Summary Records - CAT - Netherlands

Distr.

GENERAL

CAT/C/SR.211
1 May 1995

Original: ENGLISH

Summary record of the public part of the 211th meeting : Netherlands. 01/05/95.

CAT/C/SR.211. (Summary Record)

Convention Abbreviation: CAT

COMMITTEE AGAINST TORTURE

Fourteenth session

SUMMARY RECORD OF THE PUBLIC PART* OF THE 211th MEETING

Held at the Palais des Nations, Geneva,
on Tuesday, 25 April 1995, at 3 p.m.

Chairman: Mr. DIPANDA MOUELLE

CONTENTS

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

Second periodic report of the Netherlands (continued)

* The summary record of the closed part of the meeting appears as document CAT/C/SR.211/Add.1.

The meeting was called to order at 3.10 p.m.

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION (agenda item 5) (continued)

Second periodic report of the Netherlands (continued) (CAT/C/25/Add.1, 2 and 5)

1. At the invitation of the Chairman, Mr. Van der Heijden, Mr. Pietersz, Mr. Zwinkels, Ms. Vijghen, Mr. Van der Kwast and Ms. Peterson (Netherlands) took seats at the Committee table.

2. Mr. VAN DER HEIJDEN (Netherlands) announced that members of his delegation would answer the questions raised by members of the Committee at the previous meeting. Questions which they were unable to answer would be forwarded to his Government for appropriate action.

3. Mr. PIETERSZ (Netherlands), referring to the situation in the Netherlands Antilles, said with regard to the question of extradition that there were no guidelines concerning the way in which the Governor dealt with such issues. The Governor's decision was based mainly on the advice of the Court of Justice, which would raise the question and determine whether the person to be extradited had been tortured or could be expected to be tortured in the receiving country. An example of the importance which the authorities attached to the matter was the decision that had been taken not to expel any illegal aliens to a specific country in the region where democracy was being restored and where it was not yet clear that human rights were guaranteed and that torture did not exist.

4. With regard to the training of medical personnel, the protocol to be followed in cases involving the death of a detainee was crystal-clear. Following a careful analysis of all the written material on past cases, including the comments of Amnesty International, a small working group had been set up to prepare a first draft of the protocol, which indicated that the public prosecutor was the coordinating authority. Only he would be authorized to take a decision concerning the remains of the deceased person. Within 24 hours, a report must be prepared, including the statements of officers who had dealt with the detainee and/or found the body. Reports would also be prepared by the police coroner and the National Criminal Investigation Department.

5. A medical report prepared by the police coroner would be prepared for the public prosecutor and the pathologist. It would be handed over to the pathologist by the prosecutor and accompany the request for an autopsy. It was mandatory for the investigator who would make the final report and for the prosecutor to be present during the autopsy. In the meantime, the family of the deceased would have been informed and offered the opportunity to see the body before the autopsy. In addition, the family or its legal representative would have an opportunity to put specific questions concerning the autopsy. The family would be informed of the results of the investigation and the findings of the autopsy. The police commissioner and the prison governor would also be informed of the results and any consequences the investigation would have with regard to the officer or officers who might have caused the death of the detainee.

6. The Police Action Complaints Committee had been unable to operate at an optimum level owing to its lack of investigative authority. The Ministry of Justice had therefore established a new Complaints Committee which was responsible for instituting an investigation of a complaint filed by a civilian, reporting the findings of such an investigation and making proposals for measures to be taken. It was to be noted that the Committee was not restricted to complaints of ill-treatment.

7. With regard to the revelation during the court hearing of the use of force, it should be noted that the judicial authorities applied a control mechanism. In the first stage of detention, the public prosecutor always asked whether the person in question had experienced any form of police brutality or ill-treatment. If that was the case, the prosecutor reported that information in writing to the chief prosecutor, who would initiate an investigation. That investigation would be carried out by the National Criminal Investigation Department under the jurisdiction of the Attorney-General.

8. In the second stage of the criminal procedure, the examining magistrate would put the same question and, if the person in question had experienced any form of police brutality, would order an investigation by the National Criminal Investigation Department, which would report directly to the magistrate. If the Department concluded that there had been ill-treatment, the judge would consider the evidence to be inadmissible. Irrespective of the judge's decision, the public prosecutor, who would have received a copy of the investigation results, would decide on the measures to be taken against the perpetrator.

