UNITED NATIONS

 

CAT

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

 

Distr.

GENERAL

CAT/C/NET/CO/4

3 August 2007

Original:  ENGLISH

COMMITTEE AGAINST TORTURE Thirty-eight session 30 April‑18 May 2007

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

Conclusions and recommendations of the Committee against Torture

THE NETHERLANDS

1.  The Committee considered the fourth periodic report of the Netherlands (CAT/C/67/Add.4) at its 763rd and 766th meetings (CAT/C/SR.763 and 766), held on 7 and 8 May 2007, and adopted on 14 May 2007, at its 774th meeting (CAT/C/SR/774), the following conclusions and recommendations.

A.  Introduction

2.  The Committee welcomes the submission of the fourth periodic report of the Netherlands (European part of the Kingdom and Aruba) and the information presented therein. The Committee expresses its appreciation for the frank dialogue with the State party’s delegation and welcomes the extensive responses to the list of issues in written form (CAT/C/NET/Q/4/Rev.1/Add. 1), including elaborate information on the implementation of the Convention in the Netherlands Antilles, which facilitated discussion between the delegation and members of the Committee. In addition, the Committee appreciates the delegation’s oral responses to questions raised and concerns expressed during the consideration of the report.

B.  Positive aspects

3.  The Committee notes with satisfaction the ongoing efforts undertaken by the State party to combat torture and to guarantee the rights of persons not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment in the Kingdom of the Netherlands, in particular:

(a)  The incorporation of the definition of torture into the domestic legislation of the European part of the Kingdom of the Netherlands;

(b)  The entry into force of an amendment of the Dutch Civil Code in April 2007 which prohibits physical and mental violence “for educational purposes,” including in the family environment;

(c)  The adoption of new legislation on trafficking in human beings in the European part of the Kingdom of the Netherlands in January 2005 and in Aruba in May 2006;

(d)  The National Ordinance AB 1999 No. 8 implementing the Convention against Torture in Aruba and the new National Penal System Ordinance AB 2005 No. 75 of December 2005;

(e)  The establishment of the Internal Investigations Bureau to receive and investigate complaints and reports of ill-treatment by police officers in Aruba; 

(f)  The improvement of prison conditions in the Netherlands Antilles, as reported by the State party;

(g)  The notable work undertaken by the special team set up in 1998 to investigate and prosecute war crimes and crimes against humanity (“the NOVO team”) to bring to justice perpetrators of acts of torture and war crimes;

(h)  The State party’s cautious approach with regard to the use of diplomatic assurances and its policy of not practicing extraordinary rendition of suspects;

(i)  The State Party’s contributions to the United Nations Voluntary Fund for Victims of Torture.

4.  The Committee notes with appreciation the ratification of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women in 2002 and the Rome Statute of the International Criminal Court and the entry into force of its implementing act in the Netherlands in 2003.

5.  The Committee also welcomes the assurances given by the State party’s representatives that the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment will be ratified in the second half of 2007.

C.        Principal subjects of concern and recommendations

Fundamental safeguards

6.  Notwithstanding the State party’s establishment in 2006 of a “programme to enhance and strengthen the quality of the performance of police officers and prosecutors” (CAT/C/NET/Q/4/Rev. 1/Add. 1, par. 50) in the European part of the Kingdom, the Committee is concerned that persons in police detention do not have access to legal assistance during the initial period of interrogation. Similarly, the Committee is concerned that in the Netherlands Antilles, the presence of a lawyer during interrogation is only permitted with the prior authorization of a magistrate.

The State party should review its criminal procedures so that access to a lawyer, as a fundamental legal safeguard, is guaranteed to persons in police custody from the very outset of their deprivation of liberty, particularly where video or audio recording of interrogations, which cannot in anyway substitute the presence of legal counsel, are not in place.

Non‑refoulement

7.  The Committee is concerned at the difficulties faced by asylum-seekers in the European part of the Kingdom of the Netherlands in substantiating their claims under the accelerated procedure of the 2000 Aliens Act, which could lead to a violation of the non-refoulement principle provided for in article 3 of the Convention. The Committee is particularly concerned that:

(a)  The 48-hour timeframe of the accelerated procedure may not allow asylum seekers, in particular, children, undocumented applicants and others made vulnerable to properly substantiate their claims;

(b)  The time provided for legal assistance between the issuance of the report from the first interview and the Immigration and Naturalization Service’s decision is allegedly only five hours and that an asylum-seeker may not be assisted by the same lawyer throughout the proceedings;

(c)  The accelerated procedure requires asylum-seekers to submit supporting documentation that they are “reasonably expected to possess,” leaving a wide margin of discretion in relation to the burden of proof;

(d)  The appeal procedures only provide for a “marginal scrutiny” of rejected applications and that the opportunity to submit additional documentation and information is restricted.

The Committee takes note of the State party’s intention to revise the accelerated procedure, notwithstanding which, the State Party should consider the following when reviewing the procedure:

(a)  Applications from all asylum-seekers, in particular, children, undocumented applicants and others made vulnerable are processed in such a way that those in need of international protection are not exposed to the risk of being subjected to torture. This may require the State party to establish criteria for cases which may or may not be processed under the accelerated or the normal procedure;

(b)  All asylum-seekers have access to adequate legal assistance and may be, as appropriate, assisted by the same lawyer from the preparation of the first interview to the end of the proceedings;

(c)  The procedures with regard to required supporting documentations for asylum are clarified;

(d)  The appeal procedures entail an adequate review of rejected applications and permit asylum-seekers to present facts and documentation which could not be made available, with reasonable diligence, at the time of the first submission.

8.  The Committee notes with co