禁止酷刑委员会审议荷兰的报告（部分翻译）

禁止酷刑委员会

2013年5月15日

禁止酷刑委员会今天结束了对荷兰提交的关于该国如何履行《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》规定的第五次和第六次合并定期报告的审议。

Roderick Van Schreven, Permanent Representative of the Netherlands to the United Nations Office at Geneva, said that many priorities of the domestic policy of the Netherlands such as combating trafficking and other forms of exploitation, domestic violence and sexual and other violence, and violence against children were directly related to the implementation of the Convention’s standards.  The Government was taking measures to minimize the use of alien detention, including introducing a bill before Parliament which would codify in law the practice of a separate legal regime for alien detention.  Another priority of the Government was to strengthen the position of victims of crime before, during and after criminal proceedings and establish a real victim oriented criminal justice system.

Esther Baars, Solicitor General, Deputy Attorney General of Aruba, said that efforts had been made to modernize the criminal law in conformity with human rights conventions and that the New Criminal Code of Aruba had been approved in April 2012.  Special attention was being given to improve procedures with regard to the rights of detainees to ensure that they complied with the norms of the European Committee on the Prevention of Torture.  A comprehensive counter-trafficking action plan was also in place.

Clarelli Hato-Willems, Public Prosecutor of Curacao, said that the approach to the prevention of torture and ill-treatment combined preventive measures and care of victims.  The new Penal Code of Curacao came into force in 2011 and the Criminal Code of Procedure was currently being amended.  In its efforts to arrive to a quick settlement of minor offenses, the concept of speed justice had been developed in 2012, which was a fast prosecutor-led procedure to settle simple criminal cases. 

Committee Experts noted serious issues in the detention of people, including minors, and inquired about the measures taken to reduce the high rates of pre-trial detention and the criteria used to limit the detainees’ right to legal assistance.  They requested further information about the treatment of persons with disabilities, particularly of those held in isolation, the status of the prison system reform, the territorial application of the Optional Protocol and the independence of the national preventive mechanism.  Experts were interested in asylum procedures and asked a number of questions concerning the treatment of asylum seekers, including their detention, forced expulsion, and what happened to procedures when complaints of torture were made.

Responding to questions and comments raised by the Committee on Tuesday, 14 May and today, the delegation said that the European Convention on Human Rights was binding in all four parts of the Kingdom of the Netherlands while the mandate of the national human rights institution was restricted to its European part.  The delegation provided extensive information on the asylum procedure and said that asylum seekers from Syria were granted international protection due to the general situation in this country.  Concerning legal assistance and access to a lawyer in relation to questioning by the police in criminal proceedings, there was an exception to this general rule applied only in circumstances in which it was not possible to wait for the arrival of a lawyer because the start of questioning could not be postponed, for example in hostage situations or cases involving terrorism.

The delegation of the Netherlands consisted of representatives from the Ministry of Security and Justice, Ministry of Foreign Affairs, Office of the Attorney General of Aruba, Office of Foreign Relations of Aruba, Public Prosecutor of Curacao, Directorate of Foreign Relations of Curacao, Foreign Relations of St. Maarten and the Permanent Mission of the Netherlands to the United Nations Office at Geneva.

The Committee will meet in public at 10 a.m. on Thursday, 16 May to start its consideration of the second periodic report of Bolivia (CAT/C/BOL/2).

Report of the Netherlands

The combined fifth and sixth periodic report of the Netherlands can be read via the following link (CAT/C/NLD/5-6).

Presentation of the Report of the Netherlands

RODERICK VAN SCHREVEN, Permanent Representative of the Netherlands to the United Nations Office at Geneva, introducing the report, reiterated the strong commitment of the Netherlands to the aims of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and the absolute ban on torture which was fundamental to the legal order of the country.  An important objective of the human rights policy of the Netherlands was combating torture globally, while many priorities of the domestic policy such as combating trafficking and other forms of exploitation, domestic violence and sexual and other violence and violence against children were directly related to the implementation of the Convention’s standards.  The efforts of the Government were aimed at minimizing the use of alien detention and using alternatives as much as possible and it had informed Parliament that it would reduce the detention capacity from the current 2,500 places to 1,000 places and would introduce a bill before Parliament before the end of the year to introduce a separate administrative legal regime for alien detention.  This would ensure the codification in law of the already existing practice of separate regimes for persons detained for purposes of criminal justice and for persons detained for purposes of the implementation of alien legislation.  The Netherlands Institute for Human Rights, established on the basis of the Paris Principles and independent from the Government, had been functioning since October 2012.  The mandate of the National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children had been extended in 2009 and in 2012 to include reporting on combating child pornography and all forms of sexual violence against children.  One of the priorities of the Government was to strengthen the position of victims of crime before, during and after criminal proceedings and to establish a real victim oriented criminal justice system.