9. With regard to the point made by Mr. Sorensen about the membership of a public prosecutor in the Complaints Committee, he said that the choice of a former prosecutor had been based mainly on the need to have someone with wide experience in the criminal investigations to be considered by the Committee.

10. The Netherlands Antilles had the same judicial infrastructure as the Netherlands. In that respect, article 116 of the Constitution provided that the Chief Justice and the Associate Justices of the Supreme Court of Justice could be removed by the King in the event of proved unfitness because of continuous mental or physical deficiency or old-age infirmities. In the judicial history of the Netherlands Antilles no judge had ever been removed from office.

11. Ms. PETERSON (Netherlands), referring to the situation in Aruba, said she wished to assure the Committee that the legislation which had been prepared by her Government to implement the Convention was based on the definition contained in article 1 of the Convention. The chosen definition of punishable acts was one which fitted the Aruban system of criminal law and also contained the various physical elements of a punishable act. Incorporating it into the Aruban system of criminal law was accomplished by making use of concepts such as cruelty and provocation contained in the Criminal Code of Aruba.

12. In reply to the question by Mr. Sorensen concerning basic safeguards, she said that the following procedure was adopted. After the arrest of a suspect, he was transported to the police station, where he was brought before an assistant public prosecutor, who immediately informed him of his rights, including the right to be seen by a doctor and to receive legal assistance. If applicable, the suspect also had the right to see his probation officer or a priest.

13. Police officers received instruction in the treatment of detainees. Police stations had their own doctors, who were paid by the Government, and could be called at the request of a detainee. A detainee could, if he so wished, see his own doctor. Only in very special cases could the public prosecutor refuse access to a lawyer or next of kin.

14. With regard to the length of detention in a police station, she agreed that the period of 10 days was too long and pointed out that the public prosecutor, the prison service and the police department were looking into ways to shorten that period as much as possible.

15. Corporal punishment was not permitted under Aruban legislation. Conditions in police cells were being improved; the Government had invested a great deal of money to that end. The public prosecutor could ask for an extension of detention. The court could refuse such an extension and set the defendant free. It could also shorten the period of detention.

16. On the question of asylum-seekers, she pointed out that Aruba was a party to the Protocol relating to the Status of Refugees. In accordance with the Protocol, it did not expel persons who had a well-founded fear of prosecution. When a person applied for political asylum, her Government proceeded very carefully. Immigration authorities were instructed not to expel anyone unless his or her case had been investigated. It had never been necessary to use force when expelling a person from Aruba. As applications for political asylum were so few, there had never been an urgent need for legislation. However, the Government was aware that the human rights situation in countries close to the island was not always ideal. It was therefore expected that provision would be made for the principle of non-return in the new legislation with a view to guaranteeing asylum-seekers adequate protection.

17. Ms. VIJGHEN (Netherlands) said she was happy to point out that there had been hardly any problems involving expulsion from the Netherlands since the appointment of "return officers". If a person became aggressive, the policy adopted was to take him into custody until he calmed down and to make it clear to him that it made no sense to be aggressive because he would be taken into custody again and again. It was hardly necessary to do so since most people had been able to organize their deportation from the Netherlands in such a way that they were mentally prepared for it.

18. At all levels of police investigation, emphasis was laid on correct procedures for interrogation. Police officers were never left alone with suspects who had many remedies available to them.

19. The National Ombudsman played a very important role in the handling of complaints. Many people who might be disinclined to start official proceedings would address themselves in the first instance to the Ombudsman.

20. On the issue of the validity of evidence and statements made during police questioning, evidence which had been unlawfully obtained was not admissible in a Netherlands court. That was an important safeguard, bearing in mind the fact that a lawyer would not normally be available to the suspect during the first six hours of detention.

