation can ensure that complaints relating to types of complaints that do not comply with the criteria for a formal complaint, such as the treatment of prisoners by prison staff, are taken into consideration as well.60 However, the benefits for the perceived justice of the way a complaint is dealt with, using mediation, depend on the performance thereof. We will therefore deal with several elements of mediation and how these elements could be beneficial for perceived procedural justice.
According to the new legislation, mediation does not necessarily take place in the presence of the complainant and the prison authority at the same time. Performing the mediation as much as possible in the presence of both parties would be a good recommendation in this respect. Such a conversation, during which the parties can express their opinions in the presence of each other, can provide the prisoner with a voice and can prevent misunderstandings in communication. In order to benefit the perceived procedural justice of mediation, this procedure should be carried out in a manner so that prisoners feel that they are being heard and that their point of view is being taken into consideration.
The result of the mediation is written down in a report by the mediating member of the Supervisory Committee. This report could be an opportunity to demonstrate that the mediator has listened to the parties, possibly benefitting the perceived justice of the procedure. For the report to have such an effect it should, for instance, elaborate on the arguments of both parties and it should give sufficient reasons for the final decision. From the phrasing in the legal provision, the time limit of four weeks seems to be optional.61 As mentioned before, the Supervisory Committee is currently unable to meet the time limit that is set for formal complaints. In this respect it is not unimaginable that this will remain an issue if the number of cases to be mediated is high, as is the number of formal complaints at the moment. Exceeding this time limit could prove negative for the perceived procedural justice of the way the complaint is dealt with, as described earlier.
Regardless of the result of the mediation, the possibility to start an official, formal complaint procedure remains open for the prisoner (CIA Article 59a, sec. 5).62 This may be positive for the perceived voice of the complainant.63 However, for this possibility to remain open, there are additional rules. The prisoner should request mediation within seven days after she or he has become aware of the decision of the Complaint Committee concerned to be able to start a formal complaint procedure (CIA Article 61, sec. 6). Additionally, if the complainant has not first attempted mediation, then she or he should state the reasons for this (CIA Article 61, sec. 3). Also, the formal complaint procedure can be postponed if the chairperson of the Complaint Committee decides that mediation should be tried first, or if the mediation is still pending (CIA Article 63, sec. 4). This may also even further extend the time period in which a complaint is dealt with, which could lead to dissatisfaction among complainants and possibly to perceived unfairness.
Overall it can be concluded that mediation can significantly contribute to perceived procedural justice, if these new rules are adequately explained to the prisoners and if this allows the authorities concerned to have (more) time to talk with complainants and to hear their point of view, in combination with respectful treatment and an impartial mediator. However, the RSJ has indicated that in some prisons the time for these meetings is insufficient and that mediation will lead to a higher workload for the visiting officer, which is already very high.64 Consequently, the possible positive effect of these mediation attempts may not be reached in all cases.
The introduction of an internal and informal complaint procedure
A second solution that the RSJ proposes is to complement the current external and formal complaint procedure with an internal and informal complaint procedure.65 Such an internal, informal complaint procedure has been highly recommended by the CPT and it already exists in settings other than the prison setting, such as education and healthcare.66 The Minister of Legal Protection has agreed to run pilot projects to examine the effectiveness of this solution.67 Such a procedure enables prison staff to deal with complaints themselves, without the intervention of an external Complaint Committee. Complaints could first be (orally) expressed to prison staff and if that does not provide the necessary relief, the complaint can be filed in writing with the management staff or the governor of the prison. If the internal complaint procedure does not result in the conflict being resolved, the external complaint procedure could be a second step.68
In this way, complaints could be dealt with more rapidly and in a more personal way. The latter could benefit the relationship between prisoners and prison staff and management, which could benefit the perceived procedural justice of the way complaints are dealt with. From a procedural justice theory perspective, for mediation as well as for an informal, internal complaint procedure to be beneficial, the people who deal with the informal complaint should be professional and competent to gain prisoners’ trust. Thus, they should not only appear to be so, but they should also be mandated to make the necessary decisions.69 Additionally, in order to be effective, as was also mentioned concerning mediation, there should be a possibility for complainants to be able to explain their complaint and for the staff to have enough time to join in a conversation with them, in order for them to feel heard and respected. It should not just add to the current workload.
