Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Visit to the Netherlands for the purpose of providing advisory assistance to the national preventive mechanism: recommendations and observations addressed to the State party
Report of the Subcommittee * , ** , ***
Contents
Page
I.Introduction3
II.The national preventive mechanism4
III.Main obstacles faced by the national preventive mechanism5
IV.Final recommendations10
Annexes
I.List of Government officials and other persons with whom the Subcommittee
on Prevention of Torture met11
II.List of places of detention jointly visited by the national preventive mechanism
and the Subcommittee on Prevention of Torture13
I.Introduction
From 28 to 31 July 2015, in accordance with its mandate set forth in the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Optional Protocol” or “OPCAT”), the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“Subcommittee” or “SPT”) undertook its first visit to the Netherlands.
The Subcommittee was represented by: Ms. Mari Amos (Head of the delegation), Ms. Maria Margarida Pressburger and Ms. Aneta Stanchevska.
The Subcommittee was also assisted by two human rights officers from the Office of the High Commissioner for Human Rights (OHCHR).
The objective of the visit was to provide advisory services and technical assistance to the Netherlands national mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (NPM), in accordance with article 11 (b), subparagraphs (ii) and (iii) of the Optional Protocol. The visit was intended to assist in strengthening the capacity and mandate of the NPM. The visit also aimed to assist the NPM in an evaluation of the needs and the means necessary to strengthen the protection of persons deprived of their liberty from torture and other cruel, inhuman or degrading treatment or punishment in the Netherlands.
During its visit, the Subcommittee met with officials from the Ministry of Security and Justice, the National Police Force, the National Agency of Correctional Institutions, the Repatriation and Departure Service, the Ministry of Foreign Affairs, and the Ministry of Health, Welfare and Youth. The SPT also met with the Netherlands Institute for Human Rights and the National Ombudsman, as well as with civil society (see Annex I).
A primary purpose of the visit was to provide the NPM with advisory services and technical assistance. Thus, a number of meetings were held with NPM members and associated institutions in order to discuss the NPM’s working methods and to explore ways to strengthen and increase the effectiveness of the NPM, as explained below. To observe how the NPM applies its working methodology, the SPT also visited, together with the NPM, two places of deprivation of liberty, which were chosen by the NPM (see Annex II). During these joint visits, Subcommittee members adopted the role of observers, while members of the NPM led the visits.
The SPT appreciates the cooperation extended by the authorities of the Kingdom of the Netherlands in facilitating the visit, in compliance with the State party’s OPCAT obligations. The Subcommittee is also grateful for the assistance extended in arranging the necessary meetings so that the SPT could better understand the legal, structural and institutional framework of the Netherlands NPM.
To that end, this report sets out recommendations and observations to the State Party, in accordance with article 11 (b), subparagraph (iv), of the Optional Protocol.
The Subcommittee requests that the State party reply within six months of the date of transmission of this report, giving a n account of the actions taken and a roadmap for full implementation of its recommendations.
This report is currently confidential and it will be for the State party to decide whether or not to make it public.
The Subcommittee therefore recommends that the State party request for this report to be published, as other States parties to the OPCAT have done. The SPT further requests that it be notified of the State party’s decision in this regard.
Moreover, the Subcommittee draws the State party’s attention to the Special Fund established in accordance with Article 26 of the OPCAT. Recommendations contained in Subcommittee visits reports that have been made public can form the basis of an application for funding of specific projects through the Fund.
In addition, in accordance with its mandate, as set forth in article 11 (b), subparagraphs (ii) and (iii), the SPT will address a separate confidential report to the NPM of the Netherlands.
II.The national preventive mechanism
The Netherlandsratified the Optional Protocol on 28 September 2010. In December 2011, the Netherlands Ministry of Security and Justice formally designated, by letter, six established institutions as its NPM, including three national inspectorates: the Public Order and Safety Inspectorate (IOOV), the Health Care Inspectorate (IGZ), and the Inspectorate for Youth Care (IJZ), as well as the Supervisory Commission on Repatriation (CITT), the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ), and the Inspectorate for Implementation of Sanctions (ISt).