ESTHER BAARS, Solicitor General, Deputy Attorney General of Aruba, said that efforts had been made to modernize the legislation of criminal law in conformity with human rights conventions and that the New Criminal Code of Aruba had been approved in April 2012.  The expansion in legislation, such as the PIJ-measure designed for juveniles with diminished mental capacity or the new centre for substance abuse addicts who were repeat offenders, gave courts more freedom to impose the sanctions they deemed necessary whilst taking into account the social background and education and the circumstances under which the criminal offence had been committed.  Special attention was being given to improving procedures with regard to the rights of detainees to ensure that they complied with the norms of the European Committee on the Prevention of Torture.  Progress was being made in combating human trafficking and smuggling and Aruba had established in 2007 a Task Force which had drawn up a comprehensive counter-trafficking action plan.

CLARELLI HATO-WILLEMS, Public Prosecutor of Curacao, said that Curacao had taken several measures to prevent any form of torture and ill-treatment, which focused on an integrated approach combining preventive measures and care of victims which promoted the human rights cause.  The new Penal Code of Curacao came into force in 2011 and the Criminal Code of Procedure was currently being amended.  The detention centres were being renovated and the conditions were improved in the correctional facility with a new inmate-reception building, an observation surveillance system and a new fully equipped fitness centre.  In its efforts to arrive to a quick settlement of minor offenses, the concept of speed justice had been developed in 2012, which was a fast prosecutor-led procedure to settle simple criminal cases. 

Questions from Committee Experts

ALESSIO BRUNI, Committee Expert and Rapporteur for the Report of the Netherlands, took up the issue of prevention and safeguards and asked the delegation to comment on its restrictive approach to legal assistance for detainees and on the regulation allowing the police to deny the request for legal assistance if such a request was contrary to the interest of the investigation.  About 40 per cent of detainees were in pre-trial detention, which was rather high compared to other European countries; what alternative measures to detention were available?  There were questions raised about the independence of the national preventive mechanism and the Country Rapporteur asked the delegation to comment on its composition and functioning, visits to places of detention conducted recently and the outcome of those visits.  Why did the national human rights institution not include in its mandate Aruba and Curacao and who was in charge of visiting places of detention in those territories? 

Mr. Bruni also asked the delegation to comment on alien detention and the absence of separate regimes for detainees under the criminal justice system and for those falling under alien legislation.  Did asylum legislation ensure the full protection of aliens, including the right to medical care?  Immigration and naturalization services did not register the grounds for granting asylum stay permits which resulted in the inability of the Netherlands to provide information on the number of asylum permits granted on the grounds of torture; considering the lack of relevant data, how was the policy and legislation being developed?  Mr. Bruni further asked about the use and abuse of restraints against juvenile detainees; the use of coercive measures in mental health institutions; whether the new Criminal Code of Aruba was already in place; the investigation into the murder of an inmate by another inmate in a prison in Curacao; and statistics about the prison population in the country and measures taken to reduce violence in the prison population.

ESSADIA BELMIR, Committee Expert and Rapporteur for the Report of the Netherlands, asked the delegation about the primacy of international legislation and about its judicial system which contained legal concepts and terminology from several law systems.  Considering this, how was a national of the Netherlands described in the legislation?  Could the delegation explain the application of euthanasia to children?  There were fears that there might be some slippages in access to the data bank on profiling, which might have a negative impact on minors and juveniles in conflict with the law.  Training looked more like support for people already in office, rather than a structured activity to disseminate information about human rights treaties, instruments and mechanisms that should be available to those dealing with issues involving human dignity.  The Committee did not have enough clarity as to the treatment of persons with disabilities, particularly of those held in isolation; could the delegation provide further information about the treatment of detainees, asylum seekers and others and comment on the independence of the national preventive mechanism?  How did forced expulsion work and how were returnee children treated and how were their needs provided for upon return to their country of origin?  What was the approach of the Government to sex tourism and racial discrimination and what was being done to combat those?

A number of issues needed to be taken on board with regard to the implementation of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, including its implementation in Aruba and Curacao, and the independence of the national preventive mechanism.  What was the status of the reform of the prison system in the Netherlands, which might result in the cutting of 3,000 jobs and reducing the number of places in prisons and were there plans to involve private prison operators like the United Kingdom did?  It was reported that 28 asylum centres in the Netherlands currently contained some 14,000 asylum seekers; what was being done to address this situation and the high suicide rate among prisoners?  Another Expert strongly encouraged the Netherlands to use the Istanbul Protocol not only to determine the health of asylum seekers but to document torture, to desist from the use of tasers by its police force, and to abolish the use of restraints in its juvenile justice system. 

