Dutch prisons have been overcrowded for some time, mainly because of staff shortages and a lack of cells. Yet almost half of the people behind bars last year were in pre-trial detention: they have not been convicted and are still legally innocent.
A survey by NOS of nearly 300 criminal defence lawyers found that 90% believe suspects are held in custody too often or for too long while their case is still being investigated. In theory, judges may only order pre-trial detention under strict conditions, for example if there is a serious risk of reoffending, flight, or tampering with evidence. But lawyers say these rules are applied too loosely in practice.
Criminal law expert Jacques Claessen of Maastricht University told NOS: “It should be an exception to lock up these people, but in the Netherlands, the practice is different.”
The Netherlands has been warned before
This is not a new problem. The Netherlands Institute for Human Rights warned in 2017 that judges were not always giving good, case-specific reasons when they ordered pre-trial detention, and that the measure was used very often.
In 2021, the European Court of Human Rights condemned the Netherlands in three cases because courts did not properly explain why it was necessary to keep suspects locked up before trial. The court found that people were being detained too easily and without enough reasoning.
A recent academic overview describes Dutch pre-trial detention as “absolutely low, relatively high”: the total number of prisoners is low compared to many countries, but the share of prisoners in pre-trial detention has stayed high at around 41–49% over the past decade. Researchers say a “tough on crime” legal culture and a fear of public backlash make judges more likely to keep suspects in custody.
Despite these warnings and studies, lawyers and experts say little has changed in everyday practice.
Overcrowded prisons, early release
The heavy use of pre-trial detention is particularly striking because prisons are already under pressure. Due to staff and capacity shortages, some prisoners are now being released two weeks earlier at the end of their sentence to make space.
Lawyers and human-rights groups argue this makes the system look inconsistent: on one hand, the state says there is not enough space and staff; on the other, large numbers of people who have not been convicted are still placed in custody instead of using alternatives.
Alternatives methods
Experts say judges could use alternatives to prison more often. Claessen points out that in some cases, courts can order electronic pre-trial detention. In that system, a suspect stays at home with an ankle bracelet and strict rules about where they may go, instead of sitting in a cell.
The Netherlands Institute for Human Rights has also urged courts and prosecutors to make more use of such alternatives, arguing that detention should really be a last resort.
Debate about fairness and human rights
The discussion about pre-trial detention touches on basic rights. Under European human-rights law, a suspect should normally wait for their trial in freedom, unless there are strong reasons to keep them locked up. Long or lightly motivated pre-trial detention may violate the presumption of innocence and the right to liberty.
Critics warn that holding so many unconvicted people in overcrowded prisons harms trust in the justice system and can have lasting effects on suspects’ work, housing, and family life, even if they are later acquitted.
For now, Dutch prisons remain crowded and nearly half of those inside are still waiting for a verdict, keeping the pressure on politicians, judges and human-rights bodies to rethink how easily the Netherlands locks up people before their trial.