In January 2012, the Ist merged with the IOOV to create the Inspectorate of Security and Justice (IVenJ), which acts as NPM coordinator. In 2014, the tasks of the CITT also merged with those of the IVEnJ. There is now a network structure with four NPM members (IVenJ, IGZ, IJZ and RSJ) and several observer associates.
At the time of the NPM’s designation, four associate observers were appointed: the Commission of Oversight for Penitentiaries, the Commission of Oversight for Police Cells, the Commission of Oversight for Military Detention and the National Ombudsman. Each commission is an umbrella organization representing committees of citizens who monitor conditions and the treatment of persons deprived of liberty in specific places of detention around the country. The State party intended that these associates would complement the work of the NPM, ensuring wide coverage of places of detention. While not officially holding NPM status, these observers were given the mandate to participate in NPM meetings and to communicate concerns to the NPM.
However, the National Ombudsman, which is an independent body mandated to investigate allegations of wrongful government practices, withdrew from the NPM network in 2014. In a letter dated 24 September 2014, the Ombudsman identified three main concerns leading to this withdrawal: (1) the structure of the NPM network and the lack of cooperation among its constituent organizations, (2) the limited independence and initiative of the inspectorates from the national authorities with which they are associated, and (3) the NPM’s lack of vision. While it did not itself resign from the NPM network, the RSJ, an NPM member, also expressed concerns with respect to the autonomy and functioning of the NPM.
Legal basis
Until now, there is no single legislative instrument which designates the NPM and regulates its activities. Rather, the inspectorates operate in reference to the Netherlands General Administrative Law Act, which provides the legal mandate for supervisory bodies, as the legal basis for NPM work. The Act grants supervisory bodies the general power to enter all public properties, request information related to their mandate, and to conduct relevant research. In addition, each member of the NPM looks to its own foundational text, spread over a number of laws and regulations, as a legal basis for further NPM activities.
Activities
Under the current multi-body structure, each member institution of the NPM takes on specific monitoring and advising responsibilities. The IVenJ monitors the security and justice sector in the Netherlands, with a focus on implementation of sanctions, police affairs, migration, asylum and national security. TheIGZ supervises health and social care institutions and undertakes reactive work responding to complaints regarding health services, while the IJZ monitors the quality of youth care and carries out thematic investigations on a reactive basis.
The RSJ has the ability to issue appeals decisions related to placement and transfer, disciplinary punishment and special measures, medical care by institution doctors, and refusal to grant leave. In addition to issuing such decisions and providing advice on thematic topics, it is the RSJ that primarily takes on the role within the NPM of advising the government on public policy.
Through the work of their committees, NPM observer institutions, including the Commission of Oversight of Police Custody and the Commission of Oversight for Penitentiaries, also visit police and penitentiary cells.
The SPT acknowledges the State party’s efforts in implementing its obligations under the OPCAT and expresses its gratitude for the support provided prior to and during the visit, which allowed it to meet with different stakeholders and monitor the implementation of the mandate by the NPM. The SPT notes that the NPM is faced with several obstacles hindering the full and effective implementation of its tasks, which this report will address in the next chapter, together with recommendations to the State party.
III. Main obstacles faced by the national preventive mechanism
While the State party is free to determine the institutional format of its NPM, it is imperative that an NPM is fully compliant with the OPCAT, as reflected in the SPT Guidelines on national preventive mechanisms (“NPM Guidelines”). It is also crucial that the functional and operational independence of the NPM are guaranteed, with due consideration to the Principles relating to the Status of National Institutions (“the Paris Principles”).
Legal basis
While acknowledging the existence of legal provisions providing the foundational basis for each individual institution within the NPM, a striking weakness in the current functioning of the NPM is the absence of a separate legislative text regulating NPM-specific functions, an NPM mandate, the relationship between NPM members and other bodies, such as observer institutions and the Netherlands Institute for Human Rights, and other issues that ought to be regulated, in line with part IV of the OPCAT.
The SPT has also notes the NPM’s primary focus on monitoring functions while other NPM functions, such as advocacy, awareness raising, commenting on legislation and capacity building are underdeveloped. This may also result from the lack of specific NPM legislation providing the NPM with such authority and with the corresponding human resources for carrying out outward-facing NPM functions, in addition to the visiting mandate.
