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COMMITTEE AGAINST TORTURE HEARS RESPONSE OF THE NETHERLANDS

08 May 2007

Committee against Torture
8 May 2007


The Committee against Torture this afternoon heard the response of the Netherlands to questions raised by Committee Experts on the fourth periodic report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Monday, 7 May, the delegation, which was led by Piet de Klerk, Human Rights Ambassador with the Ministry of Foreign Affairs of the Netherlands, reiterated that in the Netherlands the prohibition against torture was non-derogable. A concept like "rendition" had no place in the policy of the Netherlands, and if the Government came across cases in which presumed terrorists had been transported outside the framework of the rule of law, it would take action against such activities. In addition, the Government had never actually relied on diplomatic assurances to ensure that a person sent back to a particular country would not be tortured. The weaknesses of that concept were apparent.

As to the nexus between the December murders (the Bouterse case) and the Netherlands legal order, the International Crimes Act (2003) provided for jurisdiction when: a Dutchman abroad committed an act of torture; when a Dutchman abroad had been a victim of torture; or when a foreigner who had committed an act of torture was currently within the jurisdiction of the Netherlands. The delegation did not believe that those criteria left room for the Netherlands to become a safe haven for torturers.

The Committee will submit its conclusions and recommendations on the report of the Netherlands towards the end of the session on Friday, 18 May 2007.

As one of the 144 States parties to the Convention against Torture, the Netherlands is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

When the Committee reconvenes at 10 a.m. on Wednesday, 9 May, it is scheduled to begin consideration of the initial report of Japan (CAT/C/JPN/1).

Response of the Netherlands

Responding to a series of questions raised by Committee Experts on Monday, 7 May, at the outset, the delegation of the Netherlands wished to clarify that the Kingdom of the Netherlands was one sovereign entity under international law, but it consisted of three co-equal partners that were fully autonomous in their internal affairs, and also in the manner in which they implemented international commitments. However, the Kingdom was engaged in the process of constitutional reform, which would give two of the five islands of the Netherlands (Antilles) – Curacao and St. Marteen – country status, that was, a status more or less comparable to that of Aruba. The other islands would have a direct link with the Netherlands and would have a position that was largely comparable with Dutch municipalities.

Regarding the need to preserve human rights while combating terrorism, the delegation reiterated that in the Netherlands the prohibition against torture was non-derogable. It was worth noting that in a pending case before the Strasbourg Human Rights Court, dealing with the principle of non-refoulement and a terrorist suspect, the Netherlands had never taken the position that the absolute prohibition in article 3 of the European Convention on Human Rights would not be valid in view of the fight against terrorism.

A concept like "rendition" had no place in the policy of the Netherlands, and if the Government came across cases in which presumed terrorists had been transported outside the framework of the rule of law, it would take action against such activities, the delegation stressed.

On the issue of diplomatic assurances, the Government had never actually relied on such assurances to ensure that a person sent back to a particular country would not be tortured, the delegation added. The weaknesses of that concept were apparent. On the other hand, the Netherlands did not rule out making use of such assurances in the future, because it was considered that in given circumstances such assurances could be a valuable part of broader safeguards.

Regarding ratification of the Optional Protocol, the Netherlands was still discussing how to organize the necessary national preventive mechanism set out in the Protocol. Currently there were different inspectorates in the Netherlands, some of them functioning in a decentralized manner. However, any decision-making in this area would be done with effective interaction with the Optional Protocol Subcommittee foremost in mind.

The Rome Statute had been incorporated into domestic law through the International Crimes Act, the delegation said, and entered into force on 1 October 2003. That Act covered the most serious crimes under international law, such as grave human rights violations and violations of international humanitarian law. It penalized crimes against humanity and meticulously described war crimes. Universal jurisdiction was established over war crimes and torture, and wide extraterritorial jurisdiction was established over genocide and crimes against humanity.

In terms of the order of priority of laws, the Netherlands was one of the very few countries in which treaty law had preference over the Constitution. In addition, the Constitutionality of Acts of Parliament and treaties were not reviewable by the courts.

On the Bouterse case (also referred to as the "December murders" case) and why the Supreme Court had rejected jurisdiction, the delegation could merely refer to the fact that that decision had become somewhat outdated by the adoption of the International Crimes Act.

