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
Discussion II: daily practice of the detention of foreigners
- The first speaker, Hans van Zundert, foreign law lawyer in Rotterdam, does not find putting the execution of the detention of foreigners in the hands of a central unit of the IND a good idea. As a lawyer his experiences with the IND have been mainly miserable. Compiling a list of his experien- ces of the past year made him shudder. He gives some examples, like the case of an Iranian called Amir. He remained mostly in solitary confinement during his detention lasting almost 8 months, because he kept hungerstri- king. Hans van Zundert notes refugees can be punished with detention for applying for asylum a second time. Contact between refugees and lawyers was made difficult. Also the contact between the Iranian and a journalist was forbidden by those in charge of the Justice department, until the Inspecti- on Committee ruled in the Iranian's favour.- The second speaker, Gerard de Jonge, Department of Penal Law and Criminology of the University of Limburg, focuses on the work done by foreigners while in detention. The work mainly serves to control. The government and prison governors are in fact guilty of committing punishable offences on a large scale: making illegals work. The prison governors are entitled to contract prisoners to work. However, a work permit is mandatory for this according to the law concerning the work of foreigners (Wet Arbeid Vreemdelingen). The law concerning economic crimes (Wet Economische Delicten) rates this behaviour punishable by a fine. But: the government cannot be taken to court in this case and therefore can continue these practices uninterrupted. There remains no other option than to approach the case from another angle and demand payment of the legal minimum wage to the worker.
- The third speaker, Rens den Hollander, Autonoom Centrum Amsterdam,
detention and visiting group of the Autonoom Centrum in the Grenshospitium
(border prison), talks about the regime and closed character of the
detention of foreigners. People are kept under a sober regime, spend much
of their time in their cells, there are few activities. The detention often
lasts for months, the refugees feel humiliated and treated like criminals.
The regime is aimed at control, order and security of the institution and
its staff. Sometimes a rapport arises between prisoner and guard, for
example through 'hospitalization', extended stay. Often a long term
prisoner is then moved to another prison (caroussel system). Little contact
is possible between prisoners and the outside world. Visiting is a way to
break through that isolation. But critical visitors like the Autonoom
Centrum and also the prisoners often find obstacles put in their path. It
can take a long time for a request for a visit to be accepted. Request
forms disappear and applications need to be made a second time. This takes
even more time. Refugees are intimidated into relinquishing the visit.
Often it is said the visiting hour is full up. When we arrive the visiting
hall is almost always empty.
Prisoners often complain about the fact medical problems they are fobbed
off with a paracetamol. Transport to a hospital often happens with a stick
down the trousers to prevent escaping. Many prisoners get psycho-social
problems because of the long detention without any perspective. Suicide
attempts or resistance are answered with solitary confinement.
Participants in discussion II
From the discussion among the speakers and the audience the following comes forward:* Organizations not connected to the Justice Department can visit prisoners outside of visiting hours according to a specific regulation, states Theo Scholten. De Vuurdoop, visiting group at the Willem II prison in Tilburg, has tried this at Willem II. Their request however was denied.
* The rules surrounding visits are abnormally severe. Maritza Nadall, related to an ex-prisoner, tells for example being late for a visit can result in the visitor being denied entrance. Searching and fetching the prisoner can take up so much time the visiting 'hour' regularly can only last for half an hour. Visits take place in the presence of guards, there is no privacy.
* The severity of the regime is decided by the Justice Department, the prison governor is responsible for the regulations surrounding visits, says Simon van der Pol, FNV (Labour Union) Amsterdam, Labour Department.
* Erik van de Maal of the Bond van Wetsovertreders (Lawbreakers Society) remarks foreigners are clearly being treated harsher than convic- ted prisoners, though their regime should be less so. The purpose of the detention of foreigners seems to be mainly deterrence. Erik van de Maal also notes those being dumped from foreign detention and other illegals are, through measures like the Koppelingswet are almost forced into the criminal circuit.
* Actually minimum wage should be paid for the work done by the prisoners, finds Simon van der Pol. The tricky dilemma there is this will pretty much lead to the dissappearance of the opportunity to work, and forced inertia. Yet the FNV (Labour Union) is there to defend the interest of the workers.
