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COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF NETHERLANDS
07 May 2007
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Committee against Torture
7 May 2007
The Committee against Torture this morning began its consideration of the fourth periodic report of the Netherlands on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Piet de Klerk, Human Rights Ambassador with the Ministry of Foreign Affairs of the Netherlands, said that, with the entry into force of the International Crimes Act on 1 October 2003, the definition of torture used in the Convention had been fully incorporated. In addition, the Dutch Government had signed the Optional Protocol to the Convention against Torture in June 2005, and ratification was expected to take place in the second half of 2007.
Presenting the report of the Netherlands with regard to developments in Aruba, Angelique Peterson, Head of Judicial Affairs and Agreements of the Department of Foreign Relations of Aruba, said that the long-anticipated new legislation on detention – the Law on the execution of custodial sentences – had been passed by the Aruban Parliament at the end of 2005. The new legislation strengthened the position of prisoners and provided an extensive legal framework which expressly recognized the rights and duties of prisoners. It also included specific rules and timeframes regarding the use of "isolation cells".
Joan Theordora-Brewster, Deputy Director of the Directorate of Justice of the Netherlands (Antilles), presenting new developments with regard to the Netherlands (Antilles), said that a major overhaul had been undertaken of prison and police detention facilities in the Netherlands (Antilles). Existing sites had been renovated and new facilities had been built. In addition, police cells on all five islands had been remodelled, renovated or modernized, resulting in greater capacity.
Serving as Rapporteur for the report of the Netherlands, Committee Chairperson Andreas Mavrommatis disagreed with the finding by the Dutch Supreme Court in the Bouterse case, which had rejected torture complaints owing to a lack of some sort of nexus of Dutch jurisdiction to prosecute a case of torture. The idea was that no torturer would find a safe haven, which had been the basis for the decision by the Chamber of Lords to try the Pinochet case.
Nora Sveaass, the Committee Expert serving as Co-Rapporteur for the report of the Netherlands, encouraged the Netherlands to incorporate the Istanbul Protocol – international guidelines for the assessment of persons who alleged torture and ill treatment – within its asylum procedures. That would imply that medical personnel were trained in the use of the Protocol, she added.
Other issues of concern raised by Experts included corporal punishment in the home and in educational settings; juvenile justice; violence against women; whether the Rome Statutes for the International Criminal Court had been incorporated into the legal system of the Netherlands; if audiovisual recordings were mandatory during all interrogations; merely administrative punishments in a case involving Aruban police officials found guilty of misconduct; what measures were taken to prevent sexual violence in prisons; and what measures were being taken to prevent ill-treatment in the context of rising Anti-Semitism and Islamophobia in the Netherlands.
Also representing the delegation of the Netherlands was a representative of the Permanent Mission of the Netherlands to the United Nations Office at Geneva, as well as representatives of the Ministry of Justice of the Netherlands; the Ministry of the Interior and Kingdom Relations; the Ministry of Foreign Affairs; and the Ministry of Health, Welfare and Sport of the Netherlands. In addition, the delegation included representatives from the Public Prosecutor's Office of Aruba; and the Prison of Curaçao.
The delegation will return to the Committee at 3 p.m. on Tuesday, 8 May, to provide its responses to the questions raised today.
The Netherlands is among the 144 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Italy to the questions posed by Experts on Friday, 4 May.
Report of the Netherlands
Among developments relating to the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the fourth periodic report of the Netherlands (CAT/C/67/Add.4), is the 18 December 2001 Supreme Court ruling related to the "December murders" that took place in 1982. On 8 and 9 December in that year, 15 people were shot dead at Fort Zeelandia in Suriname, which gained independence from the Netherlands in 1975. Many people believed that the leader of the Surinamese army at that time, Desi Bouterse, was responsible for the murders. In the Netherlands, relatives of the victims filed a complaint against Bouterse. On 20 November 2000, the Amsterdam appeal court ordered the Amsterdam public prosecutor to prosecute Bouterse on suspicion of involvement in the murders. In its ruling of 18 September 2001, the Supreme Court concluded that it would not be possible to prosecute Bouterse in the Netherlands for the December murders. The Supreme Council limited the scope of the Dutch Act implementing the Torture Convention to cases which have connections with Dutch jurisdiction, for example if the suspect (or victim) has Dutch nationality or because the suspect is in the Netherlands. Only in such situations is the Netherlands competent, and in certain circumstances obliged, to institute criminal proceedings. The Supreme Court also decided that manslaughter and murder do not in themselves constitute torture within the meaning of the Act. With this ruling the Supreme Court has created clarity as to the scope offered by the Act implementing the Torture Convention for prosecuting acts of torture in the Netherlands.
