University of Minnesota Human Rights Library

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION

* The initial report submitted by the Government of the Netherlands is contained in documents CAT/C/9/Add.1 to 3; for its consideration by the Committee, see documents CAT/C/SR.46, 47, 63 and 64 and the Official Records of the General Assembly, forty-fifth and forty-sixth sessions, A/45/44 paragraphs 435-470 and A/46/46, paragraphs 154-181. The second periodic report is contained in documents CAT/C/25/Add.1, 2 and 5; for its consideration by the Committee, see documents CAT/C/SR.210 and 211 and the Offical Records of the General Assembly, fiftieth session, A/50/44, paragraphs 116‑131.

1. This third report in the framework of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention”) covers the five-year period from 1994 to 1998 inclusive. This period diverges from that prescribed by article 19, paragraph 1, as the period of the required supplementary report. The reason for this is that the Netherlands has experienced a delay in preparing its third report, and by adopting a reporting period of five years on this one occasion, it will be back on track with the four-yearly reporting cycle.

2. The present report deals with new developments in legislation and policy in relation to the implementation of the Convention. These developments are discussed within the context of the existing situation, including changes that have taken place in the reporting period. In addition, further information is given to clarify or supplement information supplied in previous reports. This report also contains a reaction to the Committee’s recommendation regarding compensation for victims, which was formulated following the consideration of the second periodic report (see A/50/44, para. 131).

3. For the principal demographic, economic and social indicators and a description of the Kingdom’s constitutional system, reference is made to the core documents of the Kingdom of the Netherlands (HRI/CORE/1/Add.66, 67 and 68). This report deals only with the European part of the Kingdom. The third periodic report (combined) of the Netherlands Antilles and of Aruba has appeared as document CAT/C/44/Add.4.

II. INFORMATION ON NEW MEASURES AND NEW DEVELOPMENTS RELATING TO THE IMPLEMENTATION OF THE CONVENTION

also asked about the route taken to reach this country. No questions whatsoever are asked at this stage about the person’s motive for seeking asylum. A carer or legal adviser may be present at this interview;

(c) At the end of the interview the person is asked whether he or she wishes to apply for asylum. If so, the asylum-seeker is asked to give the IND permission to conduct a further investigation;

(d) This initial investigation is confined to ascertaining whether the individual has already submitted an application for asylum elsewhere in Europe and whether he or she is known to the Dutch authorities. On the basis of this investigation it is decided whether the asylum-seeker is eligible, at this stage of the procedure, for an accelerated or full-length procedure. At a later stage of the procedure (whether accelerated or otherwise) a further screening is performed to determine whether the matter should be settled in an application centre (AC) or if the asylum-seeker should be transferred to an investigation and reception centre (OC);

(e) Asylum‑seekers whose applications appear at first sight to have little or no chance of acceptance pass through an accelerated procedure. They are immediately interviewed in more detail in the presence of an interpreter. A legal adviser may also be present, and in practice always is. During this interview they have an opportunity to explain their reasons for seeking asylum and may show the interviewer documents they believe to be important to their application. If they are not speaking the truth, if the documents are falsified or forged, or if asylum-seekers have deliberately got rid of or destroyed their papers, this may lead to their application being turned down.

(f) A report is drawn up of the so-called “intake interview”. This report is given to the asylum-seeker, and, unless the latter objects, to the legal adviser. The asylum-seeker is given an opportunity to check the report and to make any additions or corrections deemed necessary;

(g) An asylum-seeker who disagrees with the content of the report informs the IND official, who will take the person’s observations into account in reaching a decision;

(h) After the intake interview, the IND may take one of two decisions. The first is to transfer the asylum-seeker to an OC for further investigation. If the country of origin is one to which asylum-seekers are not returned as a matter of policy, the person will in any case be transferred to an OC;

(i) If the application is rejected, however, the asylum-seeker must either leave the Netherlands voluntarily or be placed in a secure centre pending expulsion. Consultations may take place with the legal adviser when rejection is being considered;

(j) In some cases a decision is deferred, for instance if the situation in the country of origin is as yet unclear, or if the court has yet to give judgement on the case. In none of these cases will an asylum application be dealt with in an accelerated procedure;

(k) An asylum-seeker may lodge an objection or appeal against a rejection, in consultation with a lawyer. If a request to stay is denied and the person concerned is required to leave the Netherlands, he or she may submit an objection to the Minister of Justice. However, where an asylum request has been submitted at AC Schiphol, the only appeal is to the district court;

(l) An asylum-seeker who has submitted an objection or appeal may ask the court to be allowed to await the outcome in the Netherlands.