* Anton van Kalmthout states foreigners should not come under prison regulations. Only a third of them can work and the pay is too low. * Work means, aside from 'keeping busy', the government needs to spend less money on prison staff.
* The detention is inhumane and dulls people. Imprisonment leads to total apathy of the refugee/illegal, according to Geert Groenewegen, pastor at the Zoetermeer prison. He sees those in isolation in the Zoetermeer prison are being systematically humiliated. Not only the prisoners suffer through this regime. The staff who work there also get more and more psy- chic problems, there is a lot of sick leave.
* The regime should be different for refugees and illegals in foreign detention. Anton van Kalmthout argues for a different regime for foreign detention. Rens den Hollander reacts to this stating imprisonment remains imprisonment, whichever regime you instate. A golden cage is also a cage. Someone who is locked up will be aiming for her or his freedom so locking people up is asking for problems.
* Staff training is no good. It is not aimed specifically at foreigners and their political and cultural background; actual respect for them is not exactly an educational aim of the training. A large part of the staff were prison officers, or were trainees there.
Opinions on this level of education differ. Staff gets multicultural courses according to Anton van Kalmthout, but according to Rens den Hollander those are quickie courses with little attention for the priso- ner's refugee background; 'cultural alertness' is a part of the course which confirms the pattern of authority over an inferior.
* Rens den Hollander notes the staff's approach to prisoners is caused by unfounded fear: the refugee wants nothing more than his freedom! The regime and the regulations in prison are geared towards control and security. Therefore immediate intervention follows the smallest indication of 'deviant behaviour'. This does nothing to lessen tension and unrest.
* Many prisoners disappear into solitary confinement one or more times during their detention, according to Rens den Hollander, at the smallest sign of criticism or resistance, at hunger and thirst strikes and at work strikes. Often they are accused of 'verbal aggression'. Most are put in isolation for a standard two week period.
* Anton van Kalmthout reports there are many forms of isolation at the X-department, whereupon Rens den Hollander states that even though you can instate different grades of isolation it still remains isolation.
* Many prisoners become disoriented and develop psychic problems. Most medical problems are dealt with by administering a paracetamol. Unless they are urgent no medical treatment is started.
* The Complaints Committee of the Supervision Committee receives few complaints. This is notable. Many refugees do not know of their right to complain, or think their case will suffer if they do, or they think complaining doesn't help and won't get them anything. The example is given of a prisoner who attempted suicide. It was already his second period of detention, and he'd been inside for almost 5 months. His girlfriend and child were not notified, although they are the first who could mean something to him. At long last the prisoner, after filing a complaint, got compensation: half an hour's extra visiting time with his girlfriend; that was weeks later.
* Willem van Bennekom remarks complaints can not only be filed with the Supervision Committee, the Court can also order changes. This right is seldom used.
Discussion III: human rights and foreign detention
The first speaker, Thom Holterman, professor of State and Governing Law at the Rotterdam Erasmus University, points out the ambiguity in human rights treaties. In principle these arrange for all kinds of rights, but at the same time they also arrange for them to be abridges. Human rights are needed because this society is not a decent society. The state is thus enabled to exercise power over her civilians. Still this does not make human rights empty rights of the treaties that state them worthless. They constitute a challenge to the government. And there it's 'the public's understanding' 'emergency measures'. Actually imprisoning people is an emergency measure, it is the power to detain people without having to give a reason. And here is the ambiguity again: for example article 5 EVRM states noone can be robbed of their freedom just like that. Then a 'but' follows: the next section states that such and such people can indeed be robbed of their freedom. This ambiguity is a conscious measure to create confusion.
**The second speaker, Ben Vermeulen, Centre for Migration Law, Nijmegen
Catholic University, in his introduction does not approach human rights
philosophycally, but technically. Foreign detention means connecting aims:
keeping out and locking up. Application of detention would be meant as
'ultimum remedium', last option to be taken. However, there are numerous
measures of detention: articles 7a, 18b, 19, 26, and currently also article
22 and 23 (detention before deportation) of the Foreign Law. Scrutiny of
this array of articles is marginal. The human rights treaty does not
require precision.
