franet submission ar2011

Transcription

Contribution to FRA´s annual report 2011
The Netherlands
Reference period:
1 October 2010 to 28 October 2011
FRANET
NFP The Netherlands
Art.1, kenniscentrum discriminatie Nederland
Schaatsbaan 51 | 3013 AR Rotterdam
Postbus 19192 | 3001 BD Rotterdam
T: +31 (0)10 – 201 02 01
F: +31 (0)10 – 201 02 22
E: [email protected] | [email protected]
W: http://www.art1.nl
© Art.1, December, 2011
1
ASYLUM, IMMIGRATION AND INTEGRATION
1.1
General information on asylum, immigration and
integration
1.1.1
Policy and institutional developments
Asylum and immigration
In the coalition agreement of 2010, the cabinet stated its twofold ambition, to select
migrants that will contribute to the economy, science and culture of the Netherlands and to
limit the influx of other migrants.1 To reach this goal, the cabinet proposed the Modern
Migration Policy Act (Wet Modern Migratie Beleid, MoMi), which will be discussed in the
next subsection.2 On 16 September 2011, the cabinet agreed on measures that aim to
restrict and force back immigration of people with few opportunities (kansarme migranten).3
The proposed measures include strengthening the requirements for permissions to stay,
intensifying return policies and opposing illegality. These proposals have been sent to the
Council of State (Raad van State) for advice.4
The cabinet presented its measures to combat illegal residence in the Netherlands in July
2011.5 In addition to working on Mobile Surveillance Safety checks (Mobiel Toezicht
Veiligheid- controles; MTV- controles), the action against illegal residence and criminal
foreigners are listed as one of the national priorities of the police for 2011-2014. Other
measures to combat illegal residence include rejecting applications of people who previously
resided in the Netherlands without documents, expanding the possibilities to declare a
person to be an undesirable alien, including habitual offenders, and combating the housing
or the employment of undocumented migrants. In addition, the cabinet stated that the fight
against human trafficking is one of the spearheads of their policy.
Furthermore, the government plans to take measures to assure that asylum seekers, whose
applications failed, return to their countries of origin.6 After receiving a ‘return-decision’
these asylum seekers are bound to leave the Netherlands within 28 days. Another planned
measure is that the Dutch government will retain the travel documents of asylum seekers
during the process of application, with a view to possible returns. In addition, the
government will check whether the governmental costs for the return can be redressed to
the migrants and they will also check whether their referents can be involved in paying the
costs for the trip or the travel documents. Furthermore, the government plans to approach
the countries of origin more strategically, and include the return of migrants in their
international relations. For example, countries that do not cooperate might be confronted
with changes to developmental aid of the Dutch government. A final measure consists of
supporting projects of the International Organisation for Migration Netherlands
(Internationale Organisatie voor Migratie Nederland, IOM-NL) and of NGOs that work
2
1
Netherlands, The parliamentary parties VVD and CDA (2010); Netherlands, The parliamentary parties of VVD,
PVV and CDA (2010).
2
Netherlands, The Act Modern Migration Policy, 7 July 2010.
3
Netherlands, Ministry of the Interior and Kingdom Relations (2011a).
4
Netherlands, Ministry of the Interior and Kingdom Relations (2011b).
5
Netherlands, Ministry of the Interior and Kingdom Relations (2011c).
6
Netherlands, Ministry of Security and Justice (2011).
2
towards sustainable return of migrants. For example, projects that offer migrants help,
education or support with setting up a business in their home country.
The Repatriation and Departure Service (R&DS) (Dienst Terugkeer & Vertrek, DT&V) is an
implementing body of the Ministry of the Interior and Kingdom Relations. It is responsible
for supervising the assisted voluntary and forced repatriation of foreign nationals who are
not allowed to stay in the Netherlands.7 One of the measures of the new return policy of the
Dutch government is that the R&DS will not only deal with asylum seekers, but it will also
deal with the return of regular migrants whose application for study, labour or family
reunification has failed.8
The Central Agency for the Reception of Asylum Seekers (CARAS) (Centrale Opvang
Asielzoekers, COA) is an implementing body of the Ministry of the Interior and Kingdom
Relations. On 1 January 2009, CARAS introduced a new protocol for the provision of health
care services to asylum seekers. The purpose of this protocol was to ensure that asylum
seekers have equal access to primary health services, in line with the health services offered
to the general population. During its supervisory visits, the Health Care Inspectorate
(Inspectie voor de Gezondheidszorg, IGZ) observed a practice system which was clearly still in
development. In their report published in 2011, the Inspectorate noted risks in terms of both
access to and outreach of primary and other health and welfare services for asylum seekers.9
Integration
As stated in the coalition agreement of 2010, the cabinet considers qualification (a term that
refers to the mastery of the Dutch language, educational qualifications and being employed)
the key to success for participation and integration of migrants.10 Therefore, the government
regards it important to demand (higher) levels of language and educational qualifications in
order for the migrant to access and reside in the country and for him or her to naturalise.
The government holds the immigrants responsible for their integration in the Netherlands. If
necessary, the government will provide individual loans that enable immigrants to integrate
and study for the official exam. A new self-study pack To the Netherlands (Naar Nederland)
was provided online for preparation for the Basic Civic Integration Examination Abroad. The
basic principle of the governmental policy is that people who fail to pass the civic integration
exam will lose their temporary regular residence permit. The government indicated it
wanted to alter the existing agreements between the EU and Turkey, so it could legally
oblige immigrants from Turkey to integrate.11 Furthermore, the government stated that
there will be cuts in the governmental grants to projects that stimulate integration, with the
exception of the funding to the Dutch Council for Refugees (Vluchtelingenwerk).
Furthermore, the government announced a proposal that would enable the possibility to
annul the obtained citizenship of migrants who are convicted of a criminal offence within
five years after receiving the Dutch nationality. In order to realise that, the government will
apply Article 7d of the EU Convention on Nationality in a broader sense. If that is not
3
7
See: www.dienstterugkeerenvertrek.nl.
8
Netherlands, Ministry of Security and Justice (2011b), Press release 1 July 2011.
9
Netherlands, Health Care Inspectorate (Inspectie voor de Gezondheidszorg, IGZ) (2011).
10
Netherlands, The parliamentary parties VVD and CDA (2010); Netherlands, The parliamentary parties VVD, PVV
and CDA (2010).
11
Netherlands, The parliamentary parties VVD and CDA (2010); Netherlands, The parliamentary parties VVD, PVV
and CDA (2010).
3
possible, then Dutch national law will be amended so that Dutch citizenship will be
conditional during the first five years. In addition, the government proposed that migrants
only obtain Dutch nationality after they have renounced their original nationalities. Scholars
have assessed that the government has not awarded a prominent role for the general
principles of international law, when designing these measures.12 According to them, the
plans are partly unfeasible, because of their incompatibility with international conventions
and directives.
On 16 June 2011, the Ministry of the Interior and Kingdom Relations presented a policy
document with a new perspective on integration.13 The cabinet is of the view that the
current ‘multicultural society’ has caused different cultures in the Netherlands to clash, or at
least to disregard each other. According to the cabinet, persistent and problematic
integration issues stress the idea that the model of multicultural society has not been able to
solve the dilemmas of a multiform society. The cabinet stated that people who want to
settle in the Netherlands have to take the responsibility to integrate and to gain knowledge
and competences in order to maintain themselves independently in Dutch society. In
addition to the norm of self-maintenance and responsibility, the cabinet considers the key
values of the constitutional state and the historical-cultural basis of the Netherlands part of
the framework of integration. Furthermore, it stated that strengthening bonds and social
cohesion can help integration.14
A number of refugees are still living in reception centres, while they already obtained a
residence permit. In order to provide a home to these refugees, the responsibility for the
housing of refugees was transferred from the central government to Dutch municipalities, as
was advised by the task force ‘Providing a home’ (Thuisgeven).15 Refugees will be linked to a
specific municipality at an early stage. This will enable municipalities to prepare suitable
housing, and to make the necessary arrangements for employment or education. The
municipality offers the refugee a house on the basis of an urgency declaration. In case
refugees do not accept the proposed house, they will have to search for a home by
themselves. Currently, pilots are running to test these new procedures.16
1.1.2
Legislative developments
Asylum and immigration
The General Administrative Act (GAA) (Algemene wet bestuursrecht; Awb) defines the
regulations related to asylum applications and subsequent decisions of the authorities.17 In
addition, the Aliens Act 2000 (Vreemdelingenwet 2000), the Aliens Decree
(Vreemdelingenbesluit 2000), and the Aliens regulation (Voorschrift vreemdelingen) stipulate
4
12
De Hart, B. et al. (2010).
13
Netherlands, Ministry of the Interior and Kingdom Relations (2011d).
14
Netherlands, Ministry of the Interior and Kingdom Relations (2011d).
15
See: www.taskforcethuisgeven.nl/
16
Netherlands, Ministry of the Interior and Kingdom Relations (2011e); see also www.taskforcethuisgeven.nl.
17
Netherlands, General Administrative Law Act (Algemene wet bestuursrecht; Awb), 4 June 1992.
4
the asylum procedures in the Netherlands and formulate the exceptions to the regulations
defined in the GAA.18
On 1 July 2010, a new asylum procedure was introduced.19 Changes were made with regard
to the places of reception, the periods of rest and in the length of procedures. For example,
in the new asylum procedure all asylum claims are channelled through the 8-day ‘regular
asylum procedure’ (Algemene Asielprocedure). This procedure starts after a 'preparation and
rest’ period of at least six days. When no decision can be made within eight days, asylum
seekers are referred to the extended procedure (Verlengde Asielprocedure). It appears that
half of the applications are dealt with within 8 days.20
On the 5 July 2010, the Senate passed the Modern Migration Policy Act (MMPA) (Wet
Modern Migratie Beleid, MoMi).21 This Act deals with the applications of regular migrants. It
aims to select those migrants that will contribute to the economy, science and culture of the
Netherlands. The starting point of the modern migration policy is selectiveness. This entails
that the policy has an inviting effect on migrants for whom there is an economic need, and a
restrictive effect on others. The cabinet aims to handle applications more efficiently for
highly skilled migrants (kennismigranten) and there is a new procedure ‘Access and Stay’
(Toegang en Verblijf, TEV).22 The Modern Migration Policy Act is under discussion and has
not yet entered into force. The experimental stations, in which knowledge and experience
are gained in working with MMPA, are continued and extended where possible. Several
pilots started in 2011 to experiment with the new migration policy.23 The introduction of the
Act was postponed, because of technical problems with the corresponding new information
system of the Immigration and Naturalisation Service(INS) (Immigratie- en Naturalisatie
Dienst, IND). The new system is expected to be operable by 2012.24
As of 19th of June 2011, the Netherlands employs the European Blue Card which enables
highly educated people to stay in the country. This card is meant for highly educated
migrants who do not have the nationality of a Member State, the European Economic Area
or Switzerland.25 The European Blue Card provides separate grounds for residence in
addition to the existing National Highly Skilled Migrant Programme. The conditions for
residence in the Netherlands as an EU Blue Card holder are stricter than those for residence
as a Highly Skilled Migrant.
In July 2011, the government stated that it will no longer tolerate the unlawful residence of
migrants in the country, with the exception of minors.26 The government prepared a
proposal to amend the Aliens Act that has been sent in September 2011 to the Council of
State for advice. By making illegal residence a criminal act and fining the migrants
concerned, the government wants to discourage people to opt for illegal residence in the
Netherlands. The Minister of Immigration and Asylum requested the Council for the
Judiciary (Raad voor de Rechtspraak) to comment on the amendment to the Aliens Act in
5
18
Netherlands, Aliens Act 2000 (Vreemdelingenwet 2000), Aliens Decree (Vreemdelingenbesluit 2000), Aliens
regulation (Voorschrift vreemdelingen), 23 November 2000.
19
20
Netherlands, Ministry of the Interior and Kingdom Relations (2011f).
21
Netherlands, The Act Modern Migration Policy, 7 July 2010.
22
Immigration and Naturalisation Service (Immigratie- en Naturalisatie Dienst, IND) (2011).
23
Netherlands, Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) (2011a).
24
Binnenlands Bestuur (2011).
25
Immigration and Naturalisation Service (Immigratie- en Naturalisatie Dienst, IND) (2011).
26
Netherlands, Ministry of the Interior and Kingdom Relations (2011g).
5
order to combat illegal residence.27 The Council for the Judiciary advised that this plan must
be seen in the light of the Returns Directive and corresponding jurisprudence, especially the
El Didri-decree, that advise against imprisonment of people merely because of illegal
residence.
In April 2010 two members of Parliament put forward a motion concerning the reception of
migrant children.28 The Dutch Parliament requested the Council of State to provide an advise
on 9 June 2011 concerning the reception of children with parents who are irregular migrants
(migrants whose application failed or who entered the Netherlands unauthorised).29 Their
recommendation entails that in exceptional cases there should be emergency reception for
these children, until they are able to leave the Netherlands with their parents. Each case has
to be assessed separately, to decide whether or not the service of emergency-reception will
be provided. This decision depends on various factors, including individual circumstances.
On 16 September 2011, the cabinet agreed to adopt the proposal of the Minister of
Immigration and Asylum to bring the national legal grounds for asylum more in line with
European asylum law. If the amendments enter into force, the legal principle of a categorical
policy for countries or for populations will cease to be valid.30
Integration
On August 16 2011, the Dutch Administrative High Court judged that Turkish citizens and
their family members cannot be legally obliged to integrate.31 The Ministry of the Interior
and Kingdom Relations informed the municipalities about the consequences of this decision.
In order to obtain a residence permit, Turkish citizens do not have to pass the civic
integration examination (inburgeringsexamen), however, this remains a requirement for
naturalisation. 32 The Dutch government announced it will search for legal possibilities to
apply the Integration Act to Turkish people residing in the Netherlands.33
The Basic Civic Integration Examination Abroad (Examen Inburgering Buitenland) was
modified. First, the required level for the Spoken Dutch test (Toets Gesproken Nederlands;
TGN) was raised. Second, the Literacy and Understanding Written Texts Test (Toets
Geletterdheid en Begrijpend Lezen, GBL) was added to the examination. According to the
government, these higher requirements aim to improve the participation and social
integration of migrants and is also related to the governmental action plan on marriage- and
family migration.34 The examination regulations have been amended accordingly. The new
requirements apply from 1 April 2011.35
6
27
Netherlands, Council for the Judiciary (2011).
28
Netherlands, Parliamentary documents (2010), Proposed Motion of 21 April 2010.
29
Netherlands, Council of State (Raad van State), Advise release 17 June 2011.
30
Netherlands, Ministry of the Interior and Kingdom Relations (2011a).
31
Netherlands, Dutch Administrative High Court (2011).
32
Netherlands, Ministry of the Interior and Kingdom Relations (2011).
33
Netherlands, Ministry of the Interior and Kingdom Relations (2011j).
34
35
6
1.1.3
National case law
Information on the following five law cases in the Netherlands with regard to asylum,
immigration and integration are presented in Annex 4:

The case of a mother and two children, whose application for asylum failed, and who
subsequently refused to return to Angola. The court decided that it was unlawful to leave
them out on the streets.36

The case of an Afghan family, including a girl aged 14, who failed to seek asylum and
had to leave The Netherlands. The court decided that the government cannot send them
back to Afghanistan, because the children are westernized and cannot be expected to
adjust to the Afghan norms and values. Furthermore, it was not proven that the daughter
would be protected from harm by powerful actors, such as warlords and tribal chiefs.37

The case of Turkish citizens in the Netherlands and the requirement of civic
integration (inburgeringsplicht). The court decided that this is not compatible with the
agreements between the EU and Turkey.38

The case of a homosexual female asylum seeker from Sierra Leone, who feared her
life would be endangered because of her sexual orientation when she returns to Sierra
Leone. The Council of State agreed with the decision of the minister to refuse asylum,
because the asylum seeker can be expected to hide her sexuality.39

The case of appeal of the Minister of Immigration and Asylum against the decision40
to provide an asylum seeker from Angola a permanent residence permit. The minister
disputed the fact that he had made an inadequate balancing of interests, in the
light of article 8 of the European Convention of Human Rights (ECHR). The Council
of State agreed with the minister and allowed the appeal. As a consequence, it annulled
the previous decision to grant a residence permit.41
1.1.4
Statistical data made available in the reference period
Asylum applications
Table 1.1 shows the number of asylum applications in the first half of 2011 (January - June).
7
36
Netherlands, Court of Appeal Hague (2011).
37
Netherlands, District Court of The Hague (2011b).
38
Netherlands, Dutch Administrative High Court (2011).
39
Netherlands, Council of State (2011) LJN BQ4610.
40
Netherlands, District Court The Hague, 10/3789, Decision date 4 October 2010.
41
Netherlands, Council of State (2011).
7
Table 1.1: The number* of asylum applications in the first half of 2011 (January - June)
January
Total
submission**
1.590
February
March
1.410
1.760
April
1.490
May
June
1.660
1.430
Source: INS
* Numbers are rounded off in tens.
** The total submission involves all asylum applications that are considered in that month.
Including recorded applications of people in detention and children born during the
procedures of their parents and the recorded applications of invited refugees and including
those applications that still have to be decided on during the phase of appeal.
Table 1.2 presents information on the decisions made with regard to asylum applications in
the first half of 2011 (January - June), provided by the Immigration and Naturalisation
Service (INS).42
Table 1.2: The decisions on asylum applications in the first half of 2011 (January - June).
January
Granted asylum
February
March
April
May
June
790
670
680
630
860
780
Not granted
asylum
610
840
980
850
860
740
Other
conclusions**
30
40
30
30
40
40
Total number of
decisions
1.430
1.550
1.690
1.510
1.760
1.560
Source: INS
** This category includes cases that were cancelled and cases that cannot be trialled (for
example because of death or departure).
Naturalisation applications
Table 1.3 presents the number of applications of naturalisation, the number of decisions
made, and the number of granted applications in the first half of 2011 (January - June),
provided by the Immigration and Naturalisation Service (INS).43
8
42
Immigration and Naturalisation Service (Immigratie- en Naturalisatie Dienst, IND) (2011a).
43
Immigration and Naturalisation Service (Immigratie- en Naturalisatie Dienst, IND) (2011b).
8
Table 1.3: The number of naturalisation applications, decisions made, and the number of grants
of naturalisation applications in the first half of 2011 (January till June)
January
February
March
April
May
June
Number of
naturalisation
applications
2.620
2.210
2.350
1.830
2.000
1.880
Number of
decisions made
1.530
1.600
1.550
2.350
2.430
1.440
Number of grants
of naturalisation
applications
1.370
1.420
1.340
2.130
2.260
1.230
Source: INS
Table 1.4 shows the number of inflow and outflow of asylum seekers in central reception
centres.
Central reception centres
Table 1.4: The inflow and outflow in 2009 to 2011 of asylum seekers in central reception centres*
Inflow
Outflow
2009
15.319
13.701
2010
16.136
16.689
2011 till 1st of August
8.147
10.895
Source: CARAS
* Central reception: all forms of reception of asylum seekers that fall under the management,
supervision and responsibility of the CARAS.
Table 1.5 presents the reception of unaccompanied underage asylum seekers (alleenstaande
minderjarige vreemdelingen, AMVs). These figures are provided by the CARAS, the Central
Agency for the Reception of Asylum Seekers.44
44
9
The Central Agency for the Reception of Asylum Seekers (2011).
9
Table 1.5: The inflow in 2009 to 2011 of unaccompanied minor asylum seekers in central
reception centres.*
Inflow
2009
1031
2010
869
2011 till 1st of August
473
Source: CARAS
* Central reception: all forms of reception of asylum seekers that fall under the management,
supervision and responsibility of the CARAS.
Irregular migrants
In 2011 the Research and Documentation Centre (Wetenschappelijk Onderzoek- en
Documentatiecentrum, WODC) published a report about the number of so-called illegal
immigrants in the Netherlands. The WODC estimated the population of illegal immigrants in
the Netherlands in 2009 to be 97.145, with a 95% confidence interval of 60.667 to 133.624.45
Detention
Table 1.6: Detention inflow statistics per sex, 2006-2010
Sex
2006
2007
2008
2009
2010
Male
10,427
84
8,200
85
7,361
86
6,795
86
6,794
87
Female
2,053
16
1,395
15
1,224
14
1,072
14
1,018
13
Total
12,480
100
9,595
100
8,585
100
7,867
100
7,812
100
Source: Netherlands, Schijndel, C. van and Gemmert, N. van (2011), p. 15
Table 1.7: Detention inflow of unaccompanied minor asylum seekers, 2006-2010
2006
146
2007
145
2008
173
2009
296
2010
215
Source: Netherlands, Schijndel, C. van and Gemmert, N. van (2011), p. 16
In 2010, 149 families, with a total of 227 children, were put in detention. The average
detention time was eight days.46
10
45
Van der Heijden, P.G.M., et al. (2011)
46
Netherlands, Schijndel, C. van and Gemmert, N. van (2011).
10
During the first 6 months of 2011, 3,220 aliens were put in detention. 50 of them were
unaccompanied minor asylum seekers.47
Return
The Dutch branch of the International Organization for Migration (IOM) publishes monthly
statistics of assisted voluntary returns. Between January and October 2011, 2801 people
voluntarily returned to their country of origin. Statistics are broken down by country of
origin; tables are too large to add to this paragraph.48
Table 1.8: Outflow from return process per 6 months, 2006-2010
2008-1
Demonstrable return
2008-2
2009-1
2009-2
2010-1
2010-2
2011-1
4,680
4,520
4,820
5,540
5,720
6,080
5,370
-
forced
3,730
3,140
3,530
3,740
3,900
4,140
3,370
-
independent
950
1,380
1,290
1,800
1,830
1,950
2,000
Independent without
supervision
6,080
4,900
6,540
5,180
5,440
5,410
4,870
Total
10,760
9,410
11,370
10,710
11,170
11,500
10,230
Source: Netherlands, Ministry of the Interior and Kingdom Relations (2011k), p. 34
Table 1.8 gives statistical data on the outflow of cases from the return process. The data
concern three groups of returnees: people that have been denied access at the border,
asylumseekers whose application has been turned down, and people who stayed in the
Netherlands illegally.49
1.1.5
Research and studies
The Dutch Council for Refugees surveyed the asylum system and the new procedures, as
introduced on 1 July 2010.50 They concluded that some aspects were improved in
comparison to the period prior to 1 July 2010. However, further amendments are still
needed, according to the Dutch Council for Refugees. First, for some cases the length of the
general asylum procedure (Algemene asielprocedure) appeared to be too short for a
thorough assessment. The Dutch Council for Refugees recommended to only make use of
the quick eight days procedure in case of asylum applications that are clearly founded or
unfounded. Secondly, they found that the medical advice given was too minimal to
effectively judge whether the mental health of the asylum seeker allows him or her to start
11
47
Netherlands, Ministry of Interior and Kingdom Affairs (2011k), p. 41.
48
See www.iom-nederland.nl/Programma_s/Vrijwillig_vertrek_uit_Nederland/Cijfers/Terugkeercijfers_2011
49
Netherlands, Ministry of Interior and Kingdom Affairs (2011k), pp. 31-34.
50
Netherlands, Minister of Justice (2010) Staatscourant, decision of 24 June 2010.
11
with the asylum procedure. Therefore, The Dutch Council for Refugees recommended to
improve the quality of the medical advice.51
The National Ombudsman (NO) (De Nationale Ombudsman, NO) researched whether the
Basic Civic Integration Examination Abroad could form an obstacle for the right to family
reunification. More specifically, the research focused on the INS procedures to assess
whether a case can be considered an exemption from the requirement of the integration
examination. The NO found that the used approach of the INS was too fragmented and it
resulted in no discussion taking place about the actual situation of the person involved. This
approach meant the government’s interest of integration abroad outweighed the interests
of family reunification under difficult circumstances. It appeared that the INS did not make
use of the option to make exceptions. However, while publishing the research report, an
exception was made for the first time in the case of Madame Safi who could migrate to the
Netherlands without passing the Basic Civic Integration Examination Abroad. Based on the
research results, the NO recommended a more coherent evaluation of all conditions of the
individual to assess whether there is a need to make an exception.52
Research of the Free University in Amsterdam (Vrije Universiteit Amsterdam) among several
EU countries showed that the Netherlands regularly rejects asylum applications of LGTB
people on the basis of prejudices and stereotypes. That is, when asylum seekers do not
stereotypically act as ‘genuine’ lesbian, gay, bisexual or transsexual, they are mistrusted by
national authorities. In addition, even though it is stated in the Aliens Circular53 that people
with a homosexual preference are not required to hide this preference upon return in the
country of origin, it was found that this 'discretion requirement' is still used to reject an
application. The researchers are of the opinion that LGTB people originating from countries
in which homosexuality is a criminal act, should in principle be awarded asylum.54
The Centre for Migration Law (Centrum voor Migratierecht; CMR) and the Institute for the
Sociology of Law (Instituut voor Rechtssociologie) of the Radboud University Nijmegen
conducted research on the INS work instruction, that applies to asylum seekers with
psychological problems. This instruction is important since it recognises the need to pay
attention to psychological problems in the asylum procedure and the fact that these
problems can influence the asylum procedure. It can be hard for traumatised asylum seekers
to relate a consistent and coherent story about the reasons why they flee from their
countries.55
The survey of the Council of the Refugee (Raad voor de Vluchteling) of 2011 showed that the
attitudes towards refugees in the Netherlands have worsened in recent years. However, the
participants did consider refugee issues a valid concern and half of the respondents found it
important that refugees receive assistance. In addition, knowledge of refugee issues among
the respondents was found to be limited. It appeared that the perceptions of Dutch citizens
do not match the factual situation concerning refugees.56
51
12
Dutch Council for Refugees (2011).
52
National Ombudsman (2011).
Netherlands, Aliens Circular (Vreemdelingencirculaire) 2000 C2/2.10.2.
54
Jansen, S. & Spijkerboer, T. (2011).
55
Terlouw, A. B. et al. (2011).
56
The Council of the Refugee (2011).
53
12
1.1.6
Promising „good‟ practices
Information on the following five promising “good” practices in the Netherlands with regard
to asylum, immigration and integration are presented in Annex 4:

The project ‘Language Coach’ (Taalcoach), in which volunteers in the Netherlands
are paired with newly arrived migrants to learn Dutch and become acquainted with
Dutch society.

The programme for refugees who are invited by the Dutch government, in which
they learn Dutch language and culture in their home country before their resettlement in
the Netherlands.

The Perspective Experiment (Experiment Perspectief), entailing support centres that
provide adolescents with a realistic perspective on the future, in which the main
trajectories are either a procedure for a residency permit for the Netherlands or assisted
repatriation.

The project ‘Future in Perspective’ (Toekomst in Perspectief; TIP) is to stimulate
asylum seekers to make good use of their waiting period in the asylum procedure by
seeking information about future prospects and making plans for the future.

