Terrorist Wing constitutes violation of human rights
In the Netherlands, adult and underage men and women convicted of a terrorist offence are automatically placed in the Terrorist Wing (Terroristen Afdeling, hereinafter: TA) of a penitentiary. The regime in the TA is very strict: detainees sit in their cell for 22 hours a day and are strip searched and receive an internal examination after each visit. When examining a similar regime, the European Court of Human Rights (ECHR) found a violation of the torture ban.
The automatic placement on the TA is similarly problematic: there is no individual judgment of the convicted person prior to the placement, nor is there periodic reassessment. When one is placed on the TA, one stays on the TA.
Perhaps more problematic, often those merely suspected of such a crime are detained in the TA as well.
The Terrorist Wing
TAs were established to counteract the spread of the radical thinking by placing all potentially radicalised individuals together in one department.
Since their inception in 2006, there have been two departments, in Nieuw Vosseveld Penitentiary in Vught and De Schie in Rotterdam, dedicated to detaining those suspected or convicted of a terrorist offence. The department in Vught had been closed down, but was reopened in 2014 due to the detention of those people who left for and are now returning from Syria and other terrorist suspects. An average of 80 detainees stayed in the TA between 2006 and 2014.
Placement in the TA
Article 20a of the ‘Regeling selectie, plaatsing en overplaatsing van gedetineerden’ (hereafter: the Regulation) prescribes that detainees suspected or convicted of a terrorist offence are to be placed in a TA. In addition, detainees convicted of other offences can be placed in the TA if they are found to be spreading a message of radicalisation before or during their detention, including recruiting other inmates. This latter group is not placed in the TA, because they are suspected or convicted of a terrorist crime, but because of their ideas.
The Regulation does not distinguish between the placement of men and women.
According to the Regulation, a selection officer should assess the risk profile of the detainee and determine the level of security based on that assessment. However, several statements by the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) show that placement in the TA is entirely automatic, based on the categories of offences mentioned in the Regulation. Determining the risk profile does not seem to occur at all in practice.
The investigation of the European Committee for the Prevention of Torture (CPT), dated 19 January 2017, also shows that placement takes place without prior risk analysis.
Placement of minors in TA
Minors who are prosecuted or convicted under adult law may also be placed in the TA. Incarcerating adults and juveniles together has been found objectionable by many institutions, such as the RSJ, and by international treaties, including Article 37 CRC and Article 10 (2) (b) ICCPR. In view of their education and resocialisation needs, minors require different interventions than adults. Additionally, they should not be exposed to unfavourable influences of adult detainees.
The Detention Regime in the TA
The TA applies an individual regime, including restrictions on visits, work, education and other activities. Detainees must be in their cell 22 hours a day and may only occasionally enjoy time outside. They may not have contact with more than three co-detainees at the same time. There are strict rules regarding visits. For example, the director of the institution may decide they can only be carried out behind the glass. After the visit, there is always an in depth examination of clothes and body, including body cavities. As the internal examinations are often so detrimental to the detainees, they may feel forced to make their family visit only behind glass.
The Extra Secured Wing
The detention regime in the TA is similar to that in the Extra Secured Wing (Extra Beveiligde Inrichting, hereafter: EBI). The ECHR already decided that the EBI constituted a violation of the torture ban in Van der Ven v. the Netherlands and Lorsé et al v. the Netherlands. The weekly visits, in combination with other aspects of the strict regime on the EBI that Van der Ven and Lorsé were subjected to, constituted “inhumane and degrading treatment”.
The regime on the TA is at least as stringent as the EBI, but the EBI carries with it a periodic assessment of the need for detention in such an restrictive regime. As noted, at the TA, this periodic review does not exist. It appears impossible to leave the TA.
The Assessment of the TA by Independent Agencies
The CPT was already critical in its 2008 report on the TA in the Netherlands: the lack of periodic review of the detainees risk, that detention in the TA can not be the same as isolation, the restrictive measures regarding contact between the detainees and their lawyers, the manner in which medical examinations are carried out, and the absence of a day program for the detainees are all cause for concern.
Based on its findings, the CPT recommended the Dutch government reconsider the detention regime. Former Minister of Justice, Hirsch Ballin, appears to have ignored these recommendations when he stated that the internal examinations and the manner in which medical investigations are conducted are in the interests of safety. According to him, the day program and detention are in accordance with the Custodial Institutions Act.
In 2016, not much has changed. Again, during a visit to the TAs, the CPT found that the regime left much to be desired. With frequent internal examinations and lack of a day program still ongoing, the CPT argues the regime constitutes inhumane treatment.
Amnesty International and the Open Society Justice Initiative (OSJI) also state that the conditions under which the Dutch government keeps people on the TAs are inhumane. In a report published in October 2017 entitled ‘Inhuman and unnecessary‘, they argue that the proposed reforms are insufficient to address concerns about serious human rights violations. Amnesty and OSJI make a series of recommendations in the report, including the abolition of long-term solitary confinement and the frequent humiliating visitations. They also call for an individual risk assessment for placement on the TA, instead of automatic placement solely on the basis of the charges.