The European Court has judged in a case in November of '96 that a four year
detention of foreigners is acceptable. Here also the question of necessity
was missing: the Justice Department did not have to prove there was reason
to suspect this specific person would not comply with the duty to report.
The general interest weighed heavier, this gave the detention legal ground.
Ben Vermeulen states it is possible to question repeated foreign detention
based on the EVRM, just like the fact 'public order' is used as grounds for
detention. A second foreign detention in the same case should not be
allowed if there are no new facts or circumstances.
As a basic norm in detention there should be equal treatment, both in the
penal system and in foreign detention. Procedures should be guaranteed,
like for example access to a judge, equal treatment. Now there is discrimi-
nation, in the penal system there are considerably more legal safeguards
than there are in foreign detention. Regarding foreigners this would mean:
- a maximum detention term, for example 106 days maximum;
- art. 5 EVRM combined with the equality principle;
- automatic monthly scrutiny;
- there must be an end to the phenomenon of foreign detention taking place
at the police station for more than 10 days; in the penal system 10 days is
the maximum. The police station cell remains a possibility for foreigners
even after 10 days. Here also: art. 5 EVRM is applicable combined with art.
14, the equality principle. Jelle Walther's comments are confirmed in that
there is a necessity for equality of the penal system and foreign detenti-
on, where now there is discrimination.
Foreign detention should be open to discussion much more than it is now,
like at this hearing organized by the Autonoom Centrum. Criticism of
detention should not only be left with Supervision Committees. Appealing to
politics is not very useful.
The question is, Ben Vermeulen states, what to do. Because this concerns a
structural problem a structural solution must be sought. Thereby legal
means can be applied. Ben Vermeulen suggests filing an individual complaint
with the National Ombudsman (NOM). This should be filed in such a way that
the NOM could instate a general inquiry into foreign detention based on the
individual complaint. The complaint should in any case focus on the unequal
treatment and so on the current regimes concerning the detained foreigner
compared to the prisoner in the penal system. The harshness of foreign
detention should be considered, a milder treatment is in order, detention
is too heavy. Foreign detention now is comparable to the penal system, but
yet different yardsticks are in use: where no punishable offences are
committed (illegals/refugees) freedom should follow, but the opposite is
the case.
Participants in discussion III:
The UNHCR, Johannes van der Klaauw, states the UNHCR could initiate their
own inquiry, could give unsolicited advice, conclusions and directives with
which foreign detention should comply. UNHCR could question foreign
detention with the Dutch government. UNHCR states foreign detention is
unwanted and avoidable. Very occasionally there could be exceptions: then
the testing grounds should be compared with the treaty rules, for example
in relation to regime and conditions under which foreign detention takes
place. In any case the regime should apply that foreigners are not locked
up with criminals, but under a lighter regime. Also men should be locked up
separately from women and children.
UNHCR also worries about detention at the airports, the transit-zones, the
international areas. There is no view or control of this at all. In Belgium
the UNHCR is going to Zaventhem, and involves NGO's.
Johannes van der Klaauw notes the UNHCR does too little against foreign
detention.
René van Swaaningen, Department of Penal Law and Criminology Rotterdam
Erasmus University, emphasizes again prisoners are not well off in the
penal system either. Everything is curtailed, because aimed at order,
security and control, compare with the locking up of vagrants in prisons.
It is important to keep seeing the big picture within which this foreign
detention takes place. The policy of recent years is known for control,
order and security.
In the penal system as well as in foreign law it mostly concerns groups
written off by society. A split society is beginning to happen. A group of
people is just written off. Among them many foreigners. Ren‚ states the
right of migration is in bad company. For instance immigration, terrorism
and fighting drugs are mentioned in one breath. Migration should be removed
from that political context. This is criminalizing.
Another point is in the academic world and also outside it much ignorance
of foreign detention exists. Much too little use is made of the knowledge
of pressure groups like the Autonoom Centrum.
