21 November 2018
The Committee against Torture this afternoon concluded its consideration of the seventh periodic report of the Netherlands on the efforts made by the State party to implement the provisions of the Convention against Torture.
In four introductory statements, dignitaries from Curaçao, Sint Maarten, Aruba and the European part of the Kingdom of the Netherlands informed the Committee about their efforts to implement the Convention.
Quincy Girigorie, Minister of Justice of Curaçao, said that the prevention and prosecution of torture and inhumane or degrading treatment were part of Curaçao’s legal framework. The Ministry had installed the Commission for the Supervision of Detainee Care in 2015 in order to ensure independent and impartial supervision of the treatment of people in detention facilities. Curaçao had been facing an enormous influx of Venezuelans, which posed many challenges to the island in terms of financial and capacity constraints.
Van Hugh Cornelius de Weever, Minister of Justice of Sint Maarten, said that Sint Maarten had taken measures to improve the conduct of law enforcement personnel. It had also adopted a new Penal Code, legislation to deal with abuse by public officials, the Joint Code of Criminal Procedure, and mechanisms for support of a victim fund. Significant improvements to the penitentiary system had been made in the period between 2014 and 2018, including the opening of a separate juvenile detention centre and the reintroduction of the electronic monitoring system.
Alexander Van Dam, Prosecutor General of Aruba, underlined that Aruba had made important steps in the fight against human trafficking and migrant smuggling over the past several years, with the establishment of the Human Trafficking and Migrant Smuggling Taskforce, and the appointment of the National Counter-Trafficking Coordinator, focusing on a multilingual awareness raising campaign and a national hotline. Aruba was confronted with an increasing number of migrants and asylum seekers from Venezuela.
Siebe Riedstra, Secretary General at the Ministry of Justice and Security of the Netherlands, said the Convention’s absolute ban on torture was fundamental to the legal order of the Netherlands. The Convention was an important standard not only for the Dutch foreign policy, but also for domestic policies. Many of the domestic priorities were directly related to the Convention standards, including fighting trafficking in persons and exploitation, domestic violence, and sexual abuse and other forms of violence against children.
In the ensuing discussion, the Committee Experts observed that certain international conventions were applied in parts of the Kingdom of the Netherlands but not in others, such as the Optional Protocol to the Convention against Torture, and the Geneva Conventions on refugees. They inquired whether the Kingdom intended to harmonize the Code of Criminal Procedure across all its parts, and whether it would consider withdrawing its reservation on territorial exclusion with respect to the Optional Protocol to the Convention. They further asked about access to a lawyer, trafficking in persons and smuggling of migrants, functionality and independence of the national mechanism for the prevention of torture since the administrative reform of 2010, monitoring of prisons rented to other States parties and of those maintained by the Dutch armed forces involved in military operations abroad, (such as in Mali and Afghanistan), unannounced visits to detention units, the use of tasers, pepper spray and invasive body searches, expulsion of foreigners under the Dublin system, and diplomatic guarantees. Other issues raised included training on the Convention against Torture, forced institutionalization in psychiatric care establishments, reports of sexual abuse of Venezuelan migrants in police detention in Curaçao, automatic detention of migrants upon arrival at the Schiphol airport, medical screening of migrants, juvenile justice, solitary confinement, redress for victims of torture, ethnic profiling in policing, and treatment of terrorist suspects in high-security prisons.
In concluding remarks, Quincy Girigorie, Minister of Justice of Curaçao, assured the Committee that the delegation would take its recommendations very seriously. The Kingdom of the Netherlands was committed to eradicating torture and ill-treatment.
Jens Modvig, Committee Chairperson, thanked the delegation for the well-organized responses and he reminded that the delegation could submit additional replies in writing within 48 hours.
The delegation of the Netherlands consisted of representatives of the Ministry of Justice of Curaçao, the Ministry of General Affairs of Curaçao, the Ministry of Justice of Sint Maarten, the Department of Immigration Services of Sint Maarten, the Department of Foreign Affairs of Aruba, the Dutch Ministry of Justice and Security, the Dutch Ministry of Foreign Affairs, and the Permanent Mission of the Netherlands to the United Nations Office at Geneva.
The Committee will next meet in public on Thursday, 22 November, at 3 p.m. to finish its consideration of the seventh periodic report of Canada (CAT/C/CAN/7).
The seventh periodic report of the Netherlands can be read here: CAT/C/NLD/7.
Presentation of the Report
QUINCY GIRIGORIE, Minister of Justice of Curaçao, explained that since 2010 the Kingdom of the Netherlands consisted of four autonomous countries: the Netherlands, which included the Caribbean islands of Bonaire, St Eustatius and Saba as special municipalities, and the island nations of Aruba, Curaçao and Sint Maarten. For Curaçao, the provisions of the Convention were of fundamental and deep importance. Equality, fair treatment and self-determination were the core principles on which Curaçao was founded. No crime tarnished those values more than torture and inhumane or degrading treatment. The prevention and prosecution of such acts were part of Curaçao’s legal framework. Aside from provisions in the Criminal Code of Procedure that stipulated that public prosecutors and judges had to inspect the prison twice a year, the Minister of Justice had installed the Commission for the Supervision of Detainee Care in 2015 in order to ensure independent and impartial supervision of the treatment of people in detention facilities. Recently, the police, the Public Prosecutor’s Office and the Ministry of Justice had signed a cooperation agreement to improve the treatment of victims of sexual assault cases. The aim was to establish a one-stop-shop where victims could obtain legal, psychological and medical assistance.
