CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION

Second periodic report due in 1994

Addendum

THE NETHERLANDS: ARUBA*

[27 March 1995]

* The initial report submitted by the Government of the Netherlands is contained in documents CAT/C/9/Add.1 to 3; for its consideration by the Committee, see documents CAT/C/SR.46, 47, 63 and 64 and Official Records of the General Assembly, forty-fifth and forty-sixth sessions, A/45/44, paras. 435-470 and A/46/46, paras. 154-181. The second periodic report of the Netherlands (metropolitan territory) and the Netherlands Antilles are contained in document CAT/C/25/Add.1 and 2.



Annexes*

1. Constitution of Aruba

2. Relevant articles of the Criminal Code of Aruba

3. Judgement at first instance in Aruba



* Available for consultation in the files of the Secretariat.


I. GENERAL

A. Introduction

1. Reporting obligation under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

1. This report is submitted in pursuance of article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention became effective for the Kingdom of the Netherlands (including Aruba) on 19 January 1989. Attaining its status of autonomous entity within the Kingdom of the Netherlands in 1986 entailed for Aruba the obligation to report periodically under the various international human rights instruments.

2. The report follows as closely as possible the general guidelines as laid down by the Committee (CAT/C/4/Rev.1) and the Manual on Human Rights Reporting (United Nations publication, Sales No. E.91.XIV.1). It consists of the following parts: part I provides general information regarding Aruba, as well as the general legal framework within which the rights, as defined in articles 1 to 16 of the Convention, are implemented; part II provides more specific information relating to articles 1 to 16 of the Convention. The information given there is intended to supplement and illustrate the contents of part I.

3. Aruba's initial report under the Convention, which was submitted in 1989 (CAT/C/9/Add.1), was reviewed by the Committee against Torture during its session of March 1990. The large number of questions and comments that the Committee presented made an additional report necessary, which was therefore submitted in September 1990 and examined on 15 November 1990 (CAT/C/9/Add.3). However, the presentation of information in the present report is somewhat more extensive in order to enable the Committee to get a better understanding of the Aruban community, the Aruban legal system (including the penal system) and of the various obligations arising out of treaties.

4. Aruba, the most western of the Leeward group of islands, was formerly part of the Netherlands Antilles. It is situated 15 minutes by air off the coast of Venezuela and 12 degrees north of the equator. Surrounded by the Caribbean Sea, Aruba is 19.6 miles long, 6 miles wide at its widest point and has an area of 70.9 square miles.

5. Aruba is one of the few islands in the Caribbean where traits of the native Indian population are still evident. The Aruban population today is a mixture of American Indian, European and African blood. The native language is Papiamento, while in addition most Arubans speak Dutch, English and Spanish. The official language is Dutch. However, plans have existed for some time to introduce Papiamento in addition to Dutch as the language of instruction in primary schools.

6. In Aruba more than 40 nationalities have contributed to form a unique and peaceful society. The main industry is tourism. In 1991 the oil refinery resumed its operations after having been closed since 1985.

7. The present constitutional structure of the Kingdom of the Netherlands can be explained as follows. Aruba is part of the Kingdom, which consists of three autonomous partners: the Netherlands, the Netherlands Antilles and Aruba. Prior to 1 January 1986, Aruba formed part of the Netherlands Antilles, but since then it has attained its current autonomous status (Status Aparte) within the Kingdom of the Netherlands.

8. The Charter (Statuut), the highest constitutional instrument of the Kingdom, is a legal document sui generis, based upon its voluntary acceptance by the three countries. It consists of three essential parts. The first part defines the association between the three countries, which is federal in nature. The fact that together the three countries form one sovereign entity implies that a number of matters need to be administered by the countries together, through the institutions of the Kingdom. These matters are called Kingdom affairs. They are enumerated in the Charter, and include the maintenance of independence, defence, foreign relations, and proper administration.

9. The second part deals with the relationship between the countries as autonomous entities. Their partnership implies that the countries respect each other and render one another aid and assistance, material or otherwise, and that they consult and coordinate in matters which are not Kingdom affairs but in which a reasonable degree of coordination is in the interests of the Kingdom as a whole. The third part of the Charter defines the autonomy of the countries, which is the principle underlying the Charter.

10. Foreign affairs (including the authority to conclude treaties with other States and/or organizations) is, in accordance with article 3 of the Charter, a Kingdom matter, being dealt with by the Council of Ministers of the Kingdom. This Council consists of the Council of Ministers of the Netherlands, supplemented with a Minister Plenipotentiary each for Aruba and the Netherlands Antilles.