The Mobile Medical Document (Mobiel Medisch Document) of Doctors of the World
(Dokters van de Wereld), a document for irregular migrants containing information on
their medication, diseases and operations; see also paragraph 6.3.6.
1.1.7
Key issues in public debate
The planned deportations of Afghan families has drawn public attention, especially the case
of the 14-year Sahar Hbrahimgel who has been residing in the Netherlands for ten years.57
Some political parties, friends of the families, and civil society staged protests against the
planned deportations, arguing that the families (especially the children) are well integrated,
the children hardly know their country of origin and that the situation in Afghanistan is
unsafe. In January 2011, a lower court ruled that the minister’s decision to deport the
Hbrahimgel family was not properly motivated.58 The court ruled that the children were
westernised and that there was no guarantee that local authorities would be able to protect
Sahar. The Minister eased his stance in April 2011, mainly on the basis of new information of
the Ministry of Foreign Affairs about the precarious position of westernised women in
Afghanistan. Some children and their families (included the Hbrahimgel family) were
subsequently allowed to stay.59
Another case concerned the asylum seeker Mauro from Angola, who has been living in a
foster family for more than 8 years. This case received a lot of political and public attention,
13
57
Keken, K. van (2010); Outeren, E. van (2010) ; Zanden, P. van der (2010)
58
The Netherlands, Judgement District Court ‘s-Gravenhage (Place of session - ‘s-Hertogenbosch) (2011)
59
The Netherlands, Ministry of the Interior and Kingdom Relations (Ministerie van Binnenlandse Zaken en
Koninkrijksrelaties) (2011)
13
which is reported extensively in the media.60 On 26 June 2011, Mauro wrote a letter to the
Minister of Asylum and Immigration asking for a residence permit. The debate is about the
Mauro being civically integrated and whether his individual circumstances allow for an
exception to let him stay, and involves the granting of a study permit.
The policy document on integration that the Minister of the Interior and Kingdom Relations
sent to the Dutch Parliament on 16 June 201161, has led to mixed reactions in the media. The
Minister, Mr Piet-Hein Donner, presented the action programme as a change of direction,
claiming the government distanced itself from the relativism contained in the model of a
multicultural society. This critical stance towards the multicultural society led to disapproval
among some commentators.62 Other commentators, however, said that although the new
action plan contained some harsh policies, it did not present a break with past policies but
more an on-going trend towards stricter integration policies which started about 10 years
ago.63 Several scholars and NGOs, such as the Dutch Council for Refugees
(Vluchtelingenwerk), criticised these new measures of migration and asylum, as some of
them are in violation of European and international conventions.64 The government claimed
that they were focussing on changing, within the EU framework, specific EU-directives, so
that these directives would be more in line with their plans.65
The plan of the government to criminalise illegal residence in the Netherlands, has led to a
major outcry in Dutch society. Several municipalities, NGOs, trade unions, and scholars have
taken action against this new legislation.66 A petition against the criminalisation of illegal
residence, arguing that it is a violation of human rights and that the planned measure is
disproportionate, was signed by about 10,000 people. 67
1.1.8
Information on trends until 2011
Policy and legislative developments show that the cabinet aimed to restrict and decrease
immigration to the Netherlands, especially of migrants with few future prospects (kansarme
migranten). For example, measures were taken to set higher requirements for access to and
residence in the Netherlands and to discourage migrants to arrive in the Netherlands
without the required documents. Some of the governmental plans go against the EUdirectives and the general principles of international law. 68
As for integration and settlement in the Netherlands, the cabinet stated that immigrants
themselves need to take the responsibility to integrate into Dutch society. Among other
things, this was illustrated by decreased governmental funding of projects supporting
14
60
E.g. Van der Kolk (2011), ‘De zaak-Mauro, het nieuwste hoofdpijndossier van Leers’
Volkskrant 26 October 2011.
61
62
Vijver, F. van de (2011)
63
Bessems, K. (2011)
64
See e.g. De Hart, B. (2010).
65
E.g. Council Long-Term Directive (Third Country Directive) 2003/109/EC, Free Movement Directive (Citizens
’Directive) 2004/38/EC, and the Family Reunifications Directive 2003/86//EC.
66
Hakkenes, M. (2011)
67
e.g. College van B&W van de Gemeente Amsterdam, NGO Kerk in Actie (Church in Action), UNICEF; Defence for
Children International; CoMensha/La Strada Nederland; Inspraak Orgaan Turken (IOT), Raad van Kerken in
Nederland. See the full list www.geenstrafbaarstelling.nl/nl/petition/ondergetekenden
68
E.g. Council Long-Term Directive (Third Country Directive) 2003/109/EC, Free Movement Directive (Citizens
’Directive) 2004/38/EC, and the Family Reunifications Directive 2003/86//EC.
14
integration and by the introduction of a new self-study pack for preparation for the Basic
Civic Integration Examination Abroad.
1.1.9
Identification of future challenges
The cabinet will encounter human rights challenges, when implementing the governmental
measures to drive back immigration, to combat illegal residence and to favour the entrance
of highly skilled migrants. The measures that the government has suggested are not always
in line with EU-directives or with international conventions on the protection of human
rights.
1.2
Specific information
1.2.1
Administration of the European Refugee Fund in 2011
The data on the European Refugee Fund in the year 2011 are not yet published. Table 1.5
shows the official data of the Fund in 2010.69
Table 1.5 Data on the European Refugee Fund in the year 2011.
Total regular ERF for 2011
EU contribution
National contribution
€ 4.595.313,15
Not registered
€ 2.405.066,88
Not registered
Total emergency ERF 2011
EU contribution
National contribution
Percentage of 2010 regular
ERF executed in 2011
Percentage of 2010
emergency ERF executed
in 2011
€ 0,00
Not registered
€ 0,00
Not registered
Source: Ministry of the Interior and Kingdom Relations (email correspondence)
1.2.2
Appeals against negative decisions by asylum authorities in
2011
Table 1.6 provides information on the appeals against negative decisions by the Dutch
asylum authorities, for each legal provision.
15
69
The Netherlands, Ministry of the Interior and Kingdom Relations (2010).
15
Table 1.6 Appeals against negative decisions by the Dutch asylum authorities,
for each legal provision.
Regular
Procedure
Time limit
for lodging
an appeal
Right to
remain in
the country
Please fill in:
- Automatic,
- Upon
request,
- No right
Hearing by
national
authority
(YES/NO)
1 week
for the General
procedure (Algemene
Asielprocedure)
(Aliens Act art. 69:2)
Dublin II
procedure
Admissibility
procedure
(e.g. “safe”
3rd country)
Accelerated
procedure
(e. g.
manifestly
unfounded
applications)
1 week
for the Dublin II
procedure, same as
the General
procedure (Algemene
Asielprocedure)
1 week
Presuming that it
deals with
the General
procedure (Algemene
Asielprocedure)
There is no
accelerated
procedure.
Upon request
for the Dublin II
procedure, same as
the General
procedure (Algemene
Asielprocedure)
Upon request
Presuming that it
deals with
the General
procedure (Algemene
Asielprocedure)
Idem
NO
NO
NO
Idem
NO
NO
NO
Idem
4 weeks
for the Extended
procedure
(Verlengde
Asielprocedure)
(Aliens Act art. 69:1)
Upon request
for the General
procedure (Algemene
Asielprocedure)
(Aliens Act art. 82:2
and GAA art. 8:81).*
See General
procedure (Algemene
Asielprocedure)
For the Extended
procedure
(Verlengde
Asielprocedure)
the right to remain in
the country pending
the appeals decision
is automatic.
(Aliens Act art. 8(h))
Hearing by
UNHCR
(YES/NO)
* Scholars argue that it is the responsibility of the lawyer to safeguard the legal position of the asylum
seeker by arranging that the asylum seeker can remain in the country during the decision on a
provisional measure (voorlopige voorziening).
16
Comments
*The appeal in the
General procedure
does not have
automatic
suspensive effect
(Aliens Act art.
82:2). Asylum
seekers have to
submit a request
for a provisional
measure
(Voorlopige
Voorziening) to
suspend removal
(GAA art. 8:81). The
decision on this
request is not per
se positive.
However, hearing
by
UNCHR
is
possible;
this
depends mainly on
the
lawyer
representing
the
asylum seeker, and
will in principle not
be instructed by
the judge.
1.2.3
Monitoring of forced returns, and independence of monitoring
bodies
In the Netherlands the Repatriation and Departure Service (R&DS) (Dienst Terugkeer &
Vertrek, DT&V) is responsible for supervising the assisted voluntary and forced repatriation
of foreign nationals who are not allowed to stay in the Netherlands.70 R&DS is the
implementing body of the Ministry of the Interior and Kingdom Relations.
The Supervisory Committee on Repatriation (SCR) (Commissie Integraal Toezicht Terugkeer
CITT) is responsible for monitoring returns.71 The SCR is an independent ‘watch dog’ that
monitors the quality of the whole process of return, including the procedures and working
methods of the R&DS. It also advises the government on how to improve the integrated
process of return. The SCR can inspect, accompany individual and collective return
operations, or inspect the return process as a whole. It is an independent body. It publishes
a report every year. The SCR is independent in choosing when and how often deportations
are being monitored. Of interest in the respect are the deportations of vulnerable groups,
but also deportations that attract public interest (as for example, deportations of groups in
organised charter flights) and cases in which it is foreseeable that it may be necessary to
apply means of coercion (for example in the case of the deportation of aliens with a criminal
and/or violent history). A physician and a psychologist are part of the SCR team. They can be
deployed to survey deportations of minors or to survey particular cases with medical
aspects.
Up till 1 May 2011, the network Foundation Sustainable Return (Stichting Duurzaam
vertrek), and several NGOs, were engaged in the return of asylum seekers whose application
failed. The NGOs want to do this work independently of SCR.72 The financing of the
Foundation ended, but the NGOs will continue their regular activities separately.73
1.2.4
Alternatives to detention pending deportation
Alternatives to detention do exist in The Netherlands. However, these alternatives are rarely
considered before detention is ordered by law, especially at the border, detention is almost
always issued. In 2010, the majority in the Parliament asked the government to search for
less costly and less severe options than alien detention.74 In 2011, the minister of
Immigration and Asylum announced he would commission research into this topic.75
However, in 2011 the section of Amnesty International in the Netherlands stated in their
report that the Dutch government hardly uses alternatives to detention pending
deportation, also not in cases of highly vulnerable individuals.76 In 2011, there were two
national cases on alternatives for detention. In court case LJN BP0328, the The Hague Court
concluded that: “(…) a duty to report, combined with a traceable residency, thereby is an
accomplishable and realistic alternative to detention” for the plaintiff. In LJN BR3477, the
The Hague Court argued that: “Defendant has insufficiently established why in the case of
17
70
www.dienstterugkeerenvertrek.nl.
71
See: www.commissieterugkeer.nl.
72
The Council of the Refugee (2011)..
73
See: www.duurzameterugkeer.nl.
74
Netherlands, Parliamentary documents (2010), Proposed Motion of 7 December 2010.
75
Netherlands, Minister of Immigration of Asylum (2011).
76
Amnesty International in the Netherlands (2011).
17
plaintiff a lighter means, such as reporting, could not effectively be applied in order to
remove plaintiff from the Netherlands.” 77
In Table 1.7 the alternatives to detention as provided for in national legislation or
administrative practice are described.
Table 1.7 Alternatives to detention
Does it
exist ?
(Y/N)
Duty to
surrender
documents
Y (see
comment)
Legal
Source
(exact
provision)
Aliens Act 2000
art. 52
Number of
decisions
imposing
alternative to
detention for
2011
Exact numbers
requested, but
not yet provided.
Aliens Act art.
50:1
Aliens Circular
2000 par. A6/1.1
Aliens Circular
par. A6/1.1
Aliens Act art. 6:1
Aliens Act art.
57:1
Aliens Circular
par. A6/5.3.3.3
Residence
restrictions
Y
Bail /
sureties
Y
Regular
reporting
Y
Aliens Act art. 54
Aliens Circular
par. A6/5.3.3.3
Idem
Designated
residence &
counselling
Y (see comment)
Aliens Circular
par. A6/1.1
Aliens Act art. 6
and art. 56-58
Idem
Electronic
N
Comments
Listed as a
possible measure
for restriction of
liberty, but not
explicitly
mentioned as an
alternative to
detention
Idem
Idem
Mostly applied in
the case of UUAs:
the Nidos
foundation
(Stichting Nidos)
acts as a guardian
(see par. 4.4.1).
Measure
combined with
‘designated
residence’: the
UUAs are placed
in an open
reception centre
Often combined
with a stay in a
freedomrestricting
location
Designated
residence: Y
Counselling not
mentioned as an
alternative.
Idem
18
77
Netherlands, Distrct Court The Hague (2011d); District Court The Hague (2011e)
18
monitoring
Other
1.2.5
Y
Idem
Aliens Circular
par. A6/5.3.3.3
mentions the
grounds to not or
no longer apply
detention and
describes possible
alternatives.
A ground not yet
mentioned is:
being able to
demonstrate to
have a fixed
residence address
(Aliens Circular
par. A6/5.3.3.3)
Deprivation of liberty for families with children in return
procedures
In the Aliens Circular 2000 (Vreemdelingencirculaire 2000), paragraph A6/4.3.5 , the policies
regarding the deprivation of liberty of families with children in return procedures are
described. The Circular states that to prepare families with one or more underage children
for a return, freedom-restricting measures are given preference above freedom-depriving
measures. This means that, whenever possible, a family will be placed in a freedomrestricting location (vrijheidsbeperkende locatie, VBL) or family location (gezinslocatie, GL)
instead of an alien detention centre. In case of a family with two parents and a danger of
withdrawal of supervision or deportation, a freedom-depriving measure can be imposed on
one of the parents. The rest of the family will remain in a VBL or GL.
In case a family is denied access to the Netherlands, a freedom-depriving measure can be
imposed on the whole family, as part of effective border control policies. In other cases,
detention of the whole family is restricted to situations where involuntary return can be
realised in a short term. The availability of the whole family can be regarded necessary and
form a ground to impose a freedom-depriving measure on the whole family. The maximum
period that a family with underage children can be placed in alien detention or in a border
holding centre is in the rule two weeks (see paragraph A6/1.6, A6/2.7 and A6/5.3.5). This
detention can be prolonged in case of physical resistance against deportation and in case of
a new application for a residence permit. As soon as they have the necessary travel
documents, they are placed in an expulsion centre (uitzetcentrum). In this closed facility they
wait for an available flight.78
The implementation of freedom-restricting and freedom-depriving measures on families
with minor children has been criticised by the parliament, civil society and by experts in
(legal) migration issues. The main criticism is that children should not be placed in a prisonlike environment with hardly any facilities. They argue that the Netherlands does not meet
19
78
See www.rijksoverheid.nl/onderwerpen/terugkeer-vreemdelingen/terugkeer-illegale-vreemdelingen-enuitgeprocedeerde-asielzoekers/opvanglocaties-en-begeleiding-bij-vertrek
19
international requirements according to which the detention of vulnerable minority groups
is forbidden or strongly discouraged. 79
Table 1.8 provides information on families with children who were detained in 2011.
Table 1.8 Alternatives to detention
Families with children were detained in 2011
Y
If YES, in closed facilities hosting only families with children
Y
Semi-closed facilities:
family location
(gezinslocatie, GL)
If YES, In closed facilities hosting families with children and other
immigrants
Y
Semi-closed facilities:
freedom-restricting
location
(vrijheidsbeperkende
locatie, VBL)
If YES, In police detention centres
Y
Aliens detention
(Vreemdelingenbewa
ring)
Other, please explain
Y
Expulsion centre
(Uitzetcentrum)
where has to be wait
for an available flight
when travel
documents are
arranged
Border holding
centre
(Grenshospitium)
when denied access
to the Netherlands
Source: website Central Government80; Refugee Council (email correspondence)
The The Hague Court (Gerechtshof Den Haag) ruled on 11 January 2011 that the government
has to provide emergency shelter to families with underage children who are irregular
migrants (migrants whose application failed or who entered the Netherlands), as long as
their departure from the Netherlands has not yet taken place (see paragraph 1.1.2).
Following this ruling, the government decided to transform three reception centres into
freedom-restricting family locations. Two GLs, in Gilze and Katwijk, were opened in 2011.81
Families can also be placed in a VBL.
20
79
See e.g. Spekman, H. (2011). ‘PvdA Plan Vrijheidsbeperkende Locatie (VBL) 'Sluit Ter Apel'’, September 2011;
NJCM-Commentaar. ‘De toepassing en tenuitvoerlegging van de vrijheidsontneming van vreemdelingen
Knelpunten en aanbevelingen’, November 2010.
80
www.rijksoverheid.nl/onderwerpen/terugkeer-vreemdelingen/terugkeer-illegale-vreemdelingen-enuitgeprocedeerde-asielzoekers/opvanglocaties-en-begeleiding-bij-vertrek
81
Refugee Council (email correspondence)
20
On 31 December 2010, around 125 families (395 persons) lived in a VBL. On 19 September
2011 the number of families in VBLs was 160 (465 persons).82 Families that are designated to
a GL or VBL are allowed to leave the facility. However, they have to stay within the
municipality and have to report daily. The locations have very basic facilities. Children
receive education at a school on the compound or at a nearby school.83 Defence for Children
has started an investigation into the living conditions for children in GL and VBL facilities, of
which the results are not yet published.84
The living conditions in application centre (aanmeldcentrum, AC) Schiphol have been
investigated by the The Hague Court of Appeal.85 Between 8 am and 10 pm, children and
adults together reside in a space of 170 m2. There is a 6 m2 play area for young children
with some toys and stuffed animals for children. The play area is semi-shielded by a low
book shelf. There is a continuous sound of voices, television, game console and air planes.
No educational activities are offered. The outside ‘cage’ of 70 m2 is freely accessible. It has
one children’s rocking chair (wipkip). People sleep in dormitories with bunk beds that are not
accessible during the day. There are special dormitories for mothers and children. People are
monitored by guards and cameras. The centre has a penitentiary character. The Haarlem
Court (Rechtbank Haarlem) ruled on 1 April 2011 in a case of a mother with three minor
children, that imposing a freedom-depriving measure in AC Schiphol violated article 5
EVRM.86 The plaintiff received a financial compensation.
According to the Ministry of Security and Justice, the DTC (detention centre) Rotterdam has
special facilities for children.87 The The Hague Court of Appeal investigated the location on
20 September 2011 in the case of a family that had been detained for five weeks.88 The
Court concluded that although the location has some facilities for children, DTC Rotterdam
clearly has penitentiary elements and is not a suitable residence for children. There is a
special family department. People are guarded constantly. The 40m2 play room for babies
and little children has toys, children’s furniture and care products. The outside space has
stone paving and grass and is secluded by high walls. There are a small slide, two small
soccer goals and some bicycles for little children. There are three rooms for children
between the ages of 4 and 12 where educational and creative activities are offered. Twice a
day, people are locked inside their bedrooms to have a meal.
21
82
See www.stichtinglos.nl.
83
See www.dienstterugkeerenvertrek.nl/werkwijze/VBLofGL/
84
Amnesty International (email correspondence).
85
Netherlands, Court of Appeal The Hague (2010a).
86
Netherlands, Court of Appeal Arnhem (2011).
87
Netherlands, Schijndel, C. van and Gemmert, N. van (2011), p.19.
88
Netherlands, Court of Appeal The Hague (2010b).
21
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terugkeer’, Web page, available
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24
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07/25182, LJN BQ5684, 11
March 2011.
Hague (Rechtbank 'sGravenhage) (2011c), Case No.
AWB 10/29876, AWB 10/29875
and AWB 10/29879BO7499, LJN
BO7499, 18 November 2010.
Hague (Rechtbank 'sGravenhage) (2011d) Case No.
AWB 11/523,LJN BR3477, 24
February 2011
Hague (Rechtbank 'sGravenhage) (2011e) Case No.
AWB 10/43573, LJN BP0328, 4
January 2011
Netherlands, Dutch
Administrative High Court
(Centrale Raad van Beroep),
10/5248 INBURG + 10/5249
INBURG + 10/6123 INBURG +
10/6124 INBURG,
LJN BR4959, 16 August 2011.
General Administrative Law Act
Algemene wet bestuursrecht
26
Netherlands, General
Administrative Law Act
(Algemene wet bestuursrecht), 4
June 1992.
Netherlands, Immigration and
Naturalisation Service
(Immigratie- en Naturalisatie
Dienst) (2011) ‘Cijfers 2011
asiel’, Web page, available at
www.ind.nl/organisatie/cijfersenrapportages/archief/cijfers2011.
aspx?cp=110&cs=46664.
Dienst) (2011) ‘Cijfers 2011
naturalisatie’, Web page,
available at
www.ind.nl/organisatie/cijfersenrapportages/archief/cijfers2011.
aspx?cp=110&cs=46664.
Dienst) (2011a), ‘Invoering
Europese blauwe kaart’, Press
release, 17 June 2011.
Dienst) (2011) ‘Informatiebericht
over wijziging van migratiebeleid
kennismigranten’, Press release,
17 November 2011.
Netherlands, Inspection for
Public Health (Inspectie voor de
Gezondheidszorg) (2011) Goede
vooruitgang in toegankelijkheid
huisartsenzorg en bereik
publieke gezondheidszorg
volgens nieuw zorgmodel voor
asielzoekers, Utrecht, Inspectie
voor de Gezondheidszorg.
Netherlands, Law Gazette of the
Kingdom of the Netherlands
(Staatsblad van het Koninkrijk
27
der Nederlanden) (2010) no. 290,
16 July 2010.
Netherlands, Minister of
Immigration and Asylum
(Minister van Immigratie en
Asiel) (2011) ‘Brief van de
minister voor immigratie en asiel
aan de Voorzitter van de Tweede
Kamer der Staten-Generaal’,
Letter to the House of
Representatives, 1 July 2011.
Decision of the Minister
regarding amendment of the
Aliens circular 2000.
Besluit van de Minister van
Justitie van 24 juni 2010,
nummer WBV 2010/10,
houdende wijziging van de
Vreemdelingencirculaire 2000.
Netherlands, Minister of Justice
(Minister van Justitie), (2010)
‘Besluit van de Minister van
Justitie van 24 juni 2010,
nummer WBV 2010/10,
houdende wijziging van de
Vreemdelingencirculaire 2000’.
Netherlands, Ministry of Security
and Justice (Ministerie van
Veiligheid en Justitie) (2011b) ‘
Terugkeer in het
Vreemdelingenbeleid’, Press
release, 1 July 2011.
Netherlands, Ministry of Security
and Justice (Ministerie van
Veiligheid en Justitie) (2011a),
‘Wet modern migratiebeleid’ ,
Press release, 15 February 2011.
Netherlands, Ministry of the
Interior and Kingdom Relations
(Ministerie van Binnenlandse
zaken en Koninkrijksrelaties)
(2010a), ‘Toegekende subsidies
Europees Vluchtelingenfonds
2008 tot en met 2010’, Press
release, 3 August 2010.
(2010b) ‘Aankondiging
verhoging eisen basisexamen
inburgering in het buitenland’,
Press release, 28 December
2010.
28
(2011a) ‘Migratie- en asielbeleid
aangescherpt’, Press release, 16
September 2011.
(2011b) ‘Kabinet besluit tot vijf
aanscherpingen voor asiel en
migratie’, Press release, 16
September 2011.
(2011c) ‘Aanpak van illegaal
verblijf in reactie op het WODCrapport illegalenschatting 2009’,
Representatives 5695713/11, 8
July 2011.
(2011d) ‘Integratienota
Integratie, binding, burgerschap’,
Policy document, 16 June 2011.
(2011e) ‘Gemeenten maken
inhaalslag bij achterstanden
huisvesting toegelaten
vluchtelingen’, Press release, 13
July 2011.
29
(2011f) ‘Ruim helft
asielbeslissingen binnen 8
dagen’, Press release, 17
October 2011.
(2011g) ‘Kabinet maakt einde
aan gedogen illegaliteit’, Press
(2011h), ‘Beleidsconsequenties
nieuw thematisch ambtsbericht
Afghanistan’, Letter 5691423/11,
8 April 2011.
(2011i) ‘Informatiebrief n.a.v. de
uitspraak van de Centrale Raad
van Beroep op 16 augustus 2011
inzake inburgeringsplicht van
Turkse onderdanen’, Letter to
municipalities WWI/I&I
2011052790, 7 September 2011.
(2011j), ‘Kabinet blijft zich
inzetten voor goede inburgering
Turken’, Press release, 23
September 2011.
(2011k), Rapportage
30
Vreemdelingenketen. Periode
januari – juni 2011, The Hague,
Ministry of Interior and Kingdom
Affairs, available at
www.dienstterugkeerenvertrek.
nl/images/rvk-jan-juni2011_tcm66-388615.pdf.
Netherlands, National
Ombudsman (De Nationale
Ombudsman) (2011) Inburgering
in het buitenland, The Hague, De
Nationale Ombudsman.
Netherlands, parliamentary
groups of VVD and CDA (De
Tweede Kamerfracties van VVD
en CDA) (2010), Regeerakkoord,
Vrijheid en
Verantwoordelijkheid, Coalition
agreement, 30 September 2010.
Netherlands, parliamentary
groups of VVD, PVV and CDA (De
Tweede Kamerfracties van VVD,
PVV en CDA) (2010),
Gedoogakkoord, Parliamentary
support agreement, 30
September 2010.
Netherlands, Proposal of
Member of House of
Representatives Gesthuizen, 7
December 2010.
Netherlands, Proposal of
Members of House of
Representatives Spekman en
Anker, 21 April 2010.
Netherlands, Schijndel, C. van
and Gemmert, N. van (2011),
Vreemdelingenbewaring in getal
2006-2010, The Hague, Dienst
Justitiele Inrichtingen, Ministerie
van Veligheid en Justitie,
available at
http://dji.nl/Organisatie/Feitenen-cijfers/index.aspx.
31
Netherlands, The Central Agency
for the Reception of Asylum
Seekers (Centraal Orgaan
opvang asielzoekers) (2011)
‘Feiten en cijfers’, Web page,
available at
www.coa.nl/NED/website/page.
asp?menuid=101 and
http://www.ind.nl/nieuws/2011
/binnen-acht-dagenduidelijkheid-over-helftasielverzoeken.aspx?cp=110&cs
=46613
Netherlands, The Central Agency
for the Reception of Asylum
Seekers (Centraal Orgaan
opvang asielzoekers) (2011),
‘Binnen acht dagen duidelijkheid
over helft asielverzoeken’, Press
release, 20 April 2011.
Outeren, E. van (2010), ‘Sahar
woont hier al tien jaar;
Gymnasiast van veertien moet
toch terug naar Afghanistan’,
NRC Handelsblad, 9 december
2010.
Terlouw, A.B., Mourik, K. van
and Zwaan, K.M. (2011) Gehoor
geven. Een onderzoek naar de
toepassing van INDwerkinstructie 2008/6 omtrent
asielzoekers met psychische
problemen, Nijmegen, Wolf Legal
Publishers.
Vijver, F. van de (2011),
‘Integratie negeert bestaande
waarden’ , Trouw, 28 June 2011.
Hakkenes, M. (2010), ‘
Maatschappelijke coalitie tegen
strafbaar stellen illegaliteit’
Trouw, 9 March 2011.
Zanden, P. van der (2010), ‘ Een
sprankje hoop dat Sahar hier
mag blijven’ , AD/Rotterdam
Dagblad, 9 december 2010.
32
2
VISA POLICY AND BORDER CONTROL
2.1
General information on border control and visa policy
2.1.1
Visa policy
When the new Dutch government took office on 14 October 2010, review of migration laws
and policy was high on their agenda.89 The government coalition envisaged considerable
changes to policy and laws in the field of immigration, with the aim of decreasing and
managing migration to the Netherlands. The Aliens Act (Vreemdelingenwet)90 was amended
to allow for changes in the visa policy, mainly the requirement that prospective regular
migrants (family reunion, study, work) to the Netherlands apply for a visa, a so-called
authorisation temporary residence (Machtiging Voorlopig Verblijf,MVV) in their home
country, which would simultaneously serve as an application for the residence permit.
In addition, the new EU visa code91 entered into force in the Netherlands as of 5 April 2010.
As from that date, the issuance of the short stay (three month) visas is now simplified and
harmonised within the Schengen acquis. In the Netherlands this means that instead of the C
and D visa, just one visa is issued. The ministry of Foreign Affairs has set up a regionalisation
project, whereby fewer consulates issue visas.92 The Netherlands ensured there would be an
emergency brake procedure (‘noodremprocedure’) within the visa code; meaning there
should be an option of lifting the exemption of the visa obligation when an emergency
situation so requires.93
The storage of finger prints for biometric passports was discontinued in the Netherlands.
The minister for Home Affairs, Mr Donner, told Parliament on 27 April 201194 that it had to
stop because of technical problems. The requirement of finger prints in so called biometric
passports was a consequence of EU directive95. The discontinuance of storage of fingerprints
did not lead, however, to a discontinuation of the biometric passports as such.
Furthermore, a new visa information system was implemented in the Netherlands and in
2011 it was linked to the European Visa Information System96, which allows the Netherlands
to access data on visa applications in other Schengen countries.
33
89
Coalition Agreement (Regeerakkoord) (2010); Tolerance Agreement VVD-PVV-CDA (Gedoogakkoord VVD-PVVCDA (2010).
90
The Netherlands, Aliens Act (Vreemdelingenwet 2000), Staatsblad 23 November, 2000.
91
Regulation (EC) No 810/2009, OJ 2009, L 243of the European Parliament and of the Council of 13 July 2009
establishing a Community Code on Visas (Visa Code)
92
Netherlands, Ministry of Foreign Affairs (2011), p. 133.
93
Netherlands, Parliamentary document (Kamerstuk) 22112, nr. 1191 (2011).
94
Netherlands, Parliamentary document (Kamerstuk) 25 764, nr 47, (2011).
95
Council Regulation (EC) No 2252/2004 , on standards for security features and biometrics in passports and
travel documents.
96
Netherlands, Parliamentary documents (2011), Kamerstukken 19 637, nr 1435.
33
Border control
A reliable and future oriented border control is mentioned in the coalition agreement as a
priority for the current government. In the Netherlands, the Royal Netherlands
Marechaussee (RNM) (Koninklijke Marechaussee) is responsible for the control of the Dutch
border, with the exception of the port in Rotterdam, which falls under the auspices of the
Seaport Police Rotterdam-Rijnmond (PPR) (Zeehavenpolitie Rotterdam-Rijnmond). The
Netherlands has implemented several measures to ensure the realisation of the European
Pact Immigration and Asylum and the Stockholm Programme.97 With this goal in mind, for
example, the quality of training, education and expertise of personnel of the RNM has been
improved.98 The RNM, customs officers, the harbour police, the ministry of Security and
Justice, the National Coordinator Counter Terrorism, Immigration and Naturalisation Service
(INS) (Immigratie en Naturalisatie Dienst, IND), the Schiphol Group (that runs Schiphol
Airport) and airline company KLM have collaborated in several projects related to the use of
modern technological means for border control.99
The RNM has been checking people crossing the Belgian and German border through Mobile
Surveillance Safety checks (Mobiel Toezicht Veiligheid- controles; MTV- controles). This
practice was deemed incompatible with the Treaty on European Union100 and the Schengen
Borders Code101 by the Council of State (Raad van State, RvS) on 28 December 2010.102 The
minister of Immigration and Asylum, Mr Leers, announced he would draft a law that would
enable the border police to continue the mobile border control. This law came into force on
1 June 2011.103 In July 2011, two Dutch courts ruled that the border control under this new
law was still not compatible with EU law.104 In addition, the Advisory Board on Immigration
Issues (Adviescommissie voor Vreemdelingenzaken) found that the proposed draft bill was in
violation of the Schengen Borders Code.105
The government has drafted a Programme Innovation Border Management (Programma
Vernieuwing Grensmanagement). Part of this programme is the project PARDEX, which aims
to realise Passenger Related Data Exchange in the management of the Dutch borders. The
PARDEX system allows various services and agencies to share data.106 PARDEX is in line with
the EU guideline107 on passenger information that the Dutch government supports.108 In the
future, it will lead to legislative changes.
34
97
The Stockholm Programme — an open and secure Europe serving and protecting citizens (2010). The
Stockholm Programme encourages the creation of flexible admission systems that are responsive to the needs of
Member States and enable migrants to take full advantage of their skills and competences. It also calls for
integration policies aimed at granting them rights and obligations comparable to those of EU citizens. It commits
European Member States to a common asylum system by 2012.
98
The Netherlands national contact point for the European Migration Network (EMN)
(2011), p. 75.
99
Ibid., p. 75 & 76.
100
The Treaty on European Union (2010).
101
Regulation (EC) No 562/2006, OJ L 105, 13.4.2006, p. 1–32.
102
103
Netherlands (2011) Amendment of the Aliens Decision (Vluchtelingenbesluit).
104
Netherlands, Court of The Hague (2011a) ; Netherlands, Court of Maastricht (2011).
105
Advisory Board on Immigration Issues (2011), p. 4.
106
Netherlands (2011) Parliamentary documents, Kamerstuk 22112, nr. 1149.
107
Directive COM(2011) 32 final 2011/0023 (COD).
108
Netherlands (2011), Parliamentary documents, Kamerstuk 22112, nr. 1149
34
2.1.2
Visa policy
As mentioned above, the EU visa code is applicable in the Netherlands as of 5 April 2010. On
7 July 2010, the Law on modern migration policy 109 (Wet Modern Migratiebeleid, MoMi) was
adopted, but it has not yet entered into force. These two legislative developments have or
will affect the visa policy in the Netherlands.
Under the new law on modern migration policy, prospective migrants who want to come to
the Netherlands for work, study, or family reunion (‘regular’ migration), have to apply for
one visa – authorisation temporary residence (machtiging voorlopig verblijf) – which will
serve as an application for the residence permit too. This is supposed to shorten and simplify
the procedure, as the migrant only has to apply once.110 The position of a referent for the
migrant has gained importance under the new law; he or she has to act as a (financial)
guarantor. The law was supposed to enter into force on 1 January 2011, but it has been
postponed due to technical problems with the computer system.
The new EU visa code applies only to three month short-stay visas for third country visitors
to the EU (except for Ireland, the United Kingdom, Bulgaria, Romania and Cyprus) and EER
countries (Liechtenstein, Norway and Iceland) and Switzerland. Broadly, there are three
types of visas: a uniform visa, applicable to the territory of all Member states, a visa with
limited territorial validity and a transit visa. For the Netherlands, this means the
combination visa C+D visas has been replaced by the EU visa, which is the same as the D
visa111. The A, B and C visa have become redundant. The new EU visa code has led to
legislative changes in the Vreemdelingencirculaire112 and the voorschrift Vreemdelingen.113
Border control
On 9 June 2011, a draft law was published that provides the legal base for the temporary
border checks of the Royal Netherlands Marechaussee.114 The RNM are allowed to check
identity papers of passengers in international trains and on international flights. The mobile
border control of the RNM, as regulated in the new law does not have the aim to patrol
borders, but to combat illegal residence, according to government.
2.1.3
National case law
Information on law cases in the Netherlands with regard to visa policy and border control
are presented in Annex 4.
35
109
Netherlands, (2010) Law on Modern Migration Policy.
110
A simplified visa procedure was already recommended in 2007 by the Advisory Board on Immigration Issues
(Adviescommissie voor Vreemdelingenzaken , Advisory Board on Immigration Issues (2007).
111
Netherlands, Ministry of Foreign Affairs (2011), p. 111.
112
Netherlands (2010a).
113
Staatscourant, nr. 20991, 30 December 2010, Regeling van de Minister voor Immigratie en Asiel van 22
december 2010, nummer 5678736/10, houdende wijziging van het Voorschrift Vreemdelingen 2000
(honderdeneerste wijziging).
114
Netherlands (2011).
35
2.1.4
Table 1.1: Third country citizens who have been refused entry at the border in
2010115
Total
refusals
Refusal land
border
Refusal sea
border
Refusal border
of air space
Refused
entry by
RNM
2,779
-
33
2,746
Refused
entry by
ZHP
44
-
44
-
Total
refusals
2,823
-
77
2,746
Source: EMN (2011).
Table 1.2: total number of awarded Schengen visa in 2010116
Total
Visas through
RNM
45,121
Visas through
ZHP
16,218
Total
61,339
Source: EMN (2011).
Table 1.3: total number of awarded MVVs117, second half of 2010
Total
nd
MVVs 2
2010
Total
half of
29,390
29,390
Source: Ministry of the Interior and Kingdom Relations (2011)
36
115
The Netherlands national contact point for the European Migration Network (EMN) (2011), p. 77.
116
Ibid.
117
Netherlands, Ministry of the Interior and Kingdom Relations (2011) p. 21.
36
Table 1.4: Overview of different residence purposes of MVVs 118
Percentage
Number
Family
reunification
34%
9,860
Family forming
25%
7,380
Remaining family
migration
1%
270
Study
20 %
5,770
Knowledge
migrant
8%
2,410
Remaining
8%
2,440
Source: Ministry of the Interior and Kingdom Relations (2011)
Table 1.5: total number of decisions on MVVs in 2011 (January – June)119
Total
MVVs
22,230
Source: IND (2011)
2.1.5
Visa policy
The Dutch National Contact Point for the European Migration Network (EMN) published an
Annual Policy Report 2010.120 In the report there is an overview of the laws and policies
governing the above mentioned changes in the field of visa policy. They signal a 10 %
increase in applications for MVVs as compared to 2009. This was caused by an increase of
Somali migrants who came to the Netherlands within the context of family reunification.
The Inspection Development Cooperation and Policy Evaluation (Inspectie
Ontwikkelingssamenwerking en Beleidsevaluatie, IOB) of the ministry of Foreign Affairs
published a report about the consular service of the ministry of Foreign Affairs121 and
37
118
Ibid.
119
Netherlands, Immigration and Naturalisation Service (2011).
120
National Contact Point for the European Migration Network (EMN) (2011).
121
Netherlands, Ministry of Foreign Affairs (2011).
37
concluded that visa service can be improved in the field of efficiency. Since 2007, the
number of visa applications has been declining, owing to the global recession, visa
liberalisation and multiple entry visas. One suggestion to improve efficiency is to have one
Schengen office in countries where several Schengen countries have posts. In addition, there
is a proposal to waive the visa obligation for nationalities with very low rejection rates.122
Criminologists of the Erasmus University Rotterdam (Erasmus Universiteit Rotterdam, EUR),
who were commissioned by the Research and Documentation Centre (Wetenschappelijk
Onderzoek- en Documentatie Centrum, WODC), of the ministry of Security and Justice, to
interview young undocumented migrants in the Netherlands about their future plans. Of the
118 interviewed youngsters, only 4 travelled to the Netherlands with a visa (3 on a tourist
visa, 1 on a student visa).123
Border control
The authors of the Scientific Council for Governmental Policy (Wetenschappelijke Raad voor
het Regeringsbeleid) report ‘State of Information’ (Staat van Informatie)124 warn that the
discontinuance of the central storage of finger prints for passport in the Netherlands was
linked to risks involved in digital databases.
The Immigration and Naturalisation Service (IND) noted in its Report on the Immigration
Chain (Rapportage Vreemdelingenketen) that in the second half of 2010, 2,000 immigrants
were refused entry into the Netherlands, by the RNM and the Seaport Police. In comparison
to 2007, 2008 and 2009, there seems to be a slight increase125, which can be explained by
the rising number of passengers moving through Schiphol Airport. In addition, the authors of
the report mention that the Netherlands provided 16 specialists from the RNM to participate
in a Frontex operation long the Greek/Turkish border.126
2.1.6
Promising “good” practices
Information on promising “good” practices in the Netherlands with regard to visa policy and
border control are presented in Annex 3.
2.1.7
Migration issues and the EU are clearly present in the public debate in the Netherlands. The
current government has positioned migration control and management as a top policy
priority. Some human rights and migration NGOs were displeased with the migration
paragraphs of the coalition agreement.127 Professor of Migration Studies at Leiden University
38
122
Ibid., pp. 25 and 124.
123
Staring, R. and Aarts, J. (2010)
124
Netherlands, Scientific Council for Government Policy (2011), p. 276.
125
Netherlands, Ministry of the Interior and Kingdom Relations (2011), p.9.
126
Ibid., p. 11.
127
Amnesty International the Netherlands (2010), Vluchtelingenwerk Nederland (2010), Stichting voor
Vluchteling-Studenten UAF (2010).
38
Mr Peter Rodrigues stated at his inaugural lecture128 that the list of nationalities that have to
apply for an authorisation temporary residence (MVV) and perform a citizenship test before
they travel to the Netherlands (in the context of family reunification), is in violation of the
European Convention on Human Rights.129 According to Mr Rodrigues it discriminates on the
basis of nationality.130 Furthermore, as the binding EU Charter on Fundamental Rights131
incorporates the rights of the ECHR, it is also incompatible with EU law.
The influx of ‘Arab spring’ migrants in the EU was discussed widely in the public domain,
after Italy decided to award many thousands of Tunisian migrants with a visa, which allowed
them to travel throughout the Schengen territory. Anticipating an increase of migrants, the
minister for Migration, Mr Leers, reinstalled so-called mobile border security control, which
had previously been ruled incompatible with EU law by the Council of State132. There were
various positions in the public debate regarding this issue. Politicians, mainly of the coalition
parties, agreed with the initiative133, while immigration experts and spokespersons of the
Tunisian community in the Netherlands pointed out that, for several reasons, that an influx
of Tunisians in the Netherlands is highly unlikely.134
The possible membership of the two EU Member States Romania and Bulgaria of the
Schengen treaty was not well received in the Netherland. Discontent was fuelled by the
concern regarding the ‘Arab spring’ influx of migrants. The Netherlands opposed Romania
and Bulgaria joining the Schengen zone, a decision that had already been taken by the
European Parliament.135 According to minister Leers, the corruption and crime levels were
too high in both countries.136 Prime Minister Rutte stated that Romania and Bulgaria had
been admitted too speedily to the EU.137 On 22 September, the Netherlands and Finland
opposed the Schengen membership of Romania and Bulgaria during an EU top in Brussels.
The Council of the European Union decided to postpone the membership of both
countries.138
2.1.8
Information on trends till 2011
Within the EU, the influx of ‘Arab spring’ migrants has led to Member States calling for the
reinstatement of internal border control within the Schengen acquis. The Netherlands has
shared that concern. After the Council of State ruled that the border checks of the RNM
were in violation of the Schengen Borders Code, the government drafted a law that enables
border checks under specified circumstances. Despite the fact that two judges ruled that
these checks were still incompatible with EU law,139 the border checks still continue.
Concluding, it seems to be a trend, EU-wide and within the Netherlands, to reinstate some
form of internal border control, within the framework and scope of European law. In
addition, there seems to be a trend that the Netherlands is blocking the accession of EU
39
128
Rodrigues, P.R. (2010).
129
Council of Europe (1953).
130
UN CERD seems to agree, see: Concluding observations (2010), § 5..
131
European Union (2000).
132
133
De Telegraaf (2011a) and De Telegraaf (2011b).
134
‘Nederlands Dagblad (2011).
135
www.bbc.co.uk/news/world-europe-13709768.
136
De Volkskrant (2011).
137
‘De Telegraaf, (2011c).
138
Council of the European Union (2011).
139
See paragraph 4 on case law.
39
Member States into the Schengen Acquis, as was evidenced by the Dutch resistance to
Romania’s and Bulgaria’s membership of Schengen.
There has been a decrease in the number of applications for authorisation temporary
residence.140 The reasons for the decrease, according to the authors of the report, are the
downturn in the global economy, multi entry visas and visa liberalisation. These statistics
relate to the years 2007 – 2010. There are no statistics on 2011 provided which might show
a continuance of this trend.141
2.1.9
In the Netherlands, the government has instituted measures in order to control the internal
borders. The question is, if this practice and the new law that is meant to provide a legal
base to the border checks, fall within the framework of the Schengen Borders Code, as an
advisory body of the state as well as two judges deemed the practice and law incompatible
with EU law.142 If the government persists in testing the legal limits, the friction between
national and European law might deepen. Members of the ruling political parties have
previously pointed out there is the option of withdrawing from international treaties
governing human rights and the rights of migrants, in order to pursue political plans and
programmes143, especially in the field of migration.
Similarly, the claim by the ministers of immigration and foreign affairs that Turkish
independent workers do need a visa for the Netherlands is in apparent contravention of two
European rulings of the European Court of Justice.144 This leads to tension between national
policy and European legal rulings.
Furthermore, the Dutch authorities fail to notify migrants who are registered in the
Schengen Information System, SIS.145 Immigrants often only find out they are registered
when they attempt to enter Europe again. This might be incompatible with the EU Charter.
The Rathenau institute point out in their report that immigrants who have been classified as
‘unwanted’ in the Schengen Information System (SIS), yet are not informed about the
registration in SIS in the Netherlands, until they try to enter Europe again.146 The
Ombudsman had earlier also concluded that immigrants are not properly informed of their
SIS registration147 In another WRR report in 2011, similar observations about the SIS system
in the Netherlands are made.148
40
140
Ministry of Foreign Affairs (2011), p. 124.
141
IND(2011).
142
Advisory Board on Immigration Issues (2011) Court of the Hague (2011a) and Court of Maastricht (2011).
143
Rodrigues, P. R.(2010), p. 9. Rodrigues mentions: De Volkskrant (2009). And see:
www.rnw.nl/nederlands/article/nederland-morrelt-aan-internationale-afspraken and NRC Handelsblad (2010).
144
CJEU, Case C-228/06, Mehmet Soysal and Ibrahim Savatli v Bundesrepublik Deutschland, 19 February 2009 and
CJEU, Case C-187/10, Baris Unal v Staatssecretaris van Justitie The Netherlands, 29 September 2011. And: Court
of The Hague (2011b).
145
Netherlands, The National Ombudsman (2010); Rathenau Instituut(2011).
146
Rathenau Instituut (2011), p. 80.
147
Netherlands, The National Ombudsman (2010).
148
Netherlands, Scientific Council for Government Policy (2011b), p. 147 – 148.
40
2.2
2.2.1
Appeal against decisions on refusal – revocation – annulment of
a visa (applicable from 5 April 2011)
Table 1.6: Total number of appeals MVV and short stay visas in 2010149
Total
Appeal MVV
11.500150
Appeal Schengen
visas
4,850
Decisions on
appeal Schengen
visas
4,500
Source: Ministry of Interior and Kingdom Relations (2011)
Figures on appeals MVV and short stay visas in 2011 will not be available until the beginning
of 2012, when these are included in the annual report of the Immigration and Naturalisation
Service (INS) (Immigratie en Naturalisatie Dienst, IND).151
2.2.2
Schengen evaluations
In the reference period there was no Schengen evaluation. The latest evaluation took place
in 2009.
41
149
Netherlands, Ministry of the Interior and Kingdom Relations (2011b), p. 32.
150
This number applied to MVV and appeals on decisions on regular residence permits, ministry of the Interior
and Kingdom Relations (2011b), p. 32.
151
E-mail from IND Information and Analysis Centre (INDIAC) to Art.1 on 28 November 2011.
41
Official
exact title
EN
Official title NL
Full reference
Amnesty International Netherlands (2010), Amnesty
International bezorgd over regeer- en gedoogakkoord,
Amsterdam, Amnesty International.
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Commission Vliegenthart (2010), ‘Beleidsplan KMar
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October 2010.
Council of Europe, Convention for the Protection of
Human Rights and Fundamental Freedoms,
CETS No. 005, 1953.
Council of the European Union (2011), 14464/11
provisional version, presse 320 pr co 53, 3111th Council
Meeting, Justice and Home Affairs, Brussels, Press
Release, 22 – 23 September.
Council Regulation (EC) No 2252/2004 of 13 December
2004 on standards for security features and biometrics in
passports and travel documents.
Court of Justice oft he European Union (CJEU), C-228/06,
Mehmet Soysal and Ibrahim Savatli v. Bundesrepublik
Deutschland, 19 February 2009.
Court of Justice of the European Union (CJEU), C-187/10,
Baris Unal v. Staatssecretaris van Justitie The
Netherlands, 29 September 2011.
De Telegraaf (2011a), ‘Europa groeit ons land boven het
hoofd’, 7 June 2011’.
De Telegraaf (2011b) ‘Dam tegen Tunesiërs’, 16 April
2011.
De Telegraaf (2011c) ‘Kroatie welkom’, 25 June 2011.
De Volkskrant (2009) ‘Migratie vereist aanpassing
internationale verdragen’, 12 March 2009.
42
De Volkskrant (2010) ‘Geen nieuwe open grens in het
oosten’, 10 June 2011.
Dutch Council for Refugees (VluchtelingenWerk
Nederland) (2010), Letter to the Minister of Security and
Justice, 9 August 2010.
European Communities (1963) Agreement establishing
an Association between the European Economic
Community and Turkey, OJ L 316/1.
European Communities (1973), Additional Protocol to
the Agreement establishing an Association between the
European Economic Community and Turkey, OJ C 113.
European Council (2010) The Stockholm Programme - an
open and secure europe serving and protecting citizens,
OJ C 115/1, 4 May 2010.
European Union (2007), Treaty of Lisbon amending the
Treaty on European Union and the Treaty establishing
the European Community, signed at Lisbon, OJ C C 306,
Volume 50.
European Union (2000) Charter of Fundamental Rights of
the European Union, OJ C 364/01.
Foundation for Refugee Students (UAF) (Stichting voor
Vluchteling-Studenten) (2010) ‘Regeerakkoord
bemoeilijkt integratie vluchtelingen’, Press release, 1
October 2010.
Nederlands Dagblad (2011) ‘Tunesiërs gaan naar
Frankrijk’, 19 April, 2011.
Netherlands , Advisory Board on Immigration Issues
(Adviescommissie voor Vreemdelingenzaken)( (2007)
Mvv, weg ermee: voorstel voor één procedure voor
inreis- en verblijfsvergunning, advies uitgebracht aan de
staatssecretaris van justitie, Den Haag, Adviescommissie
voor Vreemdelingenzaken.
Aliens Act
Vreemdelingenwet
2000
Netherlands, Advisory Board on Immigration Issues
(Adviescommissie voor Vreemdelingenzaken)(2011)
Advies inzake de conceptwijziging van het
Vreemdelingenbesluit (Vb) 2000 in verband met nadere
regels over het toezicht ter bestrijding van illegaal
verblijf na Grensoverschrijding, Den Haag,
Adviescommissie voor Vreemdelingenzaken.
Netherlands, Aliens Act (Vreemdelingenwet 2000), 23
November 2000.
43
Amendment
of the Aliens
Decree 2000
in relation to
further rules
on the
control for
the
combating of
illegal
residency
after crossing
the border.
Besluit houdende
wijziging van het
Vreemdelingenbesluit
2000 in verband met
nadere regels over het
toezicht ter bestrijding
van illegaal verblijf na
grensoverschrijding.
Netherlands (2011) ‘Besluit houdende wijziging van het
Vreemdelingenbesluit 2000 in verband met nadere
regels over het toezicht ter bestrijding van illegaal
verblijf na grensoverschrijding’, Staatscourant, nr. 9951,
9 June 2011.
Netherlands, Council of State (Raad van State),
201010790/1/V3, 28 December 2010.
Netherlands, District Court of Maastricht (Rechtbank
Maastricht)(2011), LJN BR1705, 14 juli 2011.
Netherlands, District Court of the Hague (Rechtbank ‘sGravenhage) (2011a), LJN BR0684, 4 juli 2011.
Netherlands, House of Representatives (Tweede Kamer
der Staten Generaal)(2011b), Emergency debate about
the lifting of the visa ban for Albanians and Bosnians
(spoeddebat over de opheffing van de visumplicht voor
Albanezen en Bosniërs), Parliamentary documents TK
2010-2011/34, 14 December 2010.
Netherlands, Immigration and Naturalisation Service
(Immigratie- en Naturalisatie Dienst) (2011) ‘Cijfers
2011, Web page, available at
www.ind.nl/organisatie/cijfers-enrapportages/archief/cijfers2011.aspx?cp=110&cs=46664.
Netherlands, Ministry of Foreign Affairs (Ministerie van
Buitenlandse Zaken) (2011) Consulaire dienstverlening
doorgelicht, 2007 – 2010, IOB rapport nr. 338, Den Haag,
Ministerie van Buitenlandse Zaken.
Buitenlandse Zaken) (2011a) Letter to the House of
Representatives, Parliamentary document 22112, nr.
1191, 11 July 2011.
Buitenlandse Zaken) (2011e) Letter to House of
Representatives, Parliamentary documents 22112, nr.
1149, 14 March 2011.
44
Decision of
the Minister
regarding the
Amendment
of the Aliens
Circular 2000.
Besluit van de Minister
voor Immigratie en Asiel
van 14 december 2010,
nr. WBV 2010/20,
houdende wijziging van
de
Vreemdelingencirculaire
2000.
Netherlands, Ministry of Immigration and Asylum
(Ministerie voor Immigratie en Asiel) (2010a) ‘Besluit van
de Minister voor Immigratie en Asiel van 14 december
2010, nr. WBV 2010/20, houdende wijziging van de
Vreemdelingencirculaire 2000’, Staatscourant, nr. 20701,
22 December 2010.
Netherlands, Ministry of Immigration and Asylum
(Minister van Immigratie en Asiel) (2011d), Letter to
House of Representatives, Parliamentary documents 19
637, nr. 1435, 8 juli 2011.
Netherlands, Ministry of the Interior and Kingdom