While the institutional format of the NPM is left to the State Party’s discretion, it is imperative that the State party enact NPM legislation which guarantees an NPM in full compliance with OPCAT and the NPM Guidelines. Indeed, t he SPT deems the adoption of a separate NPM law as a crucial step to guaranteeing this compliance , though the enactment of such legislation will be beneficial only after the articulation of a vision for the prevention of torture and identification of the appropriate NPM model for t he Netherlands .
The SPT wishes to emphasize the importance that the NPM be granted, by means of this legislation, core NPM functions, including the power to regularly examine the treatment of persons deprived of their liberty in all places of detention, as defined in Article 4 of the OPCAT, to issue recommendations to the relevant authorities, and to submit proposals and observations on existing and draft legislation. The NPM’s legal framework should also require a separate budget line in the State budget for the funding of the NPM, in order to ensure its continuous financial and operational autonomy. Moreover, it should outline privileges and immunities of NPM members and those who contribute to the NPM, including experts and civil society, while guaranteeing protection for persons who provide information to the NPM.
Visibility and cooperation
The Subcommittee has observed that the inspectorates within the NPM are well regarded and influential when providing recommendations to their respective ministries. In discussions with the SPT, the authorities confirmed that the work of the inspectorates is appreciated. The SPT also notes that the inspectorates utilize established visiting protocols and have the trust of the authorities that they are carrying out quality inspections. Moreover, the community-based approach of the Commissions of Oversight and the committees they represent are valuable additions to the NPM network, as is the counsel provided by the RSJ.
However, the Subcommittee notes that the NPM on the whole is largely invisible. Without a separate legislative mandate, specified NPM tasks, specially allocated resources and systematic cooperation with other national and international stakeholders, it is difficult to perceive the NPM as its own entity.
At the time of its visit, the Subcommittee observed that the NPM did not produce documents — other than the NPM Annual Report — under the auspices of the NPM itself. Personnel of institutions in the NPM identify themselves by their respective institutional affiliations and continue to carry out the work they conducted before institutional appointment to the NPM. Moreover, the SPT has received feedback that the authorities do not proactively discuss NPM reports. As a result, the NPM is not well known by government stakeholders, civil society and the public.
Moreover, while the inspectorates conduct joint visits and collaborate in reporting on incidents, such as deaths in custody, the Subcommittee has observed that additional interaction and cooperation between different NPM institutions — and between NPM members and associates — depends largely on the readiness and availability of these institutions to work together. The SPT notes that not all components of the NPM participate equally in the activities of the NPM. Observers to the NPM do not participate in visits, for example, and have less of a role in the quarterly NPM meetings. In addition, the RSJ comments on draft legislation, but does not have a mandate to provide policy advice on all types of institutions. Meanwhile, divergent powers among the various institutions result in unequal access to information, such as medical records, further necessitating their close collaboration. As a result, the torture prevention mandate is of an irregular nature, lacking an overall strategy, systematized follow up and mutual cooperation.
The SPT also notes that several stakeholders, including civil society, have requested that a sustainable and more participatory approach inform the NPM structure. As it stands, the NPM does not actively involve civil society actors in its work and the NPM does not fully benefit from the expertise of other institutions sharing a human rights mandate, such as the Netherlands Institute for Human Rights and the National Ombudsman.
The SPT therefore deems it crucial that the State party first articulate a unified vision of its work of torture prevention, a vision that takes into account the best practices and other experiences accumulated by all national mechanisms that monitor human rights and places of detention . This mapping exercise should provide a roadmap for how all such stakeholders can contribute to the work of torture prevention in the country, together with the NPM . In addition, in consideration of the contribution they make, the State party should clarify the status of the associated observers and consider increasing their role in the NPM.
The SPT recommends that the State party ensure its NPM is recognised as a key component in the country’s system for prevention o f torture and ill-treatment. In this regard, it is recommended that the NPM’s outward-facing role be increased, including its engagement with civil society and with institutions having related human rights mandates, such as the National Ombudsman and the Netherlands Institute for Human Rights. The SPT further recommends that the State Party take steps to assist the NPM in increasing its visibility, so that its mandate and work are well k nown to other national stakeholders and the general public. The State party may c ontribute to making the work of the NPM more visible by, for example, coordinating public awareness campaigns, producing and distributing materials on the mandate and activities of the NPM in various languages to detent ion personnel, detainees and civil society, and by informing associations of service users, lawyers and the judiciary on the mandate of the NPM .