21. Mr. VAN DER HEIJDEN (Netherlands), referring to Mr. Sorensen's question about the special unit for torture victims, said that his country had extensive facilities to help such victims. As stated in the report, the basic principle underlying assistance to torture victims was that care should be provided by existing institutions as far as possible. For the treatment of refugees and asylum-seekers, specialized knowledge was sometimes needed. Special care techniques had been developed in the Netherlands based on the extensive medical and psychiatric experience acquired in the treatment of victims of torture and war victims during the Second World War. For example, the capacity of the Centrum '45 Foundation to admit victims of violence had been expanded early in 1994. The Foundation had long experience of treating victims of war and accordingly had adequate expertise in the area. The Wolfsheze Mental Hospital had a wing which specialized in transcultural psychiatry. Many of the patients treated there were victims of violence. The Netherlands was among the few countries which annually invited disabled refugees, including those who had experienced torture. The number of invitations to such refugees had recently been increased from 20 to 35 a year.

22. Ms. VIJGHEN (Netherlands) said that it might be of interest to members to learn how victims of assault were treated in the Netherlands. On 1 April 1995 a new law had been enacted which dealt specifically with such victims. That law provided that, in the case of civilians committing an assault, the victim was entitled to financial compensation. In addition, guidelines had been prepared for the police and the public prosecutor relating to the care of victims of assault. The guidelines provided that the police must inform the victim of everything he might need, including his right to contact special assistance bureaux which existed for such victims. Particular stress was laid on mental rehabilitation. The sum of 10 million guilders had been made available for implementation of the new law. Special officials had been appointed within the Ministry of Justice to ensure proper implementation, in particular by the police.

23. In the case of a public official who had committed an assault not in the line of duty, the Government would provide financial compensation to the victim for medical care and for material damage. Provision was also made for mental rehabilitation in such cases, particularly by organizing contact between the official concerned and the victim. That procedure had proved to be very successful and in many cases the victim had been satisfied by the official's apology.

24. Concerning the question of definitions which had been discussed at the previous meeting, she wished to point out that article 1, paragraph 2, of the Netherlands Act ratifying the Convention specifically provided that the intentional inducement of a state of acute anxiety or any other form of serious mental disturbance would be deemed to constitute assault. Under the Convention, an "act" was required for torture to exist. Netherlands practice, however, also covered "non-acts" so that, if a person intentionally refrained from acting in an ethical manner, that would also constitute assault. The Netherlands definition applicable in the implementation of the Convention was even stricter and wider than its obligation under the Convention.

25. Mr. Sorensen had observed that it must be quite complicated for a police officer to understand that articles 42 and 43 of the Netherlands Criminal Code did not apply in cases involving torture. The proper interpretation of the law was, however, made clear to police during their training. Mr. Sorensen had also referred to the conduct of interviews and had asked whether interviewers were specially trained in how to deal with people who had been victims of torture. In fact, Netherlands officers responsible for interviewing asylum-seekers received special training in which non-governmental organizations participated. The Netherlands non-governmental organization "Refugee Aid" took part in such training. That work was also monitored by senior officers with long experience. From the moment when an interview started, legal aid was available. It was an important task of the legal-aid officer to establish a good relationship with the victim in order to obtain all relevant information. Every effort was made to find a suitable female officer to interview female refugees.

26. A request had been made for figures relating to expulsions from the Netherlands. Statistics relating to 1993-1994 were not yet available but would be sent to the Committee as soon as possible. Officials concerned with the return of refugees were doing a good job, and other countries had expressed interest in the approach and methods used by the Netherlands on expulsions.

27. Mr. VAN DER HEIJDEN (Netherlands) noted that Mr. Sorensen had referred to the question of the possible prosecution of persons who had allegedly committed torture or had been responsible for torture and in that connection had mentioned the recent visit to the Netherlands by General Pinochet. Members of Parliament in the Netherlands had raised questions about that visit and the Minister for Foreign Affairs, on behalf of the Minister of Justice, had replied. General Pinochet had, in fact, visited the Netherlands and registered under his mother's name in a hotel in Amsterdam. He had been in transit; he had made no official contacts; he had left the Netherlands by the time the Minister for Foreign Affairs had replied to members' questions. Chilean citizens did not require visas to visit the Netherlands. The Netherlands Government did not appreciate visits by General Pinochet and had made that fact known to the Government of Chile.