In order to better sensitize detainees about their rights and obligations, newly arrived inmates received a booklet with the house rules, their rights and information on how to file complaints. Those booklets were published in Papiamentu, Dutch, Spanish and English. In 2017, the Ministry of Justice and the Public Prosecutor’s Office had spearheaded an extensive information campaign on human trafficking, which aimed to raise awareness about the exploitation of hostesses in bars, the so-called “Trago girls.” At the moment, there were three ongoing investigations of human trafficking. Victims who served as witnesses were accommodated in a secure location and they received counselling. In conclusion, Mr. Girigorie noted that Curaçao had been facing an enormous influx of Venezuelans, which posed many challenges to the island in terms of financial and capacity constraints. Curaçao, therefore, continuously sought cooperation and assistance within and outside the Kingdom in handling that regional crisis.
VAN HUGH CORNELIUS DE WEEVER, Minister of Justice of Sint Maarten, highlighted that Sint Maarten remained committed to the promotion and protection of human rights, which was enshrined in article 3 of the national Constitution, which stated that no one could be subjected to torture or to cruel, inhumane or degrading treatment or punishment. In that regard, Sint Maarten had taken measures to improve the conduct of the law enforcement personnel. It had also adopted a new Penal Code, legislation to deal with abuse by public officials, the Joint Code of Criminal Procedure, and mechanisms for support of a victim fund. The Government maintained a strong relationship with civil society and it subsidized non-governmental organizations and other social partners to provide redress. Significant improvements to the penitentiary system had been made in the period between 2014 and 2018, including the opening of a separate juvenile detention centre and the reintroduction of the electronic monitoring system. Unfortunately, hurricane Irma in September 2017 had incurred severe damage to the Pointe Blanche prison, the Simpson Bay holding facilities, the juvenile detention centre, the Justice Academy, and police equipment and vehicles. The necessary investment was challenging, as Sint Maarten did not receive any standing budgetary or financial support from the Netherlands. The top priority remained the repair of prisons for a healthy and dignified detention, Mr. De Weever stressed.
ALEXANDER VAN DAM, Prosecutor General of Aruba, highlighted some important areas of progress and recent developments in the implementation of the Convention. The new Penal Code of Aruba had come into force in 2014. In response to the judgment of the European Court of Human Rights in the Murray case, an inter-country task force in the Caribbean parts of the Kingdom of the Netherlands had been installed. The objective was to provide a report supporting decision-making on the realization of a forensic care facility for the reception and treatment of detainees with psychological and psychiatric disorders. The proposed measures would ensure compliance with article 3 of the European Convention on Human Rights and of the Convention against Torture. Special attention was given to the infrastructure of the correctional facility. A task force established by the Ministry of Justice, Security and Integration was preparing a project plan for a new facility.
Aruba had also made important steps in the fight against human trafficking and migrant smuggling over the past several years. Following the instalment of the Human Trafficking and Migrant Smuggling Taskforce, the National Counter-Trafficking Coordinator had been appointed. Their focus was on a multilingual awareness raising campaign and a national hotline. In 2017, a dedicated investigative law enforcement team and special prosecutor for cases of human trafficking and migrant smuggling had been installed. Finally, Aruba was confronted with an increasing number of migrants and asylum seekers from Venezuela. It had an asylum procedure for the determination of refugee status, which had been revised recently in line with international regulations, Mr. Van Dam concluded.
SIEBE RIEDSTRA, Secretary General at the Ministry of Justice and Security of the Netherlands, reminded that each country within the Kingdom of the Netherlands was autonomous in its implementation of the obligations stemming from the Convention against Torture. The Convention’s absolute ban on torture was fundamental to the legal order of the Netherlands. The strong commitment to the United Nations treaty body system in general was exemplified by the Dutch annual contribution to the Office of the High Commissioner for Human Rights. Combatting torture globally was a fundamental objective of the Dutch human rights policy. The Convention was an important standard not only for the Dutch foreign policy, but also for domestic policies. Many of the domestic priorities were directly related to the Convention standards, including fighting trafficking in persons and exploitation, domestic violence, and sexual abuse and other forms of violence against children. Unfortunately, those phenomena still occurred in the Dutch society, but the authorities continued their efforts to achieve further improvements. The House of Representatives had passed a legislative proposal on return and immigration on 19 June 2018, which was currently under the scrutiny of the Senate. The bill reflected the principle – and the current practice – of administrative detention as a measure of last resort and it included, among other things, alternative measures to administrative detention. With the adoption of the act, administrative detention would no longer fall under the Custodial Institutions Act and it would thus be better tailored to the situation of concerned migrants.