The SPT further encourages the State party to introduce , together with the NPM, an institutional forum for the discussion and follow up to NPM reports, bearing in mind Article 23 of the Optional Protocol and paragraph 29 of the NPM Guidelines, both of which relate to the obligation of States parties to publish and widely disseminate NPM Annual Reports.
Independence
The issue of independence, while a sensitive one, is a fundamental concern for the Subcommittee. The proximity of the inspectorates to the ministries, both in their establishment and their functioning, threatens the NPM’s credibility. For example, inspectorates are housed with their respective ministries and are connected to them financially, logistically and in terms of supervision. Work plans are proposed or approved by ministers, and visit reports are sent to ministers for review before being publicized. Moreover, limited public consultation on the establishment of the NPM has caused scepticism among civil society, with whom the NPM should smoothly collaborate.
Inspectorates which serve as members of the NPM have stated that they are able, in practice, to carry out their work without interference. Nevertheless, these accounts are overshadowed by the appearance of partiality, an appearance that is exacerbated by the lack a separate legal basis for the NPM. This perception of interdependence is a significant obstacle to the public and to civil society and has been raised by associated institutions as a barrier to collaboration. In a given example, a recent initiative to examine the conditions for life-time prisoners, a politically sensitive topic, led to controversy and was not pursued. Further, despite assurances of functional independence, any autonomy which is currently practically enjoyed by NPM members is not institutionally guaranteed for the future.
The SPT therefore recommends that the State party clearly separate the mandate of its inspectorates and the RSJ from that of the NPM or identify segregated NPM functions within these institutions which can be performed completely autonomously , in line with the NPM Guidelines . The NPM should complement existing systems of oversight in the Netherlands , and its establishment should take into account effective cooperation and coordination between preventive mechanisms in the country, without preclud ing the creation or operation of other such complementary systems.
The Subcommittee further encourages the enactment of legislation that ensures the functional and operational independence of the NPM, with due consideration to the Paris Principles.
Coverage of places of detention
One important limitation in the work of the NPM is the lack of clarity on how the State party will implement OPCAT provisions in the Caribbean Netherlands, including in the Bonaire, St. Eustatius and Saba islands (“BES Islands”). During its visit, the SPT learned that a supervisory council has been established in the BES islands, and that IVenJ, IJZ and IGZ have each conducted initial visits to places of detention in these locations. However, despite the recommendations of the Committee against Torture and the Committee on Enforced Disappearances that the OPCAT be applied equally in the Caribbean Netherlands, the Subcommittee notes that the full NPM does not conduct preventive activities on these islands in a routine and regular manner. RSJ, for example, does not have jurisdiction overseas, which creates a gap in the NPM’s ability to provide policy advice with respect to these locations. In addition, the inspectorates have not carried out joint activities in the Caribbean. This gap in monitoring is concerning, given reported lack of safeguards and ill-treatment, among other human rights concerns, in these locations.
In addition to gaps in OPCAT implementation in the Caribbean Netherlands, the SPT is concerned that the Netherlands NPM does not monitor places of detention in the Netherlands which are leased by other states and accommodating persons detained by those states. Members of the Netherlands NPM understand that the NPMs of sending states have the mandate to monitor such places. However, one sending state is not a State party to the OPCAT and thus has not designated an NPM. At the same time, the NPM of another sending state has expressed concern that it is practically precluded from monitoring these facilities. For example, law enforcement personnel in the concerned facility, who should be interviewed and advised by the NPM, are apparently recruited by the State party, not by the sending state. Further, even with the authority to conduct visits within prison facilities, the NPM of the sending state is nevertheless restricted in monitoring related institutions and systems in the Netherlands — such as the overall provision of health care to detainees as compared to that provided outside of detention — which should be monitored in conjunction with facility visits for the purposes of preventing torture and ill-treatment. Moreover, the ability of NPMs to conduct follow up from sending states is more restricted. This has the potential to create a further gap in the torture prevention system in the Netherlands.