Regarding conditions in the maximum security prison, a Government-commissioned report published in June 2000 concluded that concern for the psychological well-being of maximum-security detainees was indeed evident in the day-to-day running of that prison. The Government sees this as recognition that the maximum security prison has an operational system of psychological and psychiatric care, which makes it unlikely that any serious damage to the mental health of detainees would go unnoticed. The Government nevertheless considers it important that an independent study be carried out into the effects of detention under a maximum security regime on the psychological well-being of people who are or have been detained under this regime. The study will last for a year. It involves monitoring disruption of day-night rhythm and other factors among maximum-security detainees and a control group in semi-isolation. The control group is being monitored at present. The monitoring of maximum-security detainees began in May 2002, when renovation work had been completed and the maximum security facility was in use again. One of the reasons for renovating the maximum security prison was to improve the well-being of detainees, and to create opportunities for more natural contact between detainees and staff to improve the atmosphere in the facility.
Presentation of Report
PIET DE KLERK, Human Rights Ambassador with the Ministry of Foreign Affairs of the Netherlands, said that the Convention's absolute ban on torture was fundamental to the legal order of the Kingdom of the Netherlands. The Kingdom of the Netherlands played an important role in drafting the Convention, and supported organizations that aimed to prevent torture, including as a major supporter of the UN Voluntary Fund for Victims of Torture, to which the Netherlands had contributed $1 million per year in recent years. Combating torture globally was a fundamental objective of Dutch human rights policy and, together with its European Union partners, the Netherlands implemented the European Union Guidelines on Torture, which aimed at strengthening efforts to prevent and eradicate torture and ill-treatment.
It was the opinion of the Government of the Netherlands that all the obligations under the Convention had been adequately incorporated into national legislation, Mr. De Klerk noted. A key change had been the entry into force of the International Crimes Act on 1 October 2003, which fully incorporated the definition of torture used in the Convention, and replaced the previous legislation that had implemented the Convention in the Netherlands.
As the implementation of the Convention was a major priority of the Netherlands, the Dutch Government had been a strong supporter of the Optional Protocol to the Convention against Torture, which it had signed in June 2005, and ratification of the Optional Protocol was expected to take place in the second half of 2007.
Regarding asylum procedure in the Netherlands, Mr. De Klerk said the 2000 Aliens Act, which had entered into force in April 2001, provided for an accelerated asylum procedure, in tandem with the regular procedure. In the Government's view the procedure contained sufficient safeguards to guarantee that decisions were taken with care. Asylum requests were evaluated on the same substantive grounds as they would be in the regular procedure. Under the accelerated procedure, an application for asylum could only be rejected if no further investigation was deemed necessary. If further investigation was warranted, but could not be carried out within the time limit for the accelerated procedure, the case would be dealt with under the regular rules of procedure. Moreover, if the asylum seeker or his or her legal adviser felt that the case had been wrongly assigned to the accelerated procedure, they had the right to apply for judicial review, or if the court should reject their application, to appeal. Throughout the procedure, asylum-seekers had the right to free legal assistance. The accelerated procedure did not only produce rejections: of the 3,906 accelerated applications processed last year, 1,207 had resulted in rulings in favour of the applicants.
Notably, on 31 October 2002, the Hague Court of Appeal had ruled that the accelerated asylum procedure did not contravene the ban on refoulement under article 33 of the Refugee Convention. That was not to say that the procedure was perfect; the new Government, which had taken office last February, had stated that the procedure would be further improved, and the manner of those improvements was currently under study, Mr. De Klerk explained.