The delegation was further asked to explain how the system for compensation for ill-treatment worked and how the compensation was actually obtained; what happened with the asylum process if accusations of torture were made, particularly in cases involving unaccompanied children; and the reasons behind withdrawing automatic asylum granted to arrivals from Iraq and what the policy on asylum seekers from Syria was.  Experts also inquired about prostitution in the Netherlands, which was illegal but still practiced, and whether there were any intentions to extend the applicability of the Council of European Convention on Action against Trafficking in Human Beings to territories other than Kingdom in Europe.  Lack of availability of data and statistics was surprising for a country as advanced as the Netherlands, noted Experts and asked about widespread discriminatory practices against Roma, Turks and the explanation for the rather high number of detainees in the penitentiary system who came from those minorities.

CLAUDIO GROSSMAN, Committee Chairperson, asked the delegation about the criteria defining what was contrary to the interest of investigations, which could be used to limit the right to legal assistance of detainees.  Detention should be a measure of last resort and it was unfortunate that people had to die before political measures were being taken to use detention of aliens as a last resort.  There were serious issues concerning the detention of people, including minors in the Netherlands, and this was an opinion of both experts and the Dutch society.  What measures were being taken to reduce the high rates of pre-trial detention?  The Netherland was moving towards a victim-oriented criminal justice system and the Chairperson asked how this would be reconciled with other important objectives of the criminal justice system.  What was the role of consent in psychiatric treatments?  Was the Convention against Torture self-applicable in the non-European parts of the Kingdom and were there cases to this effect?

ALESSIO BRUNI, Committee Expert and Rapporteur for the Report of the Netherlands, asked whether juvenile detainees were completely separated from adult detainees in Curacao.  Could the delegation elaborate on the training programmes implemented in the country, how they were evaluated and what concrete indicators were being used; and whether cases of ill-treatment by officials occurred after the submission of the report and how they were compensated?

ESSADIA BELMIR, Committee Expert and Rapporteur for the Report of the Netherlands, asked about the sentencing procedures in the Netherlands and the procedures applied to persons who were not in full possession of their mental faculties. 

Other Experts inquired about education programmes available to juvenile offenders in the non-European part of the kingdom; how the Human Trafficking Task Force integrated non-governmental organizations and their expertise in their work; criteria for being accepted as victims of human trafficking; and about isolation cells in psychiatric institutions which were unsuitable for persons with IQ lower than 50.

Responses by the Delegation

In response to these questions and comments and others, the delegation said that following the constitutional reforms of 2010, the Kingdom of the Netherlands consisted of four parts: the Netherlands (the European part and the Caribbean part consisting of the islands of Bonaire, St Eustatius and Saba), Aruba, Curacao and St. Maarten.  The position of the Caribbean part was largely comparable with Dutch municipalities.  International treaty obligations were binding on the Kingdom which could be held accountable under public international law.  The manner in which treaty obligations were implemented was a matter for the four co-equal constituent countries which were fully autonomous in their internal affairs and in the manner in which they implemented international commitments. 

The European Convention on Human Rights was binding in all four parts of the Kingdom.  The Government intended to ratify the Convention on the Rights of Persons with Disabilities and the accession to its Optional Protocol was under discussion.  The Netherlands had signed the Council of Europe Convention on preventing and combating violence against women and preparations for the parliamentary approval had started.  The mandate of the national human rights institution was totally restricted to the European part of the Kingdom; Curacao had decided in 2012 to establish a human rights institute while Aruba was considering creating its own human rights institute. 

All asylum seekers started their asylum procedure in the general asylum procedure, which was eight days long and in which all necessary steps were taken to come to a decision on the asylum application; this procedure could be extended if the authorities established that further investigation was required in order to make a careful decision.  Asylum seekers received support from the Dutch Refugee Council in preparation for their interviews during which they had ample opportunity to bring forward their claims and present any relevant evidence.  All asylum seekers had the right to free legal assistance which was provided during the rest and preparation period and during the general procedure and amounted to 12 hours.  In the extended procedure, an extra five hours of legal assistance were available.  Granted permits were registered according to the broad categories of the grounds for international protection, i.e. on the basis of the Refugee Convention, or on the grounds of subsidiary protection and there was no cumulative registration of the specific reasons for granting asylum, for example sexual violence, torture and others. 