The authorities had recently opened a state-of-the-art correctional institution at the island of Bonaire, which met all international rules and requirements. It had 113 places and it offered every detainee a choice of reintegration and resocialization programmes in order to improve their chances in the labour market. All efforts were made to implement meaningful daily activities in order to reduce recidivism. Turning to trafficking in persons, Mr. Riedstra noted that the problem was often invisible and the fight against trafficking required close cooperation between different parties. Accordingly, on 13 November 2018 the Dutch Government had published the national action plan “Together against Trafficking in Human Beings.” The authorities had also launched the campaign “It doesn’t stop by itself. Reach out!” on the island of Bonaire against domestic violence. In the European part of the Netherlands, the Government had launched the programme called “Violence doesn’t belong at home.” Finally, Mr. Riedstra stressed the importance of fighting terrorism, which constituted a serious threat to society and human rights. There had been some criticism of the terrorist units in Dutch prisons, and the Government had taken note of them. It had demonstrated willingness to undertake several reforms, such as new in-house regulations, and individualized risk assessments to differentiate between categories of detainees.
Questions by the Country Co-Rapporteurs
ABDELWAHAB HANI, Committee Member and Country Co-Rapporteur for the Netherlands, observed that certain conventions were applied in all parts of the Kingdom of the Netherlands but not in others, such as the Optional Protocol to the Convention against Torture, and the Geneva Conventions on refugees. It was the Kingdom’s responsibility to ensure that human rights were protected in all its parts, Mr. Hani stressed.
Turning to the State party’s interpretation of article 1 of the Convention, Mr. Hani underlined that sanctions for torture-related crimes had to be understood in terms of international law and not simply national law. The European part of the Kingdom referred to a legal provision relating to exerting pressure on a person, which was not entirely in line with article 1 of the Convention. Was there a range of sanctions corresponding to the seriousness of the crime of torture?
As for the orders by superiors, the Country Co-Rapporteur asked how the courts in the European part of the Kingdom could interpret relevant legal provisions in a way that would not allow impunity.
Mr. Hani further wondered about shortcomings in the definition of the crime of torture in Curaçao. How many times had the Convention against Torture been invoked in Curaçao, Sint Maarten and Aruba?
Did the Kingdom intend to harmonize the Code of Criminal Procedure across all its parts? How many times had the Convention against Torture been invoked in Dutch courts? Why was it that Dutch courts in the European part invoked the European Convention on Human Rights more than the Convention against Torture?
Moving on to access to a lawyer, Mr. Hani asked about the legal provision, which stipulated that legal assistance could be refused due to security concerns. Did migrants placed in isolation have access to a lawyer? What was the number of lawyers available on the islands of Bonaire, Sint Eustatius and Saba? Had the provision on the suspension of the right to inform the legal representative of a minor in custody ever been used? What was the number of complaints about the breach of fundamental legal safeguards? Was the provision on the presence of a lawyer during an interview followed for all migrants detained by the police?
On trafficking in persons, Mr. Hani reminded of the budgetary difficulties in the Caribbean part of the Netherlands in implementing relevant policies. Had there been any lessons learned from the first survey on the nature and extent of trafficking in persons? Were there updated statistics on trafficking in persons and had there been new sanctions handed down in the past five years? Had the authorities assessed victims’ access to numerous awareness raising campaigns on trafficking in persons?
Turning to the Victoria case (women from Colombia and the Dominican Republic trafficked for work in a sex club), Mr. Hani noticed the differential treatment of the defendants, who included public servants.
As for the ratification of the Optional Protocol to the Convention against Torture, the Country Co-Rapporteur asked whether only the European part of the Kingdom of the Netherlands applied the Optional Protocol. Would the Kingdom of the Netherlands consider withdrawing its reservation on territorial exclusion? Had the authorities assessed the functionality and independence of the national mechanism for the prevention of torture since the administrative reform of 2010?
Mr. Hani further asked about the monitoring of prisons rented to other States parties to the Convention against Torture. Could the national mechanism for the prevention of torture monitor the detention centres maintained by the Dutch armed forces involved in military operations abroad, such as in Mali and Afghanistan? Had members of the Dutch army operating abroad received training on human rights?
How did the State party ensure the enforcement of the Convention when it contracted private security companies? How did it ensure that employees of such companies received some training on the content of the Convention?
Did the national human rights institution have the mandate to carry out unannounced visits to detention units in all four entities of the Kingdom of the Netherlands? Did civil society working on detention have the authority to carry out such visits? Were Curaçao, Sint Maarten and Aruba considering establishing national human rights institutions?
On the use of tasers, Mr. Hani asked about the results of a study carried out on that topic. Would the police use tasers in everyday work, or only in certain circumstances? Was the use of pepper spray regulated, especially when it came to minors and pregnant women? Had the authorities regulated the use of invasive body searches?
Speaking of the prohibition of the collective expulsion of foreigners under the Dublin system of the European Union, Mr. Hani asked about appeals against transfer decisions. How had the Dutch authorities dealt with the expulsion of foreigners to other European Union countries that had problems with their asylum systems? Did they carry out an individual assessment of asylum seekers? How many complaints had been presented under the Dublin systeme?
In the Caribbean part of the Kingdom where there was a massive arrival of Venezuelan nationals, did the authorities know about any collective expulsions? How many people had been sent back under the exclusion clause of the 1951 Convention relating to the Status of Refugees? Had the Kingdom of the Netherlands signed any agreements with third countries on diplomatic guarantees?
How many out of the recorded 400 extradition requests had been granted by the State party? Had the State party signed any bilateral extradition agreements, which included the provisions of the Convention? When would the State party amend its Law on Statelessness? Had the State party developed new laws on clinical/medical research?