In terms of detention of aliens, that measure was only used if strictly necessary, to prevent an illegal alien from evading expulsion, Mr. De Klerk continued. Because of the extreme nature of the measure, such detention was equipped with strict legal safeguards. Special attention was recently given to the position of families with children in aliens detention. In 2005, the Minister for Immigration and Integration had asked the Custodial Institutions Inspectorate to conduct a study of that issue. The State Secretary of Justice had also announced plans to impose strict limits on both the use and duration of such detention in the case of minors, and was expected to present a policy plan on minors in alien detention to Parliament before the summer.
Finally, Mr. De Klerk drew attention to the significant amendments that had been made to the Psychiatric Hospitals (Committals) Act of 1994, since the Netherlands last met with the Committee. In January 2004, the "conditional order" had been added to the Act, allowing individuals to be treated on an outpatient basis under certain conditions. On 1 January 2006, the "observation order" had entered into force, which provided that, following committal to a psychiatric hospital, patients were kept under observation for a period of three weeks to determine whether they suffered from a mental disorder that would make them a danger to themselves. Finally, in the course of this year, the advance psychiatric directive would take effect. That meant that when they were symptom-free, psychiatric patients could draw up a statement, together with their doctors, specifying the circumstances under which they could be committed and what treatment they wished to receive.
ANGELIQUE PETERSON, Head of Judicial Affairs and Agreements of the Department of Foreign Relations of Aruba, presenting the report of the Netherlands with regard to developments in Aruba, said that the long-anticipated new legislation on detention – the Law on the execution of custodial sentences – had been passed by the Aruban Parliament at the end of 2005. The new legislation strengthened the position of prisoners and provided an extensive legal framework which expressly recognized the rights and duties of prisoners. It also included specific rules and timeframes regarding the use of "isolation cells".
With regard to the Aruba penitentiary, alongside the introduction of modern legislation, Ms. Peterson drew attention to the complete expansion and renovation of the existing Correctional Institute, and a completely new juvenile detention facility had been built, as well as a new women's detention facility. Police cells in the capital for the detention of suspects had also been completely renovated.
Furthermore, a preliminary draft of a new Criminal Code was expected to be presented to Parliament later this year, which provided for the implementation in national law of a number of important international treaties and agreements that had been concluded in recent years, Ms. Peterson said.
Finally, Ms. Peterson was pleased to inform the Committee that the Aruban Government had expressed its wish for the Optional Protocol to the Convention to become applicable to Aruba.
JOAN THEORDORA-BREWSTER, Deputy Director of the Directorate of Justice of the Netherlands (Antilles), presenting new developments with regard to the Netherlands (Antilles), said that a major overhaul had been undertaken of prison and police detention facilities in the Netherlands (Antilles). Existing sites had been renovated and new facilities had been built. Police cells on all five islands had been remodelled, renovated or modernized, resulting in greater capacity.
Questions Raised by Committee Experts
ANDREAS MAVROMMATIS, the Committee Chairperson serving as Rapporteur for the report of the Netherlands, said that as the core document was prepared in 1998, an update on recent changes regarding the Convention might be necessary with regard to the European part of the Kingdom. In particular, amendments had been made to Dutch anti-terrorism legislation that might have justified an addendum to the report.
Mr. Mavrommatis disagreed with the finding by the Dutch Supreme Court in the Bouterse case, which had rejected torture complaints owing to a lack of some sort of nexus of Dutch jurisdiction to prosecute a case of torture. (Bouterse was not a Dutch national and had not committed the acts in question against Dutch nationals or on Dutch territory.) The idea was that no torturer would find a safe haven, which had been the basis for the decision by the Chamber of Lords to try the Pinochet case.
With regard to asylum procedures, the situation in the Netherlands in general was overall satisfactory, Mr. Mavrommatis felt. However, when they were faced with some sort of emergency – such as AIDS, secessionist movements, war, terrorism or illegal immigration – special measures had to be taken. There they had to face the litmus test of respecting and applying human rights. For that reason, he believed that the article (which provided that there were no justifications whatsoever for torture) was as important as the other articles of the Convention.