5. During this reporting period, Parliament agreed to proposals submitted by the State Secretary for Justice to improve the position of aliens in detention. Detention pending deportation is an administrative measure that can be imposed on aliens residing unlawfully in the Netherlands. Such aliens can only be placed in detention if considerations of public order, public policy or national security call for it. Hence the interests of an individual alien must always be balanced against the public interest that calls for detention. Furthermore, there must be a realistic prospect of expulsion. When aliens are placed in detention, they are interviewed by repatriation officials who explain the procedure. At this interview it is ascertained whether the alien is willing to return voluntarily, and whether the relevant documents are present. Inside the institution the repatriation official advises aliens on the supervision and any intervention that may be necessary to facilitate return. Aliens are given an opportunity to take part in repatriation activities aimed at helping them build up a new life upon return. These activities are still at an early stage of development. The newest alien detention centre at Ter Apel has made a start on these return projects. There are lessons in English and computer skills, with courses developed in consultation with training institutes. More subjects will be made available later on.

6. Aliens may appeal directly to the court against their detention. The current practice is that if an alien does not lodge an appeal, the court examines the case ex proprio motu after four weeks of detention to see whether the detention should be continued. The Lower House has agreed to the proposal of having this judicial review conducted within 10 days of the decision to place an alien in detention pending deportation. Every 28 days after that, the court will then review the question of whether continued detention is lawful.

7. The second report to the Committee discussed at length the new policy on deportation. This new approach was prompted by a thorough analysis of the use of pressure and coercion in the deportation of illegal aliens. Many of the recommendations that the Van den Haak Committee made at the time have since been turned into rules. Certain means of coercion, in particular the use of tape to seal the mouth, are now forbidden during deportation, and other recommendations too have been followed. It has become customary, for instance, for a record to be kept of all activities undertaken by various government bodies in relation to an alien who is in detention pending deportation. Special guidance forms have been devised for this purpose. Every activity undertaken by an official as part of a deportation procedure is recorded on the form. This form accompanies aliens from the moment they are deprived of their liberty until their deportation or release. A revised version of the form was published in the Aliens Act Implementation Guidelines in November 1997, with instructions for use.

Asylum*	Regular**
1995: 3 366	1995: 11 046
1996: 3 553	1996: 15 269
1997: 3 267	1997: 11 161
1998: 2 618	1998: 10 866

Year	1995	1996	1997	1998
Number of expulsions	7 019	7 256	7 030	6 681
Cases involving mild coercion*	139	179	95	144
Cases involving severe coercion**	20	22	4	7

* “Mild coercion” denotes the use of handcuffs and/or plastic strips to bind the hands.

conduct in relation to the Netherlands, the protection of human rights by organizations and the requirements for judicious conduct by the police. These subjects are dealt with through assignments and discussion of specific cases.

19. The training also looks at the relationship between torture and the legal concept of ill‑treatment as defined in the Criminal Code. Section 8 of the 1993 Police Act provides that police officers may use force against individuals under certain conditions. Such use of force is strictly regulated. The details are set out in the Official Instructions for the Police, the Royal Military Constabulary and special investigating officers. A police officer who uses force unlawfully is guilty of a criminal offence; the consequences of any such action are dealt with expressly during police training.

20. If a police officer subjects someone to physical or mental abuse with the aim of obtaining information or a confession, of punishing him, of intimidating him or someone else, or of forcing him to do or omit to do something, this is classified as torture. This concept too is dealt with clearly during training, and its consequences explained. Attention is also paid to the criminal offences defined as such in the Act to Implement the Convention on Torture.

Policy on traumatized victims as part of the course attended by trainee IND liaison officers

21. IND liaison officers are the first people to speak to asylum-seekers about their history and the reasons for their flight. For some time now, ways of dealing with traumatized asylum‑seekers have been discussed as part of IND liaison officers’ training.