Relations (Ministerie van Binnenlandse zaken en
Koninkrijksrelaties) (2011a) Rapportage
Vreemdelingenketen, juli – december, Den Haag,
Ministerie van Binnenlandse zaken en
Koninkrijksrelaties.
Netherlands, Ministry of the Interior and Kingdom
Relations (Ministerie van Binnenlandse zaken en
Koninkrijksrelaties) (2011b) De IND belicht,
Jaarresultaten 2010, Rijswijk, Ministerie van
Binnenlandse zaken en Koninkrijksrelaties.
Netherlands, The National Ombudsman (De Nationale
Ombudsman) (2010) Toegang verboden. Onderzoek naar
de opname van vreemdelingen in het Schengen
Informatie Systeem en de informatievoorziening
hierover, Den Haag, De Nationale Ombudsman.
Netherlands, parliamentary groups of VVD and CDA (De
Tweede Kamerfracties van VVD en CDA) (2010),
Regeerakkoord, Vrijheid en Verantwoordelijkheid,
Coalition agreement, 30 September 2010.
Netherlands, parliamentary groups of VVD, PVV and CDA
(De Tweede Kamerfracties van VVD, PVV en CDA) (2010),
Gedoogakkoord, Parliamentary support agreement, 30
September 2010.
Netherlands (2011c), Parliamentary document 25 764,
nr. 47, 19 May 2011.
Netherlands, Scientific Council for Government Policy
(Wetenschappelijke Raad voor het Regeringsbeleid)
(2011a) Staat van Informatie, Scientific Council for
Government Policy/Amsterdam University Press, Den
Haag/Amsterdam,
45
Netherlands, Scientific Council for Government Policy
(Wetenschappelijke Raad voor het Regeringsbeleid)
(2011b) IOverheid, Scientific Council for Government
Policy/Amsterdam University Press, Den
Haag/Amsterdam.
Netherlands, Task Force Trafficking (2011), Plan van
Aanpak 2011- 2014, De integrale aanpak van
mensenhandel verder versterken, The Hague, Task Force
Mensenhandel.
Amendment
of the Aliens
Act 2000 en
several other
laws in
relation to
the
strengthening
of the
position of
the referent
in the regular
immigration
law and the
acceleration
of the
immigration
law
procedure
(Act Modern
Migration
Policy).
Wet van 7 juli 2010 tot
wijziging van de
Vreemdelingenwet 2000
en enkele andere wetten
in verband met de
versterking van de
positie van de referent in
het reguliere
vreemdelingenrecht en
versnelling van de
vreemdelingenrechtelijke
procedure (Wet modern
migratiebeleid).
Netherlands (2010) ‘Wet van 7 juli 2010 tot wijziging van
de Vreemdelingenwet 2000 en enkele andere wetten in
verband met de versterking van de positie van de
referent in het reguliere vreemdelingenrecht en
versnelling van de vreemdelingenrechtelijke procedure
(Wet modern migratiebeleid)’, Staatsblad, jaargang
2010, nr. 290.
NRC Handelsblad (2010) ‘Nieuw beleid migratie is nog
heel ver weg’, 8 October 2010.
Proposal for a directive of the European parliament and
of the council on the use of Passenger Name Record data
for the prevention, detection, investigation and
prosecution of terrorist offences and serious crime,
Directive (2011) COM(2011) 32 final 2011/0023 (COD), 2
February 2011.
Regulation (EC) No. 562/2006 of the European
Parliament and of the Council of 15 March 2006
establishing a Community Code on the rules governing
the movement of persons across borders, OJ L 105,
13.4.2006, p. 1–32 (Schengen Borders Code).
Regulation (EC) No. 810/2009 of the European
46
Parliament and of the Council of 13 July 2009
establishing a Community Code on Visas, OJ 2009, L 243
(Visa Code).
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Migration Network (EMN) (2011) ‘Migratie en asiel in
Nederland Beleidsoverzicht 2010’, Rijswijk, the national
contact point for the European Migration Network
(EMN).
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informatiehonger en digitale autonomie, Den Haag,
Rathenau Institute.
Rodrigues, P.R. (2010) De grenzen van het
vreemdelingenrecht, Rede uitgesproken bij de
aanvaarding van de leerstoel Immigratierecht aan de
Universiteit Leiden, 3 September 2010.
Staring R. & Aarts J. (2010) Jong en illegaal in Nederland.
Een beschrijvende studie naar de komst en het verblijf
van onrechtmatig verblijvende (voormalige)
alleenstaande minderjarige vreemdelingen en hun visie
op de toekomst, Rotterdam, Erasmus Universiteit
Rotterdam.
United Nations (UN), Committee on the Elimination of
Racial Discrimination (CERD) (2010) Concluding
Observations of the Committee on the Elimination of
Racial Discrimination on the Netherlands, 16 March
2010.
47
3
INFORMATION SOCIETY AND DATA
PROTECTION
3.1
The implementation of a data protection regime
3.1.1
The new Dutch government in its 2010 Coalition Agreement (Regeerakkoord) is
committed to improve information security and personal data protection.152 It will do so
along the lines of four core activities namely, setting out a time frame for handling and
processing personal data, formulate proposals to enforce the duty to report data leaks, more
effective monitoring of large scale ICT projects and systems and combating cyber crime.153
On 5 April 2011 the Senate blocked the implementation of a National Electronic Patient
Record System (Electronisch Patiënten Dossier, EPD).154 This Electronic Patient Record
System would have allowed the various branches in the medical circuit to share information
about patients. Research had shown that the system carried potential data leaking risks.155
3.1.2
On 15 September 2011 the House of Representatives passed the law proposal implementing
the Council Framework Decision 2008/977/JHA and the Council Decision 2009/371/JHA
establishing Europol. On 4 October 2011 the Senate passed the law proposal.156
On 22 June 2011 the House of Representatives passed a law proposal changing the
Telecommunication law.157 The law implements several EU directives a.o. 2009/13/EC. The
Telecommunication law is the law in which most of the five EU directives on electronic
communication were implemented. The new law guarantees net neutrality, forbidding
providers to block certain internet traffic or pay extra for certain internet traffic. It also gives
a provision for the use of cookies. For each website users will have to give permission before
a cookie is placed. There is room for browser settings where the user can choose always to
accept cookies from certain websites.
The Secretary of State for Security and Justice announced on 25 October 2011 a consultation
round for a law proposal on Loss of Personal Data (wetsvoorstel Meldplicht Datalekken)
starting in November. He did so during a debate in the House of Representatives about the
theft of personal data from the website www.cheaptickets.nl, that sells airline tickets.158 The
theft stirred public debate. The Dutch Digital Rights Organization, Bits of Freedom (Bits of
Freedom, BOF) publishes a black book on its website.159 It shows loss/theft of data of
websites in recent months.
On 21 June 2011 the Senate passed the law that obliged providers to retain said data for a
period of six months instead of twelve. The obligation pertains to traffic data on the use of e48
152
Netherlands, Coalition Agreement (2010).
153
Netherlands, Secretary of Date of Security and Justice and Minister of Interior and Kingdom Relations (2011).
154
Netherlands, Senate (2011a).
155
Radboud Universiteit / Price Waterhouse Coopers (2011).
156
Netherlands, Senate (2011b).
157
Netherlands, House of Representatives (2011d).
158
Netherlands, House of Representatives (2011c).
159
Bits of Freedom (2011).
48
mail, Internet telephony, and access to the Internet. The retention period for data on
telephony through a fixed or mobile network continues to be twelve months. With this new
regulation, the government remains within the limits of the European Data Retention
Directive160, which prescribes that the data to be retained must be stored by the providers
for a minimum period of six months.
On 31 May 2011 two committees of the Senate expressed their disappointment in a letter to
the Minister of Security and Justice with the evaluation of the Data Retention Directive by
the European Commission on 24 April 2011.161 162 The committees are critic about several
points. They said that the evaluation is not satisfactory, that compelling analyses for the
need for this directive is missing and that there is not enough attention paid to the
proportionality of data retention. The committees raised questions about the methodology
used in chapter five. The committees give into consideration to withdraw the directive. In his
reaction on 27 June 2011 the Minister said that questions and remarks about the evaluation
should be directed to the European Commission. The letter of 31 May 2011 was sent in copy
to the European Commission and European Parliament.163
3.1.3
National case law
On 8 February 2011 the Dutch Privacy Agency DPA (College Bescherming Persoonsgegevens,
CBP) forced the Social Intelligence and Investigation Service (Sociale Inlichtingen- en
Opsporingsdienst, SIOD) to destroy data about clients. SIOD had linked data of several
agencies and had made risk profiles to fight social security fraud. It had not informed people
that their data were being stored. By doing so it breached the Data Protection Act (Wet
Bescherming Persoonsgegevens, WBP).
3.1.4
In 2010 the DPA received a total of 974 incident reports.164 Table 1.1 shows the number of
incident reports per sector. These incidents are reported by citizens. They fill in a form giving
a signal about privacy violation by a company or organisation. The signals give the DPA
information about privacy violations. The DPA may start an investigation following a signal.
49
160
Directive 2006/24/EC.
161
162
European Commission (2011).
163
Netherlands, Senate (2011c).
164
Netherlands, Dutch Data Protection Authority (2011a).
49
Table 1. Number of Incident Reports DPA *
Total - 974
Percentage
Trade and service
industry
270
27%
Telecom and Internet
199
21%
Other sectors
183
19%
Government
118
12%
Work
95
10%
Healthcare
80
9%
Police and Justice
20
2%
Social Benefits
9
1%
Source: DPA (2011a).
The DPA incident reports in “other” sectors165. Table 1.2 shows the number of reports in
“other” sectors in 2010.
165
50
Idem.
50
Table 2. What are the “Other” Sectors
Total -183
Percentage
Other
63
33%
Culture, Sport and
Recreation
44
26.5%
Media
37
20%
Interest Organization
18
10%
Religious Organisation
9
4.5%
Research and Academia
9
4.5%
Complaints agencies
3
1.5%
Source: DPA (2011a).
3.1.5
According to a survey held by Statistics Netherlands (Centraal Bureau voor de Statistiek,
CBS), two-thirds of the Dutch Internet users are concerned about privacy and control of their
personal data.166 The survey also measured which type of activities internet users drop
because of safety concerns. It showed that one out of three internet users does not leave
personal information on sites.
According to the Police Data Act (Wet Politiegegevens, Wpg), all law enforcement agencies
listed in this law have to have their privacy externally audited periodically. The Police Data
Act came into force on 1 January 2008. In 2010 the privacy audits should have been held. On
19 July 2011 the DPA issued a statement that all had failed to do so.167 DPA also stated that
it has the authority to enforce law.
3.1.6
Annex 3 describes the following good practises: Ministry of Security and Justice: Safely using
internet; DPA: MyPrivacy.
51
166
CBS (2011).
167
Netherlands, Dutch Data Protection Authority (College Bescherming Bescherming (2011d).
51
3.1.7
In May 2011 Dutch Telecommunication and ICT service provider KPN stirred controversy
when it became known it uses DPI, Deep Packet Inspection.168 DPI allows the provider to
analyse the type of data traffic used by customers. It enables KPN for example to ‘see’
whether apps like Whatsapp of Skype are used and to what extent. This enables KPN to
charge customers different rates for different types of internet usage. According to
Webwereld DPI potentially allows the provider to look into emails, websites visited and so
on.169 The Indepedent Post and Telecommunication Authority of the Netherlands
(Onafhankelijke Post en Telecommunicatie Autoriteit, OPTA) performed a quick scan.170 It
scanned four mobile network providers: KPN, Vodafone, T-Mobile and Tele2. It found that
data traffic was analysed. It did not find that emails or contributions to social networks were
read. It did find that the providers gained more information while analyzing than needed for
data and traffic handling. Providers can see what type of app, Whatsapp, Twitter, Google
Talk, clients use at what time. This could be a possible breach of the communication secret,
according to OPTA. Also, the amount and type of data that is analysed could be a possible
breach to protect personal data and the protection of private life. The results of this quick
scan were handed over to DPA. DPA will investigate whether or not privacy rules were
violated.
Government organisations use the digital ID system DigiD to verify the identity of individuals
who make use of their electronic services. DigiD stands for Digital Identity and is an
authentication system for citizens and business interacting with the Dutch government at
the local, provincial and central levels. In August 2011 it was revealed that DigiNotar, the
certificate authority that backs the DigID system, was compromised by hackers a few weeks
before, and had been used to issue fraudulent certificates.171 The government advised the
public not to use DigiD until all certificates were replaced, as safety could not be
guaranteed.172 On 6 September, a press release followed that DigiD could be used safely
again.173
Later that month, another DigiD incident received media attention. On 19 September 2011,
the Dutch Tax Administration (Belastingdienst) admitted that DigiD fraud had taken place.
Using a random DigiD, fraudsters could access the personal data of others. By changing bank
account numbers and applying for false allowances, fraudsters could collect a large amount
of allowances for rent, health care and day care.174 The precise scale of the fraud was not
made public. After discovering the fraud, the Tax Administration blocked the possibility to
apply for allowances on behalf of others and opened a hotline for victims.175
The new Passport Law (Paspoortwet), which has been in effect since September 2009,
settles that fingerprints of citizens recorded when applying for a passport or national
identity card, will be stored in a central fingerprint database. This database could be used for
the identification of victims of accidents and disasters, the investigation and prosecution of
criminal offences and the combat of identity fraud. The majority of the House of
Representatives and others spoke out against the database. It was seen as unsafe. The
52
168
Van der Pluym (2011).
169
Idem.
170
Opta (2011).
171
Netherlands, Central Government (2011d).
172
DigId (2011)
173
Netherlands, Central Government (2011c).
174
NOS (2011).
175
Netherlands, Dutch Tax Administration (2011).
52
societal and political pressure led Minister of Interior to cancel the database and announce
the destruction of the already stored fingerprints.176
A condemnation by the DPA of the policy of the city district Charlois (in Rotterdam) to
register the ethnic background of problem youths has elicited a debate in the Netherlands
about the use and misuse of ethnic registration.177 The local authorities and social workers in
Rotterdam say it is important to keep those records on ethnicity so they can cater for the
specific needs of the youngsters. 178 The DPA is not convinced: the authorities could not offer
any hard evidence that ethnic registration really worked.
3.1.8
No relevant information to report.
3.1.9
Though net neutrality was accepted on 21 June 2011 in a law proposal (see paragraph 3.1.2),
providers still use techniques like DPI. It will be interesting to learn the findings of the DPA
and the relation with privacy law. See above.
There have been several instances of data leakage and data misuse within various
government institutions. See also above: DigiD. Dutch government has taken initial steps
towards resolving and preventing these incidents from happening. During a debate in
Parliament many parties asked for further measures.
3.2
Developments regarding body scanners
3.2.1
Security scans were first introduced on Schiphol Airport on 15 May 2007.179 After the failed
bomb attack on 25 December 2009 by a man who passed Schiphol security, the Minister of
Justice announced the introduction of Bodyscans for flights on the US. 180
Since, few political parties disputed the use of bodyscans,181 nor has the issue raised fierce
public debate.
3.2.2
53
176
Netherlands, Minister of Interior and Kingdom Relations (2011b)
177
The Netherlands, Dutch Data Protection Authority (2011b)
178
Hoogstad, M. (2011)
179
Netherlands, Ministry of Finance (2007).
180
181
Netherlands, House of Representatives (2010).
53
3.2.3
National case law
3.2.4
3.2.5
3.2.6
3.2.7
3.2.8
3.2.9
3.3
Developments regarding Passenger Name Records and
data exchange applying the SWIFT banking system
3.3.1
On 25 March 2011, the Dutch Commission for the Justice and Home Affairs (JHA) Council
(Commissie voor de JBZ Raad) of the Senate posed the Dutch Minister of Security and Justice
some critical questions about the SWIFT Agreement, better known as the Terrorist Finance
Tracking Programme (TFTP) Agreement. The Committee asked the Minister to clarify why
two evaluation reports, published by the EC and the Europol Joint Supervisory Body (see
section 3.3.5), seemed to have reached contradicting conclusions concerning the role of
Europol.182 The TFTP gives the The Hague-based Europol a specific role to check whether
requests from the US Treasury Department for SWIFT data comply with the terms of the
TFTP Agreement. The EC report had concluded that the data protection provisions and
systems which have been put in place meet the requirements of the agreement.183 The
report of Europol Joint Supervisory Body (JSB) inspection team had been less positive.184 It
had concluded that the written US requests for data transfers that Europol received were
too general and too abstract to allow proper evaluation. Despite this, Europol had approved
54
182
Netherlands, Commission for the Justice and Home Affairs Council (2011).
183
184
Europol JSB (2011).
54
each request it received. Orally-provided ‘off the record’ information had played a role in
Europol’s verification of each request. This kind of procedure prevented JSB from checking
whether Europol had rightly come to its decisions. The Minister replied to the Senate on 6
April 2011.185 He stated in his letter that it was not his responsibility to provide comments or
clarifications for possible differences between both evaluation reports. The Minister also
contradicted the statement in the NRC Handelsblad newspaper article that SWIFT banking
data would be made available to the US authorities as part of the judicial assistance
agreement between the Netherlands and the US.186 According to the Minister, banking data
are only provided in individual criminal cases. These requests under the judicial assistance
agreement are treated by the Public Prosecutor, in line with the Code of Criminal Procedure.
Concerns about the findings of JSB were also uttered by the Liberal Party (VVD), during a
parliamentarian meeting on counterterrorist policies on 7 April 2011. The VVD pressed the
Minister of Security and Justice to “thump the table” in the next meeting of the JHA Council
and demand that the guarantees and restrictions concerning data protection, agreed upon
by the European Parliament in February 2010, are being honoured.187 The Minister answered
that the execution of the TFTP agreement is first of all a European issue and not the
responsibility of the Netherlands. Therefore, a reaction on the reports should first come
from Europol and the EC. The Democrats (D66) referred to the evaluation study of Dutch
anti-terrorist measures (see section 3.3.5) and pressed that a next evaluation should be
performed by an independent body. Further on, D66 argued that measures that are
executed on a European level, such as SWIFT and PNR, should be evaluated in their
European context.
The Netherlands wants to play an active lead in the development of the alternative
European terrorist finance tracking programme (EU-TFTP), the Minister of Security and
Justice stated on 7 April 2011.188 On 15 September, the state secretary of Foreign Affairs
presented the House of Representatives a BNC file (BNC-fiche). This file was drawn up by the
Dutch working group for the Assessment of New Commission Proposals (Beoordeling Nieuwe
Commissievoorstellen, BNC). The BNC file stated that although the Netherlands is positive
about participating in the development of the EU-TFTS, there are a number of legal and
practical questions and considerations that have to be resolved, before draft legislation can
be taken into consideration. Among other things, the Netherlands asks for further
justifications about the necessity, the proportionality and the costs of such a system. It also
demands the Joint Committee to investigate issues concerning the protection of
fundamental rights.189
On 18 July 2011, the State Secretary of Security and Justice attended an informal meeting
between European Ministers of Interior Affairs. On the agenda was a presentation of the
outcomes of the negotiations between the EU and the US on the transfer of PNR data to the
US for law enforcement purposes. The Dutch State Secretary objected strongly to the
agreement on two important points.190 The first objection concerned the retention of data.
The US wants to retain data for 15 years, while the Netherlands favours a maximum of 5
years. Further on, the Netherlands demand that the US can only use the data in criminal
offences with a minimum sentence of 4 years, in contrast to the 1 year minimum sentence
the US asked for. The Minister of Security and Justice updated the House of Representatives
55
185
Netherlands, Minister of Security and Justice (2011).
NRC Handelsblad (2011).
187
Netherlands, House of Representatives (2011a).
188
Idem.
189
Netherlands, Secretary of State of Foreign Affairs (2011).
190
De Volkskrant (2011).
186
55
on 31 October, stating that the renewed negotiations with the US are still continuing. The
differences concerning retention and severity/nature of crime are not yet resolved.191
The Netherlands takes a positive stance towards the plans to create a European system for
the exchange of PNR data. In a letter to the House of Representatives dated 17 June 2011,
the Minister of Security and Justice stated that the government is in favour of the proposal
for a EU PNR Directive that the EC presented in February 2011.192 The Minister emphasised
that this proposal is still subject to discussion on a European level. 193 One of the points of
discussion was the inclusion of flights within the EU. The Netherlands declared that it first
wants to gain experience with the collection of data on external flights.194 Other points of
consideration are proportionality, data protection, retention and costs. The Minister
promised to keep the House of Representatives updated about the process.195 The
Democrats (D66) and the Liberal party (VVD) said to welcome the critical stance of the
government towards the PNR negotiations with the US. The D66 and VVD parliamentarians
urged the government to also take such a critical attitude in the process towards a European
system.196
3.3.2
The Netherlands has not yet enacted legislation for setting up a PNR system. Pending since
20 October 2008 is an amendment to the Personal Data Protection Act (Wet bescherming
persoonsgegevens, Wbp) on the delivery of PNR data of air companies to the US.197 The
amendment has been discussed in the House of Representatives, but a vote has not yet
been placed on the agenda.
3.3.3
National case law
3.3.4
3.3.5
The government evaluated the measures that the Netherlands took between 2001 and 2010
to combat terrorism. 198 In the context of this evaluation, researchers from the Radboud
University Nijmegen looked at six antiterrorism measures specifically from the perspective of
fundamental rights. Analysis based on the case law of the European Court of Human Rights
did not lead to the conclusion that the legal basis, provisions or application of any of the
56
191
Netherlands, House of Representatives (2011b).
192
Netherlands, Minister of Security and Justice (2011b).
193
Idem.
194
Netherlands, Ministers of Security and Justice, of Interior and Kingdom Affairs, and for Immigration and
Asylum and the Secretary of State of Security and Justice (2011).
195
Netherlands, Minister of Security and Justice (2011b).
196
197
Netherlands, Minister of Security and Justice and Minister of Interior Affairs and Kingdom Relations (2008).
198
Netherlands, Central Government (2011).
56
measures definitely implied the violation of fundamental rights. However, with respect to
some measures the researchers claimed that there was a latent risk of the convention being
violated, particularly as regards specific elements of measures and depending on the
application of measures and relevant circumstances in individual cases. PNR and TFTP
(terrorist finance tracking program) were mentioned shortly. In the debate concerning the
development of measures that relate to the collection of information on persons who are
not suspects (such as PNR and TFTP), complete transparency needs to be exercised as
regards the aim and the intended impact of these counterterrorism measures. According to
the researchers, these aspects have not always been sufficiently emphasised in the past ten
years. As a consequence, in the counterterrorism debate security and privacy have wrongly
been considered to be mutually exclusive. They concluded that this is a matter that requires
constant attention if counterterrorism is to continue to have support and legitimacy.
3.3.6
3.3.7
3.3.8
3.3.9
In the European processes of developing a EU-TFTP, a EU-PNR and an agreement with the US
on PNR data delivery, the Netherlands have pointed out specific concerns and preconditions
towards their international partners (see section 3.3.1). It is a challenge for the Netherlands
to see that in these processes, these questions are answered and preconditions are met.
3.4
Developments regarding Google and online social
media
3.4.1
3.4.2
3.4.3
National case law
See annex 4.
57
3.4.4
3.4.5
3.4.6
3.4.7
Google had collected data through its Street View cars about approximately 3.6 million wifirouters in the Netherlands. It did this between March 2008 and May 2010. Google had
calculated a location for each wifi router and thus violated the Data Protection Act according
to the DPA in her judgment on 19 April 2011.199 The DPA said that MAC-addresses in
combination with a location are personal data because they may provide information about
the owner of the wifi router. The DPA says Google will discontinue its unlawful data
collecting practices, in addition it will comply to the DPA’s administrative orders by providing
WIFI-users an on and off line opt-out for router access and by erasing the SSID’s collected
until now.
On 30 September 2011 the news site Nu.nl published an article about Facebook.200 It had
asked political parties about news concerning privacy violations by Facebook in the days
before. Facebook was accused of following users even after logging off. A majority of the
House of Representatives supported the idea to look further into Facebook and its appliance
to new privacy law. The parties also supported the idea to ask the Cabinet for a vision about
these issues.
3.4.8
3.4.9
58
199
Netherlands, Dutch Data Protection Authority (2011e).
200
Nu.nl (2011).
58
3.5
3.5.1
Status of data protection authorities and enforcement
Data protection
institutions
2009
2010
Human resources of data
protection authority
In
2009,
the
comprised
of
201
employees.
Financial resources of data
protection authority
In 2009, the budget of the
DPA was 7,631,000 euro.
The
expenses
were
7,285,000, and the amount
of income was 17,900.203
Therefore, there was a
positive
balance
of
363,900.
205
Institutional independence
of data protection authority
DPA In 2010, the
90 comprised
of
202
employees.
DPA
88
In 2010, the total
budget of the DPA was
7,679,000 euro. The
expenses
were
8,129,000 euro, and the
income
was
2,600
euro.204 Therefore, there
was a negative balance
of 447,400 euro. The
budget
will
be
decreased the following
years,
due
to
government cuts.
The DPA is independent in
the performance of its No changes since 2009.
tasks (art.52 (2) PDP Act).
However, in performing
these tasks, the DPA is
bound
by
legislation
applicable
for
governmental institutions.
The Authority comprises of
a Commission, with a
chairperson and two other
members. The chairperson
is appointed by royal
decree, on the proposal of
the Minister of Justice, for
a six-year term. The other
two members and the
special members are also
appointed by royal decree,
59
201
Netherlands, Dutch Data Protection Authority (2011f).
202
Idem.
203
Idem.
204
Idem.
59
on the proposal of the
Minister, for a four-year
term. The members can be
reappointed immediately
thereafter. At their own
request, they can be
discharged by the Minister
of Justice (art.53 (3))
206
Development of mandate
of data protection authority
Range
of
sanctions
(including
compensation
payments) in data protection
cases (not just cases of data
protection authority, but
also courts etc.)
In
2009,
the
DPA
emphasized its monitoring
role in supervising if parties
were in compliance of the
PDP Act.207 It therefore
stipulated that it would
have a limited mandate.
In 2010, the DPA has
persistently emphasized
the need for the
extension
of
its
authority
to
give
(higher) fines in case of
a violation of privacy.
Although
not
yet
officially implemented
into legislation, the
government now shares
this view.208 This will
increase the role of the
DPA in the privacy
discussion.
The DPA is authorised to No changes since 2009.
give both administrative
measures
and
administrative
fines.
Administrative fines have a
maximum amount of 4500
euros. Furthermore, penal
sanctions may be imposed.
When parties act against
provisions laid down by or
under Articles 4(3), 27, 28
or 78(2)(a), they shall be
punished with a fine in the
second category. Parties
that deliberately commit
an offence under these
articles, will be punished
with a prison sentence for
a maximum of six months
or a fine in the third
category.
60
207
208
Netherlands, Dutch Data Protection Authority (2010b).
Netherlands, Dutch Data Protection Authority (2011g).
60
Number
of
sanctions
(including
compensation
payments) in data protection
cases (not just cases of data
protection authority, but
also courts etc.)
3.6
DPA: 26 sanctions209
DPA 37 sanctions210
Important information not covered above
61
209
Netherlands, Dutch Data Protection Authority (2010b).
210
Netherlands, Dutch Data Protection Authority (2011f).
61
Official exact title
EN
Official title
NL
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65
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verwerking en overdracht van persoonsgegevens
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luchtvaartmaatschappijen aan het Ministerie van
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69
4
THE RIGHTS OF THE CHILD AND PROTECTION
OF CHILDREN
4.1
Physical, psychological and sexual abuse, in particular
in institutional settings
4.1.1
In order to combat and prevent abuse, an action plan, including a public awareness raising
campaign, on child abuse has been launched in 2008 and is still running (see promising
‘good’ practice, section 4.1.6). There are Advice and Registration Points Child Abuse (Adviesen Meldpunten Kindermishandeling, AMK) (see section 4.6.1) and a project called Regional
Approach Child Abuse (see promising ‘good’ practice, section 4.1.6).
In April 2011, the public prosecutor’s office, the police and Youth Care the Netherlands
(Jeugdzorg Nederland) signed a protocol on cooperation in child abuse cases.211 The protocol
is intended to improve the cooperation between the different institutions and to involve the
police more frequently in child abuse cases in order to strengthen the criminal approach.
In October 2010, the public prosecutor’s office adopted a new circular on the investigation
and prosecution of child abuse in order to effectively use criminal law when combating child
abuse.212 The instrument deals with the tasks of the different professionals who play a role
in the fight against child abuse and introduces compulsory registration of child abuse cases
for the police and the public prosecutor’s office. Before, there was no separate code for
child abuse in the registration systems of the police and the public prosecutor’s office and it
was therefore not possible to extract reliable data from the systems.213
A new circular on the investigation and prosecution of sexual abuse entered into force and
was adopted in January 2011.214 The circular pays special attention to the professional
treatment of victims and informants.
In July 2010, a special commission (Commissie-Samson) was established to start an
independent investigation into sexual abuse of minors (including intellectually disabled
minors) placed in institutions or foster families, under the responsibility of the
government.215 The commission investigated the nature and extent of sexual abuse in the
period 1945 till present, and it investigated the knowledge and response of the government
to these cases. Following its research update published in June 2011 – in which the
commission analysed the 500 notifications it received – the commission announced it was
shocked by the nature, duration and frequency of the sexual abuse cases reported to the
commission.216 Its final report is expected mid-2012.
70
211
www.samenwerkenvoordejeugd.nl/nl/Actueel/Nieuwsberichten/2011/Protocol-voor-effectievesamenwerking-aanpak-kindermishandeling.html
212
Netherlands, Public Prosecutor’s Office Circular Child Abuse (Aanwijzing opsporing en vervolging inzake
kindermishandeling).
213
Netherlands, Parliamentary Documents II, 2010-2011, 31015, no. 55, p. 2.
214
Netherlands, Public Prosecutor’s Office Circular Sexual Abuse (Aanwijzing opsporing en vervolging inzake
seksueel misbruik).
215
See: www.commissiesamson.nl/
216
Commissie Samson, Press release 22 June 2011. Available at: www.commissiesamson.nl/pers/ .
70
4.1.2
In June 2011 a proposal was submitted for advice to the Council of State concerning a law on
the obligatory reporting of domestic violence and child abuse (wetsvoorstel verplichte
meldcode huiselijk geweld en kindermishandeling).217 The proposed act prescribes that
professionals in care-, youth- and police institutions are obliged to report signs of domestic
violence and child abuse. The reporting must be done in a systematic way, which should
make it easier for professionals to report and provide clear registration.
With a view to improving child protection measures, the amendment of, among others, the
Youth Care Act has been proposed.218 The proposal further delineates the tasks of the Youth
Care Bureaus (Bureaus Jeugdzorg), Child Protection Board (Raad voor de Kinderbescherming)
and the judge of the juvenile court and further clarifies the aims of youth care supervision.
The position of the real carer of the child will be strengthened. The proposal has been
adopted by the House of Representatives in March 2011 and still has to be approved by the
Senate.219
4.1.3
National case law
No relevant case law could be found.
4.1.4
The following statistics are data of the Advice and Registration Point Child Abuse (ARC) (see
also section 4.6.1). Individuals and professionals in all sectors can contact the ARC for advice
and to report child abuse. The ARC registers the numbers of first contact with the ARC and
subsequently whether advice was given or an investigation was started.
Table 4.1 Number of first contacts per year
Type of
Contact
Advice
Investigations
Total first
contacts
Increase i.r.o
previous year
2004
2005
2006
2007
2008
2009
2010
24,241
9,820
34,061
26,712
11,340
38,052
27,929
13,815
41,744
33,643
16,932
50,575
36,790
16,156
52,946
42.849
16,587
59,436
43.925
18,076
62,001
12%
10%
21%
5%
12%
4%
Source: Advice and Registration Point Child Abuse (2011).
71
217
Netherlands, Ministry of Health, Welfare and Sport, Press release 20 May 2011.
218
Netherlands, Parliamentary Documents I, 2010–2011, 32 015, A.
219
For the recent state of affairs, see: www.eerstekamer.nl/wetsvoorstel/32015_verbetering
71
Table 4.2 Type of abuse (in percentages) 2010
Advice
Investigations
Total
Physical abuse
10,41%
8,70%
9,61%
Physical neglect
6,20%
7,35%
6,74%
Psychological
violence
10,01%
9,51%
9,77%
Emotional neglect
12,95%
13,27%
13,10%
Sexual abuse
5,35%
2,24%
3,89%
Witness of
domestic violence
9,21%
21,72%
15,07%
Münchhausen-byproxy
0,44%
0,16%
0,31%
Educational
neglect
22,95%
26,66%
24,69%
Other
19,94%
10,05%
Source: Advice and Registration Point Child Abuse (2011).
4.1.5
15,31%
The Dutch Security Board (Onderzoeksraad voor de Veiligheid) published a research report
on the physical safety of the young child.220 The main question the report seeks to answer is:
How does the government fulfil its responsibility regarding the physical safety of young
children when parents fail to do this; what improvements are possible? The report consists
of a thematic study into 27 cases of child abuse with fatal consequences in the period
between 2004 and 2007. The Security Board found that the government cannot fulfil its
responsibility for the physical safety of children under the current circumstances, because of
the following reasons:
1. The responsibility of parents prevails and professionals are not obliged to cooperate.
2. The professionalism in the child safety system is insufficient for carrying out the
responsibility for the risk inventory and evaluation.
3. Professionals, in particular in health care, who are confronted with children with injuries
in the initial stage, often exercise restraint with regard to reporting suspicions of physical
danger. The Security Board recommended that the government ensures improvement of
these three points, among others, by improving the exchange of information and
cooperation between professionals in the different disciplines, by better equipping the child
safety system and by stimulating the reporting of (suspicions of) physical danger for young
children and by offering a reference framework for these reports.
220
72
Dutch Security Board (2011).
72
The Health Council of the Netherlands (Gezondheidsraad) produced an advisory report on
the treatment of the effects of child abuse.221 One of its findings is that there are many
institutions involved in the care of child abuse victims but that the various health care
domains (social services, youth care services, child healthcare, youth mental health care, and
the regular health care system) do not always interact with one another as effectively as
they should. Therefore, the Health Council urged that care development be directed towards
an integrated approach. This would involve intensive, multidisciplinary collaboration
between caregivers and agencies at key moments in care.
Leiden University published its second National Prevalence study of Maltreatment of
youth.222 It concerns a follow-up of the study conducted in 2005, which constituted the first
systematic, nation-wide effort to examine the prevalence of child abuse and neglect (CAN) in
the Netherlands.223 The main questions of this research are whether the estimates of the
CAN prevalence rates in 2010 were different from 2005 and whether the risk factors
remained unchanged. The study is based on pupil surveys, informant surveys (consisting of
professionals working with children, and recruited from various health care, child care and
educational institutions in society), and formal registrations of the Advice and Registration
Point Child Abuse (see section 4.6.1). Based on the latter two, it is estimated that in 2010
there were 34 cases of maltreatment per 1,000 children. In 2005 this was 30 per 1,000. The
majority suffered from neglect, in particular physical neglect, educational forms of neglect or
emotional neglect (which includes being a witness to domestic violence). The researchers
found that even though the number of reports of child abuse increased, it cannot be
concluded automatically that the actual number of victims increased. The growing political
and public attention for child abuse in the last couple of years presumably raised awareness
of child abuse and could thus account for the higher number of registrations. The risk factors
(very low education of the parents, unemployment, newly arrived-immigrant origin, single
parenthood, and families with more than three children) remained roughly the same. In
conclusion, the researches stated that despite the growing political and public attention for
child abuse, there has been no decrease of child abuse and neglect. They believe that more
structural investments in fighting child abuse are needed, for example by providing for
generally available parenting support and training. In addition, they call once more for
repeated prevalence studies –like this Dutch study – at the European level, in order to gain
insight in the effects of national policies on the prevalence of child abuse.
Another report published on the topic of child abuse is a study commissioned by the Dutch
Research
and
Documentation
Centre
(Wetenschappelijk
Onderzoeken
Documentatiecentrum, WOCD). The study investigated the use of criminal law in cases of
child abuse and neglect.224 The report concluded that one third of all complaints of child
abuse filed with the police lead to a conviction. The article in the criminal code which makes
it possible to raise the penalty with one third in case the abuse is against one’s own child, is
not systematically used by the public prosecutor in the regarding cases. Yet, prosecutors and
judges do pay attention to that fact when determining the penalty (which leads to a higher
penalty). In addition, it was found that a better system of registration of complaints of child
abuse and neglect is needed. It appeared very difficult to collect the complaints from the
police registration system and to follow each case in the registration system used for
prosecution.
73
221
Netherlands, Health Council of the Netherlands (2011).
222
Alink et al. (2011).
223
Van IJzendoorn, M.H. et al. (2007).
224
Van Vianen, R.T. et al. (2010).
73
4.1.6
No relevant good practices were found.
4.1.7
In December 2010 the police in Amsterdam uncovered cases of sexual child abuse in several
child care centres in Amsterdam. The arrest of the main suspect led to the arrests of several
other paedophiles. This case has received a lot of attention from the media and led to a
public debate about how to prevent child abuse and how to keep paedophiles away from
work places like child care centres.225 One of the central questions in this debate was
whether the existing laws suffice or more specific legislation is needed.226 A commission
(commissie Gunning) was set up to investigate the causes of this case and to make
recommendations on how to prevent child abuse in child care centres. This commission
issued its report in April 2011.227 It concluded that there was no adequate response to
signals of sexual abuse, due to a lack of cooperation and communication between the
different institutions (the child care centres, social services, and police) and the fact that
individual actors did not always perform in line with their tasks and responsibilities. The
commission presented many recommendations, including more attention for the recognition
of signals of child abuse, always having two employees supervising a group of children,
higher educated child care centre employees, and stricter selection procedures when hiring
employees and improving the supervision of authorities.
This case has led to a renewed public debate about the Dutch association Martijn. Martijn is
an association that advocates for the social and legal acceptance of relationships between
adults and children. Eight board members have been convicted of illegal activities (including
sexual child abuse).228 On 18 June 2011 the public prosecutor’s office announced that
Martijn's activities are not illegal under Dutch law and it is impossible to prosecute or to ban
Martijn.229 Although individual members have been suspected or convicted of illegal
activities, the crimes were not committed as part of the activities for the association. In July
2011 , a lawyer filed a complaint with the Court of Appeal, in order to force the public
prosecutor to prosecute.230 In September, the Minister of Justice announced that the public
prosecutor will investigate the possibilities of a civil procedure.231 A citizen's initiative was
organised to collect signatures to include a ban of Martijn on the agenda of the Dutch
Parliament. On 6 September 2011, the Dutch Parliament received a petition calling for a ban
on Martijn. It was signed by around 72,000 people.232 A possible ban on Martijn has been
criticised as a violation of the right of association.233 On 18 October 2011, the association’s
chairperson was convicted for the possession of large amounts of child pornography.234
Subsequently, the public prosecutor’s office announced that it will continue to investigate
the possibilities of abolishing the association.235
74
225
Den Blijker, J. (2010); Effting, M. and Stam, J. (2010); NRC Handelsblad (2010).
Van der Zon, K. and Van Rest, A.(2011).
227
Commissie Onderzoek Zedenzaak Amsterdam (2011).
226
228
http://rtl.nl/(/actueel/rtlnieuws/binnenland/)/components/actueel/rtlnieuws/2011/06_juni/21/binnenland/best
uursleden-martijn-strafblad.xml
229
Netherlands, Public prosecution Service (2011a)..
230
Netherlands, Parliamentary Documents II, 2010–2011, 32500-VI, no. 121.
231
Ibid.
232
Parool (2011).
233
Sargasso (2011).
234
Stoker, E. (2011).
235
Netherlands, Public prosecution Service (2011b)..
74
A Dutch television programme broadcasted a show about Brandon, an 18-year old boy with
a mental disability, which sparked public debate.236 The programme showed images of
Brandon chained to the wall of his room in a psychiatric institution. Brandon lived like this
for three years because the staff was afraid of his unpredictable behaviour. In the media
experts discussed how to improve the treatment of mentally disabled people like
Brandon,237 and the issue led to a heated debate in Parliament.238 Subsequently, the
Minister of Health sent a letter to Parliament in which she promised to improve the situation
of Brandon. She also promised to monitor cases like Brandon’s and to establish a think tank
to come up with recommendations.239
4.1.8
The number of first contacts (requests for advice and reports leading to investigations) with
the Advice and Registration Point Child Abuse steadily increased from 2004 to 2010 (Table
4.1). It follows from the National Prevalence study of Maltreatment of youth (section 4.1.5),
that there has been no decrease of child abuse and neglect between 2005 and 2010.
4.1.9
Despite the growing political and public attention for child abuse, there has been no
decrease of child abuse and neglect. The main obstacle in combating – but also in treating
the effects of – child abuse (including sexual abuse) seems to be the lack of cooperation and
communication between different institutions and professionals. The government is working
on this problem e.g. through implementation of the RAAK-approach (section 4.1.6) and it is
planning a law on the obligatory reporting of domestic violence and child abuse (section
4.1.2), but it remains an issue that requires special attention.
In addition, research showed that a better registration system of complaints of child abuse is
needed, since it appeared very difficult to collect the complaints from the police registration
system and to follow each case in the registration system used for prosecution. We came to
the same conclusion when trying to collect the figures from the police requested by FRA in
table 4.5; most figures were not systematically registered at the national level and thus not
available. For child abuse this should change with the introduction of a separate code in the
registration systems of the police and the public prosecutor’s office (see section 4.1.1).
4.2
Abuse, including violence, in the context of new
technologies
4.2.1
There are two registration points where information about child pornography or other
abusive activities concerning children on the internet can be reported, these are the Cyber
75
236
EO (2011).
237
Abma, T. et al. (2011); Gerrits, S. (2011); Timmerman, M. and Van Toor, D. (2011); Van Aalsum, S. (2011).
238
Netherlands, Parliamentary Documents II, Handelingen II 2010/2011, no. 41 item 5, pp. 43–59.
239
Netherlands, Ministry of Health, Welfare and Sport, letter to parliament of 8 March 2011.
75
Crime Reporting Website (Meldpunt Cybercrime)240 and the Hotline combating Child
Pornography on the Internet (Meldpunt Kinderporno op Internet).241 The latter resulted from
a private initiative of internet users and providers, which redirects cases to the police, while
the former is a formal police internet reporting site. The Hotline combating Child
Pornography on the Internet has, together with other foundations, taken steps to develop
an online tool (Meldknop) through which people who are confronted with sexual abuse or
related practices on the internet can report.242
Whereas the European Commission‘s Proposal for a Directive on combating sexual abuse,
sexual exploitation of children and child pornography (COM 2010/094) envisages national
mechanisms to block access to websites with child pornography, the Minister of Security and
Justice announced that he will not make this mandatory for internet service providers (ISP’s).
This decision was based on an advice by the Platform Internet Safety (Platform
Internetveiligheid). This Platform, consisting of public and private members, argued that the
blacklist of child porn websites which ISP’s had been using since 2008 had a limited scope. In
addition, filtering and blocking websites is too costly and time-consuming for ISP’s in
proportion to the outcomes that are to be expected. The initial goal for filtering and blocking
websites was to prevent internet users from accidently running into websites containing
child porn. Since child porn on the internet is now generally hard to gain access to, this goal
is no longer relevant. Moreover, blocking websites will not hinder anyone searching for
online child porn.243
4.2.2
See section 4.3.2.
4.2.3
National case law
No cases found.
4.2.4
4.2.5
4.2.6
4.2.7
76
240
www.meldpuntcybercrime.nl/
241
www.meldpunt-kinderporno.nl/default.htm
242
Netherlands, Parliamentary Documents II, 2010-2011, 32500-VI no. 86, p. 6.
243
76
4.2.8
4.2.9
The main challenge for the police lies in dealing with the many child pornography reports it
receives from Hotline combating Child Pornography on the Internet (see section 4.3.9).
4.3
Sexual exploitation and child pornography
4.3.1
As from 2009, the government awarded high priority to the fight against child pornography.
The former Minister of Justice installed the Task Force Child Pornography and Child Sex
Tourism (Taskforce kinderporno en kindersekstoerisme)244 and a National Expertise Centre on
Child Pornography (Landelijk Expertisecentrum Kinderporno) was set up by the public
prosecutor’s office.245 Both are still active. In 2008, the police started a special programme to
improve its approach to child pornography (Programma Verbeteren Aanpak Kinderporno,
PVAKP). This programme has been extended and started its second phase end 2010. One of
its main aims is to reduce the enormous backlog of cases.246
An internal report on the functioning of the police with regard to child pornography cases
published in March 2011 revealed that there are great differences between the regional
police units and that most have insufficient capacity to investigate child pornography and
child sex tourism.247 In response to this report the Minister of Justice promised to arrange
more capacity (75 extra policemen) and a national approach to child pornography that
would ensure the quality of all regional police units.248
In December 2010, the public prosecutor’s office introduced a new circular on the rules
concerning the investigation and prosecution of child pornography suspects.249 The
instrument contained guidelines on how to deal with the new provisions in the criminal code
(see below section 4.3.2).
The mandate of the National Rapporteur on Trafficking in Human Beings (Nationaal
Rapporteur Mensenhandel) was extended in 2009 to include reporting on efforts to address
child pornography.250 It was announced that the Rapporteur will start reporting on the
nature and scale of child pornography in the Netherlands as from 2011. She published her
first report on the nature and scale of child pornography in the Netherlands on 12 October
2011.251 The main conclusion of the report is that the government fails to adequately tackle
sexual violence against children. As a main cause for this, the report points to the fact that
77
244
Netherlands, Ministry of Justice (2009).
245
Netherlands, Parliamentary Documents II, 2009–2010, 32 123 VI, no. 120, p. 1-2.
246
247
Netherlands, Board Heads of Regional Police units (2011).
248
Netherlands, Parliamentary Documents II, 2010-2011, 32500-VI, no. 106.
249
Netherlands, Public Prosecutor’s Office Circular Child Pornography (Aanwijzing Kinderpornografie).
250
Netherlands, Dutch National Rapporteur Trafficking in Human Beings (2010), p. 22.
251
Netherlands, Dutch National Rapporteur Trafficking in Human Beings (2011).
77
the current policy on combating child pornography is not linked to the policy on sexual
violence.252
4.3.2
In March 2010, the Netherlands ratified the Council of Europe Convention on the Protection
of Children against Sexual Exploitation and Sexual Abuse.253 In anticipation of the ratification,
the criminal code has been amended. In January 2010, article 240b of the Dutch Criminal
Code, which prohibits the production and dissemination of child pornography, has been
extended to include gaining access to child pornography, as well as offering and acquiring
child pornography. At the same moment, additional aggravating circumstances for several
articles on sexual offences were included in article 248 of the Criminal Code. Moreover,
article 248 section d was added, which explicitly criminalises letting a child watch sexual
abuse or sexual acts and article 248 section e which prohibits grooming.254
4.3.3
National case law
No relevant case law was found.
4.3.4
Table 4.3. Public prosecutor‟s office data on child pornography
2006
2007
2008
2009
2010
Inflow public
410
380
390
450
480
prosecutor‟s
office
Outflow public
prosecutor‟s
office
Prosecutions
Convictions
430
370
380
420
510
330
300
340
250
Source: Public prosecutor’s office (2011).
300
270
330
240
400
320
‘Inflow’: total number of cases referred to the public prosecutor’s office by the police and other
investigation institutions.
‘Outflow’: total number of completed assessments (e.g. prosecution, settlement penalty, no
action).
4.3.5
MOVISIE, the Netherlands Centre for Social Development, presented a trend report on
sexual violence, in which experts were interviewed.255 The report covers the topic of sexual
violence from many different angles and thus contains a variety of issues. With regard to