HONGHONG ZHANG, Committee Member and Country Co-Rapporteur for the Netherlands, reminded that in 2016 the Dutch Agency for Prison Establishments had provided training on the Convention against Torture for 30 per cent more personnel than in 2015. However, the State party did not provide information about the size of the target group, nor on the training provided to law enforcement officers, penitentiary personnel and medical professionals in Curaçao, Sint Maarten and Aruba. Had the State party developed measures to assess the effect of such training?
Turning to forced institutionalization in psychiatric care establishments, Ms. Zhang noted that the admission rate had increased by 21 per cent between 2003 and 2017, whereas courts had ordered 42 per cent more of such decisions. What were the reasons behind that trend? What could the State party do to reduce the number of involuntary placements and to strengthen the monitoring of such establishments? What were the legal grounds for involuntary institutionalization in psychiatric establishments? What were the guidelines for the institutionalization of persons with intellectual disabilities?
What was the number of persons who had been injured due to the excessive use of restrictive measures in places of detention in Curaçao? There had been reports of sexual abuse of Venezuelan migrants in police detention in Curaçao. Had there been any investigation into those allegations?
The Netherlands did not use alternative detention measures as much as other European countries. Was pre-trial detention really used as the measure of last resort? What were the legal rules on pre-trial detention within the framework of anti-terrorism struggle? Were there measures in place in Curaçao and Aruba to ensure that detained persons were brought in front of a judge within 48 hours of the arrest?
When it came to asylum seekers, undocumented migrants and unaccompanied minors, Ms. Zhang expressed concern about automatic detention upon arrival at the Schiphol airport, which could trigger more suffering for persons who had already suffered human rights violations. A positive development was that in September 2013, the Dutch authorities had adopted a new policy for families with children at Schiphol. In 2013, there were almost 700 asylum seekers at Schiphol, and in 2014 about 1,060. What were the statistics for the subsequent years?
The Committee was concerned that the authorities did not clearly distinguish between migration detention and criminal detention. Migrants were kept in cells monitored by video cameras and fenced by high walls. The Schiphol centre had more than 450 cells for asylum seekers waiting for the decision on their asylum applications, as well as drug traffickers. Some 97 per cent of migrants were detained in cells with several other persons. Migrants were also frequently held in isolation.
Did the State party intend to take measures to ensure that migrants arriving at Schiphol airport were not automatically detained? What measures had the authorities adopted to avoid the detention of vulnerable persons, such as victims of torture and those gravely ill? The State party had not provided information about the repeated detention of migrants. Could the delegation comment on the information that the cumulative detention of migrants had gone beyond 18 months? What was the number of investigations initiated regarding alleged abusive behaviour in detention centres in all territories of the State party? What were the criteria for ordering strip and body-cavity searches?
On juvenile justice, Ms. Zhang noted that in the Caribbean part of the Kingdom minors of the age of 16 could be tried under the general Penal Code and could be held in detention with adults. The Committee was also concerned about the legal provision that allowed minors to be interrogated in the absence of a lawyer or parents. What had the State party done to promote alternative detention measures for juveniles?
Ms. Zhang further inquired about the investigation of cases of prison violence in Curaçao, Sint Maarten and Aruba, the use of solitary confinement in prisons there, and measures to ensure the confidentiality of prisoners’ complaints.
What measures for redress and guarantees of non-repetition were offered to victims of torture in all four territories of the State party? Were there any special rehabilitation programmes for victims of torture? The Committee was concerned that the investigation into the fire that had taken place at the Schiphol detention centre in 2005 had not led to any officials being charged.
Would the training on how to avoid ethnic profiling in policing, which had been launched in 2015, be continued? Ms. Zhang noted that prisons of high security, such as those holding terrorists, did not distinguish between suspects and condemned inmates. What was the number and nature of complaints of detainees held in the so-called “terrorist wings”?
Finally, Ms. Zhang asked about the application of article 15 of the Convention on the use of testimonies obtained under duress.
Questions by Other Committee Members
An Expert observed that detention conditions for migrants awaiting decision on their asylum demand in the Caribbean part of the State party were harsher than detention conditions for sentenced persons. They were, in fact, subject to a criminal detention system. Would the State party consider raising the age of criminal liability, which currently stood at 12?
Inter-prisoner violence in the Caribbean part of the State party was of serious concern, another Expert reminded. Had any officials been punished for the excessive use of force in the prisons in Sint Maarten and Aruba?
One Expert inquired about the allegations of the ill-treatment of patients committed by special intervention teams in psychiatric establishments in the European part of the State party.
How many protection orders had the Netherlands issued in the context of domestic violence? The rate of honour-related violence in the European part of the State party was high. Had the study on violence against children been completed?
What kind of rehabilitation was provided to migrant victims of torture and ill-treatment? Could they receive psychological support? How did the State party deal with the urgent medical needs of migrants?
JENS MODVIG, Committee Chairperson, reminded of the recommendations of the Subcommittee on the Prevention of Torture about health conditions in prisons, namely about medical screening for HIV/AIDS and other infectious diseases. The Subcommittee had suggested stronger recording of serious injuries occurring in prisons. What had the State party done to implement those recommendations?