Finally, it is not clear to the SPT that the NPM sufficiently monitors the situation of detained persons wherever they may be deprived of liberty. Some types of institutions, such as military detention centres, are covered primarily by observers to the NPM, and then not consistently. In addition, the place-based nature of inspecting can miss system-wide problems which require an intersectional approach. It can also fail to monitor instances along the chain of custody, such as transfers and periods of detention immediately after apprehension, where torture and ill-treatment can take place. Further, according to civil society, the work of the CITT, which previously had dual mandates to oversee repatriation policy and to ensure such policy was carried out humanely, is now subsumed by the IVenJ, where the monitoring of repatriation detention can be overshadowed by competing priorities.
The SPT recommends that the State party take all necessary measures to ensure the applicability of the OPCAT in the Caribbean Netherlands . Wide application of the OPCAT will enable all persons in the Netherlands to benefit from its provisions and ensure equal protection from torture and ill-treatment throughout the State party. The SPT further recommends that the State party prioritize human rights concerns and the applicability of the OPCAT during ongoing policy review s about how it wishes to apply legislation in these islands.
In cases where a sending State enters into an agreement which allows individuals detained by that State to be held in facilities in the Netherlands, the SPT recommends that the State party provide its NPM the capacity to visit those detainees, as a natural consequence of the NPM’s right to visit all persons deprived of their liberty under the jurisdiction and control of the State party. This is in addition to the SPT’s recommendation that sending States also ensure their NPMs have the legal and practical capacity to visit such detainees. After undertaking such visits, the NPM of the Netherlands should be able to present its recommendations and enter into a preventive dialogue with the authorities of both the sending state and of the State party.
Further, t he SPT recommends that the State party ensure that all places of detention are included in NPM visits , in accordance with the SPT’s evaluation that all persons deprived of their liberty in a State party are covered by the OPCAT . This includes social care institutions, military detention centres and periods of deprivation of liberty during apprehension, transfer and removal.
Resources
The Subcommittee is concerned that the NPM lacks capacity to carry out preventive work comprehensively, including visits, advocacy, and public engagement, especially taking into account the need to monitor places of detention in the Caribbean islands. As of December 2013, the IVenJ was composed of 59 staff numbers, ten of whom were involved in NPM-related functions. Of the IGZ’s 537 staff persons, 30 were involved in NPM work. Comparatively, the IJZ devoted 23 of their 47 staff members to NPM-related functions. In addition, the RSJ has 60 members with a range of expertise areas. However, the Subcommittee notes that the four institutions comprising the NPM have not been provided with additional funding or human resources to carry out NPM tasks, and the SPT notes that staff members that carry out any NPM functions conduct such functions alongside other tasks. Associate organizations that observe the NPM also lack resources, resulting in limited training. Moreover, the Subcommittee understands that a lack of funding has caused NPM members to hesitate in expanding their agendas for preventive work, limiting their execution of OPCAT-mandated functions.
While the Subcommittee understands the State party’s interest to conserve resources, the SPT urges the State party to provide the NPM, in its current and future form, with the human and financial resources needed in order for it to be able to systematically and adequately accomplish all tasks it is mandated to fulfil, in line with Article 18, paragraph 3, of the Optional Protocol and paragraphs 8, 11 and 12 of the NPM Guidelines.
The State party should ensure funding to the NPM through a separate line in the national annual budget referring specifically to the NPM. This funding should be at such a level as to allow the NPM to carry out its visiting programme in all regions of the State party and to conduct follow-up visits, recalling that an adequate budget helps secure the functional and institutional independence of the NPM. It should also allow the NPM to draw up annual work plans for visits, and to systematically enlist the support of other bodies with whom it wishes to cooperate . Such funds should also be sufficient for logistical and other infrastructural needs, including publication of its reports and relevant dissemination tools, allowing the full execution of its mandate.
The SPT recommends that the State party ensure that the NPM is able to carry out visits in the manner and frequency that the NPM itself decides, providing the NPM with the necessary resources to permit its effective operation. Besides the necessary financial resources, this obligation also entails enabling the NPM to have a sufficient number of staff and further guaranteeing their independence.