With regard to the issue of the nexus between the December murders and the Netherlands legal order, the International Crimes Act provided for jurisdiction when: a Dutchman abroad committed an act of torture; when a Dutchman abroad had been a victim of torture; or when a foreigner who had committed an act of torture was currently within the jurisdiction of the Netherlands. The delegation did not believe that those criteria left room for the Netherlands to become a safe haven for torturers. At the same time, it was necessary to take into account whether the Dutch Public Prosecutor's Office would be able to effectively prosecute such a case.

With respect to responsibility for the deaths of detainees to be judged by international courts in the Netherlands, the delegation pointed out that, pursuant to the agreement between the Netherlands and the United Nations concerning the headquarters of the International Criminal Tribunal for Yugoslavia, the host country – that is, the Netherlands – did not exercise criminal jurisdiction over persons present in its country who were to be or had been transferred as a suspect or an accused to the premises of the International Tribunal. Furthermore, Dutch penitentiary law was not applicable to measures taken in respect of detention of the detainees of the International Tribunal. In addition, in May 1995, the International Committee of the Red Cross accepted the proposal of the Tribunal to act as an independent and impartial inspecting authority for the detention unit of the Tribunal.

In terms of training of police and prison officers, the delegation said that police training contained a module on "care of detainees" in which the treatment of prisoners constituted an important part. There was also a module on the legal context of police work and on the mandate of police officers respect for human rights, including the prohibition of torture, which formed an important part of that module. In addition to coaching and on-the-job-training, there was also a manual on the care of detainees in police cells. Regarding prison staff, they received training with a view to preventing torture, and there was a protocol on integrity as well as elaborate instructions as to how and under what circumstances to use violence against detainees.

Dutch law did not provide for mandatory presence of a lawyer at the first police interview, the delegation said. Instead, it had been decided that interrogations of serious criminal cases would all be recorded audio-visually. In the course of 2006, following discussions in the Parliament, the mandatory audiovisual recording of criminal interrogations were expanded to include a much wider range of cases.

A suspect had to be brought before a judge within three days and 15 hours. In case of a shortage of cells, the maximum period of remand in police cells allowable was 10 days. However, the delegation stressed that the normal period for such detentions was much shorter.

Regarding the study on inmates in maximum-security prisons, after reviewing the study, the Government determined that it was not possible to sustain the conclusions that such measures had lasting psychological effects. However, following the study the Government had made a number of changes based on the report’s conclusions. Importantly, strip searches were no longer mandatory in high-security facilities.

On the accelerated procedure for asylum applications, the delegation observed that the procedure had not been instituted merely for reasons of efficiency. One of the main reasons for instituting the procedure had been the Immigration Service's determination that, in a substantial number of asylum cases, prolonging decision, sometimes over one or two years, did not affect the final outcome. As a safety measure, the delegation noted that if more than 48 working hours (about five working days) were required to reach a decision in the case, the asylum application was transferred to the regular procedure. Indeed, some 30 per cent of all cases tracked to the accelerated procedure were finally so transferred. Furthermore, there was free legal assistance, interpreters were provided, and remedies to a negative finding were available.

Regarding the burden of proof in the accelerated procedure, the Netherlands was of the view that in asylum cases it was not unduly prejudicial to place the burden of proof with the asylum-seeker. Moreover, in general, the authorities had an active duty to investigate, the delegation stressed. Children below 12 years of age could not be dealt with in an accelerated procedure. Children between 12 and 18 could be, but would require an individual assessment.

Detention of asylum-seeking minors was only possible in two instances: unaccompanied children at the border could be detained in order to establish their age; and children could be kept in a detention centre to regroup them with their families, at their family's request. The maximum duration of such detention was four weeks.

On the issue of the fixed platforms used for temporary detention of aliens, the delegation said that, first, there were three platforms which had been former hotel boats and that had previously been used to house former oil staff and British army officers, which were currently in use for detainees. In addition, there were two new platforms used to house detainees that were built earlier this year, which differed from the other three in that they fully complied with the standard design for penitentiary facilities.