Mr. Mavrommatis said he would also appreciate information on whether the Netherlands sought diplomatic assurances, and what the stance of the Netherlands was with regard to rendition.
Turning to the Netherlands accelerated procedure for asylum seekers, Mr. Mavrommatis acknowledged the fact that the asylum process was abused by a considerable number of illegal aliens, and that there was a genuine need to speed up the processing of applications. What was of concern with regard to the Dutch accelerated process was that it appeared not just obviously "false" claims were routed to the fast track; very complicated cases also appeared to be considered under that procedure. In that connection, he wondered if an asylum-seeker who was transferred from the accelerated to the regular procedure kept the same lawyer. Moreover, the burden of proof was not static. It shifted depending on circumstances. In the accelerated procedure, in particular, he was concerned that that presented a problem. The fast-track was indeed very fast. For all the forgoing concerns, the Netherlands was urged to review the existing accelerated procedure for asylum applications.
In that connection, Mr. Mavrommatis said he would also appreciate further information on the lists of "Unsafe" and "Safe" countries with regard to refoulement, and how those categories were used in the asylum procedure.
NORA SVEAASS, the Committee Expert serving as Co-Rapporteur for the report of the Netherlands, addressing the issue of human rights training for law enforcement and prison staff, wondered what specific training was received by such staff on the prohibition against torture, including on the provisions of the Convention, and requested some information on what effect that had had.
Regarding training for medical personnel, in particular in the context of the asylum procedure, the Istanbul Protocol provided a guideline for such staff, and Ms. Sveaass encouraged the Netherlands to incorporate that Protocol in its asylum procedure. That would imply that medical personnel were trained in the use of the Protocol, she added.
Ms. Sveaass said that she had conflicting information in the report and from non-governmental organizations on time limits for detention. She would appreciate clarification on how long a person could be held in detention without access to a lawyer or being presented before a judge. Also, what was the maximum limit for detention in police cells?
Concerning routine strip searches, practiced in maximum security facilities, Ms. Sveaass would appreciate information on how that provision had been amended.
Turning to the situation in the Netherlands (Antilles), Ms. Sveaass was concerned that juveniles, adults, and those suffering from psychological disorders were all kept in the same detention facilities in Bon Futuro. She would appreciate information on when that situation would be addressed. Also worrisome was the high rate of detainees that never went to trial in Aruba.
Regarding rehabilitation for those who had suffered from torture, Ms. Sveaass reiterated her appreciation for the help that the Netherlands was bringing to such people throughout the world. However, she would appreciate details of how those who had been victims of torture in the Netherlands were rehabilitated and compensated.
Other Experts then offered comments and raised a series of questions on a number of questions, including corporal punishment in the home and in educational settings; juvenile justice; violence against women; whether the Rome Statutes for the International Criminal Court had been incorporated into the legal system of the Netherlands; whether there were any statistics on the number of asylum requests rejected, under the Dublin agreement, because that individual had earlier applied to and been rejected by another European country; if audiovisual recordings were mandatory during all interrogations; merely administrative punishments in a case involving Aruban police officials found guilty of misconduct; what measures were taken to prevent sexual violence in prisons; and whether raids still being carried out on Bon Futuro, in the Netherlands (Antilles).
An Expert, supporting the Chairperson's position that the Netherlands should have granted jurisdiction to bring complaints of torture in the Bouterse case, whether or not sufficient links had been established, noted that, in any case, one of Bouterse's claims had been that the victims were working on behalf of the Dutch Government. Might that not have constituted a substantial enough link to justify Dutch jurisdiction of the matter under the Supreme Court ruling?
An Expert said that, according to information received, there were two boats in the territorial waters of the Netherlands that were used to hold asylum-seekers and clandestine immigrants, and asked for details.
Regarding the rise in Islamophobic and Anti-Semitic acts in the Netherlands, including the high-profile killing of Pym Fortuyn and that of the filmmaker, Theo Van Gogh, an Expert wondered whether those murders were indicative of a problem with regard to minority populations in the Netherlands and wondered what was being done to prevent acts of ill-treatment in that regard.