11. The Charter also lays down that each of the countries is responsible for putting basic human rights and freedoms into effect, but it is the responsibility of the Kingdom as a whole to guarantee them (art. 43, chap. 1).

12. The Aruban Government system is a parliamentary democracy. The head of State is the Queen of the Netherlands, represented by a Governor. The Governor is appointed by the Queen upon the recommendation of the Aruban Council of Ministers. The Council of Ministers is accountable to Parliament, which consists of one House. Members of Parliament are chosen in general elections every four years, on the basis of a multi-party system. The Governor and the Council of Ministers jointly form the Government of Aruba.

Note: Until 1986, when Aruba still formed part of the Netherlands Antilles, elections for both the Island Council and the (Antillean) Parliament took place. Since 1986 parliamentary elections take place.

13. The development of the Aruban population during the period 1986-1993 is as follows:

14. In October 1991, 7,218 foreign nationals were registered in Aruba (see table 3). This represents about 10.82 per cent of the total population. A foreign national in this context means a person who does not have Dutch nationality (to illustrate, nationals from Aruba, the Netherlands Antilles and the Netherlands have Dutch nationality).

15. The increase in the number of inhabitants in Aruba over the period 1986-1991 was mainly the result of a substantial economic expansion. Due to a shortage of local labour, many foreigners were (and still are) recruited. Although no registration is made of the number of people of a given nationality or ethnic descent working in each economic sector, certain trends are perceptible. Most foreigners work in the construction, tourist and domestic sectors. Work in the construction sector is mostly performed by people from Venezuela, Colombia and the Dominican Republic. Regarding the tourist sector a distinction should be made between skilled and unskilled personnel. Unskilled work is mainly performed by people from Venezuela, Colombia, Peru, Chile and the Philippines, whereas most skilled work is performed by people from Aruba, the Netherlands and the United States. Work in the domestic sector is mostly performed by people from Haiti, Jamaica, Venezuela and Colombia. A considerable number of foreign employees are not included in the Civil Register, as they have temporary working permits with their temporary residence permits.

16. In Aruba no registration is made according to race. For this reason no indication can be given of the number of coloured and/or white people belonging to a certain social class.

Source: Registry Office.

Source: Population Census - 6 October 1991 -

and Registry Office.

Source: Population and Housing Census, October 1991.

Source: Population and Housing Census, October 1991.

17. Aruba has an open economy which, because of its small scale, is dependent on imports from abroad and export trade. Since most goods are imported, it is necessary, in order to maintain a proper balance of trade, to expand Aruba's export market beyond the natural resources available.

18. Furthermore, Aruba is characterized by the absence of commercially exploitable mineral resources; labour costs which are among the highest in the region; limited fresh water resources; soil salination; a dry climate and a strong trade wind. In addition, the sea surrounding Aruba does not provide for extensive fishing. Consequently, the development of manufacturing and agricultural sectors has been hindered.

19. Until March 1985, the mainstay of the Aruban economy was the large EXXON oil refinery (Lago) in San Nicolas, which accounted for one third of government revenues and almost 50 per cent of foreign exchange earnings. Tourism was a second source of income, the development of which had been encouraged by an active Government policy since the late 1950s. The closure of the refinery in 1985 together with a sharp decline in oil prices, which led to a massive devaluation of the Venezuelan bolivar and halted Venezuelan tourism to Aruba, almost completely, dealt a heavy blow to the economy, causing a decline in Gross Domestic Product (GDP) of nearly 18 per cent in real terms, up to 20 per cent unemployment, a sharp swing to deficit on the current account of the balance of payments and a considerable deterioration of the public finances.

20. In response, the Government adopted an adjustment programme with the financial support of the Government of the Netherlands and the technical assistance of the International Monetary Fund. This programme focused on efforts to expand the tourist sector as the new engine of growth, a number of tax measures and a substantial cut in wages to contain financial disequilibrium in the fiscal and external accounts. The expansion of the tourist sector entailed governmental support in a number of areas. Of particular importance, however, was the guarantee programme by which the Government issued guarantees to the institutions financing the hotel projects.

21. These government measures led to an investment boom in tourism and related services. This resulted in a boost to economic growth and Aruba's GDP increased significantly over the period ending in 1990. Reflecting the strength of economic activity some 10,000 new jobs have been created in the past few years, virtually erasing unemployment. Furthermore, the number of tourists visiting Aruba has increased sharply, as shown in table 12. Coupled with the inflow of foreign investment capital, international reserves increased and reached Af. 267 million at the end of 1990. The reserve position remained stable at about 3.5 months of imports, which is viewed internationally as an adequate ratio. In addition, the Government's public finances improved significantly.

