Minister Weerwind amends bill to safeguard fundamental rights

Minister Weerwind amends bill to safeguard fundamental rights

Minister Weerwind for Legal Protection is taking the next step in amending the Custodial Institutions Act (Penitentiaire beginselenwet). He has sent his amendment proposal to the Council of State for advice in what is a required intermediate step before he submits the amendments to the House of Representatives. This amendment is necessary because the House of Representatives has adopted amendments which make it possible, for example, for discussions between lawyers and clients to be recorded. This is contrary to the Constitution, the European Convention on Human Rights (ECHR) and European law, as the Council of State and Minister Weerwind have pointed out. The new bill will reverse these amendments.

As Minister Weerwind explains, “The bill currently before the House of Representatives is contradictory to fundamental rights. The Council of State is clear about this and that’s something the government wants to distance itself from. My priority is to tackle continued criminal activity by detainees. That’s why I’m now submitting a new proposal so that the measures align with our rule of law.”

Minister Weerwind’s bill is intended to facilitate the implementation of far-reaching restrictions in communication with the outside world for detainees in the Maximum Security Prisons or Intensive Supervision Units. Visual monitoring of contact between detainees and their lawyer is also to be made possible and there will be no more than 2 lawyers per detainee. The minister will also be able to use his powers to impose even more far-reaching individual restrictions. These measures are desperately needed in order to tackle criminal activity, but also to guarantee the safety of lawyers who are at risk of being put under pressure by detainees.

During the debate on the amendment of the Custodial Institutions Act, Minister Weerwind stated that the recording of discussions between detainees and lawyers is in conflict with key fundamental rights. Despite that, the amendments adopted by the House of Representatives add this option to the legislation and that is why Minister Weerwind has asked the Council of State whether it shares this position. The Advisory Division of the Council of State advises that the added amendments are an intrusion in the right to confidential communication, as protected in Articles 6 and 8 of the ECHR. The Division shares the minister’s conclusion that the amendments are incompatible with the constitution, the ECHR and EU law.

The amended proposal reverses the amendments which relate to forms of auditive supervision. An amendment was also adopted which makes it possible to record moments of contact (telephone and visiting rights) in law. The Council of State has also issued a recommendation on this amendment in which it indicates that it is contrary to Article 8 of the ECHR, so the bill will also be amended with regard to telephone and visiting rights. The bill can be submitted to the House of Representatives after the Council of State has advised.

Originally published at

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EU editor