__________
For use of the information media; not an official record
7 May 2007
The Committee against Torture this morning began its consideration of the fourth periodic report of the Netherlands on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Introducing the report, Piet de Klerk, Human Rights Ambassador with the Ministry of Foreign Affairs of the Netherlands, said that, with the entry into force of the International Crimes Act on 1 October 2003, the definition of torture used in the Convention had been fully incorporated. In addition, the Dutch Government had signed the Optional Protocol to the Convention against Torture in June 2005, and ratification was expected to take place in the second half of 2007.
Presenting the report of the Netherlands with regard to developments in Aruba, Angelique Peterson, Head of Judicial Affairs and Agreements of the Department of Foreign Relations of Aruba, said that the long-anticipated new legislation on detention – the Law on the execution of custodial sentences – had been passed by the Aruban Parliament at the end of 2005. The new legislation strengthened the position of prisoners and provided an extensive legal framework which expressly recognized the rights and duties of prisoners. It also included specific rules and timeframes regarding the use of "isolation cells".
Joan Theordora-Brewster, Deputy Director of the Directorate of Justice of the Netherlands (Antilles), presenting new developments with regard to the Netherlands (Antilles), said that a major overhaul had been undertaken of prison and police detention facilities in the Netherlands (Antilles). Existing sites had been renovated and new facilities had been built. In addition, police cells on all five islands had been remodelled, renovated or modernized, resulting in greater capacity.
Serving as Rapporteur for the report of the Netherlands, Committee Chairperson Andreas Mavrommatis disagreed with the finding by the Dutch Supreme Court in the Bouterse case, which had rejected torture complaints owing to a lack of some sort of nexus of Dutch jurisdiction to prosecute a case of torture. The idea was that no torturer would find a safe haven, which had been the basis for the decision by the Chamber of Lords to try the Pinochet case.
Nora Sveaass, the Committee Expert serving as Co-Rapporteur for the report of the Netherlands, encouraged the Netherlands to incorporate the Istanbul Protocol – international guidelines for the assessment of persons who alleged torture and ill treatment – within its asylum procedures. That would imply that medical personnel were trained in the use of the Protocol, she added.
Other issues of concern raised by Experts included corporal punishment in the home and in educational settings; juvenile justice; violence against women; whether the Rome Statutes for the International Criminal Court had been incorporated into the legal system of the Netherlands; if audiovisual recordings were mandatory during all interrogations; merely administrative punishments in a case involving Aruban police officials found guilty of misconduct; what measures were taken to prevent sexual violence in prisons; and what measures were being taken to prevent ill-treatment in the context of rising Anti-Semitism and Islamophobia in the Netherlands.
Also representing the delegation of the Netherlands was a representative of the Permanent Mission of the Netherlands to the United Nations Office at Geneva, as well as representatives of the Ministry of Justice of the Netherlands; the Ministry of the Interior and Kingdom Relations; the Ministry of Foreign Affairs; and the Ministry of Health, Welfare and Sport of the Netherlands. In addition, the delegation included representatives from the Public Prosecutor's Office of Aruba; and the Prison of Curaçao.
The delegation will return to the Committee at 3 p.m. on Tuesday, 8 May, to provide its responses to the questions raised today.
The Netherlands is among the 144 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m. this afternoon, it will hear the answers of Italy to the questions posed by Experts on Friday, 4 May.
Report of the Netherlands
Among developments relating to the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the fourth periodic report of the Netherlands (CAT/C/67/Add.4), is the 18 December 2001 Supreme Court ruling related to the "December murders" that took place in 1982. On 8 and 9 December in that year, 15 people were shot dead at Fort Zeelandia in Suriname, which gained independence from the Netherlands in 1975. Many people believed that the leader of the Surinamese army at that time, Desi Bouterse, was responsible for the murders. In the Netherlands, relatives of the victims filed a complaint against Bouterse. On 20 November 2000, the Amsterdam appeal court ordered the Amsterdam public prosecutor to prosecute Bouterse on suspicion of involvement in the murders. In its ruling of 18 September 2001, the Supreme Court concluded that it would not be possible to prosecute Bouterse in the Netherlands for the December murders. The Supreme Council limited the scope of the Dutch Act implementing the Torture Convention to cases which have connections with Dutch jurisdiction, for example if the suspect (or victim) has Dutch nationality or because the suspect is in the Netherlands. Only in such situations is the Netherlands competent, and in certain circumstances obliged, to institute criminal proceedings. The Supreme Court also decided that manslaughter and murder do not in themselves constitute torture within the meaning of the Act. With this ruling the Supreme Court has created clarity as to the scope offered by the Act implementing the Torture Convention for prosecuting acts of torture in the Netherlands.