28. The legal situation surrounding the visit was quite complicated and involved two special questions. The first was that the principle of expediency was a basic principle of the legal system. The second was that prosecution must be feasible. Given the situation in which the public prosecutor worked, he might decide not to prosecute a particular case because success was unlikely. In the case of General Pinochet, the public prosecutor had concluded that successful prosecution was unlikely. One reason might have been that General Pinochet enjoyed immunity from prosecution in Chile. The gathering of evidence might have been almost impossible as General Pinochet was still in public service as a very senior officer in Chile. It was, therefore, presumably thought that successful prosecution would be unlikely. In the view of the Netherlands, the obligation of the public prosecutor to investigate the question whether prosecution should take place had been fulfilled and further investigation was not, therefore, necessary because it had been decided not to prosecute.

29. He would welcome the views of members on the issues raised by General Pinochet's visit, as those issues might be of interest to other countries. In particular, he welcomed Mr. Yakovlev's suggestion that the Committee might wish to consider the case in closed session.

30. Ms. VIJGHEN (Netherlands) noted that Mr. Sorensen had asked what had been meant by the use of the word "generally" in paragraph 45 (b) of the report. The Netherlands had used the word "generally" because, at the time the report had been written, Netherlands law still envisaged the possibility of a person being taken into police custody for four days. The law had, however, been changed to accord with the judgement of the European Court in the Brogan case, with effect from 1 October 1994.

31. It had also been asked whether, when the time-limit on custody expired, the detainee could be freed if his case had not yet been submitted to a court. The answer was that that was so, but in practice the public prosecutor would bring the matter before a court prior to expiry of the time-limit; if more time was required, he would ask the judge to postpone the trial for a maximum period of one month. The judge would ascertain whether available evidence justified such a further period of detention.

32. Replying to the question whether letters to the Ombudsman by a detainee could be opened by the authorities, she said the Detention Act provided that the correspondence of detainees was under the control of the State and could therefore be opened. The rules of most detention centres, however, made an exception for letters to the Ombudsman. Proposals for a new Detention Act included a provision incorporating that exception.

33. Mr. Sorensen had asked about the use of electric batons by the police. Such batons were special weapons which required the authorization of the Minister of Justice. The police code of conduct stated that they could only be used to keep aggressive dogs at a safe distance.

34. Mr. VAN DER HEIJDEN (Netherlands), referring to Mr. Sorensen's question about the training of doctors and nurses, said that the new law would make compulsory the inclusion of instruction on the treatment of victims of torture and brutality.

35. Ms. VIJGHEN, replying to a question by Mr. Yakovlev, said that she was not aware of any cases in which a judge had had to pronounce on whether to admit evidence because it had been gathered by means of torture. In reply to his question how a judge would respond to an individual stating for the first time during court proceedings that he was a torture victim, she said that if the torture had been unrelated to the case for which the individual was on trial, a separate investigation would be conducted and the trial would continue. If, however, the torture had been related to the current trial, the trial would immediately be suspended and an investigation would be carried out.

36. In response to a question by Mr. Burns about the victim compensation system and what would happen if an offender was short of money, she said that in a criminal case an individual could request financial compensation and the matter would be dealt with by the judge; otherwise the victim could apply for compensation by way of a civil procedure. In the event of the offender failing to pay, a special enforcement procedure would apply. The new law addressed the problem of the offender not having sufficient money. The establishment of a separate fund to compensate victims in that situation would result in many offenders ensuring they had no money. It had therefore been decided that if an offender was unable to pay immediately, he would remain under an obligation to pay the victim at a future date.

37. Mr. El Ibrashi had asked whether the definition in the Act ratifying the Convention included mental torture. Article 1, paragraph 2, explicitly provided that the intentional inducement of a state of acute anxiety or any other form of serious mental disturbance would be deemed to constitute assault.

38. In reply to his request for an example of force majeure, as mentioned in paragraph 34 of the report (CAT/C/25/Add.1), she said that that sort of problem had not yet arisen, but a theoretical example was an individual putting a gun to another's head and threatening to shoot him if he did not beat a third person.

39. As to his question about the relation between the statements in subparagraphs (c) and (d) of paragraph 45, the period for which a person could be held in police custody could be divided into two parts. The first was a maximum of 10 days, to be decided by the public prosecutor, with the judge ensuring proper compliance with procedures. The second period was at the judge's discretion.