22. Since 7 November 1995 IND has been required to adhere to a specific set of instructions concerning the approach to traumatized victims. These instructions cite the possibility of granting a residence permit on the basis of traumatic events such as torture and rape.

24. Unlike a provisional residence permit or A status, a residence permit may be granted on humanitarian grounds without the existence of any facts and/or circumstances directly related to the political situation in the country of origin or to hostile treatment of the individual concerned on the part of the authorities. The policy on traumatized victims provides for such residence permits to be granted for compelling reasons of a humanitarian nature and without restrictions to asylum seekers who are so traumatized by their personal experience of certain events that it would be unreasonable to expect them to return to their country of origin. In principle, the traumatic experience should be the reason for the person’s departure from the country of origin. Decisions and statements of defence should always detail why a particular residence permit requested on humanitarian grounds was granted or refused, explaining the events that led up to this decision. This means that explicit reference must be made to the fact that traumatic experiences are involved.

25. Examples of traumatic experiences of this kind that may occasion the granting of a residence permit are:

(b) The violent death of a relative or friend, provided the person concerned can establish satisfactorily that he or she had a close relationship with the deceased;

(d) The torture or rape of the person concerned by a government official or a political or militant group.

26. A residence permit may be granted within the framework of policy on traumatized victims provided the following conditions are met:

(a) The death of a person falling into one of the above-mentioned categories must be satisfactorily established, and if possible documented (for instance by a death certificate or other papers making it clear that the person is deceased);

(b) The detention and/or torture of the person concerned must have been established satisfactorily;

(c) It must either be apparent, as far as is possible, from the statements of the person concerned, or otherwise satisfactorily established, that he or she was traumatized by these events and that it would be unreasonable to expect him or her to return to their country of origin;

(d) If the person’s body bears visible signs of violence, the medical inspector may be asked to examine the person with a view to determining the seriousness of the injuries and their cause.

27. The working instructions of the IND are based on the Equal Opportunities Council’s recommendations (made in 1996) on the promotion of expertise in the IND, focusing on a gender-specific approach. Neither the Geneva Convention relating to the status of Refugees nor the Dutch Aliens Act explicitly differentiates according to gender.

28. The implementation instructions set out to ensure that the existing rules do justice to female as well as male asylum-seekers’ accounts of the events that have prompted them to seek asylum, and look at specific aspects of the kind of accounts that may be furnished by women. Other implementation instructions refer to these specific instructions for dealing with traumatized asylum-seekers. These approaches now constitute a standard element of the training of IND liaison officers. Both sets of instructions will be evaluated in 2000 to determine their results and impact.

29. The care of persons in police custody is an important task of regional police forces. Since the reorganization of the police in 1994, the Regional Police Forces (Management) Decree, the Official Instructions for the police, the Royal Military Constabulary and special investigating officers, and the Regulations on police cell complexes have included regulations on medical and other care, treatment of detainees, and architectural requirements for police cells. All these are uniform minimum rules with nationwide application, to be implemented by the regional police forces themselves.

30. Since 1 April 1994, for instance, pursuant to article 15, paragraph 7, of the Regional Police Forces (Management) Decree, all regional police forces are required to fill in a special registration form in the event of the death or attempted suicide of someone confined to a police cell, and send it to the Ministry of the Interior and Kingdom Relations. In May 1997 the Board of Police Commissioners published an “Integrity Statute” for the Dutch police. This Statute gives general guidelines for all police officers, and contains a number of fundamental principles that are conducive to sound decision-making in a variety of situations. For instance, article 4.2 of the Statute provides that police officers shall exercise the powers vested in them to apply force in an appropriate and proportionate manner.

31. In November 1997 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) inspected a variety of places of detention, including several police cell complexes. In July 1998 CPT reported its findings to the Dutch Government. In general, the Committee's findings were favourable. Several recommendations were made, however, concerning improvements in conditions and in the treatment of detainees. On the basis of these recommendations, the Minister of the Interior and Kingdom Relations reminded the managers of regional police forces explicitly of the importance of always informing a relative or a member of a detainee's household of this detention as soon as possible, as laid down in article 27 of the Official Instructions for the police, the Royal Military Constabulary and special investigating officers. The only exception is when such notification would prejudice the criminal investigation. CPT also noted that some police cells or holding rooms have little or no daylight, and that the ventilation sometimes fails to meet the minimum requirements laid down in the regulations on police cell complexes. In this regard too, the Minister of the Interior and Kingdom Relations has expressly reminded the regional forces of their statutory obligations.