Source: Aruban Investment Bank, 1992.

Source: Population and Housing Census, 1991.

Source: Department of Economic Affairs, Commerce and Industry,estimates.

* Of which 8,455 persons work for Community, Social and Personal Services.

22. Formally speaking, Aruban criminal law and the law relating to detention meet the requirements set in international human rights conventions. Aruba's Constitution, which is progressive and of recent date, includes the required safeguards for inhabitants of Aruba as well as for persons (whether criminals or not) who are on Aruba temporarily, as prescribed by international human rights conventions. But as the regulations in the realm of criminal law (1913), law of criminal procedure (1914) and detention (1930) are outdated, they do not always come up to the standards that Aruba itself has imposed in the Constitution. The Government is aware of this, and is implementing the desired changes in various areas.

23. Aruba seized the occasion of its acquiring autonomous status (Status Aparte), in 1986, to introduce a constitution of its own, based on the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the European Social Charter, the Constitution of the Netherlands and the Constitution of the Netherlands Antilles. Some of the provisions of the European Convention, in particular - the principle of equality, the principle of nulla poena sine lege, the presumption of innocence and the proscription of the death penalty - have been incorporated almost verbatim into the Constitution of Aruba. Article I.5 contains provisions concerning lawful arrests, deprivation of liberty and imprisonment. This article, which the Explanatory Memorandum refers to as having been carefully harmonized with article 5 of the European Convention, and also with the case law generated by this provision, refers to all cases of deprivation of liberty. Also included are the right to legal assistance and aid (art. I.7) and provisions relating to the legal system and the independent judiciary (chap. VI).

24. Article I.6 of the Constitution contains the principle of nulla poena sine lege: "No offence shall be punishable unless it was an offence under the law at the time it was committed". This formulation indicates that the provisions of criminal law may also be based on a piece of substantive legislation such as a country decree, containing general measures and decisions of public law bodies competent to promulgate regulations, provided that such regulations are based on acts of Parliament.

25. As the present Code of Criminal Procedure dates from 1914, work has been in progress for some time on preparing a new Code of Criminal Procedure for the Netherlands Antilles and Aruba. The first draft was presented to the Government in 1987, and it has since been debated in the Parliaments of both the Netherlands Antilles and Aruba. The protracted passage of this bill has generated a long series of amendments. One thing that complicates the drafting of a new Code of Criminal Procedure is the fact that it is what is known as a uniform Country Ordinance. Because the Netherlands Antilles and Aruba share a Joint Court of Justice, their legislation in areas such as criminal procedure must be identical, which makes the passage through the two parliamentary assemblies more circuitous, to say the least.

26. Although the present Criminal Code has been amended and supplemented on countless occasions over the years, it contains several outdated provisions. Forced labour, putting prisoners on "a diet of bread and water, corn meal or rice" and the scope for a court to impose a stricter prison regime (i.e. as a way of increasing the sentence, not as an internal disciplinary measure) are practices that, although abandoned years ago, are all still possible according to this Criminal Code. The death sentence was abolished for Aruba on the basis of article 29 of the Country Ordinance on exceptional transitional provisions, (AB 1987, No. GT 3).

27. Although physical inviolability is safeguarded by the Constitution, the Criminal Code does not explicitly prohibit torture. Implementing legislation is currently under preparation to correct this omission.

28. The law relating to detention violates the fundamental rights, guaranteed by the Constitution, to personal liberty and security, and the right to freedom of movement within Aruba, as well as the right to stay there and choose a place to live. The legitimacy of this violation likewise derives from the Constitution, which provides, inter alia, that the Government must be able to punish those who offend against the law, as well as being able to protect society from certain individuals and certain individuals from themselves.