These platforms were only temporary: it was planned that the old platforms would be used for another five years; the new platforms would be in use for 25 years. The platforms housed illegal male migrants whose nationality and identification remained to be determined. The regime for that detention was fully consonant with the Dutch penitentiary regime, including provisions for visits, recreation activities, sports, and religious services. Moreover, every illegal migrant was appointed a lawyer, free of charge, who was allowed to visit their client every day.

On the Istanbul Protocol, the delegation reiterated the Government's standing position: that it was impossible to prove through medical examinations what were the causes of the harm as evidenced by the physical marks found on asylum-seekers. For that reason, they did not contemplate becoming a party to the Protocol.

Genital mutilation was considered a ground for seeking asylum in the Netherlands, the delegation confirmed. A residence permit could be granted if there were a real risk that the individual would not be protected from that practice if they were returned to their country of origin.

Turning to the situation in Aruba, the delegation said that the maximum duration of pre-trial detention in Aruba was 116 days. The first 10 days were spent in police cells, and suspects were transferred thereafter to prison cells. After 116 days a judge was required to monitor the status of such detention on a regular basis. In general, suspects were tried within four months. However, under exceptional circumstances it was possible to extend the pre-trial detention for an additional month or two, where the suspect had changed lawyers, or where the investigation could not be completed, for example.

In cases of sexual assaults that occurred in prison, the prison staff advised the prisoner to lodge a formal complaint with the police. In cases where the prison staff themselves were the perpetrators, a complaint could be lodged with an independent body. Regardless of whether a complaint were lodged or not, the appropriate medical and psychological care were provided. It was important to underscore that such complaints had been extremely rare in Aruba. In 2006, for example, only one incident of a sexual assault by another prisoner had been registered. The prisoner had refused, however, to lodge a formal complaint. The necessary psychological and social care had been provided.

Regarding the situation in the Netherlands (Antilles), all prison staff received training in human rights, including in the relevant international treaties, among them, the Convention against Torture. In addition, the delegation pointed out that prisoners were also informed of their rights under relevant international conventions.

In the Netherlands (Antilles) each person could have access to a lawyer on the day they were detained, the delegation said. The maximum period of detention in police cells was 18 days, after which the prisoner had to be taken to a remand centre, either within or outside of the prison.

Juvenile offenders in the Netherlands (Antilles) could not be sent to prison. Juveniles were housed in a special unit, a new facility that had been funded by the Dutch Government. The delegation said that all the basic needs of such juveniles – such as nutrition, education, medical care, recreational and social activities – were provided in that unit.

Questions by Committee Experts

ANDREAS MAVROMMATIS, the Committee Chairperson serving as Rapporteur for the report of the Netherlands, said that the delegation of the Netherlands had provided exemplary replies to the questions put by the Committee.

With regard to the nexus for jurisdiction in the Suriname case (Bouterse case), Mr. Mavrommatis agreed that there was no obligation on the Government of the Netherlands to extradite the wrongdoer. However, he welcomed the information that should the accused enter Dutch territory, the Netherlands would have jurisdiction.

Finally, regarding the new accelerated asylum procedure, Mr. Mavrommatis was concerned that there were no concrete guidelines to determine which cases were referred to such a procedure and which were not. There should also be a provision for the extension of the very short time limits provided for in that measure. Finally, he did not understand why asylum-seekers from the list of countries, such as Somalia, Iraq, and Darfur, which the Netherlands considered "unsafe" could not participate in that procedure. That appeared contradictory to him.

NORA SVEAASS, the Committee Expert serving as Co-Rapporteur for the report of the Netherlands, wished to counter the delegation's objection to the Istanbul Protocol, on the basis that medical certificates issued in accordance with that Protocol could be used as proof of torture. Such a certificate might never be able to prove what had actually happened, but it could certainly serve to make a story more credible and it could shed some light on the question.

Other Experts asked questions on a number of topics, including international cooperation measures to prevent human trafficking.

Response by Delegation

Responding to additional questions raised, the delegation said that trafficking was an increasing problem. The Netherlands was a party to all or nearly all international instruments in that regard, not only in the context of the United Nations, but also regional instruments and bodies, such as the Organization for Security and Cooperation in Europe and the European Union.

Finally, the delegation wished to stress that no complicated cases were referred to the accelerated asylum procedure. It was true, however, that there was not a neat list of criteria for which cases were routed to the accelerated procedure. That was an issue that bore further clarification and should be looked into.
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