Willemstad/Philipsburg:--- The execution of three of the four Mutual Arrangements Detention (“Onderlinge Regelingen Detentie” (ORDs)) agreed upon by the countries of the Kingdom largely fulfills the purpose for which they were made, is the conclusion of the Law Enforcement Council (the Council) in its recent evaluation inspection.
ORDs 1, 2, and 3 largely fulfill their purpose, but an important number of conditions of ORD4 are insufficiently implemented. ORD1 and 2 offer the countries the possibility to request each other to temporarily house a detainee, for example for reasons of lack of capacity, safety or health. ORD3 offers the countries the possibility to permanently transfer the execution of a detainee’s prison sentence to another country of the Kingdom for resocialization purposes. ORD4 specifically relates to the transport of detainees between Bonaire, Sint Eustatius, and Saba.
On the request of the Judicial Four Party Consultation (“Justitieel Vierlanden Overleg” (JVO)), the semi-annual consultation of the ministers of Justice (and Security) of the Netherlands, Curaçao, Aruba, and Sint Maarten, the Council evaluated the four ORDs. For this evaluation inspection, the Council looked at to what extent the execution of the ORDs met the objective for which they were established. In connection with this inspection, the Council made 39 recommendations to the respective ministers of the countries.
Response to the central question
The Council is of the opinion that ORDs 1, 2, and 3 largely fulfill the purpose for which they were made. But improvements are needed, in particular with regards to implementation. More attention needs to be given to the interests of the detainees in the areas of information provision and legal protection. According to the Council, the execution of ORD4 does not meet the objective for which it was established because a number of important issues are not implemented properly, such as the informing of the ministers involved and the reimbursement of costs for the return of persons to Saba and Sint Eustatius.
Legal status of the detainee
Transferring a detainee to another country, whether it is for reasons of lack of capacity, safety, medical treatment or resocialization, will in most cases have a significant impact on the daily life of the person concerned. In view of the far-reaching consequences of transfer, the Council is of the opinion that a legal remedy must be available for the involved detainee in the case he does not agree with the decision in the context of an ORD. The Council is of the opinion that, apart from the criminal interlocutory proceedings (‘strafvorderlijk kort geding’) as a ‘residual provision’, it is up to the countries to implement a specific provision in order to improve and/or guarantee the legal protection of detainees in the context of ORD decisions.
Those involved experience the procedures for handling of ORD cases as too bureaucratic, in particular the extension procedure of ORD2. The Council proposes to simplifying the procedures.
Pursuant to ORD4, the Ministers of Justice of St. Maarten and Curaçao must be informed in advance about an intended transport of a detainee from Sint Eustatius or Saba to the Judicial Institution Caribbean Netherlands (JICN) in Bonaire. In practice, a notification is often omitted. On an operational level, the transport is being coordinated. Because the transports usually pass through the two countries mentioned and the ministers of those countries are responsible for what happens on their territory, the Council finds it important that the prescribed notification is duly made.
ORD2 (medical grounds or safety) and ORD3 (resocialisation) are also used for transfers between the Caribbean part and the European part of the Netherlands. Because the Caribbean and the European parts pf the Netherlands are part of one country, the Council finds it peculiar that the aforementioned ORDs are used for transfers back and forth between these parts of the Netherlands.
For the handling of ORD requests, there are numerous forms of cooperation between the various organizations involved in and also between the countries. The Council considers it important that all parties involved regularly (continue to) participate in the consultations. The Council is generally positive about the various cooperation efforts.
In the 2016, the JVO initiated the Detainees Criminal Investigation Information Point (“Gedetineerden Recherche Informatie Punt” (GRIP) per country. The GRIP is intended as a point where information about detainees is collected and exchanged. The GRIPs are vested in the police forces. In practice, the GRIPs do not appear to function structurally. It is the information desks of the police forces and the correctional institutions that play an important role in the ORDs. However, the fact that the GRIPs don’t function in the intended way, does not result in any significant bottlenecks in practice.
The probation / rehabilitation organisations are not involved in ORD3 cases, even though the annex of that ORD explicitly mentions that possibility. According to the Council, the involvement of these organizations can have an added value in the assessment of ORD3 requests due to their expertise in the field of rehabilitation.
For detainees, information sheets are available about ORD 1, 2 and 3. In practice, detainees are not proactively informed, they have to request information themselves.
Transport of detainees
The countries use fixed working methods when carrying out transports of detainees by air. But there are differences in the use of special handcuffs during the flight. And only for the special weapons and tactics team of Curaçao (‘arrestatieteam’), which accompanies the transports of Curaçao detainees, a transport procedure has been put in place. Although the Council is of the opinion that the countries have made sufficient provisions to guarantee the safety of detainees and third parties, it considers it advisable that the other countries, just as for Curaçao had been done, would also ensure that the procedures- including the use of handcuffs and agreements with those involved such as airlines – were recorded.
The Council also draws attention to the position of detainees who are transferred from Sint Eustatius or Saba to the JICN on Bonaire. This transfer means that their right to receive (family) visits is difficult to achieve. According to the Council, a solution should be realised to safeguard the fundamental rights such as the right to family life (family visit).
Reimbursement of costs
In the ORDs 1, 2 and 3, it is stipulated that the requesting country is accountable for the transport costs. The temporary detention in another country on the basis of ORD1 and ORD2 is also for the account of the requesting country. In practice, in the case of transfer to the European part of the Netherlands, the Department Judicial Institution (DJI) often takes the problematic financial situation of Aruba, Curacao and St. Maarten into account. As a result, the related costs are not billed to these countries. In the opinion of the Council, a more realistic solution should be sought for this matter, taking into account the specific financial situation of the countries.
ORD4 contains the provision that the Netherlands must reimburse the costs arising from the application of this scheme. However, it is unclear which organization is responsible for this. It happens that detainees are discharged from the JICN without being in possession of a ticket to travel back to St. Eustatius or Saba. In the opinion of the Council, a solution needs to be found for the reimbursement of costs for the return of a detainee of St. Eustatius or Saba upon termination of the detention in Bonaire.
Nature of ORDs
In article 36 of the Charter for the Kingdom of the Netherlands, it is regulated that the countries of the Kingdom are to provide each other with support and assistance. Based on article 38 (1) of the Charter, countries can establish mutual arrangements. The four ORDs are so-called ‘form-free arrangements’. Form-free arrangements or regulations cannot contain provisions that deviate from generally binding regulations (“Algemeen Verbindende Voorschriften” (AVV)) nor provisions that can directly bind citizens. When citizens’ rights and obligations are at stake, it will be necessary to opt for a national law or for a general measure of government. This is the case with ORD3 because the countries have agreed that detainees must request a transfer themselves to facilitate their resocialization. Consequently, the countries have therefore intended a right for the detainees, which has not (yet) been legally established, the Council stated.
The public prosecutor’s offices of the Attorney General (PPG) in Curaçao and Aruba play a central role in the execution of the ORDs. Other entities that are involved in the application of the ORDs are the Ministries of Justice (and Security) of the four countries, the public prosecutor’s offices in first instance (in particular the executive prosecutors), the correctional institutions on Curaçao, on Aruba, on Sint Maarten and on Bonaire, the police forces of Curaçao, Aruba, Sint Maarten and the Caribbean Netherlands, as well as the Royal Netherlands Marechaussee (KMar).
The Council is of the opinion that follow-up of the recommendations made will contribute to even better execution of the arrangements and to improved actual execution of these arrangements. The countries as well as the involved detainees will benefit from this.
The inspection report and all other publications of the Council are digitally available on the website: www.raadrechtshandhaving.com