IV.Final recommendations
The SPT recalls that prevention of torture constitutes an on-going and wide-ranging obligation of the State party.
The Subcommittee therefore requests that the State P arty keep the S PT annually informed o f any legislative and policy changes and other relevant developments regarding the NPM, in order that it might continue to assist the State P arty in fulfilling its obligations under the Optional Protocol.
The SPT emphasizes that its visit provides the Netherlands with an ideal opportunity to demonstrate its goodwill and readiness to fulfil its international obligations under the Optional Protocol. In this respect, the SPT regards its advisory visit and the present report as the commencement of a constructive dialogue with the State party. The SPT stands ready to assist the Netherlands in fulfilling its obligations under the Optional Protocol, in particular by the provision of technical assistance and advice, in order to achieve the common goal of prevention of torture and ill-treatment in places of deprivation of liberty in the State party.
Further to paragraph 11 , t he S PT recommends that the State Party make this report public , believing this in itself to be a preventive measure . In addition, the S PT recommends that the State P arty distribute this report to all the relevant Government departments and institutions.
Annexes
Annex I
[English only]
List of Government officials and other persons with whom the Subcommittee on Prevention of Torture met
I.Authorities
Ministry of Security and Justice
Ms. Michèle Blom, Director-General of Sanctions and Prevention
Ms. Anna Lodeweges, Policy Coordinator, Directorate-General for European and International Affairs
Ms. Marianne Vink, Policy Advisor
Ms. Meije Jeurens, Detention Portfolio
Ministry of Foreign Affairs
Mr. Ronald van Roeden, Deputy Secretary-General
Ms. Kim de Jong, Director of Multilateral Organizations and Human Rights
Ms. Noortje van Rijssen, Legal Affairs
Ms. Lila Dela Cole, Senior Policy Officer for Human Rights
Ministry of Health Welfare and Youth
Ms. Atty Bruins, Youth Management Team
Ms. Swana van Schaardenburg, Policy Advisor for International Affairs
National Police Force
Mr. Frank Paauw, Police Cells Portfolio
National Agency of Correctional Institutions
Mr. Peter Hennephof, Director
Repatriation and Departure Service
Ms. Rhodia Maas, Director
National Preventive Mechanism
Inspectorate of Security and Justice (IVenJ)
Mr. J.G. (Gertjan) Boss, Head
Ms. A.P. (Annejet) Meijler, Program Director
Mr. Ewald Riks, Program Director
Ms. A.H. (Andrea) Steenbrink, Senior Advisor
Mr. J.J. (Hans) Merkus, Strategic Inspector
Ms. Anne Marie Ijzerman, Senior Inspector
Inspectorate for Youth Care (IJZ)
Ms. G.E.M. (Gemma) Tielen, Chief Inspector
Mr. C.J. (Cees) Reedjk, Strategic Inspector
Mr. F. (Falk) de Man, Senior Advisor
Mr. S.C. (Sandra) Mulder, Senior Inspector
Health Care Inspectorate (IGZ)
Ms. J.F. (Joke) de Vries, Chief Inspector
Mr. H.C. (Henk) Milius, Senior Inspector
Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ)
Mr. F.A.M. (Eric) Bakker, Vice Chairman
Associates to the National Preventive Mechanism
Mr. H.G. (Henrik) Vis, Chairman, Commission of Oversight for Penitentiaries
M. (Jos) Waals, Member, Commission of Oversight for Police Cells
II.Others
National Ombudsman
Ms. Adriana Stehouwer, Deputy National Ombudsman
Mr. Munish Ramlal, Policy Advisor
Netherlands Institute for Human Rights
Ms. Anne van Eijndhoven, Policy Advisor
Civil Society
Amnesty International – Netherlands
Stichting Landelijk Ongedocumenteerden Steunpunt (Stichting LOS)
Vereniging Asieladvocaten en Juristen Nederland (VAJN, Dutch Association of Asylum Lawyers)
Utrecht University School of Law
Annex II
[English only]
List of places of detention jointly visited by the national preventive mechanism and the Subcommittee on Prevention of Torture
Almere (adult) penitentiary institution
Lelystad (juvenile) penitentiary institution