Replies by the Delegation
QUINCY GIRIGORIE, Minister of Justice of Curaçao, clarified that the National Ordinance of 1995 criminalized torture and any other inhumane or degrading treatment, and it stipulated that it was punished with imprisonment of a maximum of 15 years. In case of death, the guilty person would be imprisoned for life.
As for access to a lawyer, it was regulated by the Curaçao Code of Criminal Procedure. Following the Salduz judgment of the European Court of Human Rights of November 2008, the Public Prosecutor’s Office had extended the right of access to a lawyer. The new instruction passed in 2009 stipulated that all suspects under the age of 18 had to have a lawyer prior to interrogation and during interrogation. The right to a lawyer had again been extended in 2016, according to which the investigating officer was obliged to inform all arrested persons, adults and minors, prior to the interrogation on their right to have a lawyer during interrogation. All detained migrants enjoyed the same access to legal counsel.
In terms of refusal of access to legal counsel, Mr. Girigorie explained that such a refusal could occur due to terrorism charges. In the interest of national security, legal assistance might be denied until the situation was normalized. In total, Curaçao had 204 registered lawyers. The police would not start an interrogation without the presence of parents, guardians or family members if suspects were underage or vulnerable adults. The parent or guardian would also be immediately informed about the detention. Once detained, adults had the right to inform a family member of their detention. No person had been denied their first call to a third party.
Moving on to the Victoria case in 2014, the Minister explained that the investigation concerned three offenders who had subjected foreign women to sex trafficking in a nightclub. All nine victims were women from Colombia and the Dominican Republic. One of the defendants was a public servant employed by the police. He had been acquitted by the court for the charges of sex trafficking, but he had been convicted for illegal possession of a fire arm and for the breach of official secrecy. He had been fired from the police force and charged with 200 hours of community service. Other sentences in the case included 36 months in prison with a probation period of three years for the convicted nightclub owner, and 18 months in prison, of which six months conditional, with a probation period of three years for the convicted nightclub manager. No compensation had been granted in the Victoria case since the victims had chosen to start a civil suit.
Mr. Girigorie confirmed that the Optional Protocol to the Convention against Torture was not applicable in Curaçao, but he added that the intention was to have it applicable as soon as possible. Turning to the inspection of detention places, he explained that health inspectors visited detention places once a year. In addition, pursuant to article 627 of the Code of Criminal Procedure, the public prosecutor had to perform cell inspections twice a year randomly and report all irregularities to the Minister of Justice. The Commission for the Supervision of Detainee Care inspected all detention centres monthly without prior notification.
The establishment of a human rights institution was still in development. It had been brought under the auspices of the Ombudsperson in order to guarantee impartiality. When a detainee serving a life imprisonment sentence had served 20 years, he or she could appear before the Court of Appeal and could be conditionally released.
Tasers and pepper spray were not used in Curaçao, whereas all body searches were regulated by article 78 of the Criminal Code of Procedure. Police officers were obliged to take a comprehensive skills training course, which consisted of management of the use of force, use of fire arms, handcuffs and police dogs, arrest and self-defence skills, and fire arms proficiency. Curaçao had not yet assessed the effectiveness of such training.
Between 2013 and 2018, there had been two cases of death in custody, and both persons had died of natural causes. The Government of Curaçao had never received any complaints of immigrants being sexually assaulted.
A suspect could be first detained in police custody for 48 hours, after which he or she had to be brought in front of the examining judge. Curaçao had recognized the need to improve standards of pre-trial detention and it had introduced different alternatives to pre-trial detention, such as “quick” justice and electronic surveillance. Pre-trial detention was applied as a measure of last resort and there was no excessive use of pre-trial detention.
VAN HUGH CORNELIUS DE WEEVER, Minister of Justice of Sint Maarten, explained that the Human Rights Platform was responsible for the compiling of all human rights reports, as well as the monitoring and advising of Ministries on human rights obligations. The Kingdom of the Netherlands was responsible for ensuring that all four countries adhered to agreements that upheld and promoted international human rights obligations. The national human rights institute in the Netherlands did not have a mandate that extended to the countries of the Caribbean. Sint Maarten did not have any immediate plans to establish a national human rights institution within its territory.
On the use of tasers, pepper spray and invasive corporal searches, the Minister noted that tasers and pepper spray were not used, whereas x-ray facilities were used for body searches.
Turning to the treatment of Venezuelan migrants and other asylum seekers, Mr. De Weever reminded that Sint Maarten was not party to the 1951 Refugee Convention and that it was relatively isolated from the Venezuelan crisis. In the event of asylum claims, those had to be submitted upon landing. The Governments of Sint Maarten and the Netherlands worked closely with the United Nations High Commissioner for Refugees to find a country that could host the persons concerned. Another option was applying for a temporary residence permit on humanitarian grounds. Asylum seekers entering ports in Sint Maarten were not legally detained but they had to report their whereabouts. If arrested because of illegal entry, they were held separately from other suspects and convicted criminals.
Mr. De Weever noted that the length of pre-trial detention was linked with capacity. Sint Maarten had suspended electronic surveillance, but it had recently entered into an agreement to re-launch its use. All persons, including migrants, held in detention were provided with access to a lawyer. Should a person be unable to afford a lawyer, legal assistance was provided and paid for from the budget of the Ministry of Justice.