Regarding conditions in the maximum security prison, a Government-commissioned report published in June 2000 concluded that concern for the psychological well-being of maximum-security detainees was indeed evident in the day-to-day running of that prison. The Government sees this as recognition that the maximum security prison has an operational system of psychological and psychiatric care, which makes it unlikely that any serious damage to the mental health of detainees would go unnoticed. The Government nevertheless considers it important that an independent study be carried out into the effects of detention under a maximum security regime on the psychological well-being of people who are or have been detained under this regime. The study will last for a year. It involves monitoring disruption of day-night rhythm and other factors among maximum-security detainees and a control group in semi-isolation. The control group is being monitored at present. The monitoring of maximum-security detainees began in May 2002, when renovation work had been completed and the maximum security facility was in use again. One of the reasons for renovating the maximum security prison was to improve the well-being of detainees, and to create opportunities for more natural contact between detainees and staff to improve the atmosphere in the facility.
Presentation of Report
PIET DE KLERK, Human Rights Ambassador with the Ministry of Foreign Affairs of the Netherlands, said that the Convention's absolute ban on torture was fundamental to the legal order of the Kingdom of the Netherlands. The Kingdom of the Netherlands played an important role in drafting the Convention, and supported organizations that aimed to prevent torture, including as a major supporter of the UN Voluntary Fund for Victims of Torture, to which the Netherlands had contributed $1 million per year in recent years. Combating torture globally was a fundamental objective of Dutch human rights policy and, together with its European Union partners, the Netherlands implemented the European Union Guidelines on Torture, which aimed at strengthening efforts to prevent and eradicate torture and ill-treatment.
It was the opinion of the Government of the Netherlands that all the obligations under the Convention had been adequately incorporated into national legislation, Mr. De Klerk noted. A key change had been the entry into force of the International Crimes Act on 1 October 2003, which fully incorporated the definition of torture used in the Convention, and replaced the previous legislation that had implemented the Convention in the Netherlands.
As the implementation of the Convention was a major priority of the Netherlands, the Dutch Government had been a strong supporter of the Optional Protocol to the Convention against Torture, which it had signed in June 2005, and ratification of the Optional Protocol was expected to take place in the second half of 2007.
Regarding asylum procedure in the Netherlands, Mr. De Klerk said the 2000 Aliens Act, which had entered into force in April 2001, provided for an accelerated asylum procedure, in tandem with the regular procedure. In the Government's view the procedure contained sufficient safeguards to guarantee that decisions were taken with care. Asylum requests were evaluated on the same substantive grounds as they would be in the regular procedure. Under the accelerated procedure, an application for asylum could only be rejected if no further investigation was deemed necessary. If further investigation was warranted, but could not be carried out within the time limit for the accelerated procedure, the case would be dealt with under the regular rules of procedure. Moreover, if the asylum seeker or his or her legal adviser felt that the case had been wrongly assigned to the accelerated procedure, they had the right to apply for judicial review, or if the court should reject their application, to appeal. Throughout the procedure, asylum-seekers had the right to free legal assistance. The accelerated procedure did not only produce rejections: of the 3,906 accelerated applications processed last year, 1,207 had resulted in rulings in favour of the applicants.
Notably, on 31 October 2002, the Hague Court of Appeal had ruled that the accelerated asylum procedure did not contravene the ban on refoulement under article 33 of the Refugee Convention. That was not to say that the procedure was perfect; the new Government, which had taken office last February, had stated that the procedure would be further improved, and the manner of those improvements was currently under study, Mr. De Klerk explained.