child pornography, abuse and sexual exploitation, some experts stated that the integral
78
252
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=201&CM=8&DF=19/05/2010&CL=ENG
254
Act Implementing the Council of Europe Convention on the Protection of Children against Sexual Exploitation
and Sexual Abuse (Wet uitvoering van het te Lanzarote tot stand gekomen Verdrag van de Raad van Europa
inzake de bescherming van kinderen tegen seksuele uitbuiting en misbruik).
255
MOVISIE (2011).
253
78
approach – the combination of prevention, aid work, the criminal approach and after-care
and cooperation between professionals and institutions in this respect – has started off well.
One of MOVISIE’s concluding observations in general is that government and care
institutions still lack a structural way to tackle sexual violence. There is large gap between
knowledge and practice and the implementation of methods and instruments appears
complicated.
4.3.6
4.3.7
4.3.8
In 2010, the public prosecutor’s office received and completed more child pornography
cases than the years before (Table 4.3). This seems to indicate that both the public
prosecutor’s office and the police gave higher priority to child pornography. However, the
police does have an enormous backlog of cases.256
4.3.9
The provision of sufficient capacity within the police to investigate child pornography and
child sex tourism. The Minister of Justice made a commitment to solving this problem (see
section 4.3.1).
Second, it follows from the reports briefly discussed in section 4.3.1 and 4.3.5 that the
government fails to adequately tackle sexual violence against children. According to the
National Rapporteur on Trafficking in Human Beings, an integral approach – the policy on
combating child pornography as part of the general policy on sexual violence – is required.257
4.4
Implementation of the European Commission Action
Plan on Unaccompanied Minors
4.4.1
For an elaborate overview until 2010 we refer to the report Unaccompanied minors in the
Netherlands of the Dutch National Contact Point for the European Migration Network
(EMN).258 Below the main issues and developments on the Dutch policy in respect of
unaccompanied minors will be dealt with.
79
256
257
Netherlands, Dutch National Rapporteur Trafficking in Human Beings (2011), p. 267.
258
INDIAC (2010).
79
By the end of 2009, the then State Secretary of Justice (at the time responsible for
immigration and asylum policy) announced a revision of the policy on unaccompanied
minors,259 and preparations for implementation of this policy were confirmed by the current
minister in December 2010.260 The intended reforms focus on a speedy return of
unaccompanied underage asylum seekers (hereafter: UUAs), who are not eligible for asylum
and concern plans to do away with the special regular residence permit for unaccompanied
minors.261 This permit is currently granted to unaccompanied minors who are not eligible for
asylum, but can also not be sent back to their country of origin for lack of adequate
accommodation. Defence for Children opposed to the plan.262 It alleges that it will lead to a
new group of undocumented minors, which would be contrary to the International
Convention on the Rights of the Child (CRC).
According to the government, its (intended) policy reforms on the speedy return of UUAs
are important, among others, in order to prevent unaccompanied minors being trafficked.263
Prevention of trafficking is one of the main topics in the European Commission’s Action Plan
on Unaccompanied Minors.264 In this respect, the Netherlands entered into a cooperation
with other European countries which focuses on detecting parents of UUAs and prevention
of situations of trafficking by providing information and education in the countries of origin
on the dangers of irregular migration.265
In March 2011, the Minister of Immigration and Asylum – following the decision of the
Amsterdam Court on 13 October 2010 (see below section 4.4.3), and repeated calls from
parliamentarians and civil society – announced that the detention of UUAs will be
restricted.266 Detention will be allowed only when the government has compelling interests
requiring the availability of the unaccompanied minor, such as suspicion or conviction of a
crime.267 Unaccompanied minors who are no longer eligible for detention will be placed in
the existing reception centres for unaccompanied minors under custody of Nidos, the
organisation that is responsible for the appointment of legal guardians for UUAs.
4.4.2
4.4.3
National case law
4.4.4
For disaggregated data on the number of unaccompanied minors claiming asylum see table
4.5 and annex 4.2 (and annex 4.4 for explanation on data).
80
259
Netherlands, Parliamentary Documents II, 2009-2010, 27062, no. 64.
260
Netherlands, Parliamentary Documents II, 2010-2011, 27062, no. 67.
261
Netherlands, Ministry of Immigration and Asylum (2011).
262
Defence for Children, (2011).
263
Netherlands, Parliamentary Documents II, 2010–2011, 32 317, no. 63, p. 12.
264
265
The Netherlands, Parliamentary Documents II, 2010–2011, 32317, no. 63, p. 12.
266
The Netherlands, Parliamentary Documents II, 2010-2011, 27062, no. 68.
267
Ibid.,pp. 2-3.
80
4.4.5
The Dutch Inspectorate for Youth Care (Inspectie Jeugdzorg) issued a report on the way in
which Nidos, the organisation responsible for the appointment of legal guardians for UUAs,
exercises its tasks.268 The research consisted of 20 case studies. The inspectorate found that
the guardians act in the best way possible, given the complex situation in which they
operate. Yet, some points could be improved. These include, among others, frequent
contact, collecting information about the UUA and risk assessment during the UUA’s first
weeks in the Netherlands, and providing information about the available complaints
procedure. The inspectorate identified two obstacles influencing the guardians’ operations,
and brought these to the attention of the Minister of Immigration and Asylum.269 Firstly, the
status determination procedures take too long. UUAs reside in the Netherlands, for a long
period, without certainty about their future and this is not in their best interests. Secondly,
Nidos is competent to decide on the accommodation of an unaccompanied minor, but is
dependent on the places available with the Central Agency for the Reception of Asylum
Seekers. The inspectorate is concerned about the development of UUAs within the provided
accommodations and will start an investigation mid-2011.270
Defence for Children (DfC) conducted a national research on the quality standards of
guardians of unaccompanied minors. The research was carried out as part of the project
'Closing a protection gap for separated children in Europe'.271 The mission of the project is to
develop core standards for guardians based on the views of separated children in relation to
their rights according to CRC and EU directives. The main protection gaps identified are the
guardian’s lack of knowledge about the legal procedures and durable solution for the
children’s future, and lack of knowledge about the country of origin of the children.
4.4.6
4.4.7
See the public debate on the former UUA Mauro in Chapter 1.
4.4.8
Information on trends till 2011
4.4.9
First, the fact that UUAs are staying in the Netherlands for a considerable period without
certainty about their future can be identified as a future challenge. The Minister of
Immigration and Asylum indicated several times that he intends to speed up the process.
81
268
Netherlands, Dutch Inspectorate for Youth Care (2011a).
269
Netherlands, Dutch Inspectorate for Youth Care (2011b)..
270
Ibid.
271
Defence for Children/ ECPAT the Netherlands (2010).
81
One of the ways to ensure instant clarity is to withdraw the special regular residence permit
for unaccompanied minors.272 As pointed out above, this does not solve the problem,
according to DfC.
Second, the reception and accommodation for UUAs remains a point of concern. The
planned investigation on of the Dutch Inspectorate for Youth Care should provide further
information on this point at a later stage.
4.5
Child trafficking for sexual or economic exploitation
4.5.1
There has been much attention for combating trafficking during the last couple of years.
Many initiatives, projects and institutions have been established. For an elaborate overview,
see the 2008 FRA Thematic Study on Child Trafficking (The Netherlands).273 Except for this
extended mandate of the National Rapporteur on Trafficking in Human Beings (see section
4.3.1), there are no new developments pertaining specifically to children. In this respect, DfC
stressed the need for a special structural policy on child trafficking, which is currently not in
place.274 It found that insufficient reception and treatment facilities for underage victims of
(sexual) exploitation are available.275 DfC is concerned about the fact that policy focuses on
prosecuting perpetrators; there is less attention for the victims.
4.5.2
4.5.3
National case law
4.5.4
82
272
Netherlands, Ministry of Immigration and Asylum, (2011).
273
Lawson, R., et al. (2008).
274
Defence for Children/ UNICEF (2011), p. 31.
275
Ibid., p. 32.
82
Table 4.4 Number of (probable) victims of human trafficking reported to
CoMensha (see section 4.6.1).
Age
Age and Gender
2009
2010
10 to 14
years
15 to 17
years
18 to23
years
24 to 30
years
31 to 40
years
40 – and
older
Unknown
Total
Female
Male
Female
Male
Female
-
21
1
17
0
4
7
124
6
94
3
96
29
357
29
323
16
353
36
214
49
199
10
196
26
112
30
95
10
104
15
52
23
42
7
26
138
1
770
0
46
1
778
113
880
Source: CoMensha (2011)
4.5.5
2008
Male
4.5.6
4.5.7
4.5.8
The number of female minors reported to CoMensha as (probable) victims of trafficking
increased considerably between 2008 and 2010. The number of male minors also increased
but is still relatively low. According to CoMensha, the reason for the increase in the number
of reported (probable) trafficked persons in the age of 10 to14 years can be found in the fact
that a local juvenile prostitution hotline in one specific region has started to report facts and
figures to CoMensha.276 It should thus be noted that it is very likely that the actual number is
higher.
4.5.9
Matters that could be addressed or improved in 2012 are the development of a special
policy on child trafficking and the provision of sufficient and good quality care and reception
83
276
CoMensha (2011), p. 10.
83
facilities. In addition, the registration by the police and the public prosecutor’s office should
be improved. Both could not provide the figures as requested by FRA in Table 4.5.
4.6
4.6.1
Data collection
The Advice and Registration Point Child Abuse277 registers the reports of individuals who
suspect situations of child abuse. These data on these registrations are collected by the
branch organisation Youth Care Netherlands (Jeugdzorg Nederland). This organisation
collects the key data of its member organisations in youth care, including the Youth Care
Bureaus and the Advice and Registration Points Child Abuse, with a view to setting out the
main developments and trends in youth care.278
In respect of data collection on trafficked children, the Anti-Trafficking Coordination Centre
(Coördinatiecentrum Mensenhandel, CoMensha) coordinates the collection and registration
of data of all (probable) victims of trafficking.279 The police, royal military police and social
intelligence and investigations services are obliged to report to CoMensha. It also receives
reports from individuals and other organisations. The data collection provides an overview
of all known identified trafficked persons in the Netherlands. The Centre also organises and
coordinates the initial reception of (probable) victims. It submits the collected data to the
National Rapporteur on Trafficking in Human Beings, which incorporates the information in
her annual report.280
In addition to CoMensha, which is concerned with all victims of trafficking, the Expertise
Centre on Youth Prostitution (Expertisepunt Jeugdprostitutie) focuses on prostitution and
trafficking of minors.281 The Centre collects facts and figures, but it also addresses and
describes good practises and advises social workers, policy makers, police and the justice
department etc.
Apart from these registration points, two other interesting data collection mechanisms to
identify children in special need of protection – as individuals not as a group –are in place. In
the Digital Youth Health Care File (Digitaal Dossier Jeugdgezondheidszorg, DD JGZ)282 all data
concerning the development of children are collected. One of the functions of this database
is to identify children in special need of protection because of, for example, abuse or
neglect.283 Several institutions are involved in the coordination of the Digital Youth Health
Care File under responsibility of the Ministry of Health, Welfare and Sport.284
Similarly, municipalities are obliged to provide access to the Referral Register for Vulnerable
Youth (Verwijsindex Risicojongeren, VIR).285 By using this national electronic system,
84
277
www.amk-nederland.nl/
278
www.jeugdzorgnederland.nl/beleidsinformatie/
279
http://comensha.nl/
280
http://english.bnrm.nl/
281
www.jeugdprostitutie.nu
282
See www.ddjgz.nl/
283
Netherlands, Parliamentary Documents II, 2010–2011, 32710 XVII, no. 1, p. 16.
284
www.ddjgz.nl/index.cfm?act=esite.tonen&pagina=5
285
Netherlands, Parliamentary Documents II, 2010–2011, 32710 XVII, no. 1, p. 17.
84
different institutions and youth care professionals are informed about earlier contacts of
young individuals with institutions in order to effectively organise professional help.286
There is no central institution – apart from CoMensha and Youth Care Netherlands – that
coordinates the collection of all data concerning children.287
Table 4.5
Data
2009
2010
Number of children recorded by the police as victims
of domestic violence, disaggregated by type of
violence, and characteristics such as sex and age.
n.a.288
of sexual abuse
n.a.
n.a.289
of sexual exploitation
n.a.
n.a.290
of trafficking (for economic and/or sexual
exploitation)
n.a.
n.a.291
Prosecutions and convictions for crimes, such as
those listed above
n.a.
n.a.292
Number of children separated from their parents as a
result of court decisions in situations of parental
abuse or neglect
n.a.
n.a.293
Number of children separated from their parents as a
result of administrative decisions in situations of
parental abuse or neglect
Not
applicable.
Separation
only
based on court
decisions.
Not
applicable.
Separation
only
based on court
decisions.
Number of children claiming asylum
<14 years: 3,110
<14 years: 3,935
14-17: 1,720
14-17: 1,485294
<14 years: 55
<14 years: 45
Number of unaccompanied minors claiming asylum
n.a.
85
286
www.samenwerkenvoordejeugd.nl/nl/Projecten/Onderwerpen-Verwijsindex.html
287
Consulted several institutions including the Dutch Youth Institute (Nederlands Jeugdinstituut) and Child
Protection Council (Raad voor de Kinderbescherming) and no such central institution exists in the Netherlands.
288
Due to problems with transition to a new registration system with the police no reliable data for 2009 can be
provided (telephone contact with police (domestic violence programme) 11 October 2011).
289
This is not systematically registered at a national scale (telephone contact with different police departments
10 October and 11 October 2011).
290
These figures are not available for child victims (e-mail of the Expertise Centre on Human Trafficking and
Human Smuggling (Expertisecentrum Mensenhandel Mensensmokkel, EMM), in which the police is incorporated,
to Art. 1 of 4 October 2011).
291
These figures are not available for child victims (e-mail of the Expertise Centre on Human Trafficking and
Human Smuggling (Expertisecentrum Mensenhandel Mensensmokkel, EMM), in which the police is incorporated,
to Art. 1 of 4 October 2011).
292
There are no data available on prosecutions and convictions for the listed crimes in which children are the
victims (e-mail of the public prosecutor’s office to Art.1 of 28 September 2011).
293
These data are not registered at the national level (e-mail of a representative of the Ministry of Justice to Art.1
of 4 October 2011; e-mail of the National Youth Institute to Art.1 of 13 September) but will in the future be
registered and made available (telephone contact with the branch organisation Youth Care, 10 October 2011).
294
Eurostat [migr_asyappctza]. disaggregated data by gender, citizenship.
85
14-15: 230
14-15: n.a.
16-17: 660
16-17: n.a.
Age unknown: 100
Age
85295
In first instance:
In first instance:
<14 years: 2,355
<14 years: 2,690
14-17: 780
14-17: 985
Final decisions:
Final decisions:
<14 years: 35
<14 years: 100
14-17: 15
14-17: 40296
Number of asylum seeking unaccompanied minors
with legal guardian
n.a.
n.a. 297
Average length of time for the appointment of a legal
guardian for asylum seeking unaccompanied minors
Approximately one Approximately one
month
month298
Number of asylum seeking unaccompanied minors
who have disappeared during or after status
determination proceedings.
n.a.
Number of children granted asylum
4.6.2
unknown:
n.a.299
Cross-national divorce and parental child abduction
Describe any relevant development that aims to adapt the family justice environment to the
needs/rights of children by ensuring respect for their personal situation, age and capacity
through the use of sensitive procedures, such as appropriate facilities, information,
techniques and technologies, and adequate interpretation for non-native speakers?
In principle, children above the age of 12 have the right to be heard in a court of law.300 In
case the child has not reached that age, the judge can still decide to allow the child to
express his/her views.301 In 2009, the Act for the Promotion of Continued Parenthood and
86
295
Eurostat [migr_asyunaa]. disaggregated data by gender, citizenship.
296
Eurostat [migr_asydcfsta]. disaggregated data by gender, citizenship.
297
The annual report of Nidos, the organisation responsible for the appointment of legal guardians for UMAs,
only provides for the number of guardianships of Nidos, not the number of UMAs with a legal guardian. The
number of guardianships also includes other groups, e.g. children whose mother is under custody of Nidos or
victims of trafficking). Nidos cannot provide for data other than those in the annual report (e-mail from Nidos to
Art.1 of 5 October 2011).
298
According to Nidos, the organisation responsible for the appointment of legal guardians for UMAs, the UMA is
brought in touch with the guardian upon arrival at the reception centre Schiphol. Then the request for legal
guardianship is submitted to the court and within approximately one month the court decides. During the first
month Nidos already acts as guardian (e-mail from Nidos to Art.1 of 5 October 2011).
299
The Dutch Immigration and Naturalisation Service (IND) has no figures on this topic and referred to Nidos and
the Central Agency for the Reception of Asylum Seekers (Centraal Orgaan opvang asielzoekers, COA) (e-mail form
the IND to Art. 1 of 23 September 2011). Both Nidos and COA could provide these data (e-mail from Nidos to
Art.1 of 5 October 2011; e-mail from COA to Art. 1 of 18 October 2011).
300
Netherlands, Article 309 Code on Civil Procedures (Wetboek van Burgerlijke Rechtsvordering).
301
Ibid.
86
Careful Divorce entered into force.302 The Act obliges parents who are separating to make
arrangements about the distribution of care- and parenting tasks, child maintenance and the
exchange of information on important matters related to the child. These arrangements
must be written down in a so-called parenthood plan. Depending on their age and capacity,
children are involved in the drawing up of the plan. The central aim of the Act is to ensure
the child’s right to the care of both parents and to develop a bond with both parents.
In 2009 the Mediation Bureau, a division of the International Child Abduction Centre in the
Netherlands (Centrum Internationale Kinderontvoering),303 was set up.304 The Mediation
Bureau provides information on cross-border mediation as an alternative to a long legal
battle. Mediation is perceived less harmful to the child and shortens the procedure. In order
to support children and parents, the Mediation Bureau also offers cross-border family
support, a service that focuses, among others, on providing aftercare for the child who has
experienced an international child abduction. In the mediation procedure, children above
five years of age are heard by a child psychologist, but only when both parents agree to
this.305
In September 2011, the Children’s Ombudsman opened an investigation into the current
possibilities for minors to independently claim their rights and to be heard by a judge.306
Under Dutch law it is possible to appoint a special curator, who can defend the child’s
interests in judicial proceedings in case the interests of the child are not in line with the
interests of the parents (who normally represent the child). The Ombudsman identified
some difficulties with regard to access to the special curator which will be further examined.
The outcome of this investigation could lead to a development focused on adapting the
family justice environment to the needs and rights of children.
Was there any development regarding the use of special protocols for interviewing children
in administrative or judicial proceedings?
Children are not heard during the oral proceedings, but interviewed separately.307 No
developments regarding special protocols.
Please describe any legal developments related to the implementation of the Regulation on
jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in
matters relating to maintenance obligations (EC No 4/2009).
With a view to implementing the Regulation, a proposal for legislation308 has been adopted
by the House of representatives and approved by the Senate in September 2011.309 The act
will enter into force after announcement in the official state publications journal. In the
Netherlands, the National Bureau on the Collection of Maintenance Payments (Landelijk
Bureau Inning Onderhoudsbijdragen, LBIO)310 is in charge of the collection of maintenance
87
302
Netherlands, Act for the Promotion of Continued Parenthood and Careful Divorce (Wet bevordering
voortgezet ouderschap en zorgvuldige scheiding).
303
The Centre offers up-to-date information, advice and guidance on child abduction. See:
www.kinderontvoering.org/en
304
www.kinderontvoering.org/en/mediation
305
www.kinderontvoering.org/en/mediation/child; Centrum Internationale Kinderontvoering (2010) p. 29.
306
Netherlands, Children’s Ombudsman (2011b).
307
Netherlands, Rules of Procedure Family- and Youth Law Courts (Procesreglementen familie- en jeugdrecht
rechtbanken) p. 55.
308
The Netherlands, Parliamentary Documents II, 2010–2011, 32617, no. 2.
309
www.eerstekamer.nl/wetsvoorstel/32617_uitvoeringswet
310
www.lbio.nl/english
87
payments. With the enactment of the proposal, this Bureau will be appointed the Central
Authority as required under Article 4 of the Regulation.311
Table 4.6
Data
Outgoing and incoming return and access
requests received/sent by the Central Authority on
Child Abduction, disaggregated by gender,
nationality and age
Outgoing and incoming return and access
requests received/sent by the Courts
Return and access cases settled through
mediation
Percentage of return and access cases in which
the child was given an opportunity to be heard
4.6.3
2009
Return requests:
- incoming: 42
-outgoing: 103
Access requests:
27
Return requests:
- incoming: 18
-outgoing: 3
Access requests:
n.a.
n.a.
2010
Return requests:
- incoming: 54
- outgoing: 96
Access requests:
24312
Return requests:
- incoming: 31
-outgoing: 0313
Access requests:
n.a.314
n.a.315
n.a.
n.a.316
Participation of children in policy or legal reform processes
Have public authorities consulted children in any policy or legal reform process?
Several projects were launched to promote the involvement of children in policy processes
at the municipal level. The project ‘Be-Involved’317 offers instruments to advance the
participation of children within the municipality. The Jong Lokaal Bokaal318 prize is an
incentive award for municipalities striving for an affirmative youth policy, including
participation of children in politics. Many municipalities have a youth municipal council. The
council discusses matters concerning children with the major, councillors and other officials.
At the national level, separated asylum-seeking minors have been consulted in a closed
hearing on the planned policy reforms concerning unaccompanied minors.319 (For the
planned reforms, see section 4.4.1).
88
311
Article 2 of the proposal. The Netherlands, Parliamentary Documents II, 2010–2011, 32617, no. 2.
312
Netherlands, Parliamentary Documents II, 2010-2011, 30072, no. 27. These (figures presented to parliament)
are the only data the Central Authority can provide for (telephone contact with Central Authority 29 August
2011).
313
Figures provided by the Court of The Hague. Court of The Hague is appointed by decree to deal with abduction
cases (Aanwijzingsbesluit ’s-Gravenhage als nevenzittingsplaats internationale kinderontvoeringen). It must be
noted that these figures only concern the cases which were brought before the Court of The Hague or referred to
it by other courts. Yet, it can be presumed that all or most cases are referred because of the appointment of child
abduction cases to The Hague. (e-mail to Art. 1 of 5 September 2011).
314
The court does not separately register the number of these cases (e-mail of the Court of The Hague to Art. 1 of
5 September 2011).
315
The Central Authority cannot provide these data (telephone contact with Central Authority 24 October 2011).
316
These percentages are not available (e-mail of the Court of The Hague to Art. 1 of 5 September 2011;
telephone contact with Central Authority 24 October 2011)
317
www.be-involved.nl/
318
www.jonglokaalbokaal.nl/ The prize is awarded as from 2008.
319
See: www.ecpat.nl/p/21/2061/mo45-mc52/mo89-mc21/mo8-cg%7Ctxt=*herijkingbrief*/nieuwe-plannenvoor-alleenstaande-asieljongeren
88
Table 4.7
Data
Number of complaints submitted by or on behalf of
children to human rights institutions, such as
equality bodies, Ombudsman institutions, etc.),
disaggregated by type of complaint.
4.7
2009
Equality body
(CGB): 4
Ombudsman:
n.a.
2010
Equality body
(CGB): 10320
Ombudsman:
n.a.321
General policy and institutional developments
Under the previous government the Netherlands had a Minister of Youth and Family. With
the institution of the Rutte-administration in October 2010, the post no longer exists. Most
issues with regard to this subject now fall under the responsibility of the Ministry of Health,
Welfare and Sport.322 Many initiatives, projects and institutions to improve children’s
welfare were instigated under the Minister of Youth and Family’s programme and are still
running.323 The State Secretary of Health proposed a new youth care system, which transfers
the responsibility for youth care to the municipalities.324 Youth and Family Centres (Centra
voor Jeugd en Gezin) in the municipalities are to be the first contact point for parents with
problems and they must provide them with advice and support. The aim is to focus on
parents’ ability to raise children and their own responsibilities in this respect, in order to
diminish the claims on institutions.
An important institutional development constitutes the foundation of a Children’s
Ombudsman (Kinderombudsman),325 which started its activities in April 2011.326
Legislative plan
The State Secretary of Justice concretised his plans to introduce criminal law for adolescents,
which will result in a legislative proposal in 2012.327 A coherent package of sanctions for
adolescents between the ages of 15 and 23 will be introduced. Central to the proposal is a
firmer and more consistent approach to ‘youth at risk’ and the possibility of imposing
heavier penalties on serious crimes, e.g. raising the maximum penalties for minors aged 16
and 17 years, from two to four years. These plans met criticism. A group of Dutch professors
89
320
These figures are based on the complaints dealt with by the Commission. It must be noted the Commission
does not always register the age of the person submitting a complaint or the person on whose behalf a complaint
is submitted. Hence, it is very likely that the real number is higher than the figure presented (e-mail of Equal
Treatment Commission (Commissie Gelijke Behandeling, CGB) to Art.1 of 5 September 2011).
321
The National Ombudsman does not have such data available (telephone contact 29 August 2011).The
Children’s Ombudsman was not yet established in 2009 and 2010. It started in its activities in April 2011.
322
The Netherlands, Parliamentary Documents II, 2010–2011, 32 710 XVII, no. 1, p. 12.
323
Ibid. For an overview.
324
Netherlands, Parliamentary Documents II, 2010–2011, 32620 no. 2; The Netherlands, State Secretary of
Health, Welfare and Sport, letter to parliament of 30 September 2011.
325
Netherlands, Children's Ombudsman Act (Wet Kinderombudsman).
326
See: www.dekinderombudsman.nl/
327
Netherlands, Parliamentary Documents II, 2010-2011, 28741 no. 17; The Netherlands, Parliamentary
Documents II, 2010-2011, 33000-VI, no. 2, p. 73.
89
seriously questioned the State Secretary’s plans.328 They pointed out that recent academic
studies have shown that heavier penalties are counterproductive.329 Instead, intensive
treatment and counselling for these minors is required. The Children’s Ombudsman also
expressed his concerns in a letter to Parliament.330 He referred to the CRC and stated
accordingly that minors (children below the age of 18 years) must be tried in accordance
with special juvenile criminal law rules and not through a newly created system of criminal
law for adolescents. The best interests of minors should be the primary consideration when
judicial measures are drafted. Educational aspects must be leading in such measures. DfC
also criticised the plans on these grounds.331
Other
Together with UNICEF, Defence for Children published its 2011 annual report on the rights of
the child in May 2011.332 DfC is concerned about abolishment of the post of Minister for
Youth and Family, which has resulted in a fragmented youth policy. Vulnerable children are
no longer a priority for the Rutte-administration.333 It is also disappointed that the
government has not acted on the recommendation of the UN Committee on the Rights of
the Child to pay attention to children’s rights in education.334
The Council of Europe Commissioner for Human Rights, Thomas Hammarberg, criticised the
methods used by, among others, the Netherlands to determine the age of migrant children.
He stated on his official blog that the X-ray tests used to determine if a person is underage or
not, have been contested by an increasing number of medical specialists because it is not
sufficiently precise for age assessment and it subjects the individual to unnecessary
radiation.335
The Commission set up by the Roman Catholic Church (Commissie-Deetman) in March 2010
to investigate sexual abuse of children by representatives of the church, discovered that in a
certain period in the 1950s a remarkably high death rate was reported in a Roman Catholic
run institution for intellectually disabled children. It informed the police about its findings
and the public prosecutor’s office started an investigation.336
Case law on migrant children‟s right to private and family life
In Annex 4 a number of cases clarify the nature and content of the obligation of the
Netherlands to secure the right to private and family life (Article 8 ECHR) of migrant
children.
90
328
Weijers, I., et al (2011).
329
Compare Bruning, M. et al. (2011).
330
The Netherlands, Children’s Ombudsman, letter to parliament of 4 October 2011.
331
Defence for Children/ UNICEF (2011), p. 17
332
Defence for Children/ UNICEF (2011).
333
Ibid. p. 9.
334
Ibid. p. 7.
335
http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=166
336
M. Willems (2011). ‘Commissee-Deetman constateert veel sterfgevallen in RK-instelling’,in NRC Handelsblad,
16 August 2011.
90
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Code on Civil
Procedures
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title NL
Wetboek
van
Burgerlijke
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Stcrt. 2011, no. 6741.
Netherlands, State Secretary of Health, Welfare and Sport
(Staatssecretaris van Volksgezondheid en Sport) (2011). Lletter
to parliament, nr. DJ/3082486, 30 September 2011.
NRC Handelsblad (2010) ‘Zaak kwam aan het rollen na tip van
justitie in VS; Zedenzaak Amsterdam’, 13 December 2010.
Parool (2011) ‘Henk Bres biedt Kamer petitie aan over verbod
pedovereniging Martijn’, in Parool, 6 September 2011.
Sargasso (2011) ‘Verbied Pedovereniging Martijn niet’, Web
Page , 6 september 2011, available at
http://sargasso.nl/archief/2011/09/06/verbiedpedovereniging-martijn-niet/.
Stoker, M. (2011) ‘Drie jaar cel voor voorzitter pedo-vereniging
Vonnis biedt kans op verbod Martijn’ de Volkskrant, 19
October 2011
Timmerman, M. and Van Toor, D. (2011), 'Vastketenen is
beste optie',de Volkskrant, 22 January 2011.
Van Aalsum, S. (2011) 'Experts ontfermen zich over Brandon',
Trouw, 20 January 2011.
Van den Berg, P. et al (2011) Jaarevaluatie Postbus 51 campagnes 2010, The Hague, Dienst Publiek en Communicatie
Van der Zon, K. and Van Rest, A.(2011) ‘Huidige wet volstaat bij
aanpak kindermisbruik’, Trouw, 20 April 2011.
Van IJzendoorn, M.H., et al (2007), Nationale Prevalentiestudie
Mishandeling van kinderen en jeugdigen (NPM-2005), Leiden,
Cashmir publishers/ Leiden University
Van Vianen, R.T., De Boer, R., De Jong, B.J., and Van
Amersfoort, P. (2010) De inzet van het strafrecht bij
kindermishandeling, Woerden, Adviesbureau Van Montfoort.
Weijers, I, Bruning, M., Doreleijers, T., De Jonge, G., Van der
Laan, and P. (2011) ‘Gênant: minderjarigen harder straffen;
Staatssecretaris Teeven (Veiligheid en Justitie, VVD) wil
zwaardere minimumstraf voor zestien- en zeventienjarigen –
zorgelijk of een zegen?’, NRC Handelsblad, 13 July 2011.
Willems, M. (2011) ‘Commissee-Deetman constateert veel
sterfgevallen in RK-instelling’, NRC Handelsblad, 16 August
2011.
95
5
EQUALITY AND NON-DISCRIMINATION
5.1
Sex
5.1.1
This section contains information on policy and institutional developments regarding
discrimination and equal treatment in general, as well as specific information regarding
discrimination on grounds of sex. The general information is relevant to paragraphs 5.2.1,
5.3.1, 5.4.1 and 5.5.1 as well.
At an urgent parliamentary debate on violent incidents around mosques on 4 November
2010, the government promised to develop an additional set of measures to strengthen the
Action program ‘Combat Discrimination’ (Actieprogramma ‘Bestrijding van discriminatie’),
adopted on 13 September 2010. A new action program was presented on 7 July 2011.337
Besides general measures, the cabinet tabled specific measures to combat anti-Semitism
and discrimination against LGBT people. Several measures encouraged people to report to
the police. Criminal penalties for severe assaults with a discriminatory aspect have been
increased (see Annex 1). Other measures include the training of police to better recognise
and register discriminatory incidents against LGBT people. The government will report on
developments and concrete measures in an annual discrimination letter (discriminatiebrief)
to the House of Representatives.
On 8 April 2011, the government presented the policy paper ‘Headlines Emancipation Policy:
Women and Gay Emancipation 2011-2015’ (Hoofdlijnen emancipatiebeleid: vrouwen- en
homo-emancipatie 2011-2015).338 The government wants to improve the safety of girls,
women and LGBT people. Its second aim is to improve the participation of women at all
levels and in all sectors of the labour market by removing fiscal and legal obstacles to
participation and career mobility. Action to improve the acceptance of LGBT people focus on
education, neighbourhoods, employment, sport and care for the elderly. A further focus is
placed on improving the relatively weak social acceptance of LGBT people among ethnic
minorities, orthodox religious groups and youths. To ensure the equal rights of LGBT people,
the government will revise existing legislation concerning the legal rights of lesbian nonbiological mothers, blood donorship (from which homosexuals are now excluded), and the
sterilisation requirement for registered sex change (see Annex 1). The Equal Treatment
Commission (ETC) (Commissie Gelijke Behandeling, CGB), Platform Article 19 (Platform
Artikel 19, made up of NGOs that inform and give advice on the implementation of European
equal treatment directives) and the gender information and research centre E-Quality
responded to the policy paper. They point out that the government is failing to take several
CEDAW recommendations into account.339 Among other things, they advise the government
to take measures to address the gender gap in pay. They also state that a focus on the
intersection of different grounds for discrimination is lacking. Specifically, they ask attention
for the position of lesbian women and elderly women.340
The 1994 General Equal Treatment Act (GETA) (Algemene wet gelijke behandeling, Awgb)
offers employers the possibility of pursuing an affirmative action policy for women and
96
337
338
Netherlands, Ministry of Education, Culture and Sciences (2011a).
339
United Nations, Committee on the Elimination of Discrimination against Women (CEDAW) (2010a);
United nations, CEDAW (2010b); United Nations, CEDAW (2010c).
340
Netherlands, Equal Treatment Commission (2011d); E-Quality (2011); Platform Article 19 (2011).
96
persons belonging to certain ethnic and cultural minorities.341 The current Dutch
government rejects this measure adopted to help reduce the structural disadvantages of
these groups on the labour market. The coalition agreement presented on 30 September
2010 announces that the government will abolish the “diversity/affirmative action policy on
the basis of gender and ethnic origin.” According to the coalition parties, “selection must be
based on quality.”342
The national association against discrimination Art.1 was split up on 23 March 2011. The
regional anti-discrimination offices (ADAs) and the knowledge centre Art.1, that together
formed the association, continue their work separately.343 A group of ADAs founded the
National Branch Organisation of Antidiscrimination agencies (Landelijke Brancheorganisatie
van Antidiscriminatiebureaus, LBA) in August 2010. This branch organisation currently covers
15 out of 25 police regions. It serves slightly less than 70% of the Dutch population.344
5.1.2
Several legislative proposals and private member’s bills relevant to the EU Charter of
Fundamental Rights are still pending. Together with section 5.2.2, 5.3.2, 5.4.2 and 5.5.2, this
section gives an overview. The proposals mentioned in section 5.1.2 refer to discrimination
and equal treatment in general. No relevant legislative developments can be reported that
specifically deal with discrimination on grounds of sex.
The draft law to establish a human rights body passed the House of Representatives on 19
April 2011 and is now being discussed by the Senate.345 By setting up this so-called 'Human
Rights College' (College voor de Rechten van de Mens), the Netherlands meets its
commitments to the UN and the Council of Europe. The institute will incorporate the Equal
Treatment Commission (see also Chapter 8).
On 27 September 2011, an amending letter suggesting editorial changes in equal treatment
legislation passed the House of Representatives.346 The amendment is referred to as 'little
definition law' or definitiewetje and should bring legislation more in line with the
terminology of EU Directives. It concerns the definition of ‘direct and ‘indirect
discrimination’ and a few corrections to other stipulations.
Between 15 July 2010 and 1 November 2010, 20 expert organisations responded to the
governmental call to comment on the concept draft law on ‘integrated equal treatment’.
This law will bring together all equal treatment legislation.347 The government wants to
incorporate the outcomes of the internet consultation in the draft law.348 An adjusted draft
law has not yet been circulated.
341
342
343
344
345
346
347
97
Netherlands (1994), section 3, paragraph 3.
Netherlands (2010a).
Art.1 (2011).
Landelijke Brancheorganisatie van Antidiscriminatiebureaus (2011), p. 2.
Netherlands, Senate (2011).
Netherlands, House of Representatives (2011a); The Netherlands, House of Representatives (2011b).
See www.internetconsultatie.nl/integratiewetawgb/reacties (All hyperlinks accessed on 20 October
2011).
348
Netherlands (2010b).
97
5.1.3
National case law
Information on legal cases in the Netherlands regarding equality and non-discrimination are
presented in Annex 4. The three selected cases stirred political and public debate. There are
no relevant key cases to report that specifically address discrimination on grounds of sex.
In Annex 4, a case is described that is of general importance to the theme of nondiscrimination. A weekly magazine was within its rights to remove politically biased
responses from its online forum, the ETC argued. For the first time, the Commission felt
empowered to rule whether the non-discrimination principles as recorded in the General
equal treatment law were compatible with international conventions such as the European
Convention on Human Rights (ECHR). In this case, the press freedom of the magazine was
found to weigh heavier than the right of the plaintiff not to be discriminated against on
grounds of political conviction.349
5.1.4
All statistical data given in this section concern more than one discrimination ground and are
relevant to paragraphs 5.2.4, 5.3.4, 5.4.4 and 5.5.4 as well.
In 2010, the National Branch Organisation of Antidiscrimination Offices (Landelijke
Brancheorganisatie van Antidiscriminatiebureaus, LBA) registered 5,468 complaints. The
2010 report only contains data on complaints filed with ADAs connected to the branch
organisation (see section 5.1.1).350
Table 5.1.4.1 Complaints on discrimination filed with LBA members, 2010
Discrimination grounds
Race
Age
Sex
Religion
Sexual orientation
Disability / chronic illness
Nationality
Anti-Semitism
Political conviction
Civil status
Belief
Duration of employment
Permanent or temporary contract
Non-legal grounds
Total
Number of complaints
2376
580
445
367
437
343
141
155
77
18
23
2
2
502
5468
Source: LBA 2011, p. 7
349
350
98
Netherlands, Equal Treatment Commission (2011b).
LBA (2011).
98
Police offices received 2,538 reports of incidents of a discriminatory nature in 2010. In 2009
this number was 2,212.351 The increase of 14% is related to two campaigns aimed at
encouraging citizens to report discrimination and hate crimes (see section 5.1.8). See
chapter 6, section 6.5.2, for 2008 and 2009 data as well as for the table ‘Types of
discriminatory incidents recorded by the Dutch police in 2008 to 2010’. Also found in chapter
6 are tables on discriminatory incidents registered by the Public Prosecutor (Openbaar
Ministerie).
Table 5.1.4.2 Reports of incidents of a discriminatory nature received by police,
2010*
Discrimination Grounds
Sexual orientation
Homosexuality
Heterosexuality
Race**
Anti-Semitism
Religion / Belief
Non-religious
Islamic
Christian
Other or non-specified
Sex
Being male
Being female
Transsexuality
Transgender
Political conviction**
Disability
Physical
Mental
Physical and mental
Other grounds
Total
Absolute numbers
660
659
2
774
286
108
4
93
11
1
17
1
3
10
3
0
139
7
3
1
0
3
668
2538
%
26.0
26.0
0.1
30.5
11.3
4.3
0.2
3.7
0.4
0.0
0.7
0.0
0.1
0.4
0.1
0.0
5.5
0.3
0.1
0.0
0.0
0.1
26.3
100
Source: Poldis 2011
* Totals within categories cannot be calculated by adding the underlying numbers. This
is because incidents can be classified into more than one category.
** Subcategories under the grounds of ‘race’ and ‘political conviction’ irrelevant to this
FRALEX report are omitted.
351
99
De Wit, W. and Sombekke, E. (2011).
99
The Dutch Complaints Bureau for Discrimination on the Internet (Meldpunt Discriminatie
Internet, MDI) received complaints regarding 1,575 discriminatory expressions on the
internet. 684 expressions were judged as actionable, compared to 577 in 2009.352
Table 5.1.4.3 Discriminatory and punishable expressions on the Internet
registered by the MDI, 2010
Discrimination grounds
Expressions
Punishable
Anti-Semitism
414
212
Discrimination against Muslims
276
104
Discrimination against Moroccans
210
123
„Anti-black racism‟ or Afrophobia
164
94
Discrimination on grounds of other ethnic background 202
66
Discrimination against homosexuals
61
19
Discrimination against Roma and/or Sinti
30
13
Source: MDI 2011, p. 7
In the
National Survey
Working Conditions 2010
(Nationale Enquete
Arbeidsomstandigheden) (TNO/CBS), a large sample of employees were asked about the
occurrence of discrimination on grounds of sex, skin colour, religion, sexual orientation and
age at their work place. Percentages are given per sex and age group.353
Table 5.1.4.4 National Survey Working Conditions, answers to questions on
occurrence of discrimination, per sex and age group
total
male
female
15-24
25-54
55-64
Does discrimination on grounds of sex occur at your work? [N=23,641] (in %)
Yes, regularly
2.0
2.0
2.0
2.7
1.9
1.6
Yes, sometimes
9.0
8.3
9.8
9.3
9.3
7.2
No
89.0
98.7
88.2
88.0
88.8
91.3
Does discrimination on grounds of skin colour occur at your work? [N=23,641] (in %)
Yes, regularly
1.8
2.1
1.4
2.3
1.7
1.4
Yes, sometimes
9.0
10.2
7.5
9.1
9.1
8.0
No
89.3
87.7
91.1
88.6
89.1
90.6
Does discrimination on grounds of religion occur at your work? [N=23,620] (in %)
Yes, regularly
1.7
2.0
1.3
2.5
1.6
1.3
Yes, sometimes
7.2
8.3
6.1
6.8
7.5
6.6
No
91.1
89.7
92.6
90.7
90.9
92.1
Does discrimination on grounds of sexual orientation occur at your work? [N=23,590] (in%)
Yes, regularly
1.3
1.5
1.2
2.4
1.2
0.9
Yes, sometimes
5.3
6.7
3.7
6.0
5.3
4.4
No
93.4
91.9
95.1
91.6
93.5
94.6
Does discrimination on grounds of age occur at your work? [N=23,546] (in %)
Yes, regularly
2.7
2.9
2.4
5.2
2.0
3.1
Yes, sometimes
11.3
11.4
11.3
11.0
10.7
15.0
No
86.0
85.8
86.3
83.8
87.3
81.9
Source: TNO 2011, p. 68
352
353
100
MDI (2011).
Koppes, L. et al (2011), p. 68.
100
5.1.5
The biennial ‘Emancipation Monitor’ (Emancipatiemonitor) published jointly by Statistics
Netherlands (Centraal Bureau voor de Statistiek, CBS) and the Netherlands Institute for
Social Research (Sociaal Cultureel Planbureau, SCP) provides a snapshot of the Dutch
emancipation process. It describes recent developments in the areas of education, paid
labour, combining work and care, income, political and social decision-making and violence
against women.354 The 2010 edition shows that the labour participation and economic
independence of women have risen despite the crisis. See section 5.8 for some conclusions
on participation rates and the gender pay gap. No information is included on sex
discrimination.
Following a number of requests concerning alleged pay discrimination in the healthcare
sector, the Equal Treatment Commission conducted an investigation on its own initiative
into pay discrimination in general hospitals. The survey ‘Equal Pay for Men and Women in
General Hospitals in the Netherlands’ (Gelijke beloning van mannen en vrouwen bij de
algemene ziekenhuizen in Nederland) revealed that the average salary of women in all five of
the investigated job categories was lower than that of men.355 Pay differences between men
and women with equivalent jobs can only arise due to pay increases, as the minimum wage
for the job is always the same. 44% of the gender difference in increases can be explained by
neutral remuneration criteria that reward professional experience. The rest is attributable to
non-neutral remuneration criteria that bear no relation to the value of the work, and which
cannot justify the identified pay difference. Non-neutral criteria that lead to pay
discrimination, such as pay negotiations, guaranteed salaries and career-related salary
arrangements, are always to the disadvantage of women and are significant in all job
categories and hospitals.
5.1.6
Information on promising “good” practices in the Netherlands regarding equality and nondiscrimination are presented in Annex 3.
No important good practises can be reported concerning discrimination on grounds of sex.
The Annex describes the following good practises concerning discrimination in general:
Art.1: Effectively monitoring discrimination.
5.1.7
In the reference period, sex discrimination was not a key issue in public debate.
5.1.8
In 2009, women earned on average 80% of the gross hourly wage of men. In 2006 this was
79%. Part of these wage differences can be explained by differences in work experience,
354
355
101
Brakel, M. et al (2011).
Equal Treatment Commission (2011e).
101
occupational level, education and management. An unexplained difference of 9% remains in
the private sector, and of 8% in the public sector.356 In the period 2001-2005, the percentage
of women with a job of at least twelve hours a week remained about the same. After 2005
the net labour participation of women rose from 54% in 2005 to 60% in 2009 and 2010. The
target of 65%, set by the government in 2007, has not been realised.357 Participation rates
are relatively low for women aged 55 to 64 years (34%) and for women with Moroccan
(39%) and Turkish backgrounds (42%).358 According to the international norm (a job of at
least one hour a week), the labour participation of women is very high in the Netherlands
(72%).359 But in no other country in the European Union do women work part-time as much
as in the Netherlands (74%).360
The general trends that are described hereafter are relevant to sections 5.2.8, 5.3.8, 5.4.8
and 5.5.8 as well.
A year after the Municipal Antidiscrimination Facilities Act (Wet gemeentelijke
antidiscriminatievoorzieningen) entered into force on 25 June 2009, 97% of the 430
municipalities have arranged a way for citizens to submit a discrimination claim.361
Municipalities organised their own local facility or joined an existing regional ADA. In 2010,
99% of all Dutch citizens had access to an antidiscrimination facility that addressed and
registered complaints on discrimination. In 2005, this percentage was 43%. The Act will be
evaluated in 2012 for its effectiveness. All municipalities have to report yearly to the
Ministry of the Interior and Kingdom Relations on the number of registered discrimination
claims. ADAs have to annually complete a standardised form for each municipality served.
The first national report on registered complaints is in preparation and will be offered to the
Parliament in October or November 2011.362
The number of discrimination complaints filed at LBA member agencies in 2010 was 6%
higher than in 2009. 2009 had already witnessed a rise of 42%. This increase is most likely
the effect of the national campaign ‘Do you have to hide yourself to be accepted?’ (Moet je
je eigen ik verstoppen om geaccepteerd te worden?), aimed to encourage citizens to report
discrimination. This 2009 campaign had a follow-up in 2010.363 The police faced a 14%
increase in registered incidents of discrimination between 2009 and 2010. This can also be
attributed to the national anti-discrimination campaign, as well as to the Hatecrimes police
project launched on 20 March 2008.364 The latter’s purpose is to improve the reporting of
hate crimes on grounds of sexual orientation, race and religion.365 On the basis of data on
registered complaints, it is difficult to describe trends in the actual occurrence of
discrimination.366 Research shows that more than 70% of incidents are not reported to any
official bodies.367
356
357
358
359
360
361
362
102
Merens, A. et al (2011), p. 14.
Idem, pp. 12, 104.
Idem, pp. 77, 79.
Idem, p. 12.
Idem, p. 101.
Netherlands (2009); Partners + Pröpper (2010).
Telephone conversation with an official of the Ministry of Interior and Kingdom Relations, 3 October
2011.
363
364
365
366
367
LBA (2011), pp. 5-6.
See: www.hatecrimes.nl.
LBA (2011), p. 3-4.
Coenders, M. et al (2010), p. 58
102
5.1.9
Several legislative proposals and private member’s bills relevant to the EU Charter of
Fundamental Rights, the EU Equality Directives and the UN CRPD have been pending for
some time (see the sections 5.1.2, 5.2.2 and 5.3.2 for an overview of the most relevant
ones). It is a challenge for the government and the Parliament to push them forward and to
transpose European and UN rules and recommendations.
Cases like the trial against Wilders (see section 6.1.7), the discussion over the 'sole fact
provision' (section 5.2.2), the advisory opinion on the Elsevier case (section 5.1.3), and bans
on headscarves and facial covering (sections 5.2.2 and 5.2.3) show that non-discrimination
principles can clash with other fundamental rights, such as freedom of speech, of the press,
of education and of religion. Finding a balance between fundamental rights is often
challenging. It can be expected that more issues like these will become subject to discussion.
5.2
Religion
5.2.1
Besides the general information given under 5.1.1 there is no relevant information to report.
5.2.2
The so-called ‘sole fact provision’ (enkele feits-constructie) in the GETA continues to raise
discussion. On 31 January 2008, the European Commission sent the Netherlands a reasoned
opinion with reference to the infringement procedure that was started in 2006 (no.
2006/1444).368 One of its four demands is to re-phrase the wording of the exceptions for
employment in church or religious associations. This would bring them more in line with the
Employment Framework Directive. On 29 September 2009, the government announced that
it is searching for a way to transpose the Directive without substantially changing the current
balance between fundamental rights. Freedom of religion and freedom of education should
be preserved.369 On 9 September 2010, several Members of Parliament introduced their own
private member’s bill to take the ‘sole fact provision’ completely out of the GETA.370 This bill
has not yet been put on the agenda.
On 16 September 2011, the Council of Ministers (Ministerraad) adopted a legislative
proposal to ban all face-covering clothing in public spaces including public buildings,
educational institutions, hospitals and public transport. Before the proposed legislation will
be sent to the Parliament, the Council of State (Raad van State) will issue its advice.371
5.2.3
368
369
370
371
National case law
103
103
A pupil went to court when her Roman Catholic school ignored the non-binding opinion of
the ETC that its ban on headscarves was unjustified. Both the court and the Supreme Court
ruled that this school was within its rights to ban Islamic clothing due to the exception for
denominational schools contained in article 7.2 of the GETA.372
The controversial trial of the politician Geert Wilders is addressed in chapter 6, paragraph
6.1.7.
5.2.4
The Centre Information and Documentation Israel (Centrum Informatie en Documentatie
Israel, CIDI) registered 124 incidents of anti-Semitism in 2010. This is a decline of 27.5%
compared with figures from 2009, when an Israeli military operation in Gaza provoked a
relatively high number of incidents. In 2008 there were 108 reports.373
Table 5.4.5. Number of anti-Semitic incidents registered by CIDI, 2010
Nature of incident
2010
Violence
4*
Threat
1
Damage to synagogue, graveyard, monument
2
Vandalism to synagogue, graveyard, monument
5
Other damage/vandalism
10
Name calling
9
Telephone
3
Letters, faxes, pamphlets, stickers
7
E-mails
47
Neighbours/neighbourhood
10
School
7
Work
6
Sport
3
Media
7
Demonstrations
0
Extreme right – Hitler greeting, Nazi symbols
0
Books, theatre, movies, expositions
3
Music
0
Other
0
Total
124
Source: MDI 2011, p. 7
* There were 5 violent incidents. One of them is registered under 'school'
because it took place in a school.
372
373
104
Netherlands, Court of Appeal Amsterdam (2011).
Friedmann, E. (2011).
104
5.2.5
The study Comparing levels of anti-Muslim attitudes across Western countries was published
within the reference period. It is however based on 2005 survey data. The study indicated
that in 2005 the Netherlands and Germany displayed relatively high levels of anti-Muslim
attitudes as compared to other countries.374 There are no other relevant researches to
report.
5.2.6
Besides the good practise given under 5.1.6 there is no relevant good practise to report.
5.2.7
The proposed ban on the slaughter of livestock without stunning them first led to fierce
public debate.375 This ban removes an exemption from the Animal Health and Welfare Act
(Gezondheids-en welzijnswet voor dieren) that has allowed Jews and Muslims to butcher
animals according to their dietary religious rules. The proposal faced resistance from Jewish
and Muslim groups and Christian political parties that insist the initiative is an affront to
freedom of religion.376 The amendment was adopted by the House of Representatives on 28
June 2011.377 The exemption has repeatedly been called into question over the past decades
by animal rights organisations as well as out of anti-Muslim resentment. In 2006, 2007 and
2010, private member's bills to ban ritual slaughter did not obtain a majority of votes.378
5.2.8
5.2.9
5.3
Disability (please focus on specific issues as defined in
the guidelines)
5.3.1
105
374
375
376
377
378
Savelkoul, M. et al (2011).
Chavannes, M. (2011).
Abels, R. (2011); Heertje, A. (2011); Pinedo, D. (2011).
Netherlands, House of Representatives (2011d).
Havinga, T. (2011), p. 69
105
5.3.2
Article 1 of the Constitution enshrines a guarantee of constitutional equality and nondiscrimination.379 Pending since 11 June 2010 is a private member’s bill to amend Article 1 to
include homo- and heterosexuality as well as disability as grounds for non-discrimination.380
The Netherlands signed the UN Convention on the Rights of People with Disabilities (CRPD)
in 2007, but has yet to ratify it. The government first wanted to consult civil society and
examine the consequences for legislation and policy. The Coalition for Inclusion (see Annex
3) compared the requirements of the Convention with the current situation in the
Netherlands, and summarised what needs to be changed in each area (education,
employment, legal protection, etc.) in order to meet the requirements.381 The Minister of
Public Health, Welfare and Sports informed the Parliament on 1 July 2011 that decision on
ratification has been postponed until an economic impact analysis has been made. The
government first wants to analyse the financial consequences of, for example, extending the
Act on Equal Treatment on Grounds of Disability or Chronic Illness (Wet gelijke behandeling
op grond van handicap of chronische ziekte) to include access to goods and services.382
The Compulsory Mental Health Care Act (Wet verplichte geestelijke gezondheidszorg) sets
new rules for compulsory care for persons with psychiatric or substance abuse disorders that
risk causing damage to oneself or to others.383 When adopted, it will replace the Special
Admissions to Psychiatric Hospitals Act (Wet Bijzondere Opnemingen in Psychiatrische
Ziekenhuizen). The draft law was offered to the Parliament on 14 June 2010 and is still
pending.
The Act on Equal Treatment on Grounds of Disability or Chronic Illness (Wet gelijke
behandeling op grond van handicap of chronische ziekte) covers the areas of employment,
education and housing.384 Its scope will be extended to include public transport.385 The
extension is expected to come into force on 1 January 2012.386 Implementation will take
place in phases and should be completed in 2030.387
5.3.3
National case law
No relevant key cases to report.
5.3.4
106
379
380
381
382
383
384
385
Netherlands (1815).
Coalition for Inclusion (2010).
Netherlands (2003).
Netherlands, Ministry of Health, Welfare and Sport and Ministy of Infrastructure and Environment
(2011).
386
387
Telephone conversation with Ms. C. Strikker, Equal Treatment Commission, 5 October 2011.
Netherlands, Ministry of Health, Welfare and Sport and Ministy of Infrastructure and Environment
(2011).
106
5.3.5
In the reference period, no nation-wide research studies have appeared in regard to
discrimination on grounds of disability. On behalf of the municipality of Rotterdam, the
regional anti-discrimination office RADAR investigated the experiences of disabled people in
Rotterdam with discrimination and exclusion and the accessibility of provisions.388 The
report is based on a literature study and interviews with representatives of interest groups.
5.3.6
Annex 3 describes the following good practises: Raster Group: Active without Limits, and
Coalition for Inclusion: Signing and Then...?
5.3.7
In the reference period, discrimination on grounds of disability was not a key issue in public
debate.
5.3.8
The number of ETC advisory opinions related to disability and chronic illness increased from
13 in 2009 to 35 in 2010.389 Discrimination against people with a disability or chronic illness
accessing the labour market is still a concern, the CGB states in a press release. Other
important opinions concerned education-related cases. These varied from the absence of
physical infrastructure and appropriate teaching materials to difficulties in finding
internships.390 On 1 August 2009, the scope of the Act on Equal Treatment on Grounds of
Disability or Chronic Illness was extended to primary and secondary education.391 Many
schools still seem insufficiently prepared to live up to the requirements that follow from the
legislation.392
5.3.9
388
389
390
391
392
107
Mink, I. (2010).
Equal Treatment Commission (2011f), pp. 223-266.
Equal Treatment Commission (2011g).
Netherlands (2003).
Equal Treatment Commission (2011g).
107
5.4
Sexual orientation and gender identity
5.4.1
On 5 October 2011, the Minister of Education, Culture and Science signed an agreement
with 22 municipalities to strengthen their LGBT policies in 2012-2014. They will join the
current 18 'front runner municipalities' active since 2008.393
5.4.2
Besides the general information given under 5.1.X and 5.3.2 there is no relevant information
to report.
5.4.3
National case law
A transgendered person turned to the ETC when a university refused to provide a new
certificate with his current male name. The Minister of Education, Culture and Science
promised to make sure that sex indications on diplomas can be changed more easily.394
A male same-sex couple from Utrecht felt forced to flee their house after being bullied and
threatened. The court ruled that too much time had passed to prosecute the perpetrators.
The court also ruled that police and justice, under the guidance of the municipality, had
failed to take adequate and decisive action on the basis of the reports the couple had
filed.395
5.4.4
5.4.5
At the request of the government, the Netherlands Institute for Social Research published
the report ‘Acceptance of Homosexuality in the Netherlands 2011’ (Acceptatie van
homoseksualiteit in Nederland 2011) as well as a separate study on social safety for
homosexuals in the workplace. The indicator developed by SCP shows that the percentage of
the Dutch population with negative attitudes towards homosexuality declined from 15% in
2006 to 10% in 2010. Among orthodox religious groups, percentages were higher than
average. Data from surveys of school-age children suggest that their attitudes are more
negative than among older birth cohorts.396 The report ‘Just Getting On with the
Job?’(Gewoon aan de slag?) is based on 'convenience samples' of gays and lesbians. The
report draws a summary of what is known about the lack of safety and negative reactions as
393
394
395
396
108
Netherlands, Ministry of Education, Culture and Sciences (2011b).
Netherlands, Court of Appeal Arnhem (2011).
Keuzenkamp, S. (2011).
108
experienced by sexual minorities, especially at work. It also focuses on the effects for their
functioning and well-being.397
The report ‘Fleeing Homophobia’ by COC and VU University Amsterdam provides
information on the situation of LGBT asylum applicants in the Netherlands and other
European countries.398 See chapter 1, 'Research and Studies'.
5.4.6
Annex 3 describes the following good practise: MOVISIE: Monitoring local LGBR policy & Pink
Lantern Award.
5.4.7
Around 100 Dutch registrars have refused to marry same-sex couples due to their religious
convictions.399 The LGBT organisation COC campaigns for their dismissal, as it believes
registrars should be obliged to marry all couples. 400 In 2008, the ETA advised that registrars
who refuse to marry same-sex couples should not be (re)appointed.401 The Association of
Dutch Municipalities Vereniging van Nederlandse Gemeenten (VNG) has adopted this
advice.402 Some municipalities like Groningen and Amsterdam have decided to end the
contracts of refusing registrars.403 Other municipalities allow conscientious objection on
religious grounds.404 On 11 October 2011, the Minister of Education, Culture and Science
stated in a newspaper interview that giving room to registrars with conscientious objections
is a form of emancipation.405 This prompted reactions from LGBT organisations and
politicians from D66 and Green Left (Groen Links).406 The Council of Ministers received a
letter from the Minister of the Interior and Kingdom Relations and the Minister of Education
elaborating their viewpoints. Discussion of the letter was scheduled for 14 October 2011,
but was postponed. The letter, which is not yet publicly available, argues that municipalities
should decide for themselves if they want to employ conscientious objectors, so long as
there are other registrars within the municipality that can marry same-sex couples.407
5.4.8
397
398
399
400
401
402
403
404
405
406
407
109
Keuzenkamp, S. and Oudejans, A. (2011).
Jansen, S. and Spijkerboer, T. (2011).
See www.coc.nl/dopage.pl?thema=any&pagina=algemeen&algemeen_id=407.
Bergkamp, V. (2011).
Equal Treatment Commission (2008).
VNG (2008).
Netherlands, Municipality of Groningen (2011); Netherlands, Parool (2011).
See www.coc.nl/dopage.pl?thema=any&pagina=algemeen&algemeen_id=407.
Pinedo, D. (2011a).
COC (2011).
Volkskrant (2011b).
109
5.4.9
5.5
Age
5.5.1
5.5.2
5.5.3
National case law
No relevant key cases to report.
5.5.4
5.5.5
5.5.6
Besides the general information given under 5.1.6 there is no relevant good practise to
report.
5.5.7
In the reference period, age discrimination was not a key issue in public debate.
5.5.8
5.5.9
110
5.6
Data and information regarding homophobia and discrimination on the grounds of sexual
orientation are presented in Annex 1. Statistical data on complaints received by the Equal
Treatment Commission are presented in Annex 2.
5.6.1
Country
Multiple and intersectional discrimination
Is multiple
discrimination
covered in
legislation?
Legal
reference
Legal definition Number of
grounds
covered
AT
BE
BG
CY
CZ
DE
DK
EE
EL
ES
FI
FR
HU
IE
IT
LT
111
Is multiple
indirect
discrimination
covered?
Is there higher
compensation for
multiple discrimination?
Country
Is multiple
discrimination
covered in
legislation?
Legal
reference
Legal definition Number of
grounds
covered
Is multiple
indirect
discrimination
covered?
Is there higher
compensation for
multiple discrimination?
LU
LV
MT
NL
No
-
-
-
No
No
PL
PT
RO
SE
SI
SK
UK
(N-Ireland)
UK (England.
& Wales)
UK
(Scotland)
People can file a complaint to the ETC on more than one discrimination ground. The Commission
judges on each of these grounds separately if an unjustified distinction is made. In a few cases,
the Commission was able to take multiple discrimination into account. There was only one such
case in the reference period, of a woman who stated that her chronic disease amplified the
effect of assumed sex discrimination.408 The ETC found no indications of discrimination on either
ground, but acknowledged that grounds can reinforce one another, or only lead to
discrimination when combined.
408
112
112
In its third evaluation of the equal treatment legislation, the Commission concludes that it might
be good to integrate an explicit prohibition of multiple discrimination into the legislation.409 The
severe character of discrimination aimed at individuals on the basis of a specific combination of
discrimination grounds can now go unremarked in ETA and court judgments. The Commission
recommends an investigation into the best way to integrate multiple discrimination in the equal
treatment legislation.410
The FRA requested the National Focal Point to pay specific attention to multiple discrimination
issues in regard to gender and age. In the reference period there was only one judgment by the
ETC that considered both discrimination grounds in a single case. A recruitment office found to
discriminate on the basis of both age and sex by rejecting a 46-year old man because a client
preferred a 30 to 40-year-old woman.411 The two discrimination grounds were evaluated
independently of one another.
409
410
411
113
Equal Treatment Commission (2011h), p. 6.
Idem, p. 64.
Netherlands, Equal Treatment Commission (2010a).
113
EN
Official title
NL
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6
RACISM AND ETHNIC DISCRIMINATION
6.1
Employment
6.1.1.
See chapter 5, paragraph 5.1.1 for general policy and institutional developments in the field
of anti-discrimination.
6.1.2 Legislative developments
See chapter 5, paragraph 5.1.2 for general legislative developments in the field of antidiscrimination.
6.1.3 National case law
Annex 4 contains one opinion of the Equal Treatment Commission (ETC) regarding ethnic
discrimination on the labour market.
6.1.4 Statistical data made available in the reference period
The unemployment rate among persons with a migratory background (from non-western
countries) was in 2010 12.6 %, compared to 4.5 % among persons with no migratory
background. 412 In 2009 these figures were 10.9 and 3.9 % respectively. The unemployment
rate among persons younger than 25 with a migratory background (from non-western
countries) was in 2010 23 % compared to 9.6 % among persons with no migration
background. In 2009 these figures were 20.3 en 9.2 % respectively. 413 The net labour
participation in 2010 among persons with a migratory background (from non-western
countries) was 52.8 % compared to 69.4% among persons with no migratory background . 414
See chapter 5, paragraph 5.1.4 for data on complaints received by anti-discrimination
agencies (ADAs). Most complaints of discrimination filed at ADAs concern discrimination at
the labour market. In 2010, the national Branch Organisation of Antidiscrimination agencies
LBA (whose member ADAs serve slightly less than 70% of the Dutch population) reported
1,622 of complaints of labour market discrimination (on all grounds) were registered by (the
majority of) ADAs. More than half of all complaints of labour market discrimination concern
recruitment and selection procedures.415 Most (58%) of the complaints (all grounds) that are
125
412
CBS (2011a).
Idem.
414
CBS (2011b).
415
National Branche Organisation of Antidiscrimination Agencies (2011).
413
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filed at the ETC also concern labour market discrimination.416 An analysis of all labour market
discrimination complaints filed at the ETC from 2005 through 2008 showed that most of
these complaints concern recruitment and selection as well as employment terms. A
considerable proportion of these complaints concern the wearing of a headscarf.417
6.1.5 Research and studies
The unemployment figures cited in Chapter 6 paragraph 6.1.4 are provided by the Central
Bureau of Statistics (CBS). CBS does not provide information on the extent in which
discrimination does contribute to the higher unemployment figures among persons with a
migratory background. A study on the labour market position of persons with no migratory
background published in 2011 by institute for policy research ‘Research voor Beleid’, based
on desk research and interviews, concludes that all sorts of factors contribute to the high
unemployment figures among persons with a migratory background (4).418 It states that
there are strong indications that ethnic discrimination is one of these contributory factors.
In the National Survey Working Conditions 2010, a large sample of employees was asked
about the occurrence of discrimination on several grounds including skin colour. See Chapter
5, paragraph 5.1.4, for the results of this survey.
Research among a national sample (n=602) of recent Polish migrants who migrated in the
past 6 years to the Netherlands, 36% had personal experienced discrimination.419 About half
of these experiences happened on the work floor, while looking for job or in public spaces.
Exact figures were not given.
Among a national sample of about 1,000 Chinese Dutch, 29% had personal experienced
discrimination. The four largest migrant groups (Turks, Moroccans, Surinamese, Antilleans)
experience more discrimination.420
17 % of the Chinese Dutch had personal experienced discrimination on the work floor, 17%
while looking for a job, 10 % while approaching authorities en 56 % in public spaces.
6.1.6 Promising „good‟ practices
No practices to report.
6.1.7 Key issues in public debate
An incident that received extensive media attention was a court case on 11 October 2010
where three branch managers of different supermarket stores and a personnel officer from
Servex were handed conditional fines for the racial discrimination of Moroccans. The store
managers sent an e-mail to the personnel officer in which they requested no more
Moroccan job applicants (“Urgent! No Moroccans”). The personnel officer responded to this
request for a period of at least 2 weeks.
126
416
Equal Treatment Commission (2011b).
417
Coenders, M. and Boog, I. (2010).
418
Bouma, S., Coenen, L. and Kerckhaert,A. (2011).
419
Dagevos,J. (ed.) (2011).
420
Gijsberts, M., Huijnk, W. and Vogels , R.(2011).
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6.1.8 Information on trends until 2011
See chapter 5, paragraph 5.1.8 for general information on trends in the field of antidiscrimination.
6.1.9 Identification of future challenges
See chapter 5, paragraph 5.1.9 for general information on future challenges in the field of
anti-discrimination.
6.2. Education
6.2.1 Policy and institutional developments
6.2.2 Legislative developments
On the access to education for refugees and asylum seekers the following can be said.
421
Children of refugees and asylum seekers have a right to education till their 18th birthday.
The status of their parents does not matter. Asylum seekers older than 18 years with a
residence permit or those who have applied for a residence permit and can wait for the
decision in the Netherlands, can also study.
6.2.3 National case law
No key cases to report.
6.2.4 Statistical data made available in the reference period
In recent years, the number of complaints of discrimination (on all grounds) regarding
education filed at anti-discrimination agencies increased from 137 in 2006 to 292 in 2010.422
6.2.5 Research and studies
127
421
Dutch Council for Refugees (2011)
422
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According to a survey conducted by an internship databank website among 1,703 students,
half of the students with a migratory background who apply for an internship think that
firms select interns with regard to ethnicity, 20% of these students had personally
experienced discrimination.423
With regard to the level of education, the Dutch Inspectorate of Education notes that nonwestern immigrant pupils still have a disadvantage compared to native pupils, but are slowly
catching up. Nevertheless their language skills remain behind those of native pupils, even
when both groups of pupils have parents with a comparable level of education. Immigrant
pupils need better teaching materials to catch up on their language disadvantage. With
regard to the quality of schools, many of the weak and unsatisfactory schools are in the
Northern provinces and large cities and relatively high numbers of disadvantaged native and
immigrant pupils attend these schools.424
No practises to report.
See paragraph 5.1.7.
6.2.8 Information on trends until 2011
See paragraph 5.1.8.
6.2.9 Identification of future challenges
anti-discrimination.
6.3. Health
6.3.1. Policy and institutional developments
As from January 2009, the medical service in asylum seekers centres has been terminated.
The purpose of the new health care protocol for asylum seekers was to ensure that asylum
seekers have access to the same first-line health services that are available to the general
population as much as possible. Prompted by the introduction of this new protocol, the
Health Care Inspectorate conducted an investigation of the asylum seekers’ access to firstline care (a general practitioner) and the extent to which public health and welfare services
128
423
Stagemotor.nl (2011)
424
The Netherlands, the Dutch Inspectorate of Education (2011).
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address the needs of this group. Initially, during its supervisory visits at the end of 2010, the
Inspectorate observed a practice system which was clearly still in development and did not
meet all norms. Among other things, the Inspectorate found that risk groups were not
sufficiently reached during medical intake interviews and potential risks were found with
regard to the availability of General Practitioners. But in their report of September 2011, the
Inspectorate reported great improvement and ascertained that most of the norms were now
met. However, the Inspectorate also observed certain risks, one of which is that the new
system presumes a great deal of self-reliance among asylum seekers.425 This is due to the
fact that the medical service is no longer located at the asylum seekers centre itself.
According to the Health Insurance Act everyone in The Netherlands must take out a health
insurance.426 At the same time irregular migrants are not allowed by this same law to take a
health insurance. When necessary aid is provided irregular migrants have to pay the costs.
427
When they can not pay, health care providers can make an appeal to a special fund
administered by the Health Care Insurance Board. In 2010 this fund spent 14,4 million Euro,
a sum of 44 million Euro was anticipated.428
6.3.2. Legislative developments
No relevant information.
6.3.3. National case law
No key cases to found.
6.3.4. Statistical data made available in the reference period
National health related databases in the Netherlands do not collect data on nationality or
ethnicity. 429 Health related data on ethnic minorities or migrants are collected in the
Netherlands, but this is done by surveys or target studies. These data are thus based on selfreports. These surveys and studies show that there is little difference in health care
utilisation between persons with a migratory background and persons without a migratory
background.430
6.3.5. Research and studies
A large scale study among Turkish migrants in the Netherlands showed that their
psychological health is worse compared to native Dutch and Turks in Turkey. The
psychological health of Turkish women in the Netherlands is far worse than those of Dutch
129
425
The Netherlands, Health Care Inspectorate (2011).
426
Netherlands, Health Insurance Act.
427
Health Care Insurance Board (2011).
428
Netherlands, Ministry of Health, Welfare and Sport (2011).
429
National Institute for Public Health and the Environment (2010).
430
Idem.
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9
and Turkish men. This is related to negative feelings of being a migrant and feelings of
loss.431
An exploratory study involving 100 undocumented female immigrants in the Netherlands
face examined the problems these women face while accessing health care workers.432
Health care utilization of undocumented women is low, partly due to a lack of information
and lack of contact with voluntary support organisations. Those women who were registered
with a GP found their GP with help of a voluntary support organisation. Undocumented
women prudently address health care professionals out of fear for deportation. Negative
experiences with government institutions, employers, landlords, and other health care
workers enforce their prudence.
A paper published in September 2011 examined the relationship between perceived
discrimination of Turkish and Moroccan patients and General Practitioner (GP) health care
utilisation in the Netherlands using a survey carried out in 2001 and 2005. 433It was found
that perceived discrimination was associated with non-attendance to the GP. It concludes
that ethnic minority patients who feel discriminated may avoid GP health care.
Annex 3 describes one ‘good’ practice in the field of health: ‘Mobiel medisch document’.
6.3.8. Information on trends until 2011
6.3.9. Identification of future challenges
6.4. Housing
130
431
Can, M. (2011).
432
Schoevers, M (2011).
433
Lamkaddem, M. et al (2011).
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No key cases to report.
The number of complaints of discrimination (on all grounds) regarding housing registered by
(the majority of) anti-discrimination agencies, decreased from 126 complaints in 2009 to 103
in 2010.434
Regarding housing, the ETC conducted a preliminary research study regarding discrimination
in insurances for houses (building and furniture insurances). In the media it was suggested
that a financial firm discriminated based on postal areas, and hence indirectly on ethnicity.
The ETC found in this preliminary research study no indications of discrimination at this and
other financial firms. 435
No practices to report.
There is a lot of debate about the relatively poor housing conditions of recent Polish labour
migrants and other East-European labour migrants. In various municipalities they live in
crowded, large-scale temporary housing projects, outside of residential areas.436 These
projects are often referred to as ‘Poles’ hotels’. Plans for new ‘hotels’ often lead to unrest
among the local population.437
131
434
435
Equal Treatment Commission (2011b), p. 44.
436
Burghoorn,A. and Huisman, C. (2011).
437
Volkskrant (2011).
1
3
1
See chapter 5, paragraph 5.1.8 for general information on trends in the field of antidiscrimination.
anti-discrimination
6.5. Specific information
6.5.1. Updates tables in ANNEX 2
Annex 2 contains updated figures from the Dutch Equal Treatment Commission. The data
concern the number of filed complaints – that is, formal submissions for a decision by the
Equal Treatment Commission.
6.5.2. Specific information on racist violence and crime
Discriminatory incidents recorded by the police
No data have yet been made available for 2011. The National Expertise Centre on Diversity
of the Police (LECD-police) reported a 14% increase in the total number of discriminatory
incidents (regardless of the ground of discrimination) from 2,212 incidents in 2009 to 2,538
incidents in 2010.438 Table 1 presents an overview of the grounds of discrimination. The
largest category of incidents (774 incidents, 30.5%) concerned racial or ethnic discrimination.
These incidents are often targeted towards people with dark (non-white) skin colour,
especially individuals of Moroccan and Turkish origin. The number of reported incidents of
racial or ethnic discrimination dropped from 898 in 2008 to 762 in 2009, but remained stable
at 774 in 2010. Discrimination based on Moroccan origin increased slightly, whereas
discrimination based on Turkish origin decreased slightly. The number of incidents targeting
East Europeans (not separately listed in the LECD-police report) was very small.439 Likewise,
there were only 4 reported incidents targeting Roma or Sinti in 2010.
132
438
De Wit, W. and Sombekke , E.(2011).
439
De Wit, W. and Sombekke , E.(2011), p. 10.
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3
2
Table 1. Number of discriminatory incidents recorded by the Dutch police in
2008 to 2010, per ground of discrimination
2008
GROUND OF DISCRIMINATION
2009
2010
N
%
N
%
N
%
898
40.1
762
34.4
774
30.5
35
0
4
130
7
88
4
0
0
670
1.6
0.0
0.2
5.8
0.3
3.9
0.2
0.0
0.0
29.9
25
0
12
115
8
103
9
0
1
511
1.1
0.0
0.5
5.2
0.4
4.7
0.4
0.0
0.0
23.1
21
7
12
110
8
124
6
238
4
269
0.8
0.3
0.5
4.3
0.3
4.9
0.2
9.4
0.2
10.6
Anti-Semitism
141
6.3
209
9.4
286
11.3
Religious
184
8.2
118
5.3
108
4.3
Including the following denominations (actual or
perceived)
- Non-religious
- Muslim
- Christian
- Other or not specified
1
116
10
80
0.0
5.2
0.4
3.6
3
96
11
9
0.1
4.3
0.5
0.4
4
93
11
1
0.2
3.7
0.4
0.0
Sexual orientation
380
17.0
428
19.3
660
26.0
Homosexual
heterosexual
380
0
17.0
0.0
428
0
19.3
0.0
658
2
26.0
0.1
9
0.4
10
0.5
17
0.7
3
4
0
0
3
0.1
0.2
0.0
0.0
0.1
2
4
4
0
0
0.1
0.2
0.2
0.0
0.0
1
3
10
3
0
0.0
0.1
0.4
0.1
0.0
85
3.8
113
5.1
139
5.5
85
0
3.8
0.0
113
0
5.1
0.0
134
5
5.3
0.2
0
0,0
5
0,2
7
0,3
723
32.3
649
29.3
668
26.3
2,238
100.0
2,212
100.0
2,538
100.0
Racial / ethnic origin
-
-
Including the following racial/ethnic origins or
nationalities (actual or perceived)
Autochthonous (native Dutch)
White skin colour
Western allochthonous
Turkish
Surinamese
Moroccan
Antillean
Dark (non-white) skin colour
Roma / Sinti
Other or not specified
Gender
-
Male
Female
Transgender
Travesty
Political beliefs
-
Fascism or extreme right
Handicap
Other (including extreme rightwing graffiti)
Total
1
Source: De Wit, W, and Sombekke, E. (2011)
* An incident can be based on multiple grounds of discrimination, hence the sum
of the incidents per ground of discrimination is larger than the total number of
incidents.
1
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3
The number of anti-Semitic incidents reported to the police increased significantly, from 141
in 2008 to 209 in 2009 to 286 in 2010. This increase is mostly caused by the increase in the
Rotterdam-Rijnmond region (from less than 5 incidents in 2008 to 165 in 2010). The taunting
of police officers as ‘Jews’ is most common in Rotterdam-Rijnmond. Football fans there also
regularly refer to members of their rival football club from Amsterdam, Ajax, as ‘Jews’. The
number of registered anti-Semitic incidents in the Amsterdam-Amstelland region is much
more stable; in other regions, there was a drop in the number of incidents in 2010. Hence
LECD-police concludes that it is unclear whether the overall number of reported anti-Semitic
incidents is really an indicator of anti-Semitism or whether it also reflects the more general
use of slang.440
In contrast, the number of incidents related to discrimination based on the Islamic religion
dropped from 116 incidents in 2008 to 96 in 2009 and 93 in 2010. The number of
discriminatory incidents reported to the police targeting mosques decreased from 32
incidents in 2008 to 16 and 14 incidents in 2009 and 2010.441
The types of discriminatory incidents (regardless of the ground of discrimination) are listed
in table 2. Insults were the most common (59% in 2010), followed by extreme rightwing
signs or texts (26%), and graffiti and scratching (23%). There was a significant increase in
extreme rightwing signs or texts, from 440 incidents in 2008 to 566 in 2009 to 653 in 2010.
Table 2. Types of discriminatory incidents recorded by the Dutch police in 2008
to 2010
2008
TYPE OF INCIDENT 1
Threats
N
2009
%
N
2010
%
N
%
429
19.2
204
9.2
215
8,5
1,367
61.1
1,282
58.0
1,485
58,5
226
10.1
141
6.4
184
7,2
77
3.4
58
2.6
56
2,2
Vandalism
126
5.6
86
3.9
31
1,2
Graffiti / scratches
458
20.5
547
24.7
586
23,1
Extreme rightwing signs /
texts
440
19.7
566
25.6
653
25,7
Teasing
-
-
32
1.4
124
4,9
Refusing admittance
-
-
36
1.6
35
1,4
-
-
7
0.3
4
0,2
-
-
-
-
6
0,2
230
10.3
80
3.6
78
3,1
2,238
100.0
2,212
100.0
2,538
100,0
Insults / name calling
Assaults
Public violence
Burglary
2
Theft
Other / unknown
Total
Source: De Wit, W. and Sombekke, E. (2011).
134
440
De Wit, W. and Sombekke, E.(2011), p. 24.
441
De Wit , W. and Sombekke, E. (2011), p.15.
1
3
4
1
Incidents can be registered as multiple types. For instance, a graffiti with
extreme rightwing signs is registered twice in this Table, both as ‘extreme
rightwing signs’ and as ‘graffiti / scratches’.
2
In 2008 and 2009 including theft.
Most discriminatory incidents reported to the police (regardless of the grounds of
discrimination) took place in individuals’ direct living environments or within their personal
relationships. In 2010, 737 discriminatory incidents (29.0%) fell within this category. The
number of incidents targeting mosques dropped from 32 in 2008 to 16 in 2009 to 14 in 2010.
Discriminatory incidents recorded by the prosecution service
No data have yet been made available for 2011. The report for 2010 will be published in
November 2011, though the figures have already been made available to us. The number of
discriminatory acts (for definitions see section 10.2) in 2009 (160) and 2010 (170) is
considerable lower than in previous years (232 acts in 2008). This decrease is most likely
related to the introduction of a new registration system.442
Table 3 presents data on discriminatory acts sub-divided under specific types of offence
(legal provision; articles 137c through 137g and 429quater of the Criminal Code). Of these,
discriminatory insults (article 137c) are the most common. The relative number of racial
discriminatory acts as presented in table 4, dropped from 69% in 2008 to 43% in 2010,
whereas the percentage of anti-Semitic discriminatory acts increased from 17% in 2008 to
36% in 2010 (table 4). Table 5 provides information on the background of the suspects. Most
suspects are white; an overwhelming majority are male (90%). Most discriminatory acts
occur on the street or in public places (table 6). As can be seen in table 7, verbal abuse is the
most common form of discrimination.
Table 3. Discriminatory acts as registered by Public Prosecutor per article of
the Criminal Code in 2008 to 2010 (all grounds of discrimination)
2008
ARTICLE
N
2009
%
N
2010
%
N
%
Article 137c
168
72%
119
74%
126
74%
Article 137d
24
10%
26
16%
22
13%
Article 137e
19
8%
8
5%
11
6%
Article 137e
1
0%
0
0%
0
0%
Article 137f
15
6%
7
4%
8
5%
5
2%
0
0%
3
2%
232
100%
160
100%
170
100%
Article 429quater
Total
Source: Netherlands, Public Prosecution Service - National Expertise Centre on Discrimination
(2010)
442
135
Netherlands, Public Prosecution Service – National Expertise Centre on Discrimination (2010).
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5
Table 4. Percentage of discriminatory acts as registered by Public Prosecutor
per ground of discrimination in 2008 to 2010
GROUND
2008
Race
2009
2010
69%
51%
43%
22%
22%
19%
black
11%
16%
17%
coloured
11%
5%
2%
1%
1%
0%
National or ethnic origin
47%
29%
24%
Surinamese / Antillean
5%
3%
2%
26%
12%
9%
0%
1%
0%
13%
11%
7%
2%
2%
6%
Anti-Semitism
17%
35%
36%
Religion / beliefs
10%
7%
7%
Islam
7%
5%
7%
other
2%
2%
0%
Homosexual orientation
4%
4%
7%
Gender
1%
0%
0%
Handicap
0%
0%
1%
Other
0%
1%
2%
Unknown
0%
2%
3%
100%
100%
100%
Skin colour
white
Turks / Moroccan
Roma/ Sinti
Allochthonous / foreigners
Other
Total
(2010)
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6
Table 5. Background information of suspects of discriminatory acts as
registered by Public Prosecutor per article of the Criminal Code in 2008 to 2010
(all grounds of discrimination)
2008
SUSPECTS
Extreme right
N
2009
%
N
2010
%
N
%
24
10
13
8
11
6
Religion/beliefs
1
0
6
4
2
1
Political beliefs
1
0
6
4
2
1
Police or investigating officer
1
0
0
0
0
0
Surinamese/Antillean individual
4
2
1
1
6
4
15
6
20
13
13
8
2
1
2
1
2
1
178
77
88
55
103
61
Individual (ethnic origin
unknown)
5
2
18
11
22
13
other
0
0
2
1
3
2
unknown
1
0
4
3
6
4
232
100%
160
100%
170
100%
Turkish/Moroccan individual
Other non-white individual
White individual
Total
(2010)
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7
Table 6. Location of occurrence of discriminatory acts as registered by Public
Prosecutor per article of the Criminal Code in 2010 (all grounds of
discrimination)
LOCATION
N
Towards a police or investigating officer
%
18
11%
Work
9
5%
School / education
3
2%
38
22%
Catering – admittance
6
4%
Catering - general
2
1%
Living environment
13
8%
Street or public place
48
28%
Internet
19
11%
Press (media)
3
2%
Other
7
4%
Unknown
4
2%
170
100%
Sports
Total
(2010)
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3
8
Table 7. Nature of discriminatory acts as registered by Public Prosecutor per
article of the Criminal Code in 2010 (all grounds of discrimination)
NATURE
N
Verbal abuse
%
104
61%
Written
27
16%
Images
2
1%
Graffiti
7
4%
20
12%
Other
6
4%
Unknown
4
2%
170
100%
Concurrency with a threat or violence against a person
Total
(2010)
The annual publication of the Public Prosecutor reports on the handling of cases (e.g.
dismissal, sentencing, nature of sentencing). Table 8 provides information on the type of
response by the Public Prosecutor, and table 9 by the court. In 2010 there were 121
discriminatory facts for which the Public Prosecutor summoned the suspect. The court
sentenced a suspect in 75% of all cases, most commonly with an order to perform
community service or a fine (table 10). Note that with regard to court case, the sentence
may not only be based on discriminatory offenses, but also on other offenses that may be
part of the case.
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9
Table 8. Type of Response to discriminatory facts by the Public Prosecutor in
2010.
RESPONSE
N
Subpoena
Transaction
Conditional discharge
Discharge
Total
%
121
71%
17
10%
1
1%
31
18%
170
100%
(2010)
Table 9. Type of response to discriminatory cases by the court in 2010.1
RESPONSE
N
%
Sentencing
90
75%
Acquittal
21
18%
Invalid Subpoena
1
1%
Inadmissibility of prosecution
0
0%
Dismissal from prosecution
0
0%
Guilty verdict without criminal penalty
5
4%
Referral to another forum
0
0%
Unknown
3
3%
120
100%
Total
(2010)
1
A case can consist of multiple discriminatory facts.
1
4
0
Table 10. Type of sentence for discriminatory cases given by the court in
2010.1
SENTENCE
N
Fine
34
Imprisonment
22
Youth detention
2
Werkstraf (community sentence)
51
Training order
0
Partial / Inadmissibility of the injured party
10
Alternative imprisonment
0
Guilty verdict without criminal penalty or
measure
1
Dismissal of prosecution
0
Remaining
51
Total
171
Source: Netherlands, Public Prosecution Service - National Expertise
Centre on Discrimination (2010)
1
A case can consist of multiple discriminatory facts.
Next to official data from the police and prosecution service, various organisations compile
data on racism and discrimination. An important source for data on racist violence is the
Racism and Extremism Monitor, a joint project between the Anne Frank Foundation and
Leiden University. It compiles data on racist violence and violence incited by the extreme
right by integrating data from the LECD-police, anti-discrimination agencies and the Kafka
Anti-Fascist Research Group. As of 2011, the monitor will no longer be carried out by the
Anne Frank Foundation and Leiden University, but by the Verwey-Jonker Instituut. As a
result, recent data from 2010 onwards are not yet available. Data for 2005 to 2009 showed a
continual decline in the number of racist or extreme right-related violent incidents, from 291
incidents in 2005 to 216 in 2008, and a large decrease in 2009 with 148 incidents.443
443
141
Rodrigues, P.R. and Van Donselaar, J. (2010).
1
4
1
In contrast to preceding years,444 no nationwide report is available for the number of
complaints of discrimination received by antidiscrimination agencies. A report of the new
National Branch Organisation of Antidiscrimination agencies (LBA) was published, but does
not include all agencies. About 70% of the Dutch population lives within the working areas of
the affiliated agencies. Compared to previous years, the affiliated agencies reported an
increase in the number of complaints, from a total of 3,058 in 2006 to 5,339 in 2010. The
large increase from 2008 (4,093 complaints) to 2010 is mostly due to the government’s
nationwide anti-discrimination campaign in 2009 and 2010 to increase awareness of
discrimination and improve access to anti-discrimination agencies. In 2010 there was an
increase in the number of complaints of discrimination based on race (from 2,223 in 2009 to
2,376), religion (from 329 to 367), sexual orientation (from 326 to 437), anti-Semitism (from
83 to 155) and political beliefs (from 22 to 77). Most complaints had to do with
discrimination on the labour market, the number of which remained rather stable (1,622 in
2010).445
6.5.3. Specific information on data collection and information gathering
mechanisms
The registration system of the Dutch police
As of 2008, each police region registers incidents of a discriminatory nature. The National
Expertise Centre on Diversity of the Police Academy (LECD-police) implemented a national
registration of discriminatory incidents in 2009.446 The LECD-police reports on the number
and nature of criminal (potentially punishable) incidents of a discriminatory nature. This
includes both discriminatory criminal offences as well as other criminal offences with
discriminatory elements, for instance assault and vandalism (the latter are referred to as
‘common offences with discriminatory elements’).447
The Netherlands has 25 police regions that submit their data to the national registry. But
some police regions have yet to begin using the national registration form; clear national
guidelines defining discriminatory incidents do not exist.448 Regional differences in
registering and interpreting incidents, and in the importance they attach to monitoring hate
crimes thus hampers the comparability of data.449 It is moreover often difficult to determine
whether an incident should be regarded as a discriminatory (potentially punishable)
incident. The interpretation of incidents is largely based on the appraisal of officers in the
respective police districts.450 The LECD-police aims to improve the quality of its registration,
analysis and reporting in 2011.451
142
444
Dinsbach, W., Coenders , M.and Van Bon, S.(2010).
445
446
De Wit, W. and Sombekke, E. (2011).
447
Tas, F. and De Wit, W. (2009), p. 3.
448
De Wit, W. and Sombekke, E. (2011), p.24.
449
Tas and De Wit, E. (2009).
450
De Wit, W. and Sombekke, E. (2011), p. 2.
451
De Wit , W. and Sombekke , E.(2011), p. 1.
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The registration system of the Public Prosecutor
The National Expertise Centre on Discrimination of the Public Prosecutor (LECD-OM) advises
and monitors the legal enforcement of antidiscrimination laws and the registration of
discriminatory facts. Only discriminatory offences that are prosecutable according to the
Dutch Criminal Code are registered (i.e. Articles137c to 137g and 429quarter Sr). This
includes criminal cases with a common offence as the first fact and a discriminatory offence
only as the second or subsequent fact. Furthermore, one criminal case may consist of
multiple discriminatory facts.
Next to discriminatory offences, there are other offences which contain discriminatory
elements, mostly to do with the motivation of the offender. In the Discrimination Instruction
of the Public Prosecutor, such offences are referred to as ‘common offences with
discriminatory elements’. One can distinguish between common offences in which the
discriminatory element can be charged as an additional criminal fact and common offences
in which this is not the case. The latter common offences with a discriminatory element are
not included in the annual reports of the LECD-OM. It is currently not possible to provide the
number of these common offences. Thus the LECD-OM only reports the number of
discriminatory facts that are charged on the basis of legal articles. No information is
available regarding the number of common offences with a discriminatory element that was
not additionally charged as a discriminatory criminal fact.
In 2009, only 7% of the discriminatory incidents reported to the police were forwarded to
the Public Prosecutor. This can first of all be attributed to differences in registration. Up to
now, the Public Prosecution Office only reports the number of discriminatory facts that are
charged on the basis of the legal articles. In contrast to the police registration, it does not
include common offences with a discriminatory element that is not additionally charged as a
discriminatory criminal fact. Second, discriminatory incidents that are registered by the
police but that do not result in a criminal report are not forwarded to the Public Prosecutor.
Finally, cases with no known suspect or lack of evidence are also not forwarded to the Public
Prosecutor.452 Based on the Discrimination Instruction, the Dutch police are obliged to
register all complaints and reports of discrimination reported by the public. After
investigation, such a registered incident might turn out not to be a criminal offence and is
consequently not forwarded to the Public Prosecutor.
The LECD-OM aims to include common criminal offences with a discriminatory motive in the
future reports.453
6.5.4. Specific information on EU-MIDIS
In contrast to the media attention in 2009 when the first results of EU-MIDIS were
published, we found hardly any references to EU-MIDIS in the period October 2010 to
October 2011. Only some NGOs (like Art.1) referred to the more recent results on their
website. We found no newspaper articles or government reports referring to EU-MIDIS.
143
452
453
Netherlands, Public Prosecution Service – National Expertise Centre on Discrimination (2010).
Netherlands, Public Prosecution Service – National Expertise Centre on Discrimination (2010). p.7.
1
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3
6.5.5. Specific information on the implementation of Council Framework
Decision
The existing legislation in the Netherlands surpasses the Framework Decision. There are
several articles in the Criminal Code prohibiting discrimination on racial grounds (including
skin colour, descent, national or ethnic origin) and religion or conviction, hetero or
homosexual orientation, and handicap. Discrimination is prohibited when expressed as an
insult (article 137c), inciting of hatred / discrimination or violence (article 137d), when
dispersed in public (article 137e) or if one is acting within the capacity of a profession (article
137g and 429quater). In 2009 a new article (article 137h) was added, containing the
possibility to deprive a person from his profession as an additional punishment in case of
discrimination.
Article 1(1) is implemented in Criminal Code article 137c, 137d and article 137e. Although
not explicitly mentioned in these articles, the scope of these articles also cover publicly
condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and
ware crimes as referred to in article (1c) and (1d) insofar this results in inciting hatred or
violence, insult or discrimination based on race and religion.454
Article 1(4). As mentioned the crimes referred to in (1c) and (1d) are not explicitly
mentioned in the Criminal Code articles, hence article 1(4) is not applicable. Case-law of the
Supreme Court includes ruling on the denial of the holocaust.455
Article 3 is implemented in the aforementioned Criminal Code articles. Maximum sanctions
for insult (article 137c) and inciting hatred or violence (article 137d) are 1 year, for
dissemination (article 137e) 6 months. These sanctions can be doubled in case of
discrimination committed as a group or by repetition.
Article 4 is implemented in the Discrimination Instruction of the Public Prosecution
Service.456 This instruction deals with the handling of cases of racism and discrimination. One
of the instructions is imposing harsher sentences (with 50 or 10%) in case of a discriminatory
aspect of other offences (like assault, threat and vandalism).
Article 9(3): This does not apply.
Article 7: Jurisprudence with regard to the antidiscrimination articles of the Criminal Code
takes the respect for freedom of expression and association in consideration. This is
illustrated for instance by the trial of Geert Wilders as well as a case in which the Supreme
Court ruled about the scope of article 137c.457
The number of complaints filed before the police and court as well as information on the
response by the Public Prosecutor and courts are listed in paragraph 6.5.2.
144
454
Netherlands, Ministry of Justice (2008).
455
Netherlands, Supreme Court of the Netherlands (1997).
456
Netherlands, Public Prosecution Service (2007).
457
Netherlands, Supreme Court of the Netherlands (2009).
1
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4
6.6. Specific information
There have been no recent changes in the Criminal Code prohibiting discrimination on racial
and other grounds such as hetero or homosexual preference, disability, gender, religion and
conviction. On these grounds, discrimination is prohibited when expressed as an insult
(article 137c), when inciting hatred/discrimination or violence (article 137d), when dispersed
in public (article 137e), or if one is acting within the capacity of a profession (article 137g and
429quater). In 2009 a new article (article 137h) was added, containing the possibility of
depriving a person of his profession as an additional punishment in case of discrimination.458
Since 2009, municipalities are obliged by the Municipal Anti-Discrimination Provisions Act to
provide their residents access to an anti-discrimination agency.459 This recent improvement
in the infrastructure of anti-discrimination agencies may be at risk due to spending cuts. The
Act will be evaluated in mid-2012. See also chapter 5.8.
The number of complaints of racial discrimination submitted to the Equal Treatment
Commission has decreased over time, from 72 in 2008 (17% of all complaints) to 66 in 2009
(14%) to 55 in 2010 (14%).460
In May 2011 the Equal Treatment Commission (ETC) published a positive five-yearly
evaluation of the operation of the Equal Treatment Law.461 The number of complaints
concerning racial discrimination handled by the ETC during the evaluation period (20052009) period was 417, 15 % of the total number of complaints. The evaluation did not split
among the 12 non-discrimination grounds covered by the ETC.
The police, the prosecution service and the Equal Treatment Commission (ETC) have
registered hardly any discriminatory incidents reported by Eastern Europeans. The Equal
Treatment Commission notes that it is doubtful whether these new migrant groups know
how to file complaints or access these organisations.462
Annex 3 describes three practical initiatives by civil society: ‘Welcome in Rotterdam’,
‘Connect through Football’ and ‘Together to Get There’.
Annex 4 contains three cases referring to discrimination on the internet (either by a blogger
or a web administrator) and anti-Semitic chanting during football matches.
The decision by the organizers of the Utrecht Marathon (which took place on 25 April 2011)
to discourage foreign runners by offering different prize monies was widely criticised. The
last four editions of the Utrecht Marathon were won by Kenyan runners. To encourage local
Dutch runners, the director of the marathon decided to award a Dutch winner a prize of
10,000 Euros and a foreign winner a prize of 100 Euros463 – a clear case of discrimination
according to the Expertise Centre on Discrimination Art.1. Nevertheless, it remains unclear
whether the decision by the organizers of the marathon contravenes Dutch
antidiscrimination law. The Commission of Equal Treatment will decide on this case in
145
458
Netherlands, Staatsblad (2009).
459
Netherlands, Staatscourant (2010).
460
461
Netherlands, Equal Treatment Commission (2011a)
462
Netherlands, Equal Treatment Commission (2011b), p. 12.
463
Casert, R. (2011), Doyle, P. and Richards, G. (2011), Van Driel, M. (2011).
1
4
5
October 2011464 (2). Local authorities were not pleased. Utrecht Alderwoman Rinda den
Besten stated: "It is a great event of which we are so proud but now we are very unhappy. It
gets a totally different image.”465
The strict entrance policy of the jeweller Jos Kamerbeek in the city of Nijmegen sparked
media debate on discrimination. Over the last 10 years, Mr Kamerbeek has been robbed
eight times. “And always by Moroccan and Antillean youths,” he said in an interview.466 The
last incident left him partially paralysed. He decided to employ security guards to screen
visitors, who keep Antillean and Moroccan youths out: “Youths of Antillean or Moroccan
descent need to make an appointment first.”467 The jeweller’s decision was widely covered
by the Dutch media.468 One Nijmegen resident turned to the local antidiscrimination agency
(Ieder1Gelijk) to file a complaint against Kamerbeek. An employee of the agency understood
Kamerbeek’s predicament but hoped to convince him of less drastic solutions that wouldn’t
discriminate against ethnic minorities.469 A spokesperson of the Dutch Equal Treatment
Commission said that discrimination on the grounds of ethnic origin in providing goods and
services is forbidden under Dutch law. Other jewellers in the Netherlands understood
Kamerbeek’s decision but stated that they would not adopt his door policy. Moroccan and
Antillean youths are not only criminals but good customers, stated some jewellers.470
The trial of Dutch politician Geert Wilders received extensive media attention. Wilders was
accused of criminally insulting religious and ethnic groups and inciting hatred and
discrimination. Wilders was accused of 5 charges: (1) Group defamation by insulting a group
of people (Muslims) based on their religion, (2) Incitement to hatred against people
(Muslims) based on their religion, (3) Incitement to discrimination of people (Muslims) based
on their religion, (4) Incitement to hatred against people based on their race, and (5)
Incitement to discrimination of people based on their race. Though previous attempts to
prosecute Wilders were dropped by the public prosecution in June 2008, a court of appeal
on 21 January 2009 ordered the public prosecutor to try the politician. The court sessions
started on 20 January 2010. On 22 October 2010, when the trial was nearing its conclusion,
Wilders' attorney Moszkowicz asked for the judges to be substituted due to perceived bias
against his client, which was awarded by the substitution chamber.471 The retrial started on 7
February 2011. Wilders’ attorney claimed that a witness had been influenced by one of the
judges in the court of appeals case that ordered Wilders’ prosecution.472 This claim was
refuted on 23 May 2011.473 On 23 June 2011, Wilders was acquitted by the court of all
charges. The court ruled that a large number of Wilders’ utterances referred to Islam, and
not to a group of people, and hence did not incite hatred or discrimination. The court also
ruled that the politician’s other utterances were allowed in the context of public debate.474
146
464
Algemeen Dagblad (2011).
465
Casert, R. (2011).
466
Pinedo, D. (2011).
467
Venema, S. (2011).
468
Booltink, R. (2011), Pinedo, D. (2011), Van Wees, K. (2011), Venema, S. (2011).
469
Ieder1Gelijk (2011).
470
De Gooi- en Eemlander (2011).
471
Groen, J. and Meijer, R. (2011) and Mat, J. and Thie, M. (2011).
472
Trouw (2011).
473
Belleman, S. (2011).
474
Netherlands, Court of Appeal Amsterdam (2010) and Meier, R. (2011).
1
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6
EN
Official title
NL
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Belleman, S. (2011) ‘Rechtbank zet vaart achter
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Booltink, R. (2011) ‘Winkelverbod voor
allochtonen; Anti-overvalmaatregel juwelier
begripvol ontvangen’, De Telegraaf, 11 July
2011.
Boonstra, N., Hermens, N., Koot, E., Scheijmans,
I. and Verhagen, S. (2011a) De verbindende
kracht van voetbal : Voetbalvereniging
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Boonstra, N., Hermens, N., Koot, E., Scheijmans,
I. and Verhagen, S. (2011b) De verbindende
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Bouma, S., Coenen, L. and Kerckhaert, A. (2011)
Arbeidsmarktpositie van niet-westerse
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Research voor beleid
Burghoorn, A. and Huisman, C. (2011) ‘Om 11
uur doet de baas het licht uit. Enclaves voor
Poolse arbeiders’, de Volkskrant, 12 February
2011.
Casert, R. (2011) ‘Utrecht Marathon discourages
foreign runners amid cries of discrimination’,
Associated Press, 18 April 2011.
Can, M. (2011) ‘Wel thuis! De beleving van
migrant zijn, psychische gezondheid en kwaliteit
van leven bij Turken in Nederland’, Tilburg,
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CBS (2011a) 'Werkloosheid niet-westerse
allochtonen in 2010 verder opgelopen', Press
release, 4 February 2011
CBS (2011b) CBS Statline, The Hague, Central
Bureau of Statistics (CBS)
Coenders, M. and Boog, I. (2010), ‘Klachten en
oordelen over ervaren discriminatie’ in: E.
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Nievers and I. Andriessen (eds),
Discriminatiemonitor niet-westerse migranten
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Czyzewski, A., Hoogebosch, A. and Wink, R.
(2010) Together to get there:
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Dagevos, J. (ed.). (2011) Poolse migranten: De
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(2010) Kerncijfers 2009. Landelijk overzicht van
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Doyle, P. and Richards, G. (2011) ‘Dutch
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Gijsberts, M., Huijnk, W. and Vogels, R. (2011)
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Groen, J. and Meijer, R. (2011) ‘Proces Wilders
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Health Care Insurance Board (College voor
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zekerbare+vreemdelingen/zorg+aan+onverzeker
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Ieder1Gelijk is (2011) ‘Ophef na artikel in de
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discrimination outside health care settings and
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GP patients in the Netherlands, The European
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Mat, J. and Thie, M. (2010) ‘Rechters Wilders
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2010. Overzicht klachten en meldingen.
National Institute for Public Health and the
Environment (Rijksinstituut voor
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Netherlands, Court of Appeal Amsterdam
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Netherlands, District Court The Hague
(Rechtbank ‘s-Gravenhage) (2011a), No.
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Netherlands, District Court The Hague
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(Inspectie van het Onderwijs) (2011) The state of
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Netherlands, Equal Treatment Commission
(2011a) Evaluatie AWGB, WGB m/v en artikel
7:646 BW. Over de periode 1 september 2004 tot
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1 september 2009, Utrecht, CGB.
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Opinion no. 2011-99, case no. 2010-0304, 27
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Netherlands, Ministry of Justice (Ministerie van
Justitie) (2008) ‘JBZ-instemmingsbesluit;
ontwerp-kaderbesluit betreffende de bestrijding
van bepaalde vormen en uitingen van racisme
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overval; Juwelier in Nijmegen laat Marokkanen
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allochtonen weren’, de Stentor, 13 July 2011
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1
5
2
7
PARTICIPATION OF EU CITIZENS IN THE
UNION‟S DEMOCRATIC FUNCTIONING
7.1
European Citizens‟ Initiative
7.1.1
Mid 2011 the ministry of the Interior and Kingdom Relations commissioned an investigation
of the necessary steps to be taken for implementation of the European citizens’ initiative.
The Dutch government is currently working on the certification of online systems as well as
the verification of statements of support and expects to complete the implementation of the
European citizens’ initiative before 1 April 2012. 475
7.1.2
7.1.3
National case law
7.1.4
7.1.5
No relevant information to report. All relevant sources have been searched.
7.1.6
7.1.7
7.1.8
7.1.9
153
475
E-mail of the Ministry of Internal Affairs and Kingdom Relations, Department Citizenship and Information
Policy, to Art. 1 of 29 November 2011.
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5
3
7.2
The right to vote in municipal elections
7.2.1
In the period under review, only elections for the Provincial Councils were held. Given that
no municipal or European elections took place, no new information on the electoral
participation of non-national EU citizens can be provided. What follows is a brief overview of
the current situation regarding the participation of EU citizens.
There are no formal restrictions for citizens of other EU Member States to participate in
municipal or European parliamentary elections in the Netherlands. EU citizens who have
registered with the municipality are automatically registered in the electoral roll and receive
a ballot for the municipal elections. To stand as a candidate, EU citizens have to comply with
the same criteria as Dutch candidates. For European elections, nationals from other Member
States must submit a request to the municipality to vote in the Netherlands. The
municipalities are obliged to notify EU citizens who are not registered of this requirement by
sending a registration form.476 The registration is permanent. Applicants are obliged to
submit a declaration that they are not excluded from voting. The Netherlands has in some
cases received complaints about the difficulty of obtaining such declarations in other
Member States.477 The Netherlands has no legislation restricting the participation of nonDutch EU citizens in politics, such as restrictions on becoming a member of a political
party.478
7.2.2
7.2.3
National case law
7.2.4
No municipal elections took place during the reporting period. There is thus no new relevant
data.
7.2.5
7.2.6
7.2.7
154
476
Netherlands, Elections Act, Article Y32 (5) .
477
Netherlands (2010).
478
Ibid.
1
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4
7.2.8
7.2.9
7.3
Limitation of voting rights in case of disability
7.3.1
Though the intellectually disabled have the right to vote in the Netherlands (see section
7.3.2), help with the act of voting is not provided. In case physically disabled persons need
help, this can be provided by a staff member at the voting station or someone selected by
themselves.479 When persons are incapable of signing an authorisation, a government official
can visit them at home to register the authorisation.480 A special phone service was launched
for visually impaired voters (Kieslijsttelefoon) which provides them with an audio version of
the electoral list (see promising ‘good’ practices, section 7.3.6).
It is prescribed by law that at least 25% of municipalities’ voting stations be situated and set
up in a way that ensures voters with physical disabilities can vote independently.481 The
Dutch Council of the Chronically Ill and the Disabled (Chronisch zieken en Gehandicapten
Raad Nederland, CG-Raad) is of the opinion that everyone must be able to vote
independently; it finds the 25% accessibility requirement imposed on the municipalities
unacceptable.482
7.3.2
Persons with disabilities (whether physical or intellectual) are allowed to vote in the
Netherlands. Until 2008, persons placed under custodial care due to their mental health
problems or intellectual disabilities could not exercise their right to vote. This changed with
the constitutional amendment following a decision of the Council of State, declaring that the
categorical exclusion of persons placed under custodial care can be contrary to the
International Covenant on Civil and Political Rights.483 For an overview of the relevant
articles on participation and exclusion (in general, not only with regard to disabled persons),
see the completed table in section 7.4.1.
7.3.3
National case law
No relevant information to report. All relevant databases have been searched.
155
479
Netherlands, Elections Act , Article J28 .
480
See the website of the Dutch Electoral Council: www.kiesraad.nl/nl/Onderwerpen/ThemaStemmen/Hulp_bij_stemmen.html
481
Netherlands, Elections Act, Article J4(2).
482
www.cg-raad.nl/wij_werken_aan/toegankelijkheid/stemmen/index.php
483
1
5
5
7.3.4
No statistical data are available.
7.3.5
During the last provincial council elections, Disabled National (Handicap nationaal), which
represents the interests of disabled people, randomly sampled more than 320 voting
stations to test their accessibility for physically disabled people.484 According to the electoral
lists, 83% of stations were accessible for the disabled. Disabled National, however, found
that the majority of the marked voting stations in the sample were not fully accessible. It
therefore concluded that in most locations, adjustments were necessary to make them fully
accessible.
7.3.6
See Annex 3.
7.3.7
7.3.8
7.3.9
Though steps have been taken to facilitate independent voting by persons with physical
disabilities, these have not yet had the desired effect. In practice, voting stations need to be
made more accessible.
The Party for Freedom’s initiative to ‘translate’ a special electoral program for mentally
disabled persons may encourage other political parties to do the same.
7.4
7.4.1
Update table
Exclusion
Limited Participation
Participation
Article 26 Constitution of
Austria
AT
484
156
Disabeld national (2011)
1
5
6
Exclusion
BE
Article 7 1° Electoral Code
BG
Article 42 (1) Constitution
of Bulgaria
the Republic of Cyprus
CY
CZ
Participation
Article 2 of Elections to the
Parliament of the Czech
Republic Act 247/1995
Article 10 Civil Code
DK
Section 29 (1) Constitutional
Act of Denmark
Section49 (1) and (4)
Parliamentary Election Act
EST
the Republic of Estonia
Article
5
(3)
Local
Government
Council
Election Act
Article 526 (5) Code of Civil
Procedure
FI
Section 27 Constitution of
Finland
Section 14 Constitution
Section 2 Election Act
FR
Article L5 Electoral Code
Article L3211-3 6) Public
Health Code
DE
Article 13 Federal Election
Act
EL
of
Greece
Article 5 Presidential Decree
96/2007
HU
of the Republic of Hungary
IR
Lunacy
Regulation
(Ireland) Act 1871 and
Order 67 of the Rules of the
Superior Courts 1986
Article 7(1) Electoral Act of
Ireland 1992
IT
LT
Article 11 Law 180/1978
Article 2 (3)
Election Law
Saeima
1
5
7
Exclusion
LT
of the Republic of Lithuania
LU
Article 53 (1) 3 Constitution
of the Grand Duchy of
Luxembourg
Article 6 -3° Election Law
2003
MT
Article 58 (a) Constitution
of Malta
NL*
of the Netherlands, Articles
B1, B3(3) and B5 Elections
Act*
PL
Article 62-2 Constitution of
Poland
PT
of the Republic of Portugal
Article 2 Parliamentary
electoral law
RO
Art. 36 -2 Constitution of
Romania
SK
Section 2 (2) c) Law of the
Narional
Council
Section 2-3 Act of the Slovak
Republic
on
European
Parliamentary
Elections
2003
Participation
Section 13 (9) and Section 27
(3) General Elections Act
Article B3(2) Elections Act
SI
Article 7 National Assembly
Elections Act 2006
ES
Article 3. 1. b)-c) Law on
Regime of General Elections
Article 4 and Article 54 (1)
Constitution of the
Netherlands/ Articles B1 to
B3 Elections Act
Art. 23 Constitution of
Spain
Chapter 1 Article 1
Constitution of Sweden The instrument of
Government
Chapter 3 Article 2
Constitution of Sweden The instrument of
Government
SE
1
5
8
Exclusion
Participation
C2 section 13-39 Electoral
Administration Act 2006
C22 section 73 Electoral
Administration Act 2006
UK
*The Articles provided in this table prescribe all grounds for exclusion and limited
participation. The constitutional amendment of Article 54 following the decision of the
Council of State, as referred to in 7.3.2, nullified the provision on the exclusion of
unqualified persons from the right to vote. Therefore, since this amendment, none of
the provisions referred to in the table explicitly deal with the exclusion of persons with
disabilities (whether physical or intellectual), from voting.
7.5
Important information not covered above (including the
right to good administration)
Other institutional and legislative developments related to the Union‟s
democratic functioning
The House for Democracy and the Rule of Law (Huis voor democratie en rechtsstaat) was
opened on 30 September 2010 and will continue under the name ProDemos.485 The aim of
the government-subsidised institute is to increase citizenship skills and enhance political and
social participation. It aims to help increase people’s knowledge of the core values and
foundations of the rule of law in democracy and how its institutions work. Over the coming
years, the house will be further developed into an educational activity centre. The emphasis
is on themes such as the Constitution, the history of Dutch democracy, Europe, the rule of
law and human rights. There are tailored programmes and activities for school students,
professionals, members of political organisations, tourists, people following civic integration
courses and the general public. The Dutch Institute for Political Participation (Instituut voor
Publiek en Politiek, IPP), The Hague Tribune (De Haagse Tribune) which arranges visits and
national and EU programmes for schools, and the Binnenhof Visitors’ Centre
(Bezoekerscentrum Binnenhof) are part of the ProDemos House for Democracy and the Rule
of Law.
The IPP informs citizens about democratic decision-making processes and enables their
active participation. It runs projects on local, national and European politics and elections,
though most attention is paid to local and national politics.486 Until 1 July, it ran the website
www.brusselstemt.nl, which followed the work of Dutch Members of the European
Parliament. It informed citizens about the voting behaviour of their elected MEP’s and
sought to involve them in the European decision-making process. Due to the small number
of visitors, the website no longer exists. ProDemos will continue the research and publish
results on the topic.
159
485
See www.democratie-rechtsstaat.nl/
486
House for Democracy and the Rule of Law (2010), only the last two pages are about activities in relation to
international politics.
1
5
9
ProDemos intends to contact ECAS, who run the European Civil Society House in Brussels, to
discuss possible cooperation in view of ECAS’ plans for a European Civil Society House in the
Netherlands.
In May 2011 the House of Europe (Huis van Europa) opened its doors.487 The renovated
building, which houses the Representation of the European Commission in the Netherlands
and the European Parliament’s Information Bureau, now also contains an information centre
and conference hall open to the general public where debates, conferences, lectures,
seminars and cultural events related to Europe can be organised. This centre is intended to
be an easily accessible information centre on everything concerning the European Union. It
is not yet clear to what extent these objectives are being met.
The government ended subsidies to encourage public debate on the EU through the Europe
Fund (Europafonds).488 Since 2001, this fund has subsidised projects that stimulate public
debate and educate and inform people about the EU. The government now plans to make
more use of social media in its communications about Europe, for example through the
website www.facebook.com/EuropaNL.489
The Minister of Internal Affairs informed Parliament that he is working on a proposal for
legislation to amend the Elections Act to make voting in Dutch parliamentary and European
elections easier for Dutch citizens living abroad.490 This concerns, among other things, the
plan to register not only permanent residents but also non-residents who are related to the
Dutch government in the population register. Through this amendment, this group would
automatically receive their ballots, obviating their need to register for each election
separately.491 Enactment of the proposal requires an amendment of the Elections Act and
the Minister aims to realise this before the 2014 European Parliament elections.492
Other statistical data
The following tables show the results of polls held in 2006 and 2010. The question ‘How
much faith do you have, in general, that the election process is fair?’ was posed to those
entitled to vote in the Netherlands. Table 7.1 shows the percentages of those who answered
that they have ‘faith’ and ‘a lot of faith’. The question ‘Are you, in general, satisfied with the
democratic functioning of the Netherlands?’ was posed to those entitled to vote in the
country. Table 7.2 shows the percentages of those who answered ‘very satisfied’ and
‘reasonably satisfied’. The question ‘Are you, in general, satisfied with the democratic
functioning of the European Union?’ was likewise posed to those entitled to vote in the
Netherlands. Table 7.3 shows the percentages of those who answered ‘very satisfied’ and
‘reasonably satisfied’.
160
487
Netherlands, Ministry of General Affairs (2011).
488
Netherlands, Parliamentary Documents II, 2010–2011, 32502, no. 18.
489
Ibid., p. 3.
490
Netherlands, Minister of the Interior and Kingdom Relations (2011).
491
Ibid., p. 2.
492
Ibid., p. 3.
1
6
0
Table 7.1 Faith in elections, voting procedures, institutions and people
Period
Total %
Men %
Women %
Western immigrants* %
2006
74
78
70
72
2010
72
77
67
64
Source: CBS Statline
Table 7.2 Satisfaction with democratic functioning of the Netherlands
Period
Total %
Men %
Women %
2006
75
78
73
73
2010
74
73
74
71
Table 7.3 Satisfaction with democratic functioning of the European Union
Period
Total %
Men %
Women %
2006
44
40
49
51
2010
50
44
56
49
*Western immigrants: immigrants from Europe (excluding Turkey), North America, Indonesia,
Japan, Oceania.
Trends till 2011
Table 7.1 shows that the number of persons entitled to vote in the Netherlands with faith in
fair election procedures decreased. Among Western immigrants (including Europeans), this
decreased from 72% to 64%.
The percentage of those entitled to vote in the Netherlands who are satisfied with the
democratic functioning of the country decreased slightly overall, but still remains reasonably
high at 74% (table 7.2). On the other hand, the percentage of persons satisfied with the
Union’s democratic functioning increased overall, but remained rather low at 50% (table
7.3). Among Western immigrants, the percentage of those satisfied with both the
Netherlands’ and the Union’s democratic functioning decreased by 2%.
Future challenges
The figures presented above show that, despite the slight increase, the percentage of those
entitled to vote in the Netherlands who are satisfied with the Union’s democratic
functioning is relatively low (50%). To promote the Union’s democratic functioning, it would
be important to actively involve citizens in the process. Yet the government decided to
terminate the Europe Fund, which supported projects to inform citizens about Europe and
instigate public debate. The ProDemos House for Democracy and the Rule of Law seeks to
increase political participation, but is mainly focussed on the Dutch system. The future
involvement of citizens in the democratic processes of the European Union will need more
attention.
1
6
1
Official
exact
title EN
Official
title NL
Full reference
Council of the Chronically ill and the Disabled (Chronisch Zieken en
Gehandicaptenraad) (2011) 'Wij werken aan toegankelijkheid stemmen', Web
page, available at www.cgraad.nl/wij_werken_aan/toegankelijkheid/stemmen/index.php.
Elections Kieswet
Act
.
Disabled National (Handicap Nationaal) Newsletter, March 2011.
House for Democracy and the Rule of Law (Huis voor democratie en rechtsstaat)
(2010) Activiteitenprogramma 2011, The Hague.
House for Democracy and the Rule of Law (Huis voor democratie en rechtsstaat)
(2011) Website, available at www.prodemos.nl.
Netherlands (2010). Response to European Commission’s public consultation
request on EU citizens’ rights, available at:
http://ec.europa.eu/justice/news/consulting_public/0007/ms/netherlands_nl.pd
f.
Netherlands, Elections Act (Kieswet) Stb. 1989, 423, 28 September 1989, last
modified by Stb. 2011, 4, 13 December 2010.
Netherlands, Election Council (Kiesraad) (2011) 'Hulp bij stemmen', Web page,
available at: www.kiesraad.nl/nl/Onderwerpen/ThemaStemmen/Hulp_bij_stemmen.html.
Netherlands, Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken)
(2011) Email sent to Art. 1, 29 September 2011.
Netherlands, Ministry of General Affairs (Ministerie van Algemene Zaken) (2011)
‘Koningin en minister-president bij opening ‘Huis van Europa’’, Press release, 9
May 2011.
Netherlands, Minister of the Interior and Kingdom Relations (Minister van
Binnenlandse Zaken en Koninkrijksrelaties) (2011) Letter to Parliament nr.
BPR2011/U51929, 30 May 2011.
Netherlands, Parliamentary Documents II, 2010–2011, 32502, no. 18.
Netherlands, Council of State (Raad van State) (2003) Council of State decision,
LJN AM5435, 29 October 2003.
1
6
2
8
ACCESS TO EFFICIENT AND INDEPENDENT
JUSTICE
8.1
Length of proceedings
8.1.1
In 2008 the Netherlands Council for the Judiciary (Raad voor de Rechtspraak) outlined
standards for the length of court proceedings with an aim to shorten legal procedures. The
Council for the Judiciary presented some conclusions in its 2010 annual report.493 Most of
the sub-district as well as the family law sections of the district courts meet the standards. In
penal cases, the district courts show mixed results, depending on the type of case. At the
Courts of Appeal many types of cases do not meet the standards. Some examples are listed
below, under statistical data. At the moment, the Council for the Judiciary is reviewing the
standards. It expects to publish these at the end of 2011.
More information on Asylum procedures to be found in chapter 1, under 1.1.1 and 1.1.2.
8.1.2
On 13 April 2010 former Minister of Justice, Mr Hirsch Ballin, began consultations for a
proposal on a concept law.494 Its goal was to offer financial compensation for immaterial
damage caused by overly lengthy legal procedures. According to the minister, with this
proposal Dutch law will be in line with Art. 6 ECHR. Since the first consultations there have
been no further developments.
8.1.3
National case law
On 6 June 2011 the High Court of the Netherlands (Hoge Raad der Nederlanden, Hoge Raad)
passed two judgements on the length of proceedings. See annex 4 for details. In both a tax
law case and an administrative case the High Court awarded non-pecuniary loss in case of
unnecessary long proceedings.
8.1.4
The table below is taken from the Council of Judiciary. It shows the Judiciary’s standards for
the lengths of proceedings and how different types of courts and in different type of cases
met these standards.
163
493
Netherlands Council for the Judiciary (2011a).
494
The Netherlands, Ministry of Security and Justice (2010).
1
6
3
Table 1. Courts, penal cases
2008 %
2009 %
2010 %
Norm
2010 %
within
Courts, criminal law
sector, full bench
86
85
84
90
6 months
Police court
85
86
84
90
5 weeks
Juvenile court, single
judge
84
83
82
85
5 weeks
Custodity cases
99
100
99
95
2 weeks
Court cases noncustody
82
81
80
85
4 months
Penal case, full bench
74
67
55
85
9 months
Penal case, single
judge
59
44
36
90
6 months
Penal case, single
judge, sub-disctrict
sector
64
55
67
90
6 months
Custodity cases
50
45
55
95
2 weeks
Court cases noncustody
32
61
46
85
4 months
Courts, penal sector
Courts of Appeal,
penal cases
Source: Council for the Judiciary (2011).
1
6
4
Table 2. Courts, civil, commercial cases
2008
%
2009
%
2010
%
Norm
2010
%
within
Courts, civil sector,
commerce
Commercial cases
with defence I
85
86
87
80
2 years
Commercial cases
with defence I
62
62
63
70
1 year
Commercial cases in
absence
69
73
76
90
1 month
Commercial cases,
petition
84
86
84
90
3 months
Closed bankruptcies
73
73
77
90
3 years
Interim Injunction
Proceedings
91
91
92
95
1 year
Commercial cases ,
writ of summons
67
71
74
80
2 years
Commercial cases,
petition
57
70
70
90
3 months
Courts of Appeal, civil
sector, commerce
8.1.5
8.1.6
Promising ‘good’ practices
8.1.7
1
6
5
8.1.8
8.1.9
8.2
Courts
8.2.1
On 9 September 2011 the Minister of Justice sent a law proposal to the House of
Representatives to make the judicial system more efficient.495 The proposal reorganises and
reduces the number of courts in the Netherlands. The number of courts of appeal
(Gerechtshoven, Hof) will be reduced from 5 to 4, and the number of courts (rechtbanken)
from 19 to 10. There were critical notes. The Dutch Association for the Judiciary
(Nederlandse Vereniging voor de Rechtspraak, NVvR) supported the reorganisation but
maintained objections. 496In particular, it feared the closure of many locations, with the new
larger courts placing the judiciary even further away from society. According to the
Association, the Netherlands already has the fewest judiciary locations anywhere in Europe.
In a letter on 29 September 2011 the Council for the Judiciary announced that it will publish
disciplinary actions taken against members of courts. 497
8.2.2
See 1.2.1. The reorganisation of the courts has been discussed for years. The governement
has now proposed a law proposal.
8.2.3
National case law
8.2.4
The Council for the Judiciary reports 1.9 million cases in 2010498. This is the same number as
in 2009. The number of penal cases was 200.000 in 2010. In 2009 there were 218.000 cases.
166
495
496
Dutch Association fur the Judiciary (2011).
497
Netherlands, Counc il of Judiciary (2011c)
498
Netherlands, Council for the Judiciary (2011a).
1
6
6
8.2.5
Synovate and Regioplan published a large scale survey held amongst the users of the
judiciary: professionals and users.499 The survey shows that 73 % of the professionals and 81
% of the users are satisfied with the judiciary.
Professionals Users
District courts
73 % 82 %
Courts of Appeal
73 % 76 %
Special Courts
68 % 87 %
Total judiciary
73 % 81 %
A publication of mr Frank van Tulder of the Council for the Judiciary showed that Dutch
Criminal Courts, contrary to popular belief, between 2000 and 2009 gave heavier
penalties.500 An explanation could be that judges follow the social call for heavy penalties.
8.2.6
8.2.7
During 2011 there was public debate about the independence of judges and the Trias
Politica. On 18 March 2011, the PVV, the supporting party of the government, published an
article in NRC Handelsblad.501 In it, the party pleads to lift the rule that judges are appointed
for life. On 15 March 2011 PVV gave a blank vote in the House of Representatives on the
nomination of mr Buruma for the Supreme Court of the Netherlands (Hoge Raad). It was the
first time there was no unanimous vote. According to PVV leader mr Wilders, the mr Buruma
was too political.
Another debate-sparking proposal concerned minimum penalties. The government wants to
oblige judges to pass minimum sentences for certain crimes. Legal institutions fear that this
proposal will endanger the independent status of judges.502 Some argue that there is no
evidence that minimum sentences prevent (serious) crimes.
In 2010 the government announced it would raise court fees for civil and administrative legal
cases. According to the government, the main principle will be that the judiciary (legal
procedures) will be paid by those who use it. The government gives three reasons to raise
the court fees. First, only a fraction of the population uses the judiciary whereas all pay taxes
for it. Second, the proposal fits into a broad programme to improve the judicial system.
Third, the government wants to contain expenditures.503 Citizens with a minimum, low or
167
499
Bakker et al (2011).
Van Tulder, F. (2011).
501
Wilders, G. and Helder, L. (2011).
502
Council for the Judiciary (2011a).
503
The Netherlands, Ministry of Security and Justice (2011b).
500
1
6
7
middle income will be compensated. On 31 March 2011 the Minister of Security and Justice
began a consultation round for a law proposal. The proposal sparked heated debate. Many
Dutch legal institutions are (very) critical of the law proposal, among them the Dutch Council
for the Judiciary, the National Ombudsman (Nationale Ombudsman, Ombudsman), the
Netherlands Bar Association (Nederlandse Orde van Advocaten, NOvA), the Council of State,
Administrative Jurisdiction Department (Raad van State, afdeling Bestuursrechtspraak, RvS)
and the Supreme Court of the Netherlands (Hoge Raad der Nederlanden, Hoge Raad). In a
letter to the Minister, the Netherlands Bar Association argued that one of the core
responsibilities of the government is to maintain a good and accessible legal system. The
letter underlined the importance of access to justice, as guaranteed by the Dutch
Constitution and conventions like Article 6 ECHR and Article 47 of the EU Charter.
Netherlands Bar Association fears that the law proposal will endanger access to justice.504
8.2.8
8.2.9
According to many within the Judiciary –see above- access to Justice will be endangered.
Wether or not this will happen, will become clear in the coming years.
8.3
Alternative dispute resolution
8.3.1
Subsidies for mediation ended on 1 January 2011.505 In place since 2005, the aim of this
temporary provision was to stimulate the use of mediation. Former Minister Hirsch Ballin
said it was not clear the provision had really stimulated the use of mediation. He was
positive about mediation as one of the tools in dispute resolution.
8.3.2
On 14 June 2011 the House of Representatives passed the law proposal to implement EC
directive 2008/52/EC, the directive on certain aspects of mediation in civil and commercial
matters.506 The proposal was sent to the Senate in September 2011, where it is now being
discussed.
8.3.3
National case law
168
504
Netherlands Bar Association (2011).
505
Legal aid Board (2010).
506
1
6
8
8.3.4
Below are two tables from the Council for the Judiciary. The Council points out that
mediation is most successful in tax cases. Note that the total number of mediations in any
sector of society is unknown.
Table 3. Mediations 2005-2010
2006
2007
2008
2009
2010
Directed to
mediation
2,133
3,354
3,708
4,183
4,311
Mediation started
1,943
3,062
3,317
3,850
3,937
Completed
mediations
1,297
2,495
3,203
3,212
3,605
Partly or fully
successful
61%
57%
59%
58%
57%
50%
50%
Full agreement
Table 4. Type of case, 2010
Directed
to
mediatio
n in 2010
Starte
d in
2010
Completed
in 2010
Partly or
fully
successful
Sub-district sectors
237
214
195
57%
50%
Commercial cases
283
247
226
50%
44%
Family cases
2,746
2,537
2,317
53%
44%
Administrative taxes
550
495
461
77%
74%
Administrative
regular
428
387
358
63%
60%
Source: Netherlands Council for the Judiciary (2011)
1
6
9
Full
agreement
8.3.5
A study on mediation from the Research and Documentation Centre (Wetenschappelijk
Onderzoek- en Documentatiecentrum, WODC) explored the development of mediation in the
period 2005-2008.507 Its main conclusions are: 1) mediation still plays a minor role in
comparison to all other legal provisions; 2) more than half result in complete or partial
agreement; 3) mediations take on average 60 days with on average 3 to 4 meetings of
approximately 2 hours; and 4) most parties and lawyers are highly satisfied with mediation
and the mediators.
8.3.6
8.3.7
8.3.8
8.3.9
No relevant information to report
8.4
National Human Rights Institutions
8.4.1
On 19 April 2011 the House of Representatives passed the law proposal to establish a
National Human Rights Institute (College voor de rechten van de mens). On 15 November
2011 the Senate will vote on the proposal. If the law passes, the Netherlands will have a
human rights institute that may apply for the A status within the UN structure. Currently the
Netherlands has one institute with B status: the Equal Treatment Commission (Commissie
Gelijke Behandeling, CGB). The CGB will merge into the new institute and has started
preparations for its opening, expected in mid-2012. Through the website
www.naareenmensenrechteninstituut.nl every step of the process may be followed.
For development regarding the Equal Treatment Commission, see chapters 5 and 6.
507
170
Guiaux, M., Zwenk, F. and Tumewu, M. (2009).
1
7
0
8.4.2
On 22 November 2011 the Senate passed the law to establish the National Human Rights
Institute.508 The new institute will open its doors in 2012.509
8.4.3
National case law
8.4.4
The National Ombudsman (Nationale Ombudsman) reports 13.979 complaints in 2010. Of
these 16 % were not related to the government. Of these 58 % was a request for information
or was adressed to a different institution. In 2009 there were 12.222 complaints. 510
8.4.5
The National Ombudsman published a research on 15 september 2011 about preventive
bodysearch.511 According to the Ombudsman in case of such an action a clear goal for
preventive body search is needed. This makes it possible to asses afterwards wether or not
this goal was met.
8.4.6
8.4.7
8.4.8
8.4.9
8.5
Other bodies
8.5.1
171
508
Netherlands, Senate (2011).
509
Netherlands, Equal Treatment Commissioni(2011).
510
Netherlands, The National Ombudsman (2011a).
511
Netherlands, The National Ombudsman, (2011b).
1
7
1
See chapter 5 under 5.1.1. : The national association against discrimination Art.1 was split up
on 23 March 2011. The regional anti-discrimination offices (ADAs) and the knowledge centre
Art.1, that together formed the association, continue their work separately.512 A group of
ADAs founded the National Branch Organisation of Antidiscrimination agencies (Landelijke
Brancheorganisatie van Antidiscriminatiebureaus, LBA) in August 2010. This branch
organisation currently covers 15 out of 25 police regions. It serves slightly less than 70% of
the Dutch population.513
8.5.2
8.5.3
National case law
8.5.4
8.5.5
8.5.6
8.5.7
8.5.8
8.5.9
With the split up of the national association against discrimination, there could rise a
problem in data collection.
172
512
Art.1 (2011).
513
National Branch Organisation of Antidiscrimination Agencies (2011), p. 2.
1
7
2
8.6
Bodies under international agreements
8.6.1
On 22 June 2010 the Senate passed the law ratifying OP-CAT, the Optional Protocol of the
Convention Against Torture.514 The Supervisory Commission Expertise Centre (Commissie
van Toezicht Kenniscentrum, CvT) reports that the Secretary of State for Security and Justice
will appoint the Dutch National Preventive Mechanisms.515
The Netherlands signed the UN Convention on the Rights of People with Disabilities (CRPD)
in 2007, but has yet to ratify it. The government first wanted to consult civil society and
examine the consequences for legislation and policy. The Coalition for Inclusion (see Annex
3) compared the requirements of the Convention with the current situation in the
Netherlands, and summarised what needs to be changed in each area (education,
employment, legal protection, etc.) in order to meet the requirements.516 The Minister of
Public Health, Welfare and Sports informed the Parliament on 1 July 2011 that decision on
ratification has been postponed until an economic impact analysis has been made. The
government first wants to analyse the financial consequences of, for example, extending the
Act on Equal Treatment on Grounds of Disability or Chronic Illness (Wet gelijke behandeling
op grond van handicap of chronische ziekte) to include access to goods and services.517 (This
paragraph is repeated here from chapter 5)
On April 2011 the Ministry of Foreign Affairs published its new Foreign policy. It has three
pillars: promote human rights, promote safety and welfare. The Netherlands will focus on
freedom of expression, freedom of religion, gay rights and womens rights. It will keep
fighting child labour. Amnesty International Netherlands expressed critical notes in a letter
on 7 June 2011 to the committee of Foreign affairs of the House of Representatives.518
Amnesty doubts wether human rights are a goal in the new policy and not a mean for other
purposes.
8.6.2
8.6.3
National case law
8.6.4
8.6.5
173
514
Netherlands, Law Gazette of the Kingdom of the Netherland ( 2010).
515
Supervisory Commission Expertisecentre (2011).
516
Coalition for Inclusion (2011).
517
518
Amnesty International Netherlands (2011).
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7
3
8.6.6
8.6.7
8.6.8
8.6.9
8.7
Legal aid
8.7.1
On 1 July 2011 the Minister of Security and Justice introduced the system of Diagnoses and
Triage (Diagnose en Triage) for subsidized legal aid.519 In this system citizens seeking justice
first visit a Legal Service Office (Juridisch Loket). The Legal Service Counter helps clarify the
legal question, gives free legal advice and, if necessary, directs the case to the correct
institution. The Legal Service Counter may direct complainants to a lawyer. With the
introduction of this system the government strengthens the position of the free Legal
Service Counters and hopes to avoid costly legal procedures.
The Legal Aid Board (Raad voor de Rechtsbijstand, RvR) developed the Knowledge Guide
(Kenniswijzer). All jurisprudence, law and instructions related to legal aid can be found in a
database: http://kenniswijzer.rvr.org.
In a letter to the House of Representatives on 22 February 2011, the Minister for
Immigration and Asylum policy announced some new policies to shorten asylum procedures.
Government wants to introduce the principle of ‘no cure, no fee’. There will be reduced or
no legal aid when asylum seekers submit further applications and no new facts or
unsuccessful circumstances are presented. Commission Meijers (Commissie Meijers) points
out that this policy will be in conflict with directive 2005/85/EC, article 47 of the European
Charter and article 6 ECHR.520
8.7.2
In a letter to the House of Representatives, State Secretary of Security and Justice
announced a series of budget cuts on monetary allowances for legal aid.521
174
519
Legal Aid Board (2011a) .
520
Standing Committee of Experts on International Immigration, Refugee and Criminal Law (2010).
521
Netherlands, Ministry of Security and Justice (2011b).
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8.7.3
National case law
8.7.4
The Legal Aid Board (Raad voor de Rechtsbijstand) published its 2010 annual report. In 2010
429.970 beneficiaries received a monetary allowance for legal aid. Of these 148.770 were
penal cases. In 2009 these were 435.593 beneficiaries of 156,262 were penal cases. 522
The Legal Services Counters (Juridisch Loket) had 770.374 client contacts in 2010, 783.007
clients contact in 2009.
8.7.5
8.7.6
8.7.7
8.7.8
8.7.9
8.8
„(legal) standing‟ (Locus standi)
8.8.1
8.8.2
The Collective Settlements Act (Wet Collectieve Afwikkeling Massaschade, WCAM) will be
revised. The governement wants to open more possibilities to use this law. Government
started a public consultation on 14 February 2011. A proposal of law was sent advice to the
Dutch Council of State (Raad van State) .
175
522
Legal Aid Board (2011b).
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8.8.3
National case law
On 14 September 2011 the court in the Hague passed judgement in case of Indonesian war
widows against the Netherlands.523 On 9 December 1947 8 Indonesian men were executed
in the village of Rawagedeh by Dutch soldiers during the so called police actions against
Indonesia. The widows of the executed men started a law suit in 2009. The court decided
that, though strictly spoken, limitation time had passed, there were serious grounds to deny
the Netherlands appeal to the limitation. The widows won the lawsuit. A foundation that
was one of the plaintiffs was denied standing.
The Netherlands have until 14 December 2011 for appeal.
8.8.4
8.8.5
8.8.6
8.8.7
8.8.8
8.8.9
8.9
Technical tools
8.9.1
The administrative law section at the Council of State (Raad van State) launched the project
Digital Procedures for Administrative Law (Digitaal Procederen Bestuursrecht, DPB). Part of
this project is a pilot published in Staatscourant 13 October 2010, which enables citizens to
start digital legal procedures. Another part of the project aims to provide fully digital,
paperless legal procedures. A pilot project at the Dordrecht court gives citizens this
possibility.
176
523
Netherlands, District Court The Hague (2011).
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6
E-court, a private initiative that combines internet use and ADR, takes it some steps
further.524 E-court presents itself as the internet court and the alternative to regular, public
courts. It is fully private but offers legally binding judgements. But doubts remain. All
elements of a regular court case are present but the whole procedure is online, raising the
question how people without internet connections can defend themselves. E-court offers
fixed 8 week terms and fixed prices. Numerous issues have been raised from its inception,
beginning with the use of terms such as: judges, court, and judgement. When these were
challenged, the judges became arbiters; judgements became arbitratory judgements.525 On 7
October 2011 two courts refused permission to execute E-court judgements, casting doubt
on the status and execution of the judgements of the first private internet court.526
On 17 June 2011 the Rotterdam Court was the first Dutch Court to introduce the digital
criminal file. It enables a fully digital process. The system will be implemented in all courts
for the use in criminal cases.527
The Council for the Judiciary executed several projects in 2011 to further digitalize the
Judiciary’s communications with citizens, users and partners. It announced in its 2011 – 2014
Agenda, that was adopted on 1 October 2011, further steps and use of technical tools.528
8.9.2
8.9.3
National case law
8.9.4
8.9.5
8.9.6
See annex.
8.9.7
177
524
https://www.e-court.nl/
525
Challenged by the Council for the Judiciary and questions were asked in Parliament. The secretary of state for
security and justice then gave his legal views on E-Court.
526
Netherlands, District Court Almelo (2011); Netherlands, District Court Zutphen (2011)
527
Rechtspraak.nl (2011).
528
Netherlands, Council for the Judiciary (2010).
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7
8.9.8
8.9.9
8.10
A Government Commission was installed on 9 July 2009. Its task was to advice government
about possible constitutional changes.529 The commission adviced a.o. to include the
principle of fair trial and acces to justice in the Constitution, based on article 6 ECHR and
article 47 of the European Charter. On 24 October 2011 the cabinet gave its reaction. It will
not follow this advice. The cabinet says that there is no (urgent) need or interest to do so as
these rights are sufficiently guaranteed by international law and Dutch courts. 530
178
529
Netherlands, Government Gazette (2009)
530
Netherlands, Minister of Interior and Kingdom Relations (2011).
1
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8
EN
Official title
NL
Full reference
Amnesty International Netherlands (2011)
'Mensenrechten in het buitenlands beleid', Letter
sent to House of Representatives (Tweede Kamer der
Staten Generaal), 7 June 2011
Art.1 (2011), ‘Vereniging Art.1 wordt Art.1
kenniscentrum discriminatie Nederland’, Press
release, 10 May 2011.
Bakker, L. et al (2011) Klantwaardering Rechtspraak
2011. Onderzoek onder professionals en justitiabelen
bij gerechten, Amsterdam, Regioplan
Coalition for Inclusie (Coalition for inclusion) (2011)
'Activiteiten', Web page, found at
www.vnverdragwaarmaken.nl/index.php/activiteiten
Dutch Association for the Judiciary (Nederlandse
Vereniging voor de Rechtspraak) (2011) Advice
reorganisation of the Courts, 11 februari 2011.
Guiaux, M., Zwenk, F. and Tumewu, M. (2009)
Mediation Monitor 2005-2008, The Hague, WODC.
Legal Aid Board (Raad voor Rechtsbijstand) (2010)
‘Stimuleringsbijdrage mediation stopt ‘, Web page, 18
October 2010, available at
www.rvr.org/nl/news,2010/10/Stimuleringsbijdragemediation-stopt.html
Legal Aid Board (Raad voor Rechtsbijstand) (2011a)
‘Diagnose en triage’, Web page, 29 July 2011,
available at www.rvr.org/nl/news,2011/07/8-1Diagnose-en-triage.html.
Legal Aid Board (Raad voor Rechtsbijstand) (2011b)
De burger centraal. Jaarrapport 2010, Utrecht, Raad
voor Rechtsbijstand.
National Branch Organisation of Antidiscrimination
Agencies (Landelijke Brancheorganisatie van
Antidiscriminatiebureaus) (2011), Kerncijfers 2010.
Overzicht klachten en meldingen.
Netherlands, Council for the Judiciary (Raad voor de
rechtspraak) (2010) Agenda van de Rechtspraak
1
7
9
2011-2014. Gericht op de samenleving10, The Hague,
Raad voor de Rechtspraak.
rechtspraak) (2011a) Jaarverslag 2010, The Hague,
Raad voor de Rechtspraak.
rechtspraak) (2011b) ‘Advies conceptwetsvoorstel
Voorstel van wet minimumstraffen voor recidive bij
zware misdrijven’, Letter sent to Minister of Security
and Justice, 15 June 2011.
rechtspraak) (2011c) 'Informatieverzoek RTL Nieuws
betreffende kwesties integriteit en onprofessioneel
handelen', Letter sent to RTL Nieuws, 29 September
2011
Netherlands, District Court Almelo (Rechtbank
Almelo) (2011) Case No. 123153 / KG RK 2011-395,
LJN: BT7088, 7 October 2011.
Netherlands, District Court The Hague (Rechtbank ‘sGravenhage ) (2011) Case. No. 354119 / HA ZA 094171 LJN: BS8793, 14 September 2011.
Netherlands, District Court Zutphen (Rechtbank
Zutphen) (2011) Case No.125223 / KG RK 11-579 ,
LJN: BT7213, 11October 2011.
(Commissie Gelijke Behandeling (CGB)) (2011),
'College voor de Rechten van de Mens een feit', Web
page, found at
www.naareenmensenrechteninstituut.nl/52/artikel/c
ollege-voor-de-rechten-van-de-mens-een-feit/?id=57
Netherlands, Government Gazette (Staatscourant)
(2009) nr 10354, 9 juli 2009 (instellingsbesluit
staatscommissie Grondwet)
Kamer der Staten-Generaal) (2011a) Parliamentary
Documents (Kamerstuk) No. 32 891, nr. 1.
Kamer der Staten-Generaal) (2011b) Parliamentary
Documents (Kamerstuk) Handelingen TK 2010-2011,
95.
Netherlands, House of Representatives (2011c)
1
8
0
Wijziging van de Wet op de rechterlijke indeling, de
Wet op de rechterlijke organisatie en diverse andere
wetten in verband met de vermindering van het
aantal arrondissementen en ressorten (Wet
herziening gerechtelijke kaart). Parliamentary
Documents (Kamerstuk) No. 32891 nr. 2.
Netherlands, Law Gazette of the Kingdom of the
Netherlands (Staatsblad van het Koninkrijk der
Nederlanden) (2010) no. 267.
Relations (Minister van Binnenlandse zaken en
Koninkrijksrelaties) (2011) Cabinet letter, 24 October
2011.
(Ministerie van Veiligheid en Justitie) (2010) ‘Minister:
schadevergoeding als rechtszaken veel te lang duren’,
Press release, 13 April 2010.
(Ministerie van Veiligheid en Justitie) (2011a) ,
Explanatory memorandum, 31 March 2011
(Ministerie van Veiligheid en Justitie) (2011b) ‘Teeven
wil kosten gesubsidieerde rechtsbijstand in de hand
houden’, Press release, 31 October 2011.
Netherlands, The National Ombudsman (De
Nationale Ombudsman) (2011a) Verslag van de
Nationale ombudsman over 2010, The Hague, De
Nationale ombudsman
Netherlands, The National Ombudsman (De
Nationale Ombudsman) (2011b) Waarborgen bij
preventief fouilleren. Over de spanning tussen
veiligheid, privacy en selectie, The Hague, De
Nationale ombudsman
Netherlands, Senate (Eerste kamer der Staten
Geneeraal) (2011) 'Wet College voor de rechten van
de mens', Web page, found at
www.eerstekamer.nl/wetsvoorstel/32467_wet_colle
ge_voor_de_rechten
Netherlands Bar Association (Nederlandse Orde van
Advocaten) (2011). Letter sent to Minister of Justice
1
8
1
and Security, 31 May 2011.
Rechtspraak.nl (2011) 'Rechtbank Rotterdam
digitaliseert strafdossiers', Web page, 20 June 2011,
found at
www.rechtspraak.nl/Organisatie/Rechtbanken/Rotte
rdam/Nieuws/Pages/RechtbankRotterdamdigitaliseer
tstrafdossiers.aspx
Standing Committee of Experts on International
Immigration, Refugee and Criminal Law (Permanente
Commissie van deskundigen in international
vreemdelingen-, en vluchtelingen- en strafrecht)
(2011) ‘Memorandum on immigration and asylum in
the VVD-CDA Coalition Agreement of 30 September
2011’, Letter, 8 November 2011.
Supervisory Commission Expertisecentre (Commissie
van Toezicht Kenniscentrum) (2011) Newsletter,
June, 2011.
Van Tulder (2011) 'De straffende rechter', Nederlands
Juristenblad, Vol. 2011, Nr. 24, 17 June 2011
Wilders, G. and Helder, L. (2011) ‘ Benoem Rechters
niet voor het leven’, NRC Handelsblad, 18 March
2011
1
8
2
9.
PROTECTION OF VICTIMS
9.1
Length of proceedings
9.1.1.
It is outlined in chapter 8.1 that standards are provided for in order to shorten the length of
legal procedures in the Netherlands.
Furthermore, the Police and Public Prosecutor Service launched the pilot project As Soon as
Possible (Zo spoedig mogelijk, ZSM) to speed up proceedings and conclude cases sooner,
531
which entails that victims of a crime are sooner informed about the outcome of a case.
9.1.2.
No legislative developments have taken place during the reference period.
9.1.3.
National case law
No relevant case law to report for the reference period.
9.1.4.
Please see chapter 8.1. above for statistical data on the duration of Dutch court proceedings.
9.1.5.
A study by the WODC concerns the length of judicial proceedings.532
9.1.6.
183
531
Retrieved from www.om.nl/onderwerpen/zsm/@155732/versnelde-afdoening, 1 December 2011.
532
Retrieved from www.wodc.nl/onderzoeksdatabase, September 2011
1
8
3
9.1.7.
Some experts are concerned that the Public Prosecutor Service’s steps to enhance the speed
and efficiency of proceedings could conflict with the interests of victims. In this respect, the
pilot project ‘As Soon as Possible’ (see 9.1.1.) will be evaluated at the end of 2011. The
results of this evaluation will be used for developing a national working method for the
shortening of procedures.
9.2
9.2.1.
Developments in regard to EU legal and/or policy
initiatives
9.2.2.
Dutch politicians have confirmed that multiple subjects covered by the ‘Proposal for a
Directive of the European Parliament and the Council establishing Minimum Standards on
the Rights, Support and Protection of Victims of Crime’ are already part of the current Dutch
legislation.533 However, some modification of Dutch legislation is still necessary, for instance
concerning the extension of the provision dealing with the right for a victim to an interpreter
or translator during a case.
9.2.3.
National Case Law
9.2.4.
No relevant information to report . All relevant sources have been searched and consulted.
184
533
https://zoek.officielebekendmakingen.nl/dossier/22112/kst-22112-1235.html
1
8
4
9.2.5.
9.2.6.
9.2.7.
9.2.8.
The maximum penalty for human trafficking was increased in July 2009. In April 2010,
legislation came into force to implement the Council of Convention on human trafficking.534
It was stipulated that, in order to protect the victims of these crimes, preventive measures
can also be effective and should therefore be used.
9.2.9.
185
534
Netherland (2010b).
1
8
5
9.3
Developments in regard to CoE, OSCE or UN obligations
Although there were several developments regarding the position of victims in the past year,
very few were explicitly announced as deriving from CoE, OSCE or UN obligations. Most
developments are therefore described in section 9.4 on National initiatives.
No legislative developments in the reporting period.
No relevant information to report. All relevant sources have been searched and consulted.
9.3.6. Promising „good‟ practices
9.3.7. Key issues in public debate
1
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6
9.4.
National initiatives
9.4.1.
As stated before, the coalition agreement535 mentions strengthening the position of victims:
victim support is to be improved, the property of perpetrators can be made available to
compensate victims, and self-defence will no longer be a reason for arrest, except in cases of
vigilantism. Several bills have been proposed.
The Programme Safe Public Tasks, Violence against Employees with Public Tasks (Veilige
publieke taak; Geweld tegen werknemers met een publieke taak)536 aims to enhance safety
by urging public sector employers to report violence against their employees and by
introducing stricter measures against perpetrators.
The points in the coalition agreement on crime, safety and victims have been set in the
working program Safer Netherlands (Nederland Veiliger).537 This program has four main
objectives: safe neighbourhoods for residents and businesses, curbing subversive and
organised crime, greater power for professionals and strengthening the constitutional state.
In this context, the Ministry of Security and Justice has imposed regulations on the police
and prosecution not to arrest people who defend themselves against burglars, in their
homes or workplaces. Legally, however, this does not concern victims but defendants.538
9.4.2.
The bill Expansion of the Right of Speech of Victims and Relatives (Uitbreiding van het
spreekrecht van slachtoffers en nabestaanden) to expand the rights of victims and kin to
speak during trial was published in July 2011.539
A bill was submitted on the prosecution of forced marriage in November 2010. For victims,
the main implication is the extension of the period of limitation.540
A bill for the mandatory reporting of domestic violence and child abuse was sent to the
Council of State for advice in May 2011.541
535
536
537
538
539
540
541
187
Netherlands (2010c).
Netherlands, Ministry of Interior and Ministry of Security and Justice (2011)
Netherlands, Ministry of Security and Justice (2011a).
Netherlands, Ministry of Security and Justice (2010b)
Netherlands (2011b)
Netherlands, Ministry of Security and Justice (2010d)
Netherlands, Ministry of Health, Welfare and Sports (2011)
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7
9.4.3.
National case law
Annex 4 describes the relevant case law on the rights of victims in the reference period.
Overall there were no major breakthroughs in Dutch case law.
The cases described in the annex involve the following issues:

What are the consequences when the public prosecutor decides to prosecute a
case of sexual contact with a 12 to 16 year old minor and the minor expresses that
she does not want the prosecution to continue?

To what extent can damages be considered the direct result of a certain offence,
so that the victim can claim them within the criminal case?

When a crime is only punishable after a complaint, what are the consequences if
only one of the victims files a complaint but the others do not?

Can a mother claim damages for herself and as a legal representative of her child
at the same time?

Can the defence add documents to the evidence if these documents contain
private information about the victim and she has not given permission?
9.4.4.
Please see 9.7.4 below for the number of victims of a crime in the Netherlands.
9.4.5.
The law on the right to speak for victims in judicial proceedings was evaluated by Intervict.
Several studies currently being conducted address national policies on the protection of
victims. The new victim centres are currently being evaluated; their accessibility is one of the
main items of the research being conducted by Regioplan.
A third study is the Victim Monitor 2011 (Slachtoffermonitor 2011), a large-scale study
among victims of crime about their experiences and wishes concerning legal and other
victim support. This study is conducted by the University of Tilburg and Intervict.
The fourth study, by the Beke, evaluates the services of Victim Support Netherlands
(Slachtofferhulp Nederland) for kin of manslaughter or murder victims.
In November 2010 a series of studies on domestic violence was published: a study among
victims,542 an inventory on the prevalence of domestic violence543 and an umbrella report.544
542
543
544
188
Dijk, van, Veen & Cox (2010).
Heijden, van der, Cruyff & Gils, van (2010).
Veen, van der & Bogaerts (2010).
1
8
8
The process of the temporary restraining order for perpetrators of domestic violence,
introduced in 2009, has been evaluated.545 An effect study on this restraining order is
currently under way.546
A study on human trafficking in Amsterdam’s red light district provided information on the
relations between prostitutes and their pimps.547
An evaluation of the pilot shelter for victims of human trafficking is being conducted.
545
546
547
189
Schreijenberg, de Vaan, Vanoni & Homburg (2010).
Retrieved from www.WODC.nl/onderzoeksdatabase, September 2011.
Verhoeven, van Gestel & de Jong (2011).
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9.4.6.
Promising „good‟practices
Promising good practices are:

Orange House (Oranjehuis), a shelter for victims of domestic violence. Its address,
unlike almost all shelters in the Netherlands, is not concealed.

On the Right Side of Honour (Aan de goede kant van eer), a programme to raise
awareness of honour-related violence among ethnic minorities. (See Annex 3.)
9.4.7.
The studies on domestic violence sent to the Dutch Parliament in January 2011 have
prompted debate in the media and among researchers. One finding received particularly
wide media coverage: that approximately 40 percent of the victims of obvious domestic
violence were men.548 This finding was cast in doubt by other researchers,549 who argued
that the methods used to obtain the data were incorrect. Another concern was that the
results from this study did not fit with results from studies of domestic violence in other
countries where much lower percentages of male victims were found. According to several
professors, the report’s gender-neutral point of view fits neither the reality nor the
international obligations to report on gender-based violence. Researchers from WODC
countered these criticisms.
Although the Reporting Code on Domestic Violence is not mandatory yet, several
organisations in the Rotterdam area have been using it. Some organisations oppose this
instrument as it might discourage victims of domestic violence to seek help. The possibility
of discontinuing their grants was raised by the local authorities.
9.4.8.
The Action Plan against Violence550 was part of the Security Program, an initiative of seven
cooperating departments to diminish victimhood by 20 to 25% in the years 2002 to 20082010.
9.4.9.
The National Rapporteur on Human Trafficking mentions the role of the internet in human
trafficking in its 2010 annual report.551
Other challenges mentioned by experts include subjects like medical mistakes, identity theft,
environmental crimes and restorative justice.
190
548
Hermse, J. (2011) ; Kreken, van (2011); Parool (2011).
549
Kreulen, E. (2011).
550
Ministry of Security and Justice (2005).
551
Netherlands, Dutch National Rapporteur on Trafficking in Human Beings (2010) .
1
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The consulted experts agree that the amount of legislation in the Netherlands on the
protection of victims is still limited, so much depends on the initiative of police and
prosecution. However, they differ in their opinions on whether this is a problem or an
advantage.
9.5.
Compensation
9.5.1.
In November 2010, the Commission Lindenbergh was established. The main task of this
commission was to inform the Conference of Dutch Religious People (Konferentie
Nederlandse Religieuzen, KNR) about the judicial aspects of sexual abuse of minors in cases
where the perpetrators of these crimes could be linked to the Roman Catholic Church. This
Commission was later requested, by the Commission Deetman, to give their advice
concerning a scheme for financial compensation for victims of sexual abuse within the
context of the Catholic Church. The advice of the Commission Lindenbergh was published on
20 June 2011.552 It contains a recommendation to appoint an independent commission
which will define the amount of compensation for victims of sexual abuse within the context
of the Catholic Church. The recommendations in this advisory rapport have been accepted
by KNR.
9.5.2.
In January 2011, the law on Strengthening the Position of Victims in Criminal Proceedings
came into force.553 One main implication of this law is that the government provides an
advance payment to the victim in case the perpetrator doesn’t pay the judicially imposed
compensation.
In June 2011 the Senate accepted the bill Adjustment of the Law on the Criminal Injuries
Compensation Fund (Aanpassing van de Wet schadefonds geweldsmisdrijven).554 The
adjustment contains an expansion of the categories of persons entitled to payment from the
fund and expansion of the cases in which entitlement is possible. Entitlement is no longer
limited to people who were financially dependent on the victim; parents of deceased adult
victims, adult children of deceased victims, and brothers and sisters of deceased victims are
now also entitled to compensation. The new law is expected to come into force in January
2012.
A bill was sent to Parliament on seizure before trial to enable the seizing a defendant’s
possessions to ensure availability of assets for compensation.555
191
552
http://www.nrc.nl/wp-content/uploads/2011/06/rkk-advies-cie-Lindenbergh-150611.pdf
553
Netherlands (2010d).
554
Netherlands (2011b).
555
Netherlands, Ministry of Security and Justice (2011d).
1
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9.5.3.
National case law
No relevant cases in the specific period. All relevant databases have been searched.
9.5.4.
9,192 victims of violent crime claimed compensation from the Compensation Fund for
Violent Crimes in 2010. 32.5% were victims of abuse and 24.1% of violent theft.556
9.5.5.
A current study by Intervict addresses the possibilities for victims of crime to receive
compensation by way of civil proceedings. Little is known about the number of victims who
start civil proceedings to receive compensation and the obstacles they encounter.557
9.5.6.
A promising good practice on the protection of victims in the light of compensation for
victims is that advance money is paid to victims by the government in case the perpetrator
is not willing or able to pay. See Annex 3.
9.5.7.
9.5.8.
9.5.9.
192
556
Criminal Injuries Compensation Fund (2011).
557
Retrieved from www.WODC.nl/onderzoeksdatabase.
1
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9.6. Informing victims
In the context of the policy document Towards a Safer Society (Naar een veiliger
samenleving),558 the Information Point on the Course of Detention (informatiepunt
detentieverloop) was established in April 2011.559 So was the website
www.slachtofferloket.nl. A national network of victim centres is to be established in which
the police, the prosecution and Victim Support Netherlands (Slachtofferhulp Nederland) will
work together.560 It is expected that before the end of 2011 all victim centres are open to
the public.
The police, the prosecution and Slachtofferhulp Nederland agreed on a protocol to better
serve the relatives of victims of lethal crimes. At Slachtofferhulp Nederland, case managers
have been appointed to support these relatives.
A national publicity campaign began in October 2010 to make victims, perpetrators and
bystanders aware of the need to get help in cases of domestic violence.561
In January 2011 the law on Strengthening the Position of Victims in Criminal Proceedings
came into force.562 One main implication of this law is better information for victims, for
example if the police decide not to trace the suspect, and when the perpetrator is released
from prison.
No information to report. All relevant sources have been searched and consulted.
193
558
559
Netherlands, Ministry of Security and Justice (2011c).
560
Netherlands, Ministry of Security and Justice (2010c).
561
562
Ministry of Security and Justice (2010e).
1
9
3
9.6.6. Promising „good‟ practices
9.6.7. Key issues in public debate
No new issues have arisen in the discussion about this subject in the Netherlands in the
specific period.
9.7.
Data collection
9.7.1.
9.7.2.
No relevant legislative developments to report for the reference period.
9.7.3.
National case law
9.7.4
1
9
4
In 2010 slightly over 25% of the Dutch population above the age of 15 was victim to some
sort of crime, such as violence or property crime. In 2009 the figure was almost 27%. This
change was mainly caused by a decrease in the number of victims of vandalism.563
The number of robberies with injured or deceased victims declined slightly in 2009. Between
2003 and 2008, the percentage of robberies in which victims were hurt or killed rose from
12% to 20.5%.564
Over 9% of the Dutch population have been victims of domestic violence over the past 5
years. Approximately 200,000 persons are victims of domestic violence each year.
Approximately 50% of Dutch citizens have never encountered domestic violence.
Approximately 60% of domestic violence victims are female. Until now, policies on domestic
violence were based on approximately 84% of victims being female. In two out of three
cases, perpetrators of domestic violence have been victims themselves. The number of
incidents of domestic violence reported to the police rose from 12% in 1997 to 20% in 2010.
Approximately 1% of victims have sought help through the Advice and Support Centres on
Domestic Violence (Advies- en steunpunten Huiselijk Geweld).565
Comensha registers the number of victims of human trafficking and the numbers reported to
the police.566 Although not all reports are known at Comensha, only about half of the victims
seem to report to the police.
Table 1. Number of (reported) victims of human trafficking 2008-2010
2008
2009
2010
women
men
women
men
women
men
Reported to the police
197
23
239
62
294
56
Total number of victims
462
43
537
132
572
106
% of total victims reported
to the police
43%
53%
45%
47%
51%
53%
Source: E-Quality (2011).
Comensha also registers the sectors in which victims of human trafficking work in the
567
Netherlands.
563
195
CBS (2010)
564
Rovers,Bruinsma, Jacobs, Jans, Moors, Siesling & Fijnaut (2010)
Van der Veen and Bogaerts (2010)
566
E-Quality, Blinn and Comensha (2011).
567
Idem.
565
1
9
5
Table 2. Sectors in which victims of human trafficking work
Women
Men
Prostitution
464 Prostitution
45
Agriculture
24 Agriculture
21
Unknown
17 Unknown
13
Domestic labour
10 industry
Hotel and catering
Au-pair
3
6 Domestic labour
2
Source: E-Quality (2011).
A pilot shelter for victims of human trafficking was opened in 2010. All 50 places in the
shelter were occupied in March 2011. Since its inception, 112 persons have received shelter
there.568
9.7.5.
In 2011, Crisislab published a report on problems and good practices with regard to the
registration of victims in the aftermath of a disaster.569
9.7.6
See annex 3. This good practice aimed to further the development of a questionnaire that is
used to assess the quality of victim assistance in the Netherlands.
9.7.7.
9.7.8.
568
569
196
Idem.
Helsloot, I., Scholtens, A. and Warners, E. (2011).
1
9
6
9.7.9.
9.8.
Restorative justice
9.8.1.
The organisation ‘Restorative Justice the Netherlands’ (Stichting Restorative Justice
Nederland), was established on 16 November 2010.570 It aims to support citizens in keeping
control over a dispute and possible consequences and to restore relations and damages,
from the perspective of victim, perpetrator and society.
9.8.2.
The newly established art.51(H) of the criminal procedure code provides for the opportunity
to establish rules concerning the mediation between a victim and a suspect of a crime. This
new provision can serve as a tool for restorative practices in the Netherlands. 571
9.8.3.
National case law
9.8.4.
No relevant information to report. All relevant sources have been searched and consulted.
197
570
571
www.restorativejustice.nl.
Groenhuijsen, M. (2010).
1
9
7
9.8.5.
Article II.
In an article on restorative justice from a victim’s perspective, the author
argues that a restorative procedure is not suitable for all victims. In addition, offering a
restorative procedure to a victim immediately after he or she has filed a complaint with the
police may not result in a positive response, as talking with the suspect is not likely to be a
priority for a victim who is only just starting to cope with the (emotional) consequences of
the crime.
9.8.6.
9.8.7.
9.8.8.
9.8.9.
9.9.
1
9
8
EN
Official title
NL
Full reference
CBS (2010) Integrale veiligheidsmonitor 2010,
The Hague, CBS.
Comensha (2011) available at:
www.comensha.nl , Hilversum, Comensha.
Criminal
Injuries
Compensation
Fund
(Schadefonds
geweldsmisdrijven)
(2011)
Jaarverslag 2010, Rijswijk, Schadefonds
geweldsmisdrijven.
Dijk, T. van., Veen, M., and Cox, E.(2010)
Slachtofferschap van huiselijk geweld: aard,
omvang, omstandigheden en hulpzoekgedrag,
Hilversum, Intomart.
E-Quality, BLinn and
Comensha (2011)
Factsheet Mensenhandel.
Groenhuijsen, M. (2010) ‘Herstelrecht in
Nederland, een slachtofferperspectief’,
Tijdschrift voor Herstelrecht, Vol. 10, No. 4. pp.
53-62.
Helsloot, I., Scholtens, A. and Warners, E. (2011)
Slachtofferregistratie in redelijkheid en realiteit.
Onderzoek naar een good practice voor het
registreren van slachtoffers en het informeren
van verwanten, Den Haag, Boom Juridische
Uitgevers.
Hermse, J. (2011) 'Slachtoffer huiselijk geweld
vaker man', Algemeen Nederlands Persbureau,
14 January 2011.
Kreulen, E. (2011), 'Man slaat nu eenmaal
harder : Onderzoekers bekritiseren WODCrapport over huiselijk geweld', Trouw, 21
January 2011.
Lens, K., Pemberton, A., and Groenhuijsen, M.
(2010) Het spreekrecht in Nederland: een
bijdrage aan het emotioneel herstel van
slachtoffers? (Evaluatie van de invoering van de
wet over spreekrecht), Tilburg, Intervict.
Netherlands, Dutch National Rapporteur on
Trafficking in Human Beings (Nationaal
Rapporteur Mensenhandel) (2010) Eight report
of the Dutch National Rapporteur on Trafficking
in Human Beings, BNRM, The Hague.
Netherlands, Ministry of Health, Welfare and
Sports (Ministerie van Volksgezondheid, Welzijn
1
9
9
Action
plan
violence
against Actieplan
geweld
Bill on adjustment of the
Criminal Procedure Code,
the Penal Code and the
Implementing
Act
International
Criminal
Court
regarding
the
introduction
of
the
en Sport) (2011) ‘Verplicht meldcode huiselijk
geweld en kindermishandeling’, Press release,
20 May 2011.
tegen Netherlands, Ministry of Security and Justice
(Ministerie van Veiligheid en Justitie) (2005)
‘Actieplan tegen geweld’, Policy document, 30
November 2005.
(Ministerie van Veiligheid en Justitie) (2010a)
Publiekscampagne tegen huiselijk geweld van
start. Press release, 11 November 2010.
(Ministerie van Veiligheid en Justitie) (2010b)
‘Nieuwe aanwijzing bij beroep op noodweer’,
Press release, 13 December 2010.
(Ministerie van Veiligheid en Justitie) (2010c)
‘Staatssecretaris Teven kondigt landelijk
netwerk slachtofferloketten aan’, Press release,
18 November 2010.
(Ministerie van Veiligheid en Justitie) (2010d)
‘Opstelten
neemt
maatregelen
tegen
gedwongen huwelijken’, Press release, 22
November 2010
(Ministerie van Veiligheid en Justitie) (2010e)
‘Uitbreiding rechten slachtoffers in strafproces
vanaf 1 januari’, Press release, 27 December
2010.
(Ministerie van Veiligheid en Justitie) (2011a) ‘
Nederland veiliger. Staan voor een veilige en
rechtvaardige samenleving’, Policy Document.
(Ministerie van Veiligheid en Justitie) (2011b)
‘Gratis
juridische
ondersteuning
voor
slachtoffers bij tijdelijk huisverbod’, Press
release, 28 February 2011.
(Ministerie van Veiligheid en Justitie) (2011c)
‘Informatiepunt detentieverloop geopend’,
Press release, 3 March 2011.
Wetsvoorstel
houdende
(Ministerie van Veiligheid en Justitie) (2011d)
aanpassing van het ‘Wetsvoorstel conservatoir beslag’, Policy
wetboek
van document, 7 July 2011.
strafvordering, het
wetboek
van
strafrecht en de
2
0
0
possibility seizure of the uitvoeringswet
assets of the suspect on internationaal
behalf of the victim
strafhof in verband
met de introductie
van
de
mogelijkheid
conservatoir beslag
te leggen op het
vermogen van de
verdachte
ten
behoeve van het
slachtoffer
Netherlands (2010a), Parliamentary Documents
II, 28684 nr. 266
Netherlands (2010b), Parliamentary document,
available
at:
http://www.eerstekamer.nl/behandeling/2010
0504/brief_met_bnc_fiche_inzake/f=/vieyfwgyt
flo.pdf.
Netherlands (2010c), Coalition Agreement
(Regeerakkoord),
Policy
document,
30
September 2010.
Coalition Agreement
Regeerakkoord
Act of June 6th 2011 on
Adjustment of the Law on
the Criminal Injuries
Compensation Fund
Wet van 6 juni
2011
tot
aanpassing van de
Wet schadefonds
geweldsmisdrijven
in verband met
uitbreiding van de
categorieën
van
personen die recht
hebben op een
uitkering uit het
fonds
en
verruiming van de
gevallen
waarin
men aanspraak kan
maken op een
dergelijke
uitkering,
aanpassing aan de
Kaderwet
zelfstandige
bestuursorganen
en enkele andere
aanpassingen
Wijziging van het
Wetboek
van
Strafvordering ter
uitbreiding van het
Bill on adjustment of
Criminal Procedure Code
for expansion of the right
of speech of victims and
2
0
1
Netherlands (2011a), Parliamentary Documents
I, 32363, Stb 2011, 276, 06-06-2011.
Netherlands (2011b), Parliamentary Documents
II, 32500 VI nr 9 and 32 123 VI nr. 29, 07-072011.
relatives.
spreekrecht
van
slachtoffers
en
nabestaanden in
het
strafproces.
Voorstel van wet.
Netherlands (2011c), Parliamentary Documents
II, 2010-2011, 28684, nr. 325, 08-07-2011.
Parool (2011), 'Huiselijk geweld treft vaak man:
Meeste slachtoffers (60 procent) zijn vrouwen',
14 January 2011
Romkens, R. (2010) Omstreden gelijkheid, Over
de constructie van (on)gelijkheid van vrouwen
en mannen in partnergeweld, Justitiele
verkenningen 2010 (8), p. 11- 32
Rovers, B., Bruinsma, M, Jacobs, M., Jans, M.,
Moors, H., Siesling, M. and Fijnaut, C. (2010),
Overvallen in Nederland. Een fenomeenanalyse
en evaluatie van de aanpak, The Hague, Boom
Juridische uitgevers
Schreijenberg, A., De Vaan, K.B.M., Vanoni, M.C.
and Homburg , G.H.J. (2010), Procesevaluatie
Wet tijdelijk huisverbod, Regioplan, Amsterdam
Van der Heijden, P.G.M., Cruyff, M.J.L.F. and
Van Gils, G.H.C. (2010) Omvang van huiselijk
geweld in Nederland, The Hague, WODC.
Van der Veen, H.C.J. and Bogaerts, S. (2010)
Huiselijk geweld in Nederland: overkoepelend
syntheserapport van het vangst-hervangst-,
slachtoffer- en daderonderzoek 2007-2010, The
Hague, WODC.
Van Keken, K. (2011) ‘Slachtoffer thuisgeweld is
vaak man’, de Volkskrant, 15 January 2011.
Verhoeven, M.A., Van Gestel, B. and De Jong, B.
(2011) Mensenhandel in de Amsterdamse
prostitutiesector. Een onderzoek naar aard en
opsporing van mensenhandel, The Hague,
Boom Juridische uitgevers.
Verloo,M., Lagro –Jansen, T., et al (2011) Letter
to Minister of Justice and Security, 28 March
2011.
2
0
2
ANNEX 1
2
0
3
Table 1: Requirements for rectification of the recorded sex or name on official documents
= applies; =doubt; =removed; change since 2008; change since 2010
Intention
to live in
the
opposite
gender
AT

BE
BE
Real
life test

Gender
dysphoria
diagnosis

Hormonal
treatment/
physical
adaptation
Court
order








BG


CZ

DE


DE


DK






automatic
divorce

court decision

court decision
Forced/







Legal changes expected to confirm
court decisions
Rectification of recorded sex

 (birth
certificate)
Only changes of identity documents are
possible, (gap in legislation)


These requirements are not laid down
by law, but are use by medical
committees established under the Law
on Health Care
Small solution: only name change

court decision
and law



Notes
Change of name


Unchangeable




Genital
surgery
leading to
sterilisation


DK
EL


CY
EE
Medical
opinion
Big solution: change of birth certificate
Rectification of recorded sex
Change of name






2
0
4

ES
FI





FR






Name change possible upon simple
notification, even before legal
recognition of gender reassignment



Requirements set by case law, legal and
medical procedures uneven throughout
the country

No explicit rules in place. Requirements
descend from praxis, but unclear what
is necessary in order to obtain a
medical opinion. After 1 Jan 2011 a
marriage can be transformed into a
registered partnership

HU
 (name
change possible
under Passports
Act 2008)
IE

IT





 (personal
code)
LT
LU
Legal vacuum due to lack of
implementing legislation, courts decide
on an ad hoc basis
No provisions in force, praxis varies.
Medical opinion is based on an
intention to live in the opposite gender
and on a diagnosis of gender
dysphoria..For rectification of the
recorded sex, currently the Ministry of
Health decides case by case
(parameters not specified).
Amendments to the law were proposed
but not adopted.