Each rejection of an asylum claim was provided in writing in which all relevant arguments were discussed.  Asylum seekers from Syria were granted international protection due to the general situation in this country, with the exception of nationals who were active supporters of the Assad regime; in this case, asylum was considered on the basis of individual claims.  The Istanbul Protocol was used to assess claims of alleged torture, investigate them and report the findings to the bodies relevant for the assessment of torture.  The starting point of the Dutch asylum procedure was that the need for protection was primarily determined by the credibility of the account, which was assessed in light of the applicant’s statement, what was known about the situation in the country of origin and other relevant facts.

If asylum was denied and the decision was not overturned on appeal, applicants had to leave the country; voluntary return was the main objective of the Dutch return policy and this was stimulated with the provision of travel documents, assistance in cash, and help in starting up their own business in the country of origin or getting an education.  If the alien refused to return, forced return was the only alternative.  Forced removal was still a necessity in a certain number of cases as was detention of aliens in view of removal, which could last up to 18 months.  Those who tried to return voluntarily with the help of the Government but did not succeed for reasons beyond their own fault were eligible for residence permit on those grounds.  A different kind of detention was that in case of refusal of entry at the border.  The use of restraints during removal was usually limited to handcuffs.  Over the past several years, over 20,000 persons were returned every year and of those, around 6,000 were forced returns.

Both the regime of alien detention and penal imprisonment followed the same legal framework; the Government intended to introduce a separate legal regime for alien detention before the end of the year.  In practice however, there were differences between both regimes: contrary to the penitentiary institutions, the centres for detention of foreign nationals did not offer work or education because the aim of detention was not social rehabilitation but keeping the foreign nationals available for the removal procedures.  The ways to further express the administrative and not penal nature of alien detention would be further explored in the new legislative framework.

In Aruba, there was one asylum application in 2010, three in 2011 and eight in 2012; no applications had been registered in 2013. The human rights institute would be created based on the Paris Principles and the Government of Aruba would seek cooperation from the Kingdom when setting up this body.  In Curacao, legal regimes for the detention of aliens and the imprisonment regime were very different. 

The proportion of pre-trial detainees within the total prison population was rather high, reaching around 36 per cent and this figure needed to be seen in the proper context.  Pre-trial detention was applied with care, and subject to a number of safeguards.  The offences for which it might be imposed were extensively defined and in addition could be imposed on certain grounds, such as the seriousness of the offence, the risk of repetition, or when the offender was likely to abscond.  Last year, the Government had introduced the Programme Reinforcing Achievements in Criminal Justice to shorten the length of criminal proceedings which would contribute to the further shortening of the average time spent in pre-trial detention.  This year, proposals would be presented to reinforce alternatives to pre-trial detention which would hopefully lead to new legislation. 

In 2010, the Netherlands had assumed responsibility for central Government judicial tasks on Bonaire, St. Eustatius and Saba, or the BES islands, including the judicial and custodial institutions on the islands.  Since then, living conditions in prisons were being improved in order to meet international standards.  There was no overcrowding in the St. Maarten prison, and no cases of ill treatment of detainees.  The prison had a committee of supervision where detainees, who knew their rights well, could submit their complaints.  The prison and detention centres in Aruba were monitored by the Government in order to ensure compliance with the Convention against Torture norms; the total prison population in March 2013 was 249.  The length of the pre-trial detention in Curacao was regulated by the Code of Criminal Procedure.  In April 2012, the fast justice sessions were introduced to reduce the number of pre-trial detainees and the length of pre-trial detention; this was a speed-oriented settlement of relatively simple criminal matters in accordance with the legal and social contexts in which the interests of the victims were taken into consideration.  In April 2013, the quick justice approach had been introduced by the Public Prosecutor’s Office, which provided for quick punishment following the offence.

Concerning legal assistance and access to a lawyer in relation to questioning by the police in criminal proceedings, the Committee asked about the exception to the general rule when this was contrary to the interests of the investigations.  This was in no case a blanket exception and applied only in exceptional circumstances in which it was not possible to wait for the arrival of a lawyer because the start of questioning could not be postponed, for example in hostage situations where the lives of hostages were at stake.

The Government deemed important that minors who were victims of trafficking were placed in a protected context and this meant that during the first period of placement the minors were accompanied on outdoor activities and this period lasted up to three months.  The aim of those closed shelters was to build up trust to develop the skills to be able to function independently and to prepare for return or for a place in Dutch society.  The building up of trust also aimed towards the minors being willing to tell their story and possible report it to the police.