40. She believed that she had answered Mr. Regmi's question when the provision mentioned in paragraph 8 of the report ("unless this would hamper the investigation") would apply in the course of her reply to Mr. Sorensen on the same matter. It would apply as long as was necessary for the investigation.

41. She informed Mrs. Iliopoulos-Strangas that procedures relating to complaints of police brutality were the same for aliens as for Netherlands citizens.

42. A question by Mr. Slim in connection with paragraph 8 of the report about when police officers should inform relatives that an individual was being held in custody had already been answered. In reply to his question whether acts of omission, such as not providing food and drink, would come under the definition of torture (or assault - the term used in the Netherlands), she said that torture was not only active; it also related to a failure to act when, through such failure, equivalent pain, injury or anxiety was caused. The police code of conduct relating to the treatment of detainees in police cells spelt out several aspects of that question.

43. With reference to the Chairman's question about stretchers and helmets being used when expulsion problems were encountered, she said that such problems did not exist at present. The authorities' policy would be to wait for another opportunity to expel the person. A good introductory procedure in expulsion cases meant that stretchers and strait-jackets were no longer required.

44. Mr. EL IBRASHI requested clarification on two matters. He wished to know when the legal counsel was not entitled to be present with the suspect. Two points had been mentioned: the first concerned cases when his presence could hinder the outcome of the investigation, either for the suspect or for a possible second suspect who might also be involved in the case; the other related to a legal counsel not being present during the first six hours of the police investigation. Two questions must be considered during the investigation: the rights of the suspect and how to discover the truth. The rights of the suspect must prevail in any conflict of interests. Depriving a suspect of the right to meet a legal counsel during the first six hours was a serious matter as those hours were the most crucial of the investigation, and ignorance of his rights or obligations could have serious negative repercussions for the suspect. Being deprived of legal counsel for the purpose of the protection of third-party interests was a less serious matter, as it was dependent on a magistrate's ruling.

45. The second matter related to compensation under article 14 of the Convention. In the event of an offence being perpetrated by a public official, was there a system of combined liability so that if the offender did not have the financial means to pay the victim, the State would automatically step in? He also wished for clarification on an earlier statement that in a case of torture the State could be ordered to provide both pecuniary and non-pecuniary compensation. He was confused by the phrase "could be ordered". If there had been an offence and an offender had been acquitted, was there an obligation for the judge to order that compensation should be paid or was that left to his discretion?

46. His question relating to paragraph 20 of the report and the possibility for the victim to appeal independently against the rejection of the claim had not been answered. Did that appeal come before the criminal or the civil court? If it was a civil law case, the appeal should come before the civil court, but in paragraph 20 it was stated that the victim could appeal independently against the rejection of the claim if no appeal had been instituted in the principal proceedings by the Public Prosecutions Department. The appeal therefore had to come before the criminal court. He wished to know if that meant that the criminal court would examine only the civil law question relating to compensation and leave aside the criminal case.

47. Mr. SLIM congratulated the representatives of the Netherlands on their thorough, clear replies. However, he had a question about paragraph 8 of the report on the standard procedure for informing relatives when an individual was held in custody. In some torture cases the fact that the victims had suffered torture was aggravated by not disclosing such torture until all traces of it had disappeared. The obligation to inform relatives or other household members was therefore a particularly important one. In some countries there was an obligation for police stations to keep registers of the names and personal details of victims and their date of arrest so that families could find out if and when someone had been arrested. He inquired whether there was a legal obligation to compel police stations in the Netherlands to keep registers. Furthermore, paragraph 8 appeared to provide for an exception, stating that information would be given unless that would hamper the investigation. He asked if the exception was so widely used in practice that the obligation was generally not met? The matter was a crucial one as monitoring could only occur in the absence of secrecy, and secrecy could only be dispelled if relatives were informed in a timely manner.

48. The CHAIRMAN remarked that no replies had been given regarding the case of Mr. Every, who had allegedly died after being beaten by police, the case of Mr. Neil, who had died in February 1990, or the case of Mr. Fabias, who had also allegedly been beaten. He requested the members of the Netherlands delegation to comment on those cases.