The principle of 'immediate access to a judge' should also be applied to
foreign detention.
Marcel van der Linde, working for the Nederlands Juristen Comit‚ Mensen- rechten (NJCM, Netherlands Lawyers Human Rights Committee) and the Stich- ting Rechtsbijstand Asiel (SRA, Legal Aid Asylum), pleas for avoiding the detention of children and AMA's (Single Minor Asylumseekers). He also criticizes the categorically locking up of refugees, as happened recently to a group of Tamils in the 'Grenshospitium'. He states foreign detention only serves as a deterrence, and overshot the original target by far.
Mr. Fernandes Mendes of the Department of Internal Affairs, Board of
Coordination Integration of Minorities, states the criminalization created
by detention reflects on all minorities. It also erodes the legal position
of those that are allowed to stay in the Netherlands. Detention does not
mean integration. Foreign detention should be approached more politically
and fundamentally and at the same time practically. In the Hague the view
there are contradictions concerning human rights regarding foreign detenti-
on do not exist. Internationally you can also see, human rights treaties
are a dynamic process, human rights must be interpreted. With foreign
detention the first testing at the earliest stage is crucial for the rest
of the procedure. Still political the Hague is somewhat sensitive, there
are more possibilities among politicians.
Foreign detention should not be on a par with penal detention, but should
be much better and milder. Better opportunities for prisoners should be
argued.
Anton van Kalmthout reacts from the audience to the audience's question why politics seem so unapproachable. He states the Helsinki Human Rights Watch has visited the Willem II, advised the Centrale Raad voor de Strafrechts- toepassing (Central Council for the Application of Penal Law) about the sober regime and members of parliament have visited the Willem II. Boris Dittrich (D'66) reacted on the morning of the hearing on the ANP (national news) to Anton van Kalmthout's plea for a three month maximum for foreign detention. Dittrich argues for 6 months. His argument is prisoners should not be 'awarded' their freedom after a 3 month detention. According to him that is the danger of a 3 month maximum.
Jolande uit Beijerse, Department of Penal Law and Criminology Erasmus University reacts from the audience that not only can information can go to politicians, more so information should be handed to the general public. For example about the 82 million guilders foreign detention costs and the things you could do for refugees with that money.
Bernadette Ficq, foreign law lawyer, says she finds it unimaginable that from the Application Centre at Schiphol Airport for example selection for foreign detention is mostly based on the amount of cells available, random therefore rather than calculated.
An illegal from the audience, his name is 'Nobody', asks where are these
politicians at important hearings like this one? Why do they not want to
listen to those concerned? Where do you, being 'Nobody', go to get what's
rightfully yours? The system discriminates. Everything revolves around
files rather than people.
The organizers comment politicians and also the Secretary of State have
been invited to the hearing, but indeed haven't bothered to turn up. There
is not exactly a critical discussion about the tough measure of detention
going on in parliament.
Finally: findings and conclusions of the hearing on the detention of
foreigners, as presented publicly in a press statement on April 20th '97:
-the idea is there to formulate a complaint and file it with the National
Ombudsman about the unequality of foreign detention and penal detention.
Foreign detention is a heavy sanction, comparable to being on remand, but
hardly covered by rights and guarantees;
-there should be a maximum term for foreign detention, for example 3 months
analogous to remand imprisonment;
-there should be periodical moments of scrutiny built in by the judge every
thirty days;
-there should be a separation between suspects of criminal offences and
asylumseekers refused at the border and illegals arrested for lack of
identity and residence papers;
-minimum wage should be paid in full for work done by imprisoned refugees
and illegals;
-independent visiting groups should be admitted to foreign detention;
-there should be a separate regime for foreign detention which should be
much lighter than the regime for penal detention; criticism and experiences
of staff and visiting groups should be incorporated in this;
-there should be an end to the categorical imprisonment of groups of
people; there should be individual scrutiny.
The Autonoom Centrum concludes the hearing with an epilogue and reports this debate for her should be considered fundamentally from the thought that locking up refugees and people without residence papers is unaccepta- ble and a violation of human rights.
