28 March 2012
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Netherlands: Schiphol fire: Victim sent to jail
The fire in the immigration detention centre at Schiphol airport near Amsterdam on the night of 26 to 27 October 2005, killing 11 people and injuring 15, shocked the general public and sparked anger and outrage at then immigration minister Rita Verdonk. Posters and banners appeared all over the country accusing Verdonk, known for her hard-line stance against immigration and her support for cultural assimilation policies, to have "blood on her hands". An independent investigation was launched as authorities stood accused of failing to follow fire regulations in the prison complex, and it concluded in September 2006 that the Ministry of Justice and construction indeed were responsible for severe fire precaution failings, leading to the resignation of two ministers. Former Justice Minister Piet Hein Donner, however, immediately found his position in the new government as minister for social affairs.
Despite the findings, in June 2007, the courts made two surprising decisions: despite the fact that an independent investigation revealed firstly, that the exact cause of the fire could not established, and secondly, that if the authorities had followed fire regulations, less people or no one at all would have died in the fire, they found a victim of the fire guilty. 24 year-old Libyan asylum seeker Ahmed Isa Al-Jabali, who suffered severe burns and post-traumatic stress, was sentenced to three years imprisonment for having thrown a cigarette bud on his mattress. Ahmed Isa has not been released since he experienced the fire and witnessed the deaths of his fellow detainees. One month later, on 4 July, the preliminary investigation testing the authorities' responsibility for the deaths was stopped by the public prosecution so that no official will be held responsible for the deaths at Schiphol.
Investigation report holds authorities responsible
Prof. Pieter van Vollenhoven, who led the first investigation by the Council for Public Safety (Onderzoeksraad voor Veiligheid), says about the final report, published in September 2006: "These are hard conclusions. The Council is aware of this. But they do justice to all those who were involved in the fire and to the families who lost their loved ones and who suffered and are still suffering from this catastrophe". The reports holds the Authority for Judicial Institutions (Dienst Justitiële Inrichtingen) responsible, which falls under remits of then Justice minister Piet Hein Donner, responsible for the fire safety situation at Schiphol. Next to the judicial authorities, the building authority (Rijksgebouwendienst) under the remits of then minister Sybilla Dekker (VVD, Ministry of Environment and Construction, VROM) and the municipality Haarlemmermeer, which issues permits and is responsible for the fire service at Schiphol airport, were found co-responsible for the fire. When the results of the investigation became known in September 2006, both Dekker and Donner resigned from office, admitting to their responsibility in the affair.
The report found that the cause of the fire cannot be concluded with certainty but suspects that it was a cigarette bud thrown away whilst it was still burning. The fire spread so quickly because there was inflammable material in the cells and because a cell door was left open, creating wind and heavy smoke. All victims died of carbon-monoxide poisoning, ten of the eleven victims died between 00.10 and 00.30. The Ministry of Justice, so the report, failed in its care tasks as the chief responsible authority. More specifically, the director of the prison complex did not receive sufficient orders, and the director himself carried out his responsibilities inadequately. The risks of a fire were insufficiently researched, leading to the staff being insufficiently trained for the event of fire. The fire service arrived after 25 minutes, whereas the norm is 15 minutes, because the fire alarm did not work properly and because the containers were inaccessible. All those responsible failed in their communication and shifted responsibility to others, the report found.
In contrast to this condemning report, the Haarlem court has acquitted all officials responsible: preliminary investigations had been initiated against two prison guards who left a cell door open, against the then director of the prison complex in question, and against the responsible authorities, for possible culpability. The public prosecution found that the two prison guards, who, after having freed Ahmed Isa Al-Jabali out of his cell, left his cell door open, made a mistake. But it could not find responsibility in the resulting deaths even though the investigation report found the fire spread very quickly as a result of the open door. Similarly, the public prosecution found no fault in the then director Arend De Korte, who was being investigated for having knowledge of the lack of training amongst his staff. The public prosecutor found that because he selected his staff from the nation-wide pool of the judicial authorities, the prison guards all had relevant education and papers. The fire service and other authorities were also not found responsible.
Blaming the victim
It appears then, that the Dutch authorities found no one responsible but one of the victims, Ahmed Isa Al-Jabali. In fact, the public prosecution and responsible ministers spread the claim that the fire was started deliberately from the very day after the tragedy had occurred. Then minister of social affairs, Aart Jan De Geus, said the fire was a "dirty thing to do [ ] an inmate deliberately committed arson, but we in the Netherlands succeed in blaming everyone around it". After the initial investigation found no deliberate arson, the public prosecution ordered two more reports, "two investigate some more issues", the last of which was carried out by the engineering bureaux DGMR from Maastricht. It also found in May this year that "there is no conclusive evidence" that the fire was deliberately caused. Despite all attempts by the authorities to criminalise the detainees for the fire, all facts speak for an accident and severe failings towards the people in the care of, and therefore responsibility on part of, the Dutch authorities.
Furthermore, the prosecution's attempts to blame those imprisoned for the fire appears to have been more active than mere wishful thinking: on 26 April 2006, the Jordanian man M., who shared a room in the prison hospital in Scheveningen, made the following statement to the public prosecutor, which was included in the investigation files:
"On 20 April, prison guards entered my cell [ ]. They told me that I had to say that Al J. started the fire. It was a guard from Demersluis. He said: You have to say that the Libyan wanted to commit suicide and you have to say that he did it [ ]. Al J. said that he didn't know how it came about. And that he woke up from screaming and then saw fire in his cell [ ]. You ask me if he said that he played a role. He did not say anything about that."