The Ministry of Justice had made significant progress in addressing some of the most pressing needs in the prison system, such as those related to healthcare, overall facilities and activities. As for the concern about the excessive use of force in prisons in the Caribbean part of the Kingdom, Mr. De Weever said that there were no such cases in Sint Maarten. Prison officers received training on the Convention provisions.
The Juvenile Criminal Law had been completely revised and it was regulated separately. Juvenile detention could be administered for a maximum of 24 months, or in serious cases, up to four years for minors between the age of 16 and 17.
All inmates had the right to submit a complaint, which was then handled by the Prison Supervisory Board or the Ombudsperson. Those complaints were considered in confidence and could not be opened by the prison mail control system.
ALEXANDER VAN DAM, Prosecutor General of Aruba, noted that the definition of the crime of torture was incorporated in articles 1 and 8 of the National Ordinance on International Crimes in Aruba. As for courts invoking the Convention, Mr. Van Dam cited one such example when six prison guards had been found guilty of torturing an inmate. In terms of access to legal assistance, Mr. Van Dam said that there were 112 practicing lawyers. Migrants who had been charged with crimes of drug trafficking or assault with a weapon would not be deported before a legally prescribed interview with the Attorney General.
Aruba had a broad definition of domestic violence, namely relational violence, which also included examples of violence at workplace and at schools. Aruba had set up the so-called Safety House in early 2018 in order to prevent and reduce recidivism. The Government had continued raising awareness of trafficking in persons and it had educated students leaving Aruba to study abroad about the risks of becoming victims.
On the ratification of the Optional Protocol, Mr. Van Dam noted that it would be ratified as soon as the necessary measures for its implementation had been taken. In the meantime, the Inspection of Law Enforcement of the Netherlands visited the correctional facility on an annual basis. As for the establishment of a national human rights institution in Aruba, he said that the establishment of an Ombudsperson and Children’s Ombudsperson was awaiting public debate. Aruba was also considering creating an independent human rights institute, similar to the one in the Netherlands.
All asylum seekers were granted protection of non-refoulement for the duration of the asylum procedure. If the asylum seeker did not qualify for protection under the 1951 Refugee Convention, he or she would not be returned to the country of origin if the non-refoulement principle based on article 3 of the European Convention of Human Rights and of the Convention against Torture was applicable. There were no known cases of torture in migration detention. Aruba had a new administrative migration custody centre with a capacity for 45 persons and with proper conditions of stay.
Human rights were an essential part of training for judges, prosecutors and lawyers. The Training and Study Centre for the Judiciary provided lifelong education for judges and prosecutors, addressing issues such as torture and inhumane treatment, as well as the latest jurisprudence on those topics. The Academy for Legislation in the Netherlands provided human rights training to civil servants.
A person was presented to a judge within 72 hours from the arrest. There are sufficient guarantees incorporated in the procedures with regard to pre-trial detention. Under the Code of Criminal Procedure, the examining judge determined the lawfulness of detention, and the suspect could appeal the decision.
Asylum seekers were not kept in penal detention. Parents and minors awaited the procedure without family separation, and a minor was never placed in any form of administrative detention. Asylum seekers that indicated that they were victims of torture or ill-treatment may receive adequate guidance. Until present day, there had been no such claims.
The Juvenile Criminal Code provided the possibility of applying the general Criminal Code to minors under certain circumstances. Pre-trial detention could be applied to juveniles, depending on the severity of the crime.
All incoming detainees received basic medical assessment, and depending on the type of disease other measures were taken according to the guidelines. All information about medical screening was recorded.
SIEBE RIEDSTRA, Secretary General at the Ministry of Justice and Security of the Netherlands, explained that the 1954 Charter of the Kingdom of the Netherlands was the Constitution of the Kingdom as a whole and it laid down the division of competences between the Kingdom of the Netherlands and its four autonomous countries. Each of the autonomous countries had the obligation to promote the realization of human rights.
On the definition of torture, Mr. Riedstra clarified that the International Crimes Act contained two definitions of torture, based on the definitions in the Rome Statute of the International Criminal Court, and in the Convention against Torture. Articles 47 and 48 of the Dutch Criminal Code were applicable in case of any prosecution of a crime of torture. Accordingly, all forms of participation in crimes existing in Dutch criminal law were relevant, such as committing, provoking, commanding and being accessory in the crime of torture. A person convicted for the crime of torture was liable to life imprisonment or imprisonment not exceeding 30 years. Furthermore, a fine of up to 83,000 euros might be imposed. The Joint Court of Justice of Aruba, Curaçao, Sint Maarten and Bonaire, Sint Eustatius and Saba was responsible for cases in the first instance and appeal. Accordingly, the harmonization of the Code of Criminal Procedure in all parts of the Kingdom was paramount.
Turning to the right to a lawyer, Mr. Riedstra underlined that all persons were entitled to legal counsel, including migrants and persons in isolation. There had been no cases in which legal assistance had been denied. In terms of trafficking in persons, an annual budget was available for relevant projects on the islands of Bonaire, Sint Eustatius and Saba. The other countries in the Kingdom (Aruba, Curaçao and Sint Maarten) formulated their own anti-trafficking policy and were responsible for the budget to implement that policy. But when the available budget from the Ministry of Justice and Security was not entirely used on the islands of Bonaire, Sint Eustatius and Saba, it could be used for projects in other parts of the Kingdom.
