Report

Hearing about the detention of foreigners

The hearing about the detention of foreigners consisted of the following parts:

- Introduction to the hearing by the Autonoom Centrum: a plea for freedom for refugees and people without papers; also an expression of hope that criticism from various angles of the detention of foreigners will melt together in this hearing and after.
- Personal statement by Makuna, refugee and ex-prisoner of the border prison, expert witness after 9 1/2 months of detention. - Discussion triptych led by chairpeople on the following themes, each including an introduction:
I comparison between the detention of foreigners and detention accor- ding to the penal code
II everyday practice: working detention, isolation, closed detention
III detention of foreigners and human rights
with two or three introductions per discussion.
- Conclusions & findings from the hearing on the detention of foreig- ners.

Discussion I: the comparison between the law concerning foreigners and the penal code in relation to detention

- From the introduction by Constantijn Kelk, professor of Penal and Penitential Law, Willem Pompe Institute University of Utrecht:
In whichever comparison between penal law and foreign law it is important to realize that penal law isn't ideal either and very susceptible to erosion. Remand custody is, just like detention of foreigners, being used against those on the margins of society. The guarantees and legal status are also becoming weaker within the penal system. Once a ground for detention and further custody has been established it tends to be maintai- ned. If an extension is necessary, this has to be confirmed by the penal code; this too often happens as a matter of routine. Such a way of thinking leaves room for improvement. Still it can be argued a foreigner is worse of in foreigner detention than in the penal system. Detention is used as sparingly as possible within the penal system. A foreigner is actually punished three times over, it is macabre. The Justice Department claims one can leave of one's own free will, namely towards the country of origin... Based on the penal code a suspect can spend in total 106 days on remand. Only in exceptional circumstances does this detention last longer; the need for extension then needs to be thoroughly stated. While this restriction to 106 days is favourable compared to foreign detention, it's also the case within the penal code you have to be taken before a judge after a number of days, then after every 30 days, who judges whether there are grounds to extend the detention.
Within the foreign detention the term is endless. This detention in general lasts twice as long (6 months) than the 90 days (remand detention) in the penal system. There should be a maximum term for foreign detention. Politicians argue: it's full, we must work preventatively, etcetera. In the penal system we also hear we must work preventatively. There however legal guarantees could be given, those legal guarantees we must now command in the foreign law system. The usual argument this will interfere with quality is nonsense: on the contrary things will become better. Also: it should be one or the other: you are a suspect, for such and such a reason, and otherwise you are not a suspect.
A prison is a closed off institution, with many limitations. In some time for every prisoner in a prison the sober regime will be legally anchored, and standardized for every prisoner on remand.

Partcipants in discussion I:

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 Law:
For a remand custody at least one of the following grounds is needed:
- A serious transgression meriting at least four years custody, for example theft but not abuse. Cases must be judged individually.
- A shock to the legal order due to a crime meriting at least 12 years;
- The danger of a repeat offense; this must be proven by a criminal record.
- The interest of the inquiry.

For all these grounds a principle of proportion applies.
The purpose of the detention is for example not to dump the offender, but to detain him/her, and to give a signal to society: society is being protected.

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 interest.
Article 18b Vw is administered categorically. Usually it concerns a measure taken after arrival at Schiphol Airport (after 7a Vw), the argument one could possibly go underground is enough to warrant detention, however broad and vague that argument may be. It is also conspicuous release of prisoners on remand under the penal system happens more often than release of prisoners in foreign detention. A possible middle road (regularly reporting to the foreign police, an alternative to foreign detention) is not chosen.

Marc Wijngaarden, lawyer for foreign and penal law:
As a lawyer you do not often win a case to stop the detention. Being without papers is the ground for detention and acceptable as such to many judges. Lawyers are usually pressed for time, their clients are often removed to other parts of the country, contact thus being lost.
With foreign detention you do apply for release, but you almost always lose. With penal detention you often get remand prisoners out on parole.

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:
The criterium for foreign detention is 'view of deportation'; those 10% that can still be deported after three months of detention have this 'view of deportation'; this is enough cause not to end the detention. The interest of the state weighs heavier, but there is a limit. After four or five months the detention can be lifted.

Rob Hamerslag, lawyer for foreign law:
There is too little view and control on (the grounds of) detention. Lawyers sometimes do not make enough of an effort. Sometimes lawyers cannot do much, because of losing touch with a client as they are being moved around. The Immigration and Naturalization Services (IND) do not inform you, you yourself must find this information. An extra problem is the selection (who goes into detention?) is made in the street, and definitely not by the IND. Sense of purpose therefore does not play any part. Certainly after three months detention no longer serves a purpose. The IND is slacking, for example in presentations to embassies, but her interest in detaining usually remains stronger than the refugee's/illegal's interest in freedom. Jolande uit Beijerse, Penal Law and Criminology Department, University of Rotterdam:
Not only the foreign law, also the penal law leaves room for comments. Foreigners are also worse off within the penal system and foreigners are put on remand quicker. The largest part of people in remand custody are foreigners, tramps, beggars, people from society's margins. There are practically no legal guarantees, like scrutiny of the detention.

Jelle Walther, Legal Aid East Amsterdam:
People without identification papers are locked up on flimsy grounds. Is this not discrimination? And is such a detention not at odds with article 5 of the European Treaty on Human Rights? Article 14 of this treaty contains a statement on human rights, detention is at least at odds with this.

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.
Chair Thomas Spijkerboer now states, that that basically means a form of hostage-taking and torture: a fysical means of force to obtain information from a foreigner about his/her identity. This while for example the penal law acknowledges the prisoner's right to remain silent. The question is wether this puts the detention of foreigners, and especially cases in which foreigners are being detained repeatedly, at odds with the Anti Torture Treaty. If the purpose of the detention is to extend the custody in order to obtain information, c.q. forcing a statement about identity, the question is if this is not comparable to administering physical force and unnecessary suffering, or by its proper name, torture. Foreigners are being detained longer while they remain silent about their identity, or as it is called frustrate the inquiry into their identity. There then is a compari- son of interests, which the state always wins. Thus the state can wait much longer for laissez-passer's (lp's). An example: Ethiopians are detained under article 26 VW; often kept longer to force them to cooperate and reveal their identity. If Ethiopians do not want to return of their own accord, the embassy does not issue lp's. In fact Ethiopians must therefore state they want to return, to end the detention. If you then refuse to lie you are locked up longer. The prisoner is thusly worn down and softened up.

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).