32. Several regional police forces have set up independent committees to monitor conditions in police cells. Their primary task is to monitor the quality of accommodation, safety and care in police cell complexes, and the way detainees are treated, and to issue annual reports. The Lower House recently adopted a motion to place all police forces under a statutory obligation to set up a supervisory committee of this kind, and the requisite legislation is now under preparation.

33. Chapter X of the 1993 Police Act determines how complaints about the conduct of police officers should be dealt with, investigated and resolved. Pursuant to section 61 of the 1993 Police Act, these internal regulations for processing complaints should be elaborated by each individual regional force. A complainant who is unsatisfied about the way in which a complaint has been dealt with can take the case to the National Ombudsman, who decides whether the actions of the police were appropriate.

34. The large number of complaints submitted by people arrested during the disturbances in Amsterdam in June 1997 concerning the conduct of the police and criminal justice authorities prompted the Minister of the Interior and the Minister of Justice to investigate these events. The disturbances took place in connection with the European Council meeting in Amsterdam. The complaints concerned the manner of arrest and the treatment in prisons.

35. In response to the actions taken by the police during this European Summit, the police complaints committee of Amsterdam-Amstelland regional police force made several recommendations to improve the police response to such disturbances in the future. The recommendations were presented to the “triangular” platform - a consultative structure involving the burgomaster, the public prosecutor and the manager of the municipal or regional police force responsible for public order and safety and its enforcement. In this case, the participants were the burgomaster of Amsterdam, the chief public prosecutor for the district of Amsterdam and the manager of the Amsterdam-Amstelland regional police force.

36. Not all the recommendations were adopted, because sufficient scope and instruments already exist for appropriate action to be taken in specific situations of this kind. The recommendations made within the context of the Convention were adopted. In future, for instance, sufficient women police officers must be deployed to search female suspects in the event of a large-scale operation of this kind. The problems relating to the use of reserve handcuffs are also being looked into; the complaints about the plastic handcuffs were acknowledged as valid.

37. Several suspects made complaints about their treatment in a number of prisons, in relation to the same incident. The Minister of Justice appointed a special committee to look into the matter, which published a “black paper” on its findings. This committee’s main conclusion was that the prison authorities had responded as best they could to an emergency. Nonetheless, it also had points of criticism, particularly in the realm of facilities. Confining more than 100 people in a single tent created management problems and the formalities that apply to a drastic measure of this kind were not observed. The committee’s most salient recommendation was that when arrests are made on such a large scale in the future, the consultative structure should be expanded from local to central level, taking care to involve representatives of each level of the criminal justice system. It also felt that it was more sensible to split detainees into smaller groups and disperse them around the country, in the interests of manageability. The Minister of Justice has adopted these recommendations and is having them elaborated.

1994	3
1995	14
1996	16
1997	10
1998	10

38. In the event of a detainee committing suicide, the incident and the circumstances that led up to it are always investigated by the National Criminal Investigation Department.

39. In 1997 Zaandijk police once employed a technique, when interrogating an individual accused of a serious crime, which involved applying psychological pressure. As soon as this came to light, the Minister of Justice immediately ordered that the practice should cease. This accorded with the recommendation of the Criminal Investigation Department Advisory Committee, which held that the method compromised the aim of discovering the truth. The suspect who had been interrogated using this technique was released from detention. Since then, an experiment has been launched in which interrogations of suspects in serious criminal cases - i.e. cases punishable by eight or more years of imprisonment - are recorded on video. It provides extra scope for monitoring the treatment of suspects during interrogation and the general conditions in which the interrogation is conducted. The experiment will be evaluated by the Criminal Investigation Department Advisory Committee prior to nationwide introduction.

40. The Psychiatric Hospitals (Compulsory Admission) Act (Wet Bijzondere Opnemingen in Psychiatrische Ziekenhuizen; BOPZ) entered into force in 1994, replacing the Lunacy Act of 1884. The BOPZ provides for the committal and compulsory treatment of psychiatric patients in psychiatric hospitals. This includes psycho-geriatric patients (who are treated in psycho-geriatric nursing homes) and the mentally disabled, who are likewise treated in specialized institutions. The primary objective of the BOPZ is twofold: to safeguard the legal status of the person admitted, while protecting others from someone who poses a danger because of their psychiatric disorder. The first evaluation of the BOPZ was completed at the end of 1996, further to which the Government formulated its position at the end of 1997. It proposed several new measures, such as the introduction of declarations of willingness to be committed and compelled to undergo treatment if necessary (zelfbindingsverklaring) and new judicial powers to enforce outpatient treatment.

41. In the supplement to the second report, the Committee’s request for attention to be paid to compensation for victims was heeded. At the time the Government reported the imminent entry into force of a new Act of Parliament expanding the scope for victims to claim damages from the perpetrator during the criminal trial. This “Terwee Act” entered into effect on 1 April 1995. A guideline has been promulgated imposing responsibilities on the police and the public prosecution service to improve the treatment of victims and to ensure that they are properly informed. The guideline also stipulates that the police and the public prosecution service should endeavour to arrange a settlement between the victim and the perpetrator at the earliest possible stage.

42. An interim evaluation of the Act was conducted in 1998. More and more victims are urging the police and criminal justice authorities to keep them informed of the progress in a case. It is increasingly common for public prosecutors to interview victims or the next of kin following serious criminal offences. There has also been an increase in the number of orders to pay damages in criminal cases in the evaluation period. Increasing numbers of victims are joining criminal proceedings. Besides demonstrating the progress made, the interim report also reveals elements that are open to improvement, primarily in the realm of communication among the various organizations involved. The procedures should be better publicized, and it should be easier for victims to gain access to information on their case; one solution would be to reserve a special counter for them at each district court. Furthermore, talking to victims about their experience can lead to better practice; more use should be made of this.

43. The Central Judicial Collection Agency in Leeuwarden (CJIB) enforces orders to pay damages. In all cases where damages have been awarded, it sends the person convicted a notification of the amount of the damages to be paid. If payment is not made, the individual is sent a demand, and if necessary a second demand, for the sum concerned, raised by an amount prescribed by statutory provisions. If these demands are not followed by payment, a writ of execution is served. At this point the case is transferred to a bailiff, who enforces compliance. If it proves impossible to recover the damages from the sale of goods, in the most extreme case a warrant may be issued for the person’s arrest with a view to imposing detention. Such detention does not, however, release the culprit from the obligation to pay compensation.

44. The public prosecutor's office at each district court is responsible for properly informing victims. The CJIB therefore gives public prosecutor’s offices regular progress reports on each case. In 1998 the overhaul of the automated system of awards of damages was completed. From 1999 onwards, it will be possible for the CJIB and the 19 districts to exchange data electronically.

45. The number of orders to pay damages being processed by the CJIB rose still further in 1998. The number of new awards rose by about 25 per cent. The largest proportion of the total amount paid in 1998 in the cases that were settled was paid to the CJIB. The percentage of payments to bailiffs rose slightly; more cases than in the previous reporting year ended up with the bailiff. The payments made to victims relate to cases in which victim and perpetrator reached agreement on the amount to be paid, and in which the agreement was honoured.

46. In 1998, 2,156 awards of damages were settled. Of these awards, 76.6 per cent consisted of payments to the CJIB, 5.3 per cent of payments to the bailiff, 0.6 per cent of payments to the police or public prosecutor’s office, 12.2 per cent of payments to the victim and 0.7 per cent of detention for non-payment, while 4.5 per cent proved impossible to collect.

47. It was also noted in the supplement to the second report that a victim or next of kin unable to recover damages from the perpetrators or an insurance company may submit a claim to the Criminal Injuries Compensation Fund. The number of requests for payment from this fund has risen again over the past year.

1994	2 365
1995	2 368
1996	2 808
1997	2 921
1998	figures not yet available

1994	1 552/1 249
1995	2 469/2 018
1996	2 065/1 378
1997	2 097/1 678
1998	figures not yet available

1994	NLG 6 375 295
1995	NLG 9 958 967
1996	NLG 8 468 568
1998	NLG 8 546 118
1998	figures not yet available

1994	No figures available
1995	3 617
1996	4 733
1997	4 736
1998	4 886