As for the national preventive mechanism, the previous Governments had decided to designate the existing comprehensive system of inspectorates as the relevant network, together with the bodies associated with those inspectorates. Each organization with the national prevention mechanism had its own, statutory task. The Optional Protocol to the Convention against Torture applied only to the Netherlands in Europe. With respect to Bonaire, Sint Eustatius and Saba, in 2008 a policy of legislative restraint had been agreed to avoid overburdening the three islands. Supervision of the islands in that respect was carried out by the Law Enforcement Council.
On the issue of rented prisons, from September 2015 to September 2018, Norway had used a prison in the Netherlands to execute Norwegian sentences. The Norwegian national preventive mechanism and the Ombudsman had visited and monitored that prison.
Speaking of life imprisonment, Mr. Riedstra noted that courts imposed that sentence only for the most serious crimes. Life imprisonment in itself was not incompatible with article 3 of the European Convention of Human Rights. The Netherlands had set up an independent body to advise after 25 years of serving a life sentence whether prisoners could be released.
Turning to the training on human rights for Dutch armed forces participating in operations abroad, Mr. Riedstra clarified that all Dutch military personnel received, as part of their basic training, education in military legal aspects, including military criminal law, human rights, and the laws of armed conflict. Dutch courts could prosecute crimes committed by Dutch military forces, including torture, no matter where the crimes had been committed. Directives issued by the Dutch Chief of Defence included an obligation to report all violations of the laws of armed conflict. The Dutch civil law allowed foreign nationals to sue the Dutch Government before Dutch courts for crimes committed by the Dutch Government. Mr. Riedstra added that there were no private security programmes nor private detention centres.
Excessive use of violence was not a widespread phenomenon in custodial institutions in the Netherlands. As for the upward trend in the number of cases of involuntary confinement in psychiatric institutions, one of the possible reasons was the rapid release from such institutions and subsequent need for relapse treatment. In January 2018, the Dutch Parliament had passed the Compulsory Mental Health Bill and the Care and Compulsion Bill, which would enter into force on 1 January 2020. Both bills aimed at enhancing suitable care for patients with mental disorders. Important elements were early signalling of mental disorders and keeping the patient as long as possible in his or her natural environment. In the past several years, the Government had stimulated municipalities to further develop a policy for persons who had lost control of their lives. Finally, care providers were obliged to organize healthcare in a such way that it was safe, effective and of good quality.
Under current legislation, alternatives to pre-trial detention in the form of special conditions may be imposed if the court suspended pre-trial detention. Since 2016, courts had started implementing professional standards that would lead to a better justification of pre-trial detention. The new law did not change the period of pre-trial detention. In all cases, pre-trial detention was only possible on the basis of suspicion. Only for very serious terrorist offences could the period of pre-trial detention be longer. Judges reviewed such cases every 10 days.
The Custodial Institutions Agency had in place a guideline for diagnostics and treatment of suicidal behaviour in detention. According to that protocol, all prison staff had a role to play in reporting signs of suicidal behaviour and contacting medical staff. The medical staff was responsible for diagnostics and treatment. Strip searches by hand were only applied in exceptional circumstances. As for the fire at the Schiphol detention centre, two Ministers had resigned, whereas victims had in some cases received a residence permit and psychiatric treatment.
In terms of high-security prisons and terrorist wings, Mr. Riedstra stressed that the prison system in the Netherlands as a whole met international requirements. The offences which detainees in terrorist wings were accused of were of diverse nature.
Honour-related violence was punishable and could be qualified under various offences in the Criminal Code, including severe abuse. The police had a national expertise centre for honour-related violence.
Answering Experts’ questions about laws on clinical/medical research, Mr. Riedstra said that in 2007 the Central Ethical Committee on Research involving Human Subjects had concluded that the Medical Research Act was too restrictive when it came to medical research involving minors. In 2017, a legislative amendment had been adopted by which the Medical Research Act allowed non-therapeutical medical research only if the risks associated with the participation were negligible.
Moving on to the detention of asylum seekers and migrants, Mr. Riedstra explained that border detention was limited to four weeks under the Alien Act of 2000. Detention had to be lifted if no decision by the Immigration and Naturalization Service had been reached. In such a situation the person would be required to report to the police on a regular basis, and a restriction to certain areas might be enacted. Administrative detention was only applied as a measure of last resort. Shelter was provided to families with minor children whose asylum application was rejected. They were able to stay in open family centres until their return. The legislative proposal on return and immigration detention had been passed by the House of the Representatives on 19 June 2018 and it was currently under the Senate’s scrutiny. The bill provided for an administrative legal framework for immigration detention and would no longer fall under the Penitentiary Principal Act.
All asylum seekers under the Dublin system of the European Union, including victims of torture, could bring forward their medical situation at all times by providing medical documents during the Dublin procedure up until the actual Dublin transfer was carried out. To eliminate any serious doubts concerning the impact of a transfer on the applicant’s health, the Netherlands thoroughly examined the available information if the applicant handed over medical documents that indicated that he or she had a serious medical condition.
As for the exclusion clause of the 1951 Refugee Convention, the Government of the Netherlands was convinced that it should not grant safe haven to individuals who had been found guilty of serious violations of human rights. Such persons would not be granted asylum and would have to leave the Netherlands.
