[This article was published in the Norwegian Ombudsman’s annual report 2015. Read the report here.]
An important part of the Parliamentary Ombudsman’s prevention mandate is the opportunity to submit proposals and comments to existing legislation or draft legislation with a view to improving the treatment of and conditions for people who are deprived of their liberty.
On 30 January 2015, the Ministry of Justice and Public Security distributed proposed amendments to the Execution of Sentences Act for consultation, intended to provide legal authority for prison sentences being served in another state. In order to reduce the number of people waiting to serve their sentence and increase the capacity of the correctional services to execute custodial sentences and remand people in custody, it was proposed to rent prison places abroad.
The Norwegian authorities entered into negotiations with the Dutch authorities and reached an agreement whereby Norway was to rent places for 242 inmates in Norgerhaven prison in the Netherlands. The agreement stated, among other things, that most of the employees of the prison should be Dutch, that there should be a Norwegian prison manager and that the health services in the prison were to be provided by the Dutch health authorities.
On 27 February, the Parliamentary Ombudsman submitted a consultation response to the proposal. In the response, the Ombudsman pointed out a number of factors that should be looked at in more detail, including how this arrangement addresses Norwegian human rights commitments, language and communication between employees and inmates, and access to health care services. The Ombudsman also deemed the short consultation deadline to be unfortunate.
In line with Norway’s commitments?
Following the consultation, the Ministry submitted a proposition to the Storting for it to give its consent to the proposed amendments to the Execution of Sentences Act and to enter into the agreement with the Netherlands on renting places in Norgerhaven prison for three years from 1 September 2015. The Parliamentary Ombudsman, represented by the NPM, attended the Standing Committee on Justice’s open hearing on 28 April and pointed out, among other things, that no reference is made in the proposition to how Norway aims to honour its commitments under the UN Convention against Torture in relation to inmates serving their sentences in the Netherlands. After the hearing, the Parliamentary Ombudsman outlined this matter in more detail in a letter to the committee.
The proposition states that inmates serving sentences in another state will be under Norwegian jurisdiction. Articles 14 and 17 of Norway’s agreement with the Netherlands of 2 March 2015, states however that Dutch criminal law will apply to criminal offences committed in the prison and that the Dutch authorities are responsible for investigating and prosecuting criminal offences and deaths in the prison.
“It is the state’s responsibility to prevent, prohibit and punish torture and ill-treatment ’in any territory under its jurisdiction”
Under the agreement, the Norwegian authorities have no authority to investigate criminal offences commit- ted in Norgerhaven prison. The Norwegian authorities will thereby not be able to implement measures to investigate or prosecute matters that could fall under the prohibition on torture and ill-treatment of the inmates. This will apply both to incidents caused by Dutch employees in the prison and by the employees’ passivity in the event of violence committed by other inmates. The UN’s Committee against Torture (CAT) has stated that it is the state’s responsibility to pre- vent, prohibit and punish torture and ill-treatment in any territory under its jurisdiction. The Ombudsman therefore found grounds to question whether this type of limitation on the Norwegian authorities’ capacity is in line with Norway’s commitments under the UN Convention against Torture.
The state’s responsibility outside its own borders
The UN Special Rapporteur on Torture Juan E. Méndez presented a report in October 2015, in which he reminded the states about their responsibility and commitments under the UN Convention against Torture. Méndez emphasised that torture and ill-treatment is still taking place around the world. States are also becoming increasingly involved in activities in other countries. When states operate outside their borders, whether in connection with military activity, border controls, deprivation of liberty or peacekeeping operations, they have the same responsibility to honour their commitments under the UN Convention against Torture as they do on their own territory. All states have a duty to prevent, prohibit and punish torture in every area under their own jurisdiction, regardless of where in the world the acts take place or who is responsible for them
The consequences for prevention of torture and ill-treatment
The Parliamentary Ombudsman has also highlighted a lack of clarity with respect to carrying out visits to prisons abroad. The Ministry presumed, among other things, that the Parliamentary Ombudsman should be able to carry out visits under its mandate to a prison abroad rented by the Norwegian. However, the consultation paper of 30 January contained no discussion of the Norwegian NPM’s relationship with the NPM of the ’receiving state’ under OPCAT, the relationship with the authorities of the ’receiving state’ and the role they exercise in relation to the inmates, or other factors of importance to carrying out preventive visits in another state.
The UN Subcommittee on Prevention of Torture, SPT, has an advisory role in relation to the NPMs. SPT has issued a statement on how preventive work should be carried out if a state enters into an agreement with another state on sending people there for detention purposes. It must be ensured that the NPM in the ’sending state’ has the legal and practical possibility to visit the inmates in prison in the ’receiving state’ in accordance with OPCAT and to make recommendations and enter into dialogue with the authorities in both countries. At the same time, the NPM in the ’receiving state’ shall have the same possibility to carry out visits, make recommendations and enter into dialogue with the authorities of both states.
The Ombudsman recognises both legal and practical challenges associated with entering into dialogue on follow-up with other states’ authorities (about matters outside Norway’s jurisdiction), and also recognises that this will be a key factor in fulfil the OPCAT mandate. For example, with respect to inmates’ access to health care services, which according to the agreement are provided by the Dutch authorities. It is unclear how the Norwegian NPM will be able to effectively investigate the health care services provided during a visit to Norgerhaven prison, and make recommendations and carry out follow-up afterwards.
Having carried out visits to a number of places of detention in Norway over the past two years, the Ombudsman is of the strong opinion that preventive efforts require a holistic approach. Reference is made in this context to the reports the Parliamentary Ombudsman has published to date following visits under the preventive mandate. These reports make it clear that the health departments in prisons, accident and emergency units, specialist health services and the management of risk during transport, are covered by the mandate and are an integral part of a visit. The situation is illustrated by the fact that around 30 per cent of the recommendations the Parliamentary Ombudsman has made to the prisons under the preventive mandate concern health matters.
“After more than six months of Norwegian inmates being detained in prison in the Netherlands, it is still unclear how Norway honours its commitments under the UN Convention against Torture and how the NPMs and SPT are to exercise their mandates”
Evaluation of the agreement’s implications for the preventive mandate
The agreement entered into between Norway and the Netherlands on 2 March 2015 on renting prison places neither refers to the states’ commitments under OPCAT nor to the mandate of the SPT and the NPMs.
On assignment for the Dutch NPM, an evaluation is now underway on the implications of the bilateral agreement between Norway and the Netherlands on the Dutch NPM’s OPCAT mandate. The evaluation’s conclusions will also be of interest to the Norwegian Ombudsman’s prevention efforts for inmates who are transferred from Norway.
After more than six months of Norwegian inmates being detained in prison in the Netherlands, it is still unclear how Norway honours its commitments under the UN Convention against Torture and how the NPMs and SPT are to exercise their mandates. The Ombudsman will continue to follow developments in the time Ahead.