The final decision for the use of tasers by the police had not yet been made; the experience with the use of tasers by arrest teams was positive and there was no reason to discontinue the planned pilot programme which would start in 2014.  Considerable attention would be given to criteria governing the use of tasers, training and aftercare and they would be used as alternative means to firearms and violence which could cause permanent damage.

Dutch authorities fully recognized the importance of the functional independence of the national preventive mechanism as laid down in the Optional Protocol to the Convention against Torture.  Following its ratification, the Ministry of Justice and Security had appointed various independent agencies as an independent national preventive mechanism in December 2011.  The Security and Justice Inspectorate, which acted as coordinator for the national preventive mechanism, was completely independent and the fact that it resided under the Ministry did not mean that it was not functionally independent.  The Government had consulted with relevant bodies about the composition of the national preventive mechanism and the extent to which the existing bodies complied with the Optional Protocol.  The statutory basis upon which the bodies operated gave them unrestricted access to places of detention and detainees and its mandate extended to the Caribbean parts of the Netherlands, the islands Bonaire, St Eustasius and Saba.

Access to a lawyer in Aruba was provided to detainees from the moment they were deprived of their liberty and suspects of serious crimes such as murder and rape and all minors could not waive this right.  There had been no official evaluation of the training provided to the police and prison personnel. 

Follow up Questions and Comments by the Committee Experts

ALESSIO BRUNI, Committee Expert and Rapporteur for the Report of the Netherlands, asked whether the Optional Protocol was applicable in Aruba and Curacao or if its application required some legislative measures, and whether Aruba and Curacao had their own national preventive mechanisms.  In the absence of a centralized system of registration of reasons for asylum, how was the principle of non-refoulement applied?  Could the delegation confirm that 11 out of 29 prisons would be closed, which might aggravate the overcrowding in remaining facilities? 

ESSADIA BELMIR, Committee Expert and Rapporteur for the Report of the Netherlands, asked for clarification as to which court was the primary one in asylum procedures, as there were several institutions involved in the process.

Other Experts asked about the mechanism of entering into force of international treaties in all the territory of the Kingdom; whether all asylum seekers had access to the system to register their claims, including in Aruba where there was only a handful of persons seeking asylum; statistics and data about ethnic groups and minorities among the prison population; the very high number of psychiatric hospitals; health policies and seclusion; and the situation of undocumented aliens and the high rates of their detention. 
Responses by the Delegation
   
Everyone was entitled to a lawyer and where necessary, a lawyer was paid for by the Government.  It was possible to start an interrogation without the presence of a lawyer in exceptional circumstances, for example in hostage situations or in cases involving terrorism.  The entity that had international legal authority was the Kingdom of the Netherlands, which was the one which ratified international treaties on behalf of all parties of the Kingdom.  The Kingdom had ratified the Optional Protocol in 2010 and the scope of its application was limited to the European part; its application in Curacao was waiting for some legal amendments. 

The court decisions formed the line of jurisprudence in asylum proceedings.  Complaints of ill behaviour during forced return were looked into with full scrutiny and persons concerned were informed of the outcomes of investigations.  Human rights were included in the legislation process and it was a responsibility of the public official to prepare a note on how the proposed legislation respected the human rights standards and obligations of the Netherlands.  There was indeed a possibility to lodge a complaint within the system of forensic psychiatric institutions or the so-called TBS system, as each institution had its own complaint mechanism. 

There was a master plan in place which provided for the closure of several prisons; this was still in its planning phase and had not yet been discussed in Parliament.  In general, the detention population had been steadily decreasing; from 13,718 in 2006 to 11,545 in 2011.  The plan called for a gradual reduction in the number of places in prisons from the current 11,000 to about 10,000 and this decrease would come from the transformation of single cells to two-person cells whenever possible.  Another measure which was being considered was the use of electronic detention through the use of the ankle bracelet which would allow an overnight stay at home.  The Netherlands was looking into the use of private contractors in managing prisons, but this was still in an early stage.

Closing Remarks

CLAUDIO GROSSMAN, Committee Chairperson, thanked the delegation for their thoroughness and contribution.

RODERICK VAN SCHREVEN, Permanent Representative of the Netherlands to the United Nations Office at Geneva, thanked the Committee for the time they put in this dialogue and confirmed that the comments of the Committee, particularly on the asylum seekers, would be brought back to the capital and integrated into its policy.  Thanks to the Committee, the situation in the Netherlands had changed to the better over the past 10 years; the law was being changed, as was the approach to aliens and asylum seekers.

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