Every asylum seeker underwent a medical intake assessment at the beginning of the asylum procedure, intended to evaluate the person’s state of health. The assessment was performed by a medical professional, assisted by an interpreter where necessary. Its aim was to ensure that everyone in need received appropriate care, including individuals where signs of torture or trauma were identified.
Follow-up Questions by the Country Co-Rapporteurs
ABDELWAHAB HANI, Committee Member and Country Co-Rapporteur for the Netherlands, raised concern that in Curaçao ex officio legal counsel was not available to migrants awaiting deportation. Did Curaçao intend to officially ask the Kingdom for assistance in dealing with the regional migration crisis?
Turning to Sint Maarten, Mr. Hani inquired about the existence of a system for offering assistance to migrant victims of torture. Was the age of majority in Sint Maarten, Curaçao and Aruba 16 or 18? Why was there no automatic medical examination of all asylum seekers?
Mr. Hani reminded that there should be no statute of limitation for the crime of torture, and that relevant laws should be harmonized across all territories of the Kingdom of the Netherlands. How was the principle of non-refoulement applied in Aruba?
With respect to the national preventive mechanism, Mr. Hani suggested that the State party review its principle of territorial exclusion. Did the Government plan to have such an assessment? Who reviewed life imprisonment sentences?
Were tasers used in day-to-day policing in the European part of the Kingdom? Were there any detention centres managed by the Dutch military personnel abroad?
Norway had stated that it had limited access to the prisons that it had rented in the Netherlands. What kind of compensation had been offered to intersex persons victims of violence in the prison setting?
HONGHONG ZHANG, Committee Member and Country Co-Rapporteur for the Netherlands, commended the training content provided to judges, prosecutors, lawyers and military personnel. She recommended that the four countries of the Kingdom set up assessment mechanisms for training on human rights and Convention provisions.
Ms. Zhang expressed hope that the Kingdom of the Netherlands would strictly monitor the use and misuse of solitary confinement, and urged the State party to ensure that the automatic detention of migrants at the Schiphol airport would only be used as a measure of last resort, especially in case of minors, pregnant women and the elderly.
On juvenile justice in Aruba and other islands, Ms. Zhang called for feasible reform programmes in order to safeguard the best interest of the child and to reduce the detention of minors. She also reiterated her questions about compensation and ethnic profiling used by the police. The State party should work to limit the search and arrest based on racial profiling.
The Country Co-Rapporteur reminded that terrorist suspects were placed in high-security prisons without any individual assessment. She also flagged the lack of effective legal remedy for persons detained in terrorist cells, and intrusive full-body search.
Replies by the Delegation
QUINCY GIRIGORIE, Minister of Justice of Curaçao, clarified that non-citizens could not receive an ex officio lawyer for administrative reasons. When an undocumented migrant needed a lawyer, he or she would receive one from the relevant consular service. Curaçao public servants were already in the Netherlands discussing ways to manage the regional migration crisis. Formally, there was no need to use police cells to detain migrants; they were placed in a migrant holding centre. The holding centre also held migrants who had come to Curaçao for illegal work.
The so-called “quick” justice system and electronic surveillance were used in order to reduce pre-trial detention, especially in juvenile justice. In case of serious offences committed by juveniles, such as murder, they were kept with younger offenders and they were tried under the general Criminal Code, Mr. Girigorie said.
In Sint Maarten, juveniles were tried under a separate law, which covered children from the age of 12 until 18, and they were not kept together with adults in detention, explained VAN HUGH CORNELIUS DE WEEVER, Minister of Justice of Sint Maarten. At the moment, Sint Maarten did not plan to ratify the 1951 Refugee Convention.
ALEXANDER VAN DAM, Prosecutor General of Aruba, said that in principle pre-trial detention lasted up to 48 hours and that it could be extended by another 24 hours. Young offenders until the age of 21 were kept separately from adults.
SIEBE RIEDSTRA, Secretary General at the Ministry of Justice and Security of the Netherlands, explained that whenever it was not possible to carry out a medical assessment of asylum seekers, the authorities adopted an extended procedure. Foreign nationals could never be detained for a period longer than 18 months.
Mr. Riedstra reiterated that the terrorist wings in high-security prisons met international standards, and were independently monitored. The Healthcare Inspectorate exercised strict control of the healthcare services provided in prisons.
The Government of the Netherlands had done all in its power to allow Norway access to the prison it had rented from the Netherlands.
On the use of tasers by the police in day-to-day work, the authorities would examine the relevant guidelines. In 2015, the police had launched a programme to end the use of ethnic profiling, and that programme would continue beyond 2018.
Minors as of age 16 could be tried under the general Criminal Code under special circumstances as defined by the law.
QUINCY GIRIGORIE, Minister of Justice of Curaçao, assured the Committee that the delegation would take its recommendations very seriously. The Kingdom of the Netherlands was committed to eradicating torture and ill-treatment. The Kingdom would continue to strive to protect human rights and the rule of law.
JENS MODVIG, Committee Chairperson, thanked the delegation for the well-organized responses and he reminded that the delegation could submit additional replies in writing within 48 hours. He also called attention to the follow-up procedure during which the Committee would select several recommendations for follow-up within a year.
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