The introduction of a fee
Thirdly, as a solution the RSJ advises the implementation of (relatively low) fees of, for instance, €1,50 that prisoners would have to pay if they wish to file a complaint, which could be returned to the complainant if the complaint is upheld.70 This could prevent prisoners from filing unnecessary or frivolous complaints. Additionally, this could be an incentive to attempt to solve the conflict or dissatisfaction through informal routes first. The Minister of Legal Protection has agreed to further assess the effectiveness of this solution.71
The obligation to pay a fee for a complaint to be dealt with may negatively affect the perceived procedural justice of the complaint procedure. Prisoners with less or no financial means, who may be less able to pay the fees, may feel that they are being treated unequally, compared with prisoners for whom the fees are less of a burden and thus this may be perceived as unfair.72 Additionally, fees may send a message that prison staff and management, as well as the Complaint Committee, are not willing to listen to (all of) the prisoners. This may lead to a diminished feeling of being heard, respected and treated fairly amongst prisoners. Introducing a fee would also detract from the good quality of the Dutch complaint procedure in terms of human rights standards. After all, as mentioned, having access to complaint procedures is a fundamental safeguard against ill-treatment and other types of abuse by authorities in prisons. Therefore, according to the CPT’s standards, these procedures should be freely accessible and prisoners should not be discouraged from making use of them.73 Requesting payment to file a complaint diminishes this accessibility.
It can be debated whether this measure is necessary and whether there are not less intrusive measures possible. After all, the introduction of an internal and informal complaint procedure alone may already create a sufficient barrier to formal conflict resolution and has the potential to prevent frivolous claims from reaching the formal, overflowing, complaint procedure.
Investing in good personal relationships between prisoners and prison staff and clear rules
Finally, the RSJ advises investing in the personal relationship between prisoners and prison staff and management. As described earlier, research shows that the behaviour of prison staff and the interaction between prisoners and prison staff are particularly important for the perceived procedural justice of prison life. Thus, in order to improve the perceived procedural justice of prison life more generally, the advice of the RSJ to invest in the relationship between prisoners and prison staff is to be welcomed. The Minister of Legal Protection agreed with this and recommended examining possibilities to create more time for prison staff to invest in relationships with the prisoners.74
The LIC Study actually shows that prisoners were at that time, around 2017, quite satisfied with their relationships with the prison staff (Table 1). It scores roughly a 3.5/5, the third highest score, which provides great potential. Since then, however, the pressure has grown and more prison staff have left, leading to shortages. According to the RSJ, due to this shortage, prison staff have insufficient time to devote attention to the prisoners, and in building relationships with them.75 In addition to establishing good prisoner-staff relationships, we argue that the (main) focus should be on the willingness of prisoners and staff to resolve conflicts in their early stages, trying to avoid a (formal) complaint. Staff that have sufficient time and opportunity to engage in such conversations and overall good relations between staff and prisoners are vital in this respect.
5. Conclusion: relieving the Dutch complaint procedure
The Dutch complaint procedure has received positive considerations for its compliance with human rights standards by both the ECtHR and the CPT. Research shows that prisoners are actually not satisfied with the way their complaints are dealt with by the Complaint Committee. With this article, we have demonstrated the importance of further research into the reasons for this dissatisfaction by reviewing potential reasons for the experienced procedural (in)justice by prisoners. We argue for more empirical research into the experienced procedural justice of prisoners who have taken part in complaint and appeal procedures. Knowledge of experienced procedural justice of detainees is indispensable to the discussion on how the Dutch complaint and appeal procedure could be made (more) effective and future-proof. In any such research, the role of distributive justice can provide another interesting perspective, since some studies show that distributive justice may be especially important in prison – maybe even more important than procedural justice.76
However, the (research) focus should not merely be on improving the complaint procedure itself. Importantly, the case load of the procedure should be brought down by focusing on resolving complaints at an early stage, before they reach a formal complaint procedure. Relieving the current pressure on the complaint system is vital, from a procedural justice perspective as well, as the Complaint and Appeal Committees are currently no longer able to deal with cases in time. A lighter case load could improve the procedure itself as well: committees would have more time to deal with the complaints (with three members) and deciding within the deadline could be feasible again. This could lead to more satisfaction with the complaint procedure for complainants.
In order to make the current procedure effective and future-proof, the RSJ has proposed measures and points for improvement, which have already been (partially) accepted by the Dutch government. However, to know which measures to implement and to implement these effectively, more research into the problem and possible solutions is crucial. Here the notion of procedural justice could also provide valuable insights and could serve as an important assessment framework. We argue that the focus should be on the question how to reach a culture in which there is the aim and the willingness to resolve conflict at an early stage, in a more informal way, rather than letting it escalate and referring it to the formal complaint procedure, which is currently already overflowing. From a procedural justice perspective, the intensified use of mediation, the introduction of an informal complaint procedure and investing in good relationships between prisoners and staff can be positively valued. We do not expect the proposed measure of introducing a fee to have a beneficial effect.