In terms of detention of aliens, that measure was only used if strictly necessary, to prevent an illegal alien from evading expulsion, Mr. De Klerk continued. Because of the extreme nature of the measure, such detention was equipped with strict legal safeguards. Special attention was recently given to the position of families with children in aliens detention. In 2005, the Minister for Immigration and Integration had asked the Custodial Institutions Inspectorate to conduct a study of that issue. The State Secretary of Justice had also announced plans to impose strict limits on both the use and duration of such detention in the case of minors, and was expected to present a policy plan on minors in alien detention to Parliament before the summer.
Finally, Mr. De Klerk drew attention to the significant amendments that had been made to the Psychiatric Hospitals (Committals) Act of 1994, since the Netherlands last met with the Committee. In January 2004, the "conditional order" had been added to the Act, allowing individuals to be treated on an outpatient basis under certain conditions. On 1 January 2006, the "observation order" had entered into force, which provided that, following committal to a psychiatric hospital, patients were kept under observation for a period of three weeks to determine whether they suffered from a mental disorder that would make them a danger to themselves. Finally, in the course of this year, the advance psychiatric directive would take effect. That meant that when they were symptom-free, psychiatric patients could draw up a statement, together with their doctors, specifying the circumstances under which they could be committed and what treatment they wished to receive.
ANGELIQUE PETERSON, Head of Judicial Affairs and Agreements of the Department of Foreign Relations of Aruba, presenting the report of the Netherlands with regard to developments in Aruba, said that the long-anticipated new legislation on detention – the Law on the execution of custodial sentences – had been passed by the Aruban Parliament at the end of 2005. The new legislation strengthened the position of prisoners and provided an extensive legal framework which expressly recognized the rights and duties of prisoners. It also included specific rules and timeframes regarding the use of "isolation cells".
With regard to the Aruba penitentiary, alongside the introduction of modern legislation, Ms. Peterson drew attention to the complete expansion and renovation of the existing Correctional Institute, and a completely new juvenile detention facility had been built, as well as a new women's detention facility. Police cells in the capital for the detention of suspects had also been completely renovated.
Furthermore, a preliminary draft of a new Criminal Code was expected to be presented to Parliament later this year, which provided for the implementation in national law of a number of important international treaties and agreements that had been concluded in recent years, Ms. Peterson said.
Finally, Ms. Peterson was pleased to inform the Committee that the Aruban Government had expressed its wish for the Optional Protocol to the Convention to become applicable to Aruba.
JOAN THEORDORA-BREWSTER, Deputy Director of the Directorate of Justice of the Netherlands (Antilles), presenting new developments with regard to the Netherlands (Antilles), said that a major overhaul had been undertaken of prison and police detention facilities in the Netherlands (Antilles). Existing sites had been renovated and new facilities had been built. Police cells on all five islands had been remodelled, renovated or modernized, resulting in greater capacity.
Questions Raised by Committee Experts
ANDREAS MAVROMMATIS, the Committee Chairperson serving as Rapporteur for the report of the Netherlands, said that as the core document was prepared in 1998, an update on recent changes regarding the Convention might be necessary with regard to the European part of the Kingdom. In particular, amendments had been made to Dutch anti-terrorism legislation that might have justified an addendum to the report.
Mr. Mavrommatis disagreed with the finding by the Dutch Supreme Court in the Bouterse case, which had rejected torture complaints owing to a lack of some sort of nexus of Dutch jurisdiction to prosecute a case of torture. (Bouterse was not a Dutch national and had not committed the acts in question against Dutch nationals or on Dutch territory.) The idea was that no torturer would find a safe haven, which had been the basis for the decision by the Chamber of Lords to try the Pinochet case.
With regard to asylum procedures, the situation in the Netherlands in general was overall satisfactory, Mr. Mavrommatis felt. However, when they were faced with some sort of emergency – such as AIDS, secessionist movements, war, terrorism or illegal immigration – special measures had to be taken. There they had to face the litmus test of respecting and applying human rights. For that reason, he believed that the article (which provided that there were no justifications whatsoever for torture) was as important as the other articles of the Convention.
