Elena Larrauri

It has become sort of a truism to say that prisoners have rights, that is, they are ‘citizens behind bars’ and no longer slaves of the state. Much less attention has been devoted to how they can protect these rights. Although prisoners have access to justice, litigating from inside prison is difficult. Incarceration impedes access to counsel and access to courts, and requires substantial time, economic means, and certain knowledge. In their paper The Dutch Complaint Procedure: A ‘Picture Perfect’ Procedure?, authors Tessa Van Der Rijst and Pauline Jacobs provide a brief and clear explanation of how ‘the picture-perfect procedure’ works in practice in Dutch prisons.

Calavita’s and Jeness (2015) seminal work Appealing to Justice exhorted us to look at mechanisms inside prisons that prisoners could use to present their grievances and defend their rights in the United States. A ‘Picture Perfect’ Procedure? takes up that challenge in the Dutch context. Although in Europe there is no need to exhaust the administrative procedure before going to the Courts, the internal system of lodging a complaint still matters. Van Der Rijst and Jacobs are among the European scholars who have turned their attention to these procedures. (See also Daems and Larrauri, 2024).

One reason for the recent scholarly attention is that the European Prison Rules (Rec (2006)2-rev 20 rule70) recognize prisoners’ right to make requests and complaints to the director of the prison or to any other competent authority. Another reason is that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has spelled out what the basic principles of complaints mechanisms in prison should be, namely: availability, accessibility, confidentiality, effectiveness, and traceability.

Van Der Rijst, and Jacobs explain that the Netherlands has had a prison complaint system since the 1970s. According to the authors, this complaint system has often been referred by the CPT as a good model because:

It is available, the complaint bodies are independent, it allows complainants active participation and legal assistance, it provides redress, it is both preventive and compensatory remedy, and it offers reasonable prospects of success. (P. 2-3.)

They focus on how prisoners perceive the system, drawing upon The Life in Custody Study (van Gineken et al. 2018). The Study examined the quality of life in detention in a total of 28 prisons using a large scale survey of 4,538 detainees who were in remand or incarcerated in the first four months of 2017, examining detainees’ satisfaction with the complaint procedure. Prisoners were asked to indicate to what extent they agreed with four statements: (1) the monthly or weekly visiting officer could be reached easily, (2) the Complaint Committee took the complaint seriously, (3) the complaint was dealt with swiftly and (4) I am satisfied with how my complaint was dealt with (van Ginneken et al. 2018). Scores on these questions were relatively low: on a scale from 1 to 5 (from completely disagree to completely agree), the mean for ‘Settlement of complaints’ was a little over 2.5, score 2 reflecting somewhat disagree and score 3 reflecting neutral (whereas twelve out of the seventeen that included aspects of prison life scored higher). According to Van der Rijst and Jacobs (2022), the response to statements two and four illustrate that the issue of prisoners’ perceptions of procedural justice should receive more attention.

This discussion is particularly important because when prisoners are asked, they generally respond that their degree of satisfaction with available complaint mechanisms is extremely low (Van de Valk et al, 2022), and dissatisfaction over officials’ handling of grievances are a possible source of future prison violence. Therefore, we are witnessing reform proposals of complaint mechanisms in several different European countries (Daems and Larrauri, 2024). Sometimes these reforms tend to focus on formal aspects emphasizing only the need to provide an answer and to write down the reasons for it. However, Van der Rijst and Jacobs (2022) point out, following the research done by Jenness and Calavita (2018), that although procedural justice—how complaints are answered – certainly plays a very important role, concerns of distributive justice, the outcome of how such complaints are resolved also matter a great deal in prison. This is probably due not only to the fact of the vital importance of outcomes in prison, but also because of what a failure to deal with these requests and complaints communicates about the status of the petitioner.

The final part of the paper deals with the second challenge of the Dutch complaint procedure: the high case load of complaints. Although the number of prisoners is decreasing, the number of complaints increase continually. The authors understand that this is another reason for the dissatisfaction (as reflected in the third question of the mentioned questionnaire criticizing the speed with which officials handle complaints). Van der Rijst and Jacobs (2022) explore the possible alternative complaint resolution venues that recently have been suggested in the Netherlands by the Council for the Administration of Criminal Justice and Protection of Juveniles. They mention the use of mediation and explain how this can contribute to perceived procedural justice. They also discuss the introduction of an internal and informal complaint procedure that could deal with complaints more rapidly than the actual external committee. Finally, they consider the possible introduction of a 1.50 euro filing fee which could prevent the filing unnecessary complaints, although, according to the authors, this could negatively affect the perceived procedural justice.

The discussion of these proposals is instructive for other European countries that are struggling with how to devise a system that can deal with different categories of requests and complaints, and that need different procedures to successfully resolve these complaints (Daems and Larrauri, 2024). The establishment of a complaint system inside prison is particularly important because prisoners are totally dependent in the prison administration and are not allowed to solve even the simplest issues by themselves. The fact that a ‘right to make a request and complaint’ is recognized in many countries in the penitentiary law, but that no efficient procedure has been set to deal with them, is experienced by prisoners as a lack of ‘organizational respect’ (Hulley et al., 2012).

Finally, when no one answers the complaint inside prison, this could violate Article 13 of the European Convention of Human Rights, under which everyone whose rights have been violated have a right to an effective remedy before a national authority. Thus, in addition to moral reasons to defend prisoners’ right to have their complaints answered, we need to add an instrumental one: solving a complaint in prison might avoid further litigation before the Courts. However, we must also admit that no matter how ‘good’ or ‘effective’ the complaint system is, the difference of power is too big inside prison, and therefore to definitively diminish complaints we must reduce the main cause: living in such an unnatural environment as a closed prison.