announcement for the 20th of april 1997 on a hearing on the custody of foreigners
report part 1 on the hearing about the detention of foreigners
report part 2 on the hearing about the detention of foreigners
Hearing about the detention of foreignersOn Sunday, April 20 1997 the Autonoom Centrum organized a hearing together with the Balie, at the Balie, Kleine Gartmanplantsoen 10, Amsterdam.
The hearing about the detention of foreigners consisted of the following
Discussion I: the comparison between the law concerning foreigners and the penal code in relation to detention
- From the introduction by Bert Hendriksen, legal worker at the Court of Justice in Haarlem, foreign department:
The detention of foreigners is a governmental measure aimed at deportation. The foreigners are not suspects, the detention is however experienced as a punishment. Taking away of freedom is not restricted and knows few guaran- tees. There is a lead of six months as a term. But 10 to 12 month detention periods appear frequently. About 50% are not deported after detention. There is a tendency towards reservation concerning legal scrutiny, for there to be less official questioning of the detention. The lawyer can file a request for release, but most often is turned down. Recently, as the military police's '96 annual report shows, based on article 19 Vw (Foreign Law) many are stopped and have their identity checked. The MTV (Mobile Inspection Foreigners) mentions 26.110 deported foreigners, appearance being the selection criterium of choice.
Soon the REK (legal chamber) will issue a statement in a case on the duration of the detention of foreigners on the grounds of article 26 Vw (session May 29 '97).
In the Willem II prison for foreigners in Tilburg it turns out deportations do for example seem to happen during the first three months of the detenti- on, but hardly ever after that.
Recently, because of the detention of Tamils due to articles 7a and 18b Vw in the Border Prison ('Grenshospitium') the grounds for detention were being stretched, which was later found to be illegitimate. The group of Tamils were locked up as a category; the justification being they would withdraw from deportation (some time before the Tamils applied for asylum part of another group of Tamils had left, destination unknown). The judge however ruled the detention to be illegitimate, because the grounds were too general and insufficiently aimed at the individuals. Article 7a Vw up to now contained a maximum term of 4 weeks, but there is a proposal to abolish this.
Figures concerning the detention of foreigners show the following: there are about 900 places costing Fl. 250,- per day, which makes 82 million per year, with around 4400 people doing on average 46 days. About damages (an estimated Fl. 1 million per year) there are no specific figures.
Bert Hendriksen ends his introduction asking: is the detention of foreig- ners an effective means of governmental pressure or a money grabbing paper tiger?
- From the introduction by Constantijn Kelk, professor of Penal and
Penitential Law, Willem Pompe Institute University of Utrecht:
Partcipants in discussion I:Willem van Bennekom, Judge at the Amsterdam Court of Law, Foreign Depart- ment:
A person must have done quite a bit before he/she is put in detention for several months. For example serious tresspasses, violent crimes in the street, not just throwing one punch; it should not be played down. A custodial sentence can be followed by a period of probation. You must do for example about two thirds of the time before you are eligible for this. This does not apply to shorter terms.
Comments are made from the audience there has been a 16 month term of foreign detention. Constantijn Kelk says that is comparable to committing a serious crime, or detention for repeat offenders.
Clara Fetter, Officer of Public Prosecution for the Middelburg Court of
For all these grounds a principle of proportion applies.
Foreign detention is not covered by such principles. 16 Month detention periods have already happened. Slowly the 6 month term considered 'reasona- ble' by the judges has moved along. To be detained for such a period according to the penal code one needs at least a violent crime or financial fraude.
Article 26 Vw may be applied if deportation is expected, article 18b Vw can
serve as ground for detention when a specific individual suspicion exists
this person will abscond. In practice we see article 26 Vw is also used if
deportation is not (no longer) expected, but where there is a suspicion
illegals will go underground. It is not necessary to prove one will go
underground, the general interest just weighs heavier than the individual
Marc Wijngaarden, lawyer for foreign and penal law:
Anton van Kalmthout, chair of the Inspection Committee at the Willem II prison in Tilburg, claims three months should be the maximal limit for foreign detention. After those three months deportation turns out to be almost impossible. Only about 10% can still be deported after three months. Even after between two and three months of detention deportation gets harder. It is noted the chance of deportation is mostly there during the first two weeks of the detention. After that the percentage gradually reclines. At three months there's the turning point.
Oscar Korte, Judge Foreign Department at the Haarlem Court of Law:
Rob Hamerslag, lawyer for foreign law:
Jelle Walther, Legal Aid East Amsterdam:
It is noted the European Court has issued a statement on the legality of four years of foreign detention, in the case of a Sikh: they considered it legal (case Chahal). Even after four years of confinement there would be a view of deportation!
Theo Scholten, former director of Nieuwersluis prison, currently director of Groningen prison. Foreigners certainly do experience their detention as a punishment, and feel they are being treated as criminals. How mad does this drive the prisoner? There is tension because of the lack of perspective and the insecurity about the outcome of the detention, hunger and thirst strikes follow. This leads to more breach of the peace than elsewhere (physical violence, arson). It is part of the detention, loss of freedom causes resistance. Are imprisoned foreigners more trouble than prisoners in the penal system, the chairperson asks? There is no comparison, there are no such signals. The number of solitary confinements -of troublesome clients- is no larger than in Noordsingel prison in Rotterdam, which is a penal prison.
Anton van Kalmthout notes legal scrutiny is often avoided by the Foreign Police. One can also be arrested more than once for the same offence, namely (still) walking around without papers.
Within the penal system it is impossible to be punished twice for the same offence. Marc Bosch, chair of the Coornhertliga, comments: A foreigner cannot be prosecuted twice for the same offence, namely being without proof of identity, if there are no new facts or circumstances regarding the case. At least for a possible second arrest the Justice Department should come up with new facts and the IND should prove the person in question must be locked up again. If this proof is not provided there should be no detention.
Oskar Korte reports people are for sure being locked up twice for the same offence (being without papers) under foreign law; also when new facts or circumstances are put forward by the prisoner, if deportation is conside- red. Each case should then be looked at individually.
Anton van Kalmthout reports that sometimes not until after two weeks of detention it turns out there is no view of deportation, for example because the prisoner has been detained before and could not be deported. This pleads for having the first review of the situation very quickly after the start of the detention.
Cases of criminal foreigners should be taken away from local foreign police and brought to a central unit of the IND, Oskar Korte argues. As long as cases remain in the hands of the Foreign Police (VD), sentiments and the 'urge to score' remain among officers of the VD; this is inefficient. The VD should therefore concede to the IND.
The foreigner is obliged to cooperate with the determination of his/her
identity. So called 'non-cooperative behaviour' will be used against the
refugee/illegal. As long as the identity has not been determined and there
is a 'view of deportation' he/she remains in custody.
Willem van Bennekom says about this statement that with such a detention there remains a 'view of deportation' and this should not necessarily be called torture. Willem van Bennekom also says, he doesn't say it could never be called torture. But during the search for the prisoner's identity there remains the so-called 'view to deportation'.
So then what is the situation? 'View to deportation' should be determined by something else; an extra factor should be applied.
From the audience someone from the CPT (European Committee for the Preven- tion of Torture and Inhuman and Degrading Treatment or Punishment) remarks that this autumn, 1997, the CPT will visit prisons in the Netherlands again (previous visit in '92). The CPT asks and advises to inform them with examples and further inform them about the detention of foreigners in the Netherlands (CPT secretary, Mr. Trevor Stevens, Directorate of Human Rights, Council of Europe, 67075 Strasbourg Cedex, France).
Conclusions regarding discussion nr. 1: