The Dutch section of the International Commission of Jurists (NJCM) sent its commentary to the minister of security and justice on the draft Decree return and temporary custody in a letter on November 30, 2015.

Earlier, on February 21, 2014, the NJCM – together with several other organizations – commented on the draft legislative proposal on Return and Temporary Custody.

The legislative proposal that was recently presented to Parliament, together with the advice by the Advisory Division of the Council of State, the Provisional Report and the draft Decree are reason for the NJCM to give a number of comments.

Essential edits

The NJCM is delighted that the legislative proposal has been amended on a number of points in response to criticism in various quarters. Unfortunately, the legislative proposal has remained unchanged on essential points.

The NJCM would like to mention in particular that the solid criticism by the Advisory Division of the Council of State, in its advice on December 18, 2014, hasn’t sufficiently been taken seriously.

In the letter to the minister of security and justice, dated November 30, 2015, the NJCM highlights the following issues, in short:

• In the draft Decree (suggested change of Article 5.3, Aliens Decree 2000) it is stated that, when choosing a particular sort of measure, the extent of the foreigner’s cooperation to his return is taken into account and to which extent he is able return. The NCJM states that - if a foreigner cooperates with the return - there is no reason for detention and, therefore, neither for applying a lighter measure.
• The legislative proposal suggests to be geared to the present practice in which the setup and the regime have a penitentiary character.
• The state secretary’s explanation of Article 16, first section, of the Directive on Return and the case law is incorrect in the NJCM's view. There is a positive obligation on the shoulders of the Dutch state to build specialized facilities in the near future that are incomparable with prisons.
• A good mechanism defining the vulnerability of individuals is essential, according to the NJCM.
• The NJCM notes with approval that the possibilities to stay in touch with the outside world have been enlarged. Nevertheless, the possibilities are too restricted. This, for example, goes for the number of visiting hours.
• Another objection is that, again, the option of repeated detention hasn’t been excluded in the legislative proposal.
• The Explanatory Memorandum states that the recommendations of the Nederlandse Orde van Advocaten (the Netherlands Bar Association) and Amnesty International to build in additional notification obligations in the legislative proposal for the lawyer have been ignored. Such an obligation is of great importance with drastic measures, such as the placement in an isolation cell.
• In the current legislative proposal, Article 44 includes that the powers of the director to apply force and freedom restricting measures can also be used for replacements in the context of the process of return from, or inside, the facility for aliens detention. The NJCM notes that in its advice, the Council of State has indicated that is unclear why it is necessary that also the director of the facility for aliens detention has these powers for the execution of the notifications and demands as meant in Articles 61 and 63 of the Aliens Act 2000. The response in the Further Report cannot convince the NJCM.

The unabridged version of the letter can be downloaded here.