Preventing torture in closed institutions: Dutch NPM needs to become more effective and fully independent
In the Netherlands, thousands of people are currently locked up in prisons, secure psychiatric institutions, immigration and youth detention centres, and other institutions of a closed nature.
In order to prevent those living in these institutions from being treated in an inhumane or degrading manner, the Netherlands Helsinki Committee calls on the Dutch government finally form a strong and fully independent supervisory body for the prevention of torture, thus ensuring the treatment and living conditions of detainees, and all other persons in closed facilities, is systematically screened against human rights standards.
We call on the government to take concrete steps to ensure that the tasks of the Dutch National Preventive Mechanism (NPM) are carried out by a multidisciplinary team of independent experts, who are not in public service, protecting its complete financial and operational independence.
See below for a visualisation (in Dutch) of the current problematic situation with supervision of treatment of those in closed institutions in the Netherlands.
History of the Dutch NPM (2010-2014)
In September 2014, the National Ombudsman of the Netherlands resigned as an observer of the Dutch NPM; a mechanism brought to life to supervise the treatment of all those living in institutions of a closed nature in the Netherlands; including prisoners, as well as psychiatric patients, minors, and the elderly.
The Ombudsman found that the NPM functioned poorly and was not sufficiently independent. Stepping out was meant to serve as the ultimate warning signal for the relevant authorities, and done in the hope that something would change. Not long after the Ombudsman, the Council for the Administration of Criminal Justice and Protection of Juveniles (‘Raad voor Strafrechtstoepassing en Jeugbescherming’ or RSJ) canceled their cooperation with the NPM for the same reason.
At that time, the NPM had only been in existence for three years. In 2010, the Netherlands had embraced the so-called Optional Protocol (OPCAT) that accompanies the UN Convention against Torture. The Netherlands had ratified the Convention in 1988, and with the ratification of OPCAT, the UN was since 2010 in the position to properly check – through regular inspections – whether the Netherlands is adhering to the Convention.
The Netherlands was also specifically obliged to set up an independent supervisor that reports annually to the UN’s Subcommittee on Prevention of Torture (SPT) and the Council of Europe’s Committee for the Prevention of Torture (CPT) – the National Preventive Mechanism, or NPM.
The NPM has the task of monitoring the treatment and living conditions in various institutions of a closed nature, against human rights standards, and with independent experts. NPMs have a key role to play in preventing torture and complementing the work of international bodies. To do so, the NPMs must be equipped not only with a strong legislative mandate but also with the necessary human and financial resources. Fully cognisant that the establishment of a NPM is not meaningful unless it is enabled to perform its functions effectively, the drafters of OPCAT explicitly stipulated legal obligations for the States’ parties concerning the independence, mandate and budgetary resources of such mechanisms. The unique interplay between NPMs and the SPT and CPT reinforces the potential of both to spare countless human beings from the horrors of torture and ill-treatment.
All countries that have ratified OPCAT are obliged to set up an independent NPM, and indeed many met just recently at a Council of Europe conference to discuss best practices. The Netherlands did not take part in this meeting.
(Not) Following Rules: The (non) independent NPM
Back in 2011, the will power to establish a fully independent NPM seemed to be lacking within the Dutch government. Instead of establishing a new, independent body, as other states did, the Dutch government got together a number of existing state inspectorates, supplemented by the – independent – RSJ. They would form the NPM under the coordination of the Inspectorate of Justice and Security – the supervisory body of the implementing organisations of the Ministry of Justice and Security. A new and completely independent body was not necessary, according to the cabinet at the time, because supervision in the Netherlands was already well organized. In addition, the Ombudsman was allowed to sit as a listener at all NPM meetings.
This was done despite the fact that OPCAT defines ‘conducting of research by independent experts’ as a core task of the NPM. The inspectorates brought together to function as a de facto NPM seemed to brush that requirement aside, and focused predominately on holding semi regular meetings and sending an obligatory annual report to the UN. The bare minimum approach did not sit well with the Ombudsman and the RSJ, as it turned out a mere three years later. Both found that the inspectorates within the NPM were reluctant to cooperate with each other, nor did they not want to develop any new activities with regard to human rights assessments.
Lack of criticism and proper supervision
The lack of criticism by the NPM on existing practices is clearly visible in the available annual reports.
They stand in stark contrast to the critical reports from NGOs, the Council of Europe and the UN, on both the functioning of the Dutch NPM, and the current situation in closed institutions.
The last published NPM annual report from 2019 mainly describes how well things are going – in the opinion of the three departmental inspections of the NPM. In that annual report, for example, they conclude that the rights of the detainees in the terrorist wards of the prisons in Vught and Rotterdam are properly observed. No mention is made of the critical report that Amnesty issued earlier about the inhumane treatment in those terrorist units.
The reports are similarly silent on the issue of body searches, an intrusive practice often used in Dutch closed institutions, where detainees have to undress, bend over and lift their genitals so that a guard can check whether someone is carrying prohibited substances. There are alternative search methods that are much less humiliating, but the current NPM makes no recommendation to the Ministry for the use of these methods. The members of the NPM are also positive about closed youth care, often in Dutch news because of sexual and other abuse. The annual report goes only as far as recommending the institutions to work on a better ‘living environment’ for the detainees.
Calls for change in Dutch NPM
The lack of criticism in the annual report is indicative of the lack of independence of the NPM, as pointed out by the Ombudsman with his departure in 2014. At the time, however, the Ministry of Justice and Security quickly announced that it saw no need for change. In the years that followed, similar criticism was made by the Council of Europe and the UN about the functioning of the Dutch NPM. Independently of each other, the CPT and SPT called on the Netherlands to organize the NPM more independently:
However, the Subcommittee notes that the NPM on the whole is largely invisible. Without a separate legislative mandate, specified NPM tasks, specially allocated resources and systematic cooperation with other national and international stakeholders, it is difficult to perceive the NPM as its own entity. – From the ‘Report on the visit made by the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment for the purpose of providing advisory assistance to the national preventive mechanism of the Kingdom of the Netherlands’ (2016)
The Ministry has thus far continued to ignore all criticism. The NPM is independent and the Netherlands adheres to the prescribed rules, according to the defense from The Hague towards the UN and the Council of Europe.
Most recent criticism was voiced during the 72nd session of the UN Committee against Torture in November this year, in the reports of Amnesty International, the Netherlands Institute for Human Rights, and the Dutch section of the International Commission of Jurists (NJCM). The Netherlands Institute for Human Rights specifically mentions the situation of the NPM and voices its “concern about the lack of urgency of the government to follow-up on the recommendations of your Committee”, while Amnesty similarly address the “structural flaws in the Dutch NPM“. NJCM asks the following: “We question how the Dutch government indicates its efforts to ensure the complete financial and operational independence of the NPM, both factual and perceived.”
What is next and what could be done
Next year, the CPT will visit the Netherlands again. If the Dutch government is truly committed to upholding the ratification of OPCAT, thereby ensuring that people who have been deprived of their liberty, for whatever reason, are treated in a just and humane manner, then it is high time that The Hague regulates the supervision of that treatment adequately.
The Netherlands Helsinki Committee calls on the Dutch government to take concrete steps to ensure that the tasks of the National Preventive Mechanism are carried out by a multidisciplinary team of independent experts, who are not in public service, protecting its complete financial and operational independence. We call on the government to finally form a strong and fully independent supervisory body for the prevention of torture, thus ensuring the treatment and living conditions of detainees, and all other persons in closed facilities, is systematically screened against human rights standards.