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Netherlands

The reply of the government of The Netherlands, in particular, is an indication that the DH-S-TER was correct to inquire about the use of assurances in transfers (e.g. extraditions) outside of ordinary expulsion proceedings. While the Dutch government apparently does not seek assurances in expulsion cases, it has sought such alleged guarantees in the extradition context.

It is important to emphasize that member states’ nonrefoulement obligation under the ECHR and CAT obtain no matter what type of transfer is contemplated. Thus, reliance upon diplomatic assurances in any type of transfer (deportation, expulsion, extradition, rendition, surrender) should be instructive for the DH-S-TER’s current discussion. 

Case of Nuriye Kesbir

The Dutch government submitted details of an extradition case involving a transfer to Turkey. This is the well-known case of Nuriye Kesbir, a woman official of the PKK. In two separate judgments (November 2004 and January 2005), courts in the Netherlands halted Kesbir’s extradition based on fears of risk of torture and other ill-treatment, including sexual violence, should she be transferred to Turkey. Both judgments directly addressed the inadequacy of the assurances provided by the Turkish government, despite the fact that by January 2005, there were several demarches between the Dutch and Turkish authorities in which the Turkish government detailed and promised to abide by its currently existing treaty obligations.¹⁶ Well-documented evidence of sexual violence against women detainees also persuaded the court that Kesbir would be at risk of gender-based violence if returned.

As with the Bilasi-Ashri case, the Dutch government’s appeal of the January 2005 decision to halt Kesbir’s extradition appears to be a last ditch effort to extradite her at any cost. Such single-minded pursuit of this transfer signals a disturbing and apparently prevalent trend in the Netherlands to dispose of alleged terrorist suspects in spite of legally binding regional and international human rights obligations.

Case of X: Netherlands to Moldova

The case of the criminal suspect extradited to Moldova in 2005 is a clear example of the Dutch government’s circumvention of its absolute nonrefoulement obligation, and the failure of the courts to ensure that the government’s actions were consistent with that obligation. According to Amnesty International’s most recent annual report, “torture and ill-treatment in police custody continued to be a major problem [in Moldova] and conditions in temporary detention facilities amounted to cruel and inhuman treatment.”¹⁷

In July 2005, the Hague District Court determined that the human rights situation in Moldova was “unsatisfactory” and ordered the government to seek permission from the Moldovan authorities to visit the suspect in detention during his trial. Acknowledging the “difficulties of communication with Moldova,” the Dutch authorities also sought assurances from Moldovan diplomats in Brussels and Kiev. Once the assurance of visitation was secured, X was extradited.

The Dutch government reply does not offer the DH-S-TER any details regarding the types of abuses that characterize detention and trial in Moldova, the number and nature of any visits agreed upon or conducted since X’s return, X’s conditions of detention, or the process that is governing X’s trial. But assurances amounting to a guarantee of visits cannot be considered adequate to protect a suspect from abuse.

Case of Ramzy v. Netherlands

The reply of the Netherlands government omitted the case of Ramzy v. Netherlands, currently pending before the European Court of Human Rights. The omission may be based on a technicality: in seeking to deport Ramzy back to his home country of Algeria, the Dutch authorities have not requested diplomatic assurances from the Algerian authorities. The Dutch government has argued simply that Ramzy is not at risk of torture if returned to Algeria and has asked the ECtHR to rule no violation of ECHR Article 3 in the absence of that risk.

In a set of questions to the government about the case, the ECtHR asked the Dutch government if it planned to seek assurances against ill-treatment from the Algerian authorities.¹⁸ The Dutch government, partially reflected in its submission to the DH-S-TER, but not attributed to the Ramzy proceedings, observed:  

Firstly, the Government has no concrete intentions of entering into any negotiations on diplomatic assurances with the Algerian authorities concerning the applicant, or indeed concerning any other individual for that matter. In any case, the Government takes the view that such negotiations should preferably be preceded by putting in place a proper institutional and legal framework, in particular a mutual arrangement on the return of nationals. Such an arrangement has in fact been discussed in informal contacts between the two governments, but these discussions were held without any reference to the applicant or any other individual. No concrete results have materialised from these contacts to date.

Secondly, concerning the Government's preparedness to enter into negotiations on diplomatic assurances with regard to the applicant or in general, the Government wishes to draw the Court's attention to the following. Diplomatic assurances are currently the subject of an intensive debate in the international community. Within the Council of Europe itself, for instance, a group of specialists under the Steering Committee for Human Rights has been tasked with examining the subject. The group, which includes the Netherlands, held its first meeting in December of last year and is therefore only just embarking on its duties. That being the case, the Government merely notes that the acceptability of diplomatic assurances is a matter which has not been sufficiently crystallized. While the Government does not, as a matter of principle, rule out the use of diplomatic assurances in expulsion procedures under any circumstances, it is not prepared in the present circumstances to enter into negotiations with the Algerian authorities on diplomatic assurances concerning the applicant.

Given that the non-refoulement obligation applies equally to extradition as to deportation cases, it remains unclear why the government of The Netherlands would repeatedly seek assurances from the Turkish government in the Nuriye Kesbir case, and also in the case of X from Moldova (both Council of Europe member states bound by the ECHR, the European Convention for the Prevention of Torture, and CAT), but decline to seek such guarantees for the deportation to Algeria of a national security suspect. Algeria is a country in which torture is also a serious human rights problem, particularly with respect to terrorism or national security suspects; there is little compliance with international treaties prohibiting torture; and there is no active regional organization to hold Algeria to account for abuses.¹⁹ 

 

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