The charge of deliberate arson was handled by the public prosecution, which demanded a five years sentence, despite the fact that Ahmed Isa, who turned 25 during his detention, himself indicated he threw away a cigarette bud before falling asleep. On 15 June 2007, the judge of the Haarlem court found that Ahmed Isa, although not deliberately causing the fire, should have foreseen that his cigarette bud would cause a fire, and that a fire would be likely to result in deaths. He therefore found him responsible for the death of eleven fellow detainees. He has announced his appeal against this decision, as has the public prosecution. Eduard Damman, Ahmed Isa's lawyer comments that "This is a case of tunnel vision. From the beginning, they directed the investigation towards deliberate arson. The public prosecution is attempting to blame my client, but it failed [ ]. They were adamant to have someone sentenced". Damman is considering going to the European Court of Human Rights on grounds of torture.
Punishing the victim: the logic of EU migration law
The campaign for justice for the Schiphol fire victims (Vertrokken Gezichten) is outraged at the decision and accuses the Dutch authorities to use the vulnerable victims of the fire as scapegoats for their failure to ensure the safety of people detained without having committed any criminal offence and who are forced into their care. Furthermore, the treatment of Ahmed Isa as a criminal rather than a victim is seen as characteristic for an inhumane migration policy that criminalises migrants with devastating consequences for the fundamental rights and dignity of those concerned, as the case of Ahmed shows:
Ahmed Isa was arrested and detained for lack of identity documents in 2005: he was fined for smoking too far away from the smoking pole in Amsterdam Central Station. He was arrested for not having residency papers and brought to the deportation centre in Schiphol. After the fire, Ahmed always maintained that the fire that broke out in his cell was an accident, a claim that is consistent with the injuries he sustained: Ahmed had fallen asleep after he had thrown away his cigarette bud. His sheets, made of paper, caught fire; he woke up, tried to put out the fire and started screaming to alarm the guards. After he fell unconscious, two guards dragged him out of his cell and left him in the hallway in order to open other cell doors. Other detainees, who fled out of their cells, dragged him outside. Ahmed Isa was brought to the intensive care unit of the university clinic VU in Amsterdam, where he was constantly guarded by two police officers. He was put on a breathing machine and held in an artificial coma because of his serious injuries. Ahmed had second degree burns on his hands, legs, chest and face. After nine days he regained consciousness. One day later he was transferred to the prison hospital in Scheveningen where he was arrested on 7 November by Federal Border Guards and charged by the public prosecution with deliberate arson resulting in death.
On 21 November 2005, Ahmed Isa was transferred to the prison Noord te Heerhugowaard. He immediately received a disciplinary punishment of 14 days isolation with surveillance cameras in his cell for "posing a suicide and/or self-harm threat". His clothes were taken away and exchanged for a paper suit. The cell merely contained one mattress, a blanket and a camera. In the morning, he was allowed to shower, an outside walk and a smoke. The light was on night and day. He had to take care of his burn injuries himself, as the guards passed the ointment for his burns through the hatch in the cell door. He was not allowed to see any fellow detainees. After two weeks, he was placed in a cell with two infrared cameras. Even though Ahmed Isa was locked away in isolation for seven months and was under permanent surveillance, he was searched and checked every day at 5pm. According to the radio programme Argos of 18 May 2007, this prison regime was ordered directly by the leadership of the Prison Authority (Dienst Justitiële Inrichtingen), which stands under the powers of the Ministry of Justice in The Hague. There was constant consultation with the ministry, a practice known only from big [criminal investigation] cases (Source: All Included).
In October 2006, after almost one year of detention awaiting trial, the Amsterdam court decided Ahmed should be released, but instead of being released, then immigration minister Verdonk declared Ahmed an illegal alien and ordered him to be detained under immigration powers in the deportation centre in Rotterdam airport. In November, the judge again ordered the immediate release, Verdonk refused and appealed to the decision. In December 2006, Ahmed was released on order of the Dutch Council of State, which granted Ahmed's lawyer's complaint that immigration detention was unlawfully used to detain his client for the purpose of awaiting trial.
The Dutch migration research collective All Included finds that the case of Ahmed Isa is
"a consequence of the deterrence policy that migration law is based on. After the Schiphol fire, there was a short spur of public attention for the violation of human rights that occurs in immigration detention in the Netherlands. The Netherlands is one of the most repressive countries in the European Union in this area. Per 100,000 inhabitants, the Netherlands locks up the most people in the whole of the EU. Together with England, the Netherlands is the only country that has no maximum immigration detention period. Other countries, on the basis of the Treaty of the European Union, hold that this can be no longer than two or three months, sometimes only two weeks. In the Netherlands, people without papers are sometimes held for more than a year without having committed any crime. [ ] All Included opposes immigrant detention, forced deportation and the illegalisation of people. Migration is part and parcel of globalisation. The only alternative is an open approach the premise of which is equal opportunities and a just distribution of welfare across national borders."
Background article from All Included: http://www.allincluded.nl/index.php?option=com_content&task=view&id=100&Itemid=
Press release of ministers resigning after report finds their ministries accountable: http://www.vrom.nl/pagina.html?id=24504
Campaign website in support of the victims: http://www.vertrokkengezichten.net/
Dossier on the Schiphol brand by the Dutch public broadcasting corporation NOS: http://www.nos.nl/nosjournaal/dossiers/schiphol_brand/brandschipholindex.html
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