Mr. Mavrommatis said he would also appreciate information on whether the Netherlands sought diplomatic assurances, and what the stance of the Netherlands was with regard to rendition.
Turning to the Netherlands accelerated procedure for asylum seekers, Mr. Mavrommatis acknowledged the fact that the asylum process was abused by a considerable number of illegal aliens, and that there was a genuine need to speed up the processing of applications. What was of concern with regard to the Dutch accelerated process was that it appeared not just obviously "false" claims were routed to the fast track; very complicated cases also appeared to be considered under that procedure. In that connection, he wondered if an asylum-seeker who was transferred from the accelerated to the regular procedure kept the same lawyer. Moreover, the burden of proof was not static. It shifted depending on circumstances. In the accelerated procedure, in particular, he was concerned that that presented a problem. The fast-track was indeed very fast. For all the forgoing concerns, the Netherlands was urged to review the existing accelerated procedure for asylum applications.
In that connection, Mr. Mavrommatis said he would also appreciate further information on the lists of "Unsafe" and "Safe" countries with regard to refoulement, and how those categories were used in the asylum procedure.
NORA SVEAASS, the Committee Expert serving as Co-Rapporteur for the report of the Netherlands, addressing the issue of human rights training for law enforcement and prison staff, wondered what specific training was received by such staff on the prohibition against torture, including on the provisions of the Convention, and requested some information on what effect that had had.
Regarding training for medical personnel, in particular in the context of the asylum procedure, the Istanbul Protocol provided a guideline for such staff, and Ms. Sveaass encouraged the Netherlands to incorporate that Protocol in its asylum procedure. That would imply that medical personnel were trained in the use of the Protocol, she added.
Ms. Sveaass said that she had conflicting information in the report and from non-governmental organizations on time limits for detention. She would appreciate clarification on how long a person could be held in detention without access to a lawyer or being presented before a judge. Also, what was the maximum limit for detention in police cells?
Concerning routine strip searches, practiced in maximum security facilities, Ms. Sveaass would appreciate information on how that provision had been amended.
Turning to the situation in the Netherlands (Antilles), Ms. Sveaass was concerned that juveniles, adults, and those suffering from psychological disorders were all kept in the same detention facilities in Bon Futuro. She would appreciate information on when that situation would be addressed. Also worrisome was the high rate of detainees that never went to trial in Aruba.
Regarding rehabilitation for those who had suffered from torture, Ms. Sveaass reiterated her appreciation for the help that the Netherlands was bringing to such people throughout the world. However, she would appreciate details of how those who had been victims of torture in the Netherlands were rehabilitated and compensated.
Other Experts then offered comments and raised a series of questions on a number of questions, including corporal punishment in the home and in educational settings; juvenile justice; violence against women; whether the Rome Statutes for the International Criminal Court had been incorporated into the legal system of the Netherlands; whether there were any statistics on the number of asylum requests rejected, under the Dublin agreement, because that individual had earlier applied to and been rejected by another European country; if audiovisual recordings were mandatory during all interrogations; merely administrative punishments in a case involving Aruban police officials found guilty of misconduct; what measures were taken to prevent sexual violence in prisons; and whether raids still being carried out on Bon Futuro, in the Netherlands (Antilles).
An Expert, supporting the Chairperson's position that the Netherlands should have granted jurisdiction to bring complaints of torture in the Bouterse case, whether or not sufficient links had been established, noted that, in any case, one of Bouterse's claims had been that the victims were working on behalf of the Dutch Government. Might that not have constituted a substantial enough link to justify Dutch jurisdiction of the matter under the Supreme Court ruling?
An Expert said that, according to information received, there were two boats in the territorial waters of the Netherlands that were used to hold asylum-seekers and clandestine immigrants, and asked for details.
Regarding the rise in Islamophobic and Anti-Semitic acts in the Netherlands, including the high-profile killing of Pym Fortuyn and that of the filmmaker, Theo Van Gogh, an Expert wondered whether those murders were indicative of a problem with regard to minority populations in the Netherlands and wondered what was being done to prevent acts of ill-treatment in that regard.
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For use of the information media; not an official record
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