49. Ms. VIJGHEN said she would provide as extensive and detailed information as possible on the matters raised. With reference to Mr. El Ibrashi's question concerning legal counsel not being allowed to be present with a detainee in a police station during the first six hours of the investigation,
she said that she had not intended to suggest that contacting a lawyer would generally create a problem for the investigation. In exceptional cases, the examining magistrate or the public prosecutor could order a detainee to be denied the right of free access to counsel, but only if there were grounds for suspecting that the lawyer was informing the client of facts of which he should remain unaware at that time, or if there were grounds for suspecting that their contact was being misused in an attempt to prevent the investigating officers from ascertaining the truth. An order of that kind was only valid for six days for one specific lawyer and did not entail a total prohibition of legal assistance. The district court must be immediately notified of the order and give a ruling after hearing the lawyer in question. Such orders were in fact rarely issued.

50. She was aware that most torture took place during the first few hours of police custody. New police provisions required police to keep detailed records concerning all matters pertaining to detainees, such as their personal particulars, the reasons for custody and the dates and times of the beginning and end of police custody. In the event of specific problems, such as suicide attempts, special information must be collected and a full investigation conducted. A record was kept of everything said by the suspect and the interrogation officer during the first six hours of the investigation, and the suspect's lawyer could have access to that record. She stressed that there were numerous guarantees for the suspect and many ways in which complaints could be lodged.

51. With reference to Mr. El Ibrashi's question about compensation, she said her delegation would subsequently provide the Committee with more detailed written information on the Compensation Act.

52. Mr. PIETERSZ, referring to the case of Mr. Every, said that an investigation had been conducted by an examining magistrate at the request of the family of the deceased. He had heard 11 persons and the conclusion reached was that there was no indication that ill-treatment by a police officer had been the direct cause of death. Consequently, no criminal proceedings had been filed against any police officer and the authorities had taken no further measures. Some remarks had been made concerning the procedure, and those, together with observations by Amnesty International and other bodies, had led to the formulation of a protocol establishing clearly the procedure to be followed in such cases.

53. In the case of Mr. Fabias, it had proved difficult to bring criminal charges against the police officers in question because the investigation had not produced sufficient evidence of ill-treatment to justify such a step. It should be borne in mind as well that only Mr. Fabias and the three police officers involved had been present at the time of the alleged abuse. Furthermore, one of Mr. Fabias' friends had claimed at an early stage of the investigation that the police had used brutal force against him, only to withdraw his statement later. Importantly, the observations of other human rights bodies, Amnesty International among them, concerning that case had helped to form the basis for the new protocol. The Netherlands did not claim infallibility, but it was confident that, with the new protocol in place, possible mistakes would be avoided in future.

54. Ms. PETERSON, responding to Mr. Slim's question about notifying the family of the arrest of one of its members, explained that article 50 of the Aruban Criminal Code of Procedure limited access only to a lawyer; the family was always notified at once.

The public meeting was suspended at 5.20 p.m., and resumed at 6.15 p.m.

55. Mr. SORENSEN (Country Rapporteur) read out the Committee's conclusions, adopted in closed meeting, on the second periodic report of the Netherlands:

"A. Introduction

The Kingdom of the Netherlands submitted its three reports (the European part of the Kingdom, Antilles and Aruba) partly on time. The Committee thanks the three respective Governments for their comprehensive reports. The reports were not accompanied by the core document providing general information on the State party, as required by the Committee's guidelines, but they otherwise met all the reporting guidelines of the Committee.

The Committee also listened with interest to the oral reports and clarifications provided by the representatives of the three parts of the Kingdom. The Committee wishes to thank the delegation for its replies and for the spirit of openness and cooperation in which the dialogue was conducted.

B. Positive aspects

The Committee notes with satisfaction that it has received no information about torture performed in any of the three parts of the Kingdom. The Committee also notes with satisfaction that, according to the information orally provided, neither physical nor pharmacological force is any longer used in connection with the expulsion of asylum-seekers.

The Committee also notes that both Antilles and Aruba are preparing special laws incorporating the provisions of the Convention into domestic law.

C. Subjects of concern

European part of the Kingdom

The Committee has questions about the way in which compensation provisions apply in practice.

Aruba and Antilles

The Committee is concerned that the new penal legislation has not yet gone into force and that thus it is not clear whether the provisions of the Convention are part of the domestic law.

Antilles