29. On the basis of the Aruban Constitution, in the event of a person's being deprived of his liberty, it is essential to adhere to the procedural rules that have been imposed or authorized by Parliament. Powers to deprive individuals of their liberty must be laid down by law. Furthermore, a person may only be deprived of his liberty in the cases listed exhaustively in article I.5 of the Constitution, i.e. in cases of:

(a) Lawful detention after conviction by a competent court;

(b) Lawful arrest or detention for non-compliance with the lawful order of a court or to secure the fulfilment of any express obligation prescribed by law;

(c) Lawful arrest or detention of a person effected for the purposes of bringing him before the competent legal authority when there are reasonable grounds for suspecting that he has committed an offence, or when there are reasonable grounds for considering it necessary to prevent him:

(ii) Fleeing after having committed an offence;

(iii) Jeopardizing a criminal investigation;

(d) Lawful detention of a minor for the purpose of intervening in his upbringing, or his lawful detention for the purpose of bringing him before the competent authority;

(e) Lawful detention of persons to prevent the spreading of an infectious disease, of persons of unsound mind, alcoholics or drug addicts (pursuant inter alia to the Mental Health Ordinance (AB 1992, No. GT 15));

(f) Lawful detention of persons to prevent their effecting an unauthorized entry into the country or of persons against whom expulsion or extradition proceedings are pending (elaborated in the Country Ordinance on admittance and deportation (AB 1993, No. GT 33)).

30. Aruba's prison legislation consists of a Prisons Ordinance (PB 1930, No. 73), the Country Decree on prisons (PB 1958, No. 18) and the Instructions for prison officers (PB 1958, No. 19). The latter regulations are based on article 26 of Aruba's Criminal Code. These regulations, together with Titles II and III of Book I of the Criminal Code, comprise the body of legislation relating to persons who have been confined to a remand centre or prison on the basis of a criminal investigation that is being conducted against them or of a term of imprisonment to which they have been sentenced.

31. The content of these regulations is outdated, however, and no longer tallies either with modern views on detention or with current practice. The preparation of a new Country Ordinance on deprivation of liberty is therefore under way. Until this Country Ordinance is promulgated and enters into effect, an undesirable situation will continue to exist, as the following examples clearly show. For instance, the Prisons Ordinance provides for the institution of the pistole - a separate room in a remand centre with "different meals and beds" in which detainees who have not been convicted may stay at their own expense instead of having to stay in a cell. No use is made of this provision in practice. Another of the ordinance's unused provisions is the disciplinary measure of casting a prisoner into chains, whether or not in a punishment cell, and providing him with "... dry food only, every other day ...", which is in violation, for instance, of article 10 of the International Covenant on Civil and Political Rights. It is also theoretically admissible to divide detainees into various "classes" on the basis of non-objective criteria, though this is in fact never done.

32. Detainees are separated on objective grounds (i.e. sex, age, whether sentenced or in pre-trial detention, whether or not exhibiting psychotic behaviour). It may be added that like the Criminal Code, the Prisons Ordinance and the Instructions for prison officers also contain no explicit ban on torture by staff, although there is a provision instructing staff to "treat prisoners with respect, but without familiarity" (art. 13, Instructions for prison officers).

33. According to the Government's present views concerning detention, a custodial sentence is imposed not only as a form of retribution, but also with a view to resocializing the person sentenced and as a general crime prevention measure. While it is true that the nature of this type of punishment constitutes a violation of other constitutional rights, the prison regime is not made harsher with the imposition of extra rules and prohibitions.

34. The Aruban education system is largely modelled on the Dutch system, and may be divided into the following levels and types:

(a) Pre-school playgroups for children aged 0-3 years;

(b) Nursery education for children aged 4-5 years;

(c) Primary education for children aged 6-11 years;

(d) Special primary education, divided into:

(i) Education for children with learning difficulties;

(ii) Education for children with severe learning difficulties;

(e) Secondary education for children aged 12 to ± 17, divided into:

(i) Junior technical education (LTS);

(ii) Junior secondary home economics education (LHNO) and the follow-up courses taught at the Paso Sigur school (PSS);

(iii) Economic, tourist and administrative education (ETAO);

(iv) Junior general secondary education (MAVO);

(v) Senior general secondary education (HAVO);

(vi) Pre-university education (VWO);

(f) Post-secondary education (MBO, HBO, WO) for children of ±15-18 years and older, divided into:

(i) Senior secondary technical education (MTO);

(ii) Senior secondary administrative education (MAO);

(iii) Hotel management (Aruba Hotel School);

(iv) Teacher training courses (Instituto Pedagogico Arubano);

(v) The University of Aruba (UA), Law Faculty and Financial Economic Faculty;

(g) Adult education for school-leavers in the 15+ age range.

Source: Education Statistics Section, Education

Department.

35. Although preparations are in hand to rectify the situation (partly because of the obligations under article 14 of the International Covenant on Economic, Social and Cultural Rights), Aruba does not yet have compulsory primary education. School attendance is therefore voluntary, and in this light the high percentages are all the more encouraging. Table 18 shows the number of pupils in various levels and types of education in the 1991/92 school year, by sex.