LV
MT
Further changes expected following
court case Lydia Foy (2007)






Change of
name is
possible after
gender
reassignment

2
0
5
(only
unmarried,
divorce not
possible)
Requirements unclear, decided by
courts on and ad hoc basis
NL



PL
PT


RO
SE





















According to art. 28a of the civil code,
the requirement of physical adaptation
does not apply if it would not be
possible or sensible from a medical or
psychological point of view. Changes
are underway, forced sterilisation
might be removed. A bill to adapt
article 1:28 of the Civil Code was
presented to the Parliament in
September 2011, following criticism
from the Council of Europe, UN CEDAW
and Human Rights Watch.

Case-by-case decisions by courts, new
act expected

SI
Decision issued by forensic board
No formalities for change of name

SK

UK
UK
No legislation in place, requirements
set by court practice
Change of name granted simply upon
application accompanied by a
confirmation by the medical facility
Change of name requires no formalities




2
0
6
Rectification of the recorded sex
Table 3: Discrimination on grounds of sexual orientation in legislation: material scope and enforcement bodies
Note: = applicable; =doubt; =removed; change since 2008; change since 2010
Material scope
Country Codes
Employment only
Some areas of RED
572
All areas of RED
*
Equality body

AT

BE


BG


CY

Comments
Two of nine provinces have not extended protection to all areas covered
by RED: Vorarlberg and Lower Austria. Vorarlberg extended protection to
goods and services in 2008.

CZ

DE

New anti-discrimination legislation adopted

DK


New equality body set up
EE


New anti-discrimination legislation adopted
EL



ES

FI
FR



HU
IE



207
572
Employment discrimination is prohibited in all EU Member States as a result of Directive 2000/78/EC. Directive 2000/43/EC (Racial Equality Directive) covers, in addition to employment and occupation,
also social protection (including social security and healthcare), social advantages, education and access to and supply of goods and services which are available to the public, including housing.
2
0
7
Material scope
Country Codes
Employment only
IT
Some areas of RED
572
All areas of RED
*
Equality body

LT


LU


LV




MT

NL
PL

PT

RO


SE


SI


SK


UK


11 MS
20 MS
TOTAL
Comments
9 MS
7 MS
2
0
8
(New comment on unchanged situation) Only social protection and social
advantages are not covered, all other areas of RED are covered
The new Equality Act enters into force in October 2010
Table 4: Discrimination on grounds of gender reassignment or identity in national legislation
Note: = applicable; positive development since 2008; Change since 2010
Country Codes
Form of “sex”
discrimination
AT

BE

Autonomous ground
Dubious/unclear
BG

CY

CZ

Comments
The new Antidiscrimination Act makes reference to ‘gender identification’.

Constitutional amendment proposal by opposition (‘sexual identity’)
EE

The Gender Equality and Equal Treatment Commissioner has dealt with one
application and took the view that the Gender Equality Act could apply to
‘other issues related to gender’.
EL

DE
DK


ES
FI

FR

Committee for law reform proposes to explicitly cover transgender
discrimination in equality legislation

HU
IE
The Constitutional Court held that gender identity is to be read in among the
prohibited grounds of discrimination in art. 14 of the Constitution. Together
with the adoption of several regional laws, a trend can be noted towards the
protection of gender identity.
The Employment Equality Act 1998-2004 is interpreted in accordance with the
case law of the Court of Justice of the EU.

IT

LT

LU

2
0
9
Country Codes
Form of “sex”
discrimination
Autonomous ground
Dubious/unclear
LV

MT

NL

PL

PT

RO

SE


The Act Implementing the Principle of Equal Treatment contains an open
clause of grounds of discrimination.


UK
TOTAL
Discrimination on grounds of gender reassignment is still considered "sex"
discrimination. The new ground ‘transgender identity or expression’ now
covers other forms of gender variance, regardless of gender reassignment.

SI
SK
Comments
10 MS
3 MS
The Equality Act 2010 only covers ‘gender reassignment’
15 MS
2
1
0
Table 5: Criminal law provisions on ‘incitement to hatred’ and ‘aggravating circumstances’ explicitly on sexual orientation
Note: = applicable; positive development since 2008; Change since 2010
Country Codes
Criminal offence to incite
to hatred, violence or
discrimination on grounds
of sexual orientation
Aggravating circumstance
Existing provisions of the criminal law against incitement to hatred explicitly restrict the protection to
groups other than LGBT people.
AT
BE
Comments


BG
CY
General provisions could extend to LGBT people.
CZ
New Criminal Code in 2009 contains no explicit recognition of homophobic hate crimes. LGBT could fall
under the category ‘group of people’, but as the law entered into force in January 2010 and there is no
case law yet. The explanatory report of the law also does not define the term.
DE
Hate speech legislation does not explicitly extend to homophobic motive, but extensive interpretation
has been confirmed by Courts.
DK

EE


EL
ES


LGBT people could fall under the category ‘comparable group’. A working group has proposed that the
provision on incitement be amended to explicitly cover sexual minorities (2010)

LGBT people could fall under the category ‘groups of society’. Penal Code was amended to include hate
motivated crimes against 'certain groups of society'. Case law has shown this includes the LGBT
community.
HU
IE
Article 23 of Law 3719/2008


FI
FR


Homophobic motivation might be taken into consideration at the sentencing stage, but this is left to the
discretion of the courts.
2
1
1
Country Codes
IT
LT
Comments


Homophobic motivation was included in the list of aggravating circumstances in June 2009.
LU
LV
Homophobic motivation might be taken into consideration at the sentencing stage, but this is left to the
discretion of the courts.
MT
The 2009 Public Prosecution Service’s Bos/Polaris Guidelines for Sentencing recommend a 50% higher
sentence for crimes committed with discriminatory aspects.
The new Discrimination Order (Aanwijzing Discriminatie 2007A010) that entered into force in May 2011
recommends a 100% higher sentence for a serious assault (ingrijpend feit) with discriminatory aspects,
and a 50% higher sentence for a less serious assault (minder ingrijpend feit).
NL


PL
PT
“Verhogen van de strafeis met 50% in geval van discriminatoire aspecten bij een minder ingrijpend feit en
het verhogen van de strafeis met 100% bij discriminatoire aspecten en het betreft een ingrijpend feit.
Indien een commuun delict gepleegd wordt waarbij discriminatoire aspecten - doorgaans als motief op de
achtergrond - een rol spelen, is een toename in de strafmaat geïndiceerd. Dit om uitdrukking te geven aan
de volstrekte maatschappelijke afwijzing van dergelijke motieven”, see
www.om.nl/organisatie/beleidsregels/overzicht/discriminatie/@155214/aanwijzing/


RO


SE


SI

Art. 317 of the Criminal Code sanctions only hate speech as ‘incitement to discrimination’, but includes
sexual orientation. Art. 369 on incitement to hatred does not mention sexual orientation explicitly, but
covers incitement against a ‘category of persons’, without further specification. The new Criminal Code
will enter into force on 1.10.2011.
Article 297 of the new Penal Code concerning provoking or stirring up hatred, strife or violence, or
2
1
2
Country Codes
Comments
provoking other inequality explicitly includes sexual orientation. The aggravating circumstances for
murder only, include what could be described as homophobic intent (Article 116 in conjunction with
Article 131 of the Penal Code).
SK
UK
(N-Ireland)
UK
(Eng. & Ws.)
UK
(Scotland)
LGBT people could fall under the category ‘group of people’.




The Criminal Justice and Immigration Act 2008, extending provisions on incitement to racial or religious
hatred to cover the ground of sexual orientation, come into force on 23.03.2010. It applies to Scotland as
well.


In June 2009, the Offences (Aggravation by Prejudice) (Scotland) Act was passed, entry into force on
24.03.2010, also indicating homo- and transphobic motive as an aggravating circumstance.
2
1
3
Table 6 - Definition of ‘family member’ for the purposes of free movement, asylum and family reunification
Note: = applicable;  = doubtful/unclear; positive changes since 2008; other developments since 2008
Change since 2010
Country
Codes
Free
573
movement
spous
e


Asylum
Comments
spouse

AT
BE
partner
Family Reunification
partner
spouse



partner


Article 59 of the Registered Partnership Act (BGBl. I, No. 135/2009) modifies Article 9 of the Settlement and
Residence Act, which now stipulates that the definition of ‘family member’ includes a registered partner.
Article 57 of the Registered Partnership Act modifies Article 2/1 of the Asylum Act [Asylgesetz], which now
stipulates that the definition of ‘family member’ includes a registered partner, provided that the registered
partnership had already existed in the country of origin. Same-sex spouses are likely to be treated as
registered partners.

Article 7 of the new Family Code (01.10.2009) confirms that marriage is a mutual agreement between a
man and a woman.
BG
CY
CZ



Same-sex spouses are likely to be treated as registered partners. Rights concerning family reunification and
asylum are restricted to registered partnerships.
DE



Same-sex spouses are likely to be treated as registered partners. Rights concerning family reunification and
asylum are restricted to registered partnerships.
DK
EE






The new Family Law Act (entry into force 01.07.2010) defines marriage as a different-sex institution only
and considers marriage between persons of the same sex invalid. Family reunification possible when the
partner can prove that he/she is economically or socially dependent.
EL
214
573
In the vast majority of the Member States, no clear guidelines are available concerning the means by which the existence either of a common household or of a ‘durable relationship’ may be proven for
the purposes of Art. 3 (2) of the Free Movement Directive.
2
1
4
Country
Codes
Free
573
movement
Asylum
Comments
ES






FI






FR


HU

IE





Organic Law 2/2009 of 11 December (Spain/Ley Orgánica 2/2009 (11.12.2009)) has modified Organic Law
4/2000 in order to grant couples who have an affective relationship similar to marriage the right to family
reunification. Implementing regulations to this law have not been adopted, thus the meaning of the
requirement that the ‘affective relationship’ be ‘duly attested’ remains to be clarified. Article 40 of the Law
12/2009 of 30 October on the right to asylum and subsidiary protection [del derecho de asilo y de la
protección subsidiaria] replaces Law 5/1984 of 26.03.1984 and, by transposing the EU acquis, confirms the
notion that a family member includes the de facto partner having an affective relationship similar to
marriage.
As a result of the entry into force on 14.05.2009 of a new Article 515-7-1 of the French Civil Code, inserted
by law 2009-526 of 12.05.2009, foreign registered partnerships are recognised in France; the repercussions
of this change for the purposes of free movement of EU citizens are still unclear. Family reunification of
third country nationals depends upon the authorities’ discretion, which may require additional conditions.
No information available on refugees.
It would appear that the Act on Registered Partnerships applies only to registered partnerships concluded
in Hungary. Entry and residence rights for free movement are granted to the unmarried de facto partner,
subject to conditions.


Adoption of Civil Partnership Act in 2010. Immigration, Residence and Protection Bill not yet enacted, but
the government intends to treat registered partners in the same way as spouses.

The new law on free movement and immigration (29.08.2008) recognises as a family member a spouse or
registered partner provided the conditions set forth in article 4 of the partnership law (09.07.2004) are
fulfilled. Rights concerning family reunification and asylum are restricted to registered partnerships. Samesex spouses are likely to be treated as registered partners.
IT
LT
LU

LV


Art. 3.4 of the Cabinet of Ministers Regulation No. 586 on Entry and Residence includes in its definition of
family member a person who is a dependant of a Union citizen or his or her spouse and who has shared a
household with a Union citizen in their previous country of domicile.
MT
2
1
5
Country
Codes
NL
Free
573
movement







Asylum

Comments

The 2010 coalition and toleration agreement (regeer- en gedoogakkoord) states that family reunion will be
restricted to couples that are already married or registered as partners. In its outline paper on
emancipation policy (see paragraph 5.1), the cabinet promises to search for a means to prevent these more
stringent rules will negativily effect homosexual and lesbian couples.
PL
PT
Allows same-sex couples to enter into a marriage since June 2010.
The new Civil Code (2009) includes a prohibition of same-sex partnership and marriage, including denial of
recognition of partnerships and marriages concluded in other countries.

RO
SE







Allows same-sex couples to enter into a marriage since May 2009.
SI
Provides a legal scheme for registered partnership in domestic law, but without granting entry and
residence rights to registered partners
SK
Family reunification possible when the partner can prove economic or social dependence.
UK
TOTAL






8
15
8
12
8
12
2
1
6
ANNEX 2
2
1
7
Table 1: Discrimination on the ground of sex
2010
2011
Discrimination on the ground of sex
Discrimination on the ground of sex
Please include also multiple discrimination
Number of
months
reported on
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2009 to
2010
Number
of
months
reported
on
NOTES
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
NOTES
Change in
number of
complaints
/requests
2010 to
2011
Please specify shortly what the data relates to: for
example “BE: Opened files (dossiers compétents) only,
not all received enquiries (signalements)”.
Please specify if the Equality Body receives complaints or
requests
– complaints are a formal submission for decision
(binding or not)
– requests are a formal submission for support or
advice in a specific case (not just general advise)
National: The three Ombud institutions for Equal Treatment combined
AT
Regional: Seven regional discrimination offices
Total: National and regional above combined
BE
Centre for Equal Opportunities and Opposition to Racism (CEOOR). Note that
gender discrimination is not included. Data relates to opened files (dossiers
compétents) only, not to all received enquiries (signalements)
BG
Commission for Protection against Discrimination (CPD). Data on ethnic
discrimination related to decisions only, not all complaints
CY
Anti-Discrimination Authority and Equality Authority combined
CZ
Public Defender of Rights. Mandate broadened in September 2009
2
1
8
2010
2011
NOTES
DK
Board of Equal Treatment
EE
Gender Equality and Equal Treatment Commissioner
FI
Ombudsman for Equality and Office of the Ombudsman for Minorities
combined – note that the data for all grounds only covers gender
discrimination; data includes complaints as well as requests for advice;
decrease could be partly due to new Q&A online
FR
High Commission against Discrimination and for Equality (Halde)
DE
Federal anti-discrimination agency. Data combined from August 2006 through
July 2010. Data relates to contacts, not complaints or requests
EL
The Greek Ombudsman
HU
Equal Treatment Authority (ETA)
IE
Irish Equality Authority data; includes race and Traveller grounds.
IT
National Office Against Racial Discrimination (UNAR)
LT
Ombudsman’s Office
LV
The Office of the Equal Opportunities Ombudsperson (OEOO)]
LU
Centre for Equal Treatment. Data for August 2009 - August 2010
MT
Maltese National Commission for the Promotion of Equality
Equal Treatment Commission.
NL
12
63
63
8
27*
In its yearly publication of decisions (Oordelenbundel), the Equal Treatment
Commission groups requests by ground of discrimination and dedicates a
separate chapter to each ground. In the online database, advisory opinions can
be looked up by discrimination ground and/or by area (employment, education
etc.). The Commission does not provide statistics/tables. *Note: data on 2010
reflect the number of requests, whereas for 2011 only the number of advisory
41*
2
1
9
2010
2011
NOTES
opinions is available. This results in lower counts for 2011, as several related
requests can lead up to a single opinion. Data on the number of requests in
2011 will be available in 2012.
PL
Human Rights Defender
PT
Commission for Equality and Against Racial Discrimination
RO
National Council for Combating Discrimination. Data for 18 months, 2009 and
thru June 2010. Data affected by de facto paralysis of activities during several
months in 2009 and 2010
SK
Slovak National Center for Human Rights
SI
Advocate of the Principle of Equality
ES
Council for the Promotion of Equal Treatment and Non-Discrimination on the
Grounds of Racial or Ethnic Origin. Commenced activities in 2010
SE
Equality Ombudsman (DO); commenced activities in 2009
Equality and Human Rights Commission (Great Britain)
UK
Employment Tribunal; Data for 2008/09
2
2
0
Table 2: Discrimination on the ground of religion or belief
2010
2011
Discrimination on the ground of religion or belief
Discrimination on the ground of religion or belief
Number of
months
reported on
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2009 to
2010
Number
of
months
reported
on
NOTES
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2010 to
2011
NOTES
requests
(binding or not)
AT
BE
BG
CY
CZ
2
2
1
2010
2011
NOTES
DK
EE
FI
FR
DE
EL
The Greek Ombudsman
HU
IE
IT
LT
LV
LU
MT
NL
Equal Treatment Commission. *Note: data on 2010 reflect the number of
requests, whereas for 2011 only the number of advisory opinions is available.
This results in lower counts for 2011, as several related requests can lead up to
a single opinion. Data on the number of requests in 2011 will be available in
2012.
12
30
30
8
19*
29*
PL
2
2
2
2010
2011
NOTES
PT
RO
SK
SI
ES
SE
UK
2
2
3
Table 3: Discrimination on the ground of race or ethnic origin
2010
2011
Discrimination on the ground of race or ethnic origin
Discrimination on the ground of race or ethnic origin
Number of
months
reported on
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2009 to
2010
Number of
months
reported
on
NOTES
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
NOTES
example “BE: Opened files (dossiers compétents)
only, not all received enquiries (signalements)”.
Change in
number of
complaints
/requests
2010 to
2011
Please specify if the Equality Body receives complaints
or requests
(binding or not)
AT
BE
BG
CY
CZ
2
2
4
2010
2011
NOTES
DK
EE
FI
FR
DE
Federal anti-discrimination agency. Data combined from August 2006
through July 2010. Data relates to contacts, not complaints or requests
EL
The Greek Ombudsman
HU
IE
IT
LT
LV
LU
MT
NL
This results in lower counts for 2011, as several related requests can lead up
to a single opinion. Data on the number of requests in 2011 will be available
in 2012.
12
55
55
8
26*
39*
PL
2
2
5
2010
2011
NOTES
PT
RO
SK
SI
ES
SE
UK
2
2
6
Table 4: Discrimination on the ground of sexual orientation
2010
2011
Discrimination on the ground of sexual orientation
Discrimination on the ground of sexual orientation
Number of
months
reported on
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2009 to
2010
Number of
months
reported
on
NOTES
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2010 to
2011
NOTES
or requests
(binding or not)
AT
BE
BG
CY
CZ
DK
2
2
7
2010
2011
NOTES
EE
FI
FR
DE
EL
The Greek Ombudsman
HU
IE
IT
LT
LV
LU
MT
NL
This results in lower counts for 2011, as several related requests can lead up
to a single opinion. Data on the number of requests in 2011 will be available
in 2012.
12
8
8
8
4*
6*
PL
PT
2
2
8
2010
2011
NOTES
RO
SK
SI
ES
SE
UK
2
2
9
Table 5: Discrimination on the ground of disability
2010
2011
Discrimination on the ground of disability
Discrimination on the ground of disability
Number of
months
reported on
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2009 to
2010
Number
of
months
reported
on
NOTES
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2010 to
2011
NOTES
requests
(binding or not)
AT
BE
BG
CY
CZ
2
3
0
2010
2011
NOTES
DK
EE
FI
FR
DE
EL
The Greek Ombudsman
HU
IE
IT
LT
LV
LU
MT
NL
2012.
12
71
71
8
21*
32*
PL
2
3
1
2010
2011
NOTES
PT
RO
SK
SI
ES
SE
UK
2
3
2
Table 6: Discrimination on the ground of age
2010
2011
Discrimination on the ground of age
Discrimination on the ground of age
Number of
months
reported on
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2009 to
2010
Number
of
months
reported
on
NOTES
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
NOTES
Change in
number of
complaints
/requests
2010 to
2011
requests
(binding or not)
AT
BE
BG
CY
CZ
DK
2
3
3
2010
2011
NOTES
EE
FI
FR
DE
EL
The Greek Ombudsman
HU
IE
IT
LT
LV
LU
MT
NL
2012.
12
87
87
8
34*
51*
PL
PT
2
3
4
2010
2011
NOTES
RO
SK
SI
ES
SE
UK
2
3
5
Table 7: Discrimination on multiple grounds (formally qualified as such)
2010
2011
Discrimination on multiple grounds (excluding single
ground cases recorded in the tables above)
Discrimination on multiple grounds (excluding single
ground cases recorded in the tables above)
Are cases
formally
qualified as
“multiple
discrimination”?
(Y/N)
Total
number of
complaints
/requests
that have
been
formally
qualified
during
reporting
period
Number
of
months
reported
on
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Identify the
three most
frequent
combinations
of grounds in
table 7.1
Are cases
formally
qualified as
“multiple
discrimination”?
(Y/N)
NOTES
Total
number of
complaints
/requests
that have
been
formally
qualified
during
reporting
period
Number of
months
reported
on )
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Identify the
three most
frequent
combinations
of grounds in
table 7.1
National: The three Ombud institutions for Equal Treatment
combined
AT
BE
Centre for Equal Opportunities and Opposition to Racism (CEOOR).
Note that gender discrimination is not included. Data relates to
opened files (dossiers compétents) only, not to all received
enquiries (signalements)
BG
Commission for Protection against Discrimination (CPD). Data on
ethnic discrimination related to decisions only, not all complaints
CY
CZ
2
3
6
2010
2011
NOTES
DK
EE
FI
Ombudsman for Equality and Office of the Ombudsman for
Minorities combined – note that the data for all grounds only
covers gender discrimination; data includes complaints as well as
requests for advice; decrease could be partly due to new Q&A
online
FR
DE
Federal anti-discrimination agency. Data combined from August
2006 through July 2010. Data relates to contacts, not complaints
or requests
EL
The Greek Ombudsman
HU
IE
IT
LT
LV
LU
MT
NL
N
0
12
N
0
8
Equal Treatment Commission
PL
PT
2
3
7
2010
2011
NOTES
RO
National Council for Combating Discrimination. Data for 18
months, 2009 and thru June 2010. Data affected by de facto
paralysis of activities during several months in 2009 and 2010
SK
SI
ES
Council for the Promotion of Equal Treatment and NonDiscrimination on the Grounds of Racial or Ethnic Origin.
Commenced activities in 2010
SE
UK
2
3
8
Table 7.1: Combination of grounds (multiple discrimination)
2010
2011
Notes (any
explanations
needed)
Member State
Most frequent
combination of
grounds (numbers
in brackets)
Second most
frequent
combination of
grounds (numbers
in brackets)
Third most
frequent
combination of
grounds
(numbers in
brackets
Remaining
combinations (no
need to specify
grounds, just give
numbers))
Most frequent
combination of
grounds (numbers
in brackets)
Second most
frequent
combination of
grounds (numbers
in brackets)
Third most
frequent
combination of
grounds
(numbers in
brackets
Remaining
combinations (no
need to specify
grounds, just give
numbers))
Netherlands
Not applicable
Not applicable
Not applicable
Not applicable
Not applicable
Not applicable
Not applicable
Not applicable
2
3
9
Table 8: Total number of cases
2
4
0
2010
2011
Total number of cases (single ground plus multiple
discrimination cases as recorded in the tables
above)
Total number of cases (single ground plus
multiple discrimination cases as recorded in the
tables above)
Number of
months
reported on
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2009 to
2010
Number
of
months
reported
on
NOTES
Number of
complaints
/requests
during
reporting
period
Number of
complaints
/requests
adapted to
12 months
(Total
reported /
months
reported
on x 12)
Number of
complaints
/requests
per
1,000,000
inhabitants
Change in
number of
complaints
/requests
2010 to
2011
NOTES
or requests
(binding or not)
AT
BE
Centre for Equal Opportunities and Opposition to Racism (CEOOR). Note
that gender discrimination is not included. Data relates to opened files
(dossiers compétents) only, not to all received enquiries (signalements)
BG
CY
CZ
DK
EE
2
4
1
FI
FR
DE
EL
The Greek Ombudsman
HU
IE
IT
LT
LV
LU
MT
NL
requests, whereas for 2011 only the number of advisory opinions is
available. This results in lower counts for 2011, as several related requests
can lead up to a single opinion. Data on the number of requests in 2011 will
be available in 2012.
12
406
406
8
130*
195*
PL
PT
RO
National Council for Combating Discrimination. Data for 18 months, 2009
and thru June 2010. Data affected by de facto paralysis of activities during
several months in 2009 and 2010
2
4
2
SK
SI
ES
Council for the Promotion of Equal Treatment and Non-Discrimination on
the Grounds of Racial or Ethnic Origin. Commenced activities in 2010
SE
UK
2
4
3
ANNEX 3
MAF Area
Title (original language)
Title (EN)
Organisation (original language)
Organisation (EN)
Government / Civil society
Internet link
Type of initiative
Main target group
Brief description (max. 1000
chars)
Give reasons why you consider
the practice as sustainable (as
opposed to ‘one off activities’)
the practice as having concrete
measurable impact
the practice as transferrable o
other settings and/or Member
States?
Asylum, immigration, integration
Taalcoach
Language Coach
Gemeentes
Municipalities
Government
Link to Taalcoach in Amsterdam:
www.taalcoachwijzer.nl
Support to immigrants; Community cohesion – social integration
Migrants, refugees
As part of their integration policy towards refugees and migrants
many Dutch municipalities have implemented the project language
coach (Taalcoach), often in cooperation with a local welfare
organisation. In this project Dutch volunteers are paired with migrants
who have recently arrived in the Netherlands. The volunteer supports
the migrant for a period of 6 to 12 months as the migrant learns the
Dutch language and gets acquainted with Dutch society. Evaluation
study on the project in 12 municipalities shows that the projects have
enhanced the self confidence of the migrants, have improved the
language skills of migrants and have led to a more positive view of
migrants in general among the volunteers.
The practice has been implemented in more than 200 municipalities
in the Netherlands.
Evaluation study has shown that the project has impact: it has positive
effect on language skills of immigrants and on the way
Most Member States are immigrant countries where migrants have
to get used to their new surroundings. A practice as this can be used
by local authorities in all member states to support migrants in their
new country .
2
4
4
Explain, if applicable, how the
practice involves beneficiaries
and stakeholders in the design,
planning, evaluation, review
assessment and implementation
of the practice.
practice provides for review and
assessment.
The beneficiaries (migrants) were involved in the assessment of the
project.
The project has been assessed in 2011 by Regioplan.
574
245
574
Brink, M., et al (2011).
2
4
5
MAF Area
Title (EN)
Organisation (EN)
Internet link
Type of initiative
Main target group
chars)
measurable impact
States?
Asylum, immigration, integration
Nieuwe werkwijze uitgenodigde vluchtelingen
New procedure invited refugees
Centraal Orgaan opvang asielzoekers (COA)
Central Agency for the Reception of Asylum Seekers
Government
www.coa.nl/NED/website/nieuws.asp?menuid=1&command=read&article=
498
Community cohesion – social integration
Asylum seekers, refugees
Since 1997 the Netherlands have yearly accepted a certain number of
refugees submitted by the UNHCR for resettlement to the Netherlands. For
the period 2008-2011 the Netherlands have committed themselves to
accept 2.000 refugees. Before, these invited refugees were sheltered for six
months in a special centre in the Netherlands before being placed in a
normal house in some town or city. As of 2011, the Dutch government
decided to settle these refugees directly in a normal house. Invited refugees
will receive a special training programme before coming to the Netherlands.
During this programme they will learn about the Netherlands and the Dutch
language.
It concerns a change of regular procedures. We expect direct settlement in
Dutch society better than staying in a special centre for the first six months.
It is possible to measure the impact the direct housing in Dutch society on
the language skills and the experiences of social integration among the
invited refugees and among the neighbours. A plausible result might be that
the integration process goes faster, since it can start in an earlier stage.
This procedure of immediate housing can be applied on other Member
States that accept invited refugees.
Not known.
2
4
6
of the practice.
assessment.
The practice will be assessed a year after its implementation.
2
4
7
MAF Area
Title (EN)
Organisation (EN)
Internet link
Type of initiative
Main target group
chars)
measurable impact
States?
of the practice.
assessment.
Asylum, immigration and integration
Experiment Perspectief
Perspective Experiment
20 Nederlandse gemeenten in samenwerking met de Vereniging Nederlandse
gemeenten
20 Dutch municipalities together with the Association of Dutch Municipalities
(VNG)
Government
http://wodc.nl/onderzoeksdatabase/evaluatieperspectiefprojecten.aspx?cp=44&cs=6837
Support, advice to immigrants/minorities
Asylum seekers
This experiment aimed to prevent former unaccompanied minors of other
nationalities (ex-AMV’s aged 18 years or older) from resorting to unlawful
residency and comprises 20 support centres distributed over the whole
Netherlands. It ran from 1 October 2009 to 1 April 2011 and was evaluated in
2011. The primary goal of the support centres was to provide a realistic
perspective on the future, in which the main trajectories are either a
procedure for a residency permit for the Netherlands or assisted repatriation.
Many support centres offered low threshold living room projects in which exAMV’s had access to, for example, internet, reading material from their home
countries and music. For most support centres the living room formed the core
of the counselling process. One third of the participants completed (or
discontinued attending) the counselling project before the end of the
experiment, two thirds were still in counselling when the experiment closed.
For the participants who have already left the experiment, the average
duration of their stay in the project was 17 months.
The practice consisted of a chain of support centres that can be maintained.
The practice gave concrete support to the target group: unaccompanied
minors
Many member states are confronted with unaccompanied minors. This
project can inspire other Member States to improve to the support for.
unaccompanied minors.
The practice was assessed in 2011. (1)
2
4
8
MAF Area
Title (EN)
Organisation (original
language)
Asylum, immigration and integration
Toekomst In Perspectief
Future in Perspective
Stichting Nieuwkomers en Vluchtelingen Tilburg / VluchtelingenWerk Leiden
/ VluchtelingenWerk Friesland
Tilburg foundation for newcomers and refugees / The Dutch Council for
Refugees Leiden / The Dutch Council for Refugees Friesland
Civil society
Internet link
www.tipnederland.org/index2.php
Type of initiative
Main target group
Support, advice
Asylum seekers
This project offers support to asylum seekers without residency status living
in Tilburg, Leiden or Friesland. Goal of the project is to stimulate asylum
seekers to make good use of their waiting period in the asylum procedure by
seeking information about future prospects and making plans for the future.
Project provides information about: the asylum procedure, personal chances
of obtaining a residence permit for the Netherlands, how to make use of
chances of obtaining a residence permit for the Netherlands, the situation in
country of origin, how to improve prospects in country of origin and life as
an illegal person in the Netherlands. This information is provided through:
personal consultations and coaching ; the informal meeting room for
unaccompanied minor asylum seekers and radio and video messages.
It easy to implement.
Organisation (EN)
chars)
measurable impact
States?
assessment and
implementation of the
practice.
practice provides for review
and assessment.
The project provides concrete support to asylum seekers and makes them
aware of the risks of the asylum procedure.
Most Member States have receive each year a number of asylum seekers.
Many of these asylum seekers will not be recognised as refugee and can not
stay in. Project such as these that encourage asylum seekers to look for their
future prospects even when their application for asylum is rejected.
Organisation that have designed and implemented the project are
organisation working for refugees.
The project has not been assessed yet.
2
4
9
MAF Area
Title (EN)
Organisation (EN)
Internet link
Type of initiative
Main target group
Brief description (max. 1000 chars)
Give reasons why you consider the
practice as sustainable (as opposed to
‘one off activities’)
practice as having concrete
measurable impact
practice as transferrable o other
settings and/or Member States?
practice involves beneficiaries and
stakeholders in the design, planning,
evaluation, review assessment and
implementation of the practice.
assessment.
Border control
Koninklijke Marechaussee neemt deel aan een snelle actie team (SAT)
in Europees verband
Dutch military police will participate in anti-trafficking Rapid Action
Teams at the European level
575
Task Force Mensenhandel, Plan van Aanpak 2011 – 2014
Task Force Trafficking in Human Beings
Government
www.hetccv.nl/binaries/content/assets/ccv/dossiers/bestuurlijkhandhaven/mensenhandel/plan_van_aanpak_taskforce_mensenhan
del_2011-2014.pdf
improved or new data collection (official data collection; surveys etc.)
Women, migrants, asylum seekers, police, public authorities, Roma
and travellers, justice practitioners.
The Dutch border police RNM is part of multidisciplinary Rapid Action
Teams in the Netherlands to investigate and prosecute trafficking in
human beings. In the plan of action of the National Task Force
Trafficking in Human Beings, for 2011 – 2014, mention is made of a
pilot project to set up a European Rapid Action Team to tackle
trafficking in human beings. The aim of the team is to prevent
576
victims of trafficking ending up in inhuman circumstances.
Trafficking in human beings is necessarily a trans-border criminal
activity. Cooperation with European counterparts is crucial for a
successful approach to fighting trafficking.
The advantage of cooperating across border will lead to an increased
success rate, in terms of assistance to victims of trafficking and
prosecution of perpetrators of trafficking.
It is in its outset a European pilot project and as such is transferable
by definition.
Not applicable.
No information available.
250
575
Task Force Mensenhandel (2011).
576
Task Force Mensenhandel (2011), p. 13.
2
5
0
MAF Area
Information society and data protection
Veilig internetten
Title (EN)
Safely using internet
Ministerie van Veiligheid en Justitie
Organisation (EN)
Ministry of Security and Justice
government
Internet link
www.nederlandveilig.nl/veiliginternetten
Type of initiative
Awareness raising
Main target group
General public
Brief description
Awareness raising campaign about safety
on the internet, which took place between
May and July 2010. Goal of this campaign
was to make users of the internet more
aware of cybercrime and theft of personal
data, and to encourage users to take
preventive measures to protect personal
data. This campaign was a so-called
Postbus 51 (PO Box 51) campaign. The
Dutch government launches several
Postbus 51 campaigns each year on a wide
range of issues. This campaign consisted of
commercials on radio and television,
banners on internet pages and bill boards.
A special website was launched
(www.nederlandveilig.nl/veiliginternetten).
577
The campaign was evaluated positively.
During the campaign, concrete
recommendations were made in order to
protect personal data (change passwords
regularly e.g.). The evaluation study
concluded that after the campaign, more
members of the general public were aware
of methods to protect personal data.
Give reasons why you consider the practice as
sustainable (as opposed to ‘one off activities’)
The campaign can be repeated. The
website is still in use and commercials are
made in such a way they can be re-used.
Give reasons why you consider the practice as having
concrete measurable impact
Evaluation showed that the campaign
resulted in an increased awareness of how
protect personal data on the internet.
transferrable o other settings and/or Member States?
The means used in the campaign are
available in all countries. At the same time
safety on the internet is a problem
prevalent in all countries.
Explain, if applicable, how the practice involves
beneficiaries and stakeholders in the design,
planning, evaluation, review assessment and
577
251
Berg, P. van den et al (2011), pp. 99-201.
2
5
1
Explain, if applicable, how the practice provides for
review and assessment.
Postbus 51 campaigns are evaluated
yearly.
2
5
2
MAF Area
Information society and data protection
Mijnprivacy.nl
Title (EN)
Myprivacy.nl
College Bescherming Persoonsgegevens
Organisation (EN)
Dutch Data Protection Authority
government
Internet link
www.mijnprivacy.nl/Pages/Home.aspx
Type of initiative
Awareness raising
Main target group
General public
Website with information on how to protect
personal data. Target group is the general
public. The website contains information
leaflets on specific issues, such as how to
protect medical health data or how the police
handles personal data.
Brief description
The website offers the possibility to make a
report when people notice that organisations,
in general, make use of personal data in an
improper manner or that their own personal
data are misused. The website also contains
standard letters that people can send to
websites or organisations asking for the
removal of their personal date or to demand
access to the personal date these organisations
have recorded.
The information on the website does not age
quickly, and leaflets and letters can be used
over a longer period of time. Because it is a
website, information that did age can be
revised easily.
having concrete measurable impact
In 2010, the DPA received 94 reports by people
complaining about the misuse of personal data.
transferrable o other settings and/or Member
States?
Easy to implement. All Member States have
laws about the protection of personal data. It is
important that members of the general public
are informed about their rights and possibilities
to protect personal data.
Explain, if applicable, how the practice provides
for review and assessment.
The practice is a website. Hits and incoming
questions can be monitored and counted.
2
5
3
MAF Area
Title (EN)
language)
Organisation (EN)
Government / Civil
society
The rights of the child and protection of children
Campagne ‘Kindermishandeling’
Campaign ‘Child abuse’
Ministerie van Veiligheid en Justitie
Internet link
www.aanpakkindermishandeling.nl
Type of initiative
Main target group
Awareness raising
General public
Awareness raising campaign about child abuse targeting bystanders. Its
main goal is to make people aware of the existence of child abuse
among relatives, neighbours or friends. This campaign is a so called
Postbus 51 campaign. The Dutch government launches several Postbus
51 campaigns on a wide range of issues each year. During this campaign,
people were advised to contact a special hotline when they suspected
child abuse among relatives, neighbours or friends. The campaign
consisted of commercials on television and radio, advertisements in
printed media and on the internet, and billboards. A special website was
launched (www.watkanikdoen.nl). The campaign has been evaluated
and it was concluded that the campaign resulted in a wider knowledge
578
about how to report child abuse. Attitudes or behaviour have not
significantly changed: people are still rather reluctant to act when they
suspect child abuse.
The campaign can be repeated.
Brief description (max.
1000
chars)
Give reasons why you
consider the practice as
sustainable (as opposed
to ‘one off activities’)
having concrete
measurable impact
transferrable to other
settings and/or Member
States?
Explain, if applicable,
how the practice
involves beneficiaries
and stakeholders in the
design, planning,
evaluation, review
assessment and
practice.
how the practice
provides for review and
assessment.
Government & civil society
Evaluation study showed that the campaign resulted in more awareness
about how to report child abuse.
---
---
---
254
578
2
5
4
MAF Area
Title (EN)
Organisation (EN)
Regionale aanpak kindermishandeling (RAAK)
Regional approach of child abuse
Nederlands Jeugdinstituut
Dutch Youth Institute
Government and civil society
Internet link
www.aanpakkindermishandeling.nl
Type of initiative
Main target group
chars)
measurable impact
the practice as transferrable to
States?
of the practice.
assessment.
Awareness raising/improving cooperation and
communication between different actors.
Public authorities
RAAK / regional approach of child abuse was a project first
implemented as a pilot in four regions in the Netherlands. This
happened in 2003-2006. In 2008, this approach was
implemented in all regions of the Netherlands under
supervision of the Dutch Youth Institute. An evaluation of RAAK
was published in 2011. Goal of the approach is to stimulate
cooperation between all organisations (schools, municipalities,
child care agencies, health care agencies), which are involved in
tackling child abuse. Evaluation shows that, due to the RAAKapproach, organisations cooperate better than before and
more organisations are committed in tackling child abuse.
Improvement is still needed, but the approach provides for an
important first step.
This project has been running for several years and has been
evaluated positively as an instrument giving impulses to
current developments. It can continue to do so.
Evaluation found that cooperation and communication has
improved between organisations involved in the protection of
children.
Due to a lack of cooperation between organisations, many
incidents of child abuse were not tackled in the Netherlands.
Other Member States might have similar problems and
stimulation of cooperation could be implemented everywhere.
---
The project has been evaluated in 2011.
579
255
579
Kooijman, K. et al (2011).
2
5
5
MAF Area
Title (EN)
Organisation (EN)
Vraaghetdepolitie.nl
Ask the police
Politie
Police
Government
Internet link
www.vraaghetdepolitie.nl/sf.mcgi?83
Type of initiative
Main target group
Education; Advice
Children (between the age 12-16)
Website offering information to youngsters from 12 to 16 years
old about all sorts of issues concerning safety and crime.
Information is provided for in small movies in which a police
officer answers a specific question. Visitors of the website can
also ask questions. The websites provides information on
subjects such as internet safety, bullying, drugs, weapons,
prostitution, ‘lover boys’, discrimination, violence and
weapons. The website was launched in May 2011. Since then, it
received 13,000 visitors each month. Many questions were
asked on online bullying and grooming (befriending by
paedophiles) on the internet. Girls asked questions about so
called ‘lover boys’ (pimps). Moreover, this website facilitates
chat sessions where visitors and police officers can talk to each
other. Chat sessions are devoted to one specific issue (for
example prostitution).
The practice consists of a website which can be maintained.
chars)
measurable impact
States?
of the practice.
assessment.
Since its start, the website received many questions about
sensitive issues, such as prostitution, grooming and lover boys.
It is a good, low threshold way to reach adolescents and inform
and warn them about the particular issues of potentially
harmful situations or practices in a certain country or region.
---
The project has started in May 2011. No evaluation has taken
place. The number of visitors and the sort of questions are
recorded.
2
5
6
MAF Area
Title (EN)
language)
Organisation (EN)
Equality and discrimination
Onbeperkt actief
Active without limits
Raster Groep
Raster Group (welfare organisation in Deventer)
Civil society
Internet link
www.rastergroep.nl/volwassenen/onbeperkt_actief
Type of initiative
Main target group
Community cohesion – social integration
General public (people with mental disabilities)
This project was directed at the social integration of people with special needs.
Main purpose of the project was to take away the stigma attached to people
with a mental disability by involving them in neighbourhood activities in which
they could show their talents and capacities on the basis of equality. Small
groups of neighbours were formed around a common hobby or interest. People
with and without a disability got to know each other and step by step, and
people with a mental disability extended their social network. During this project,
a methodology has been developed which can be used in other neighbourhoods
in the Netherlands. The methodology can also be used to stimulate the
participation and social integration of other vulnerable groups.
This project was awarded the Diversity Award (Diversiteitsprijs 2010) in
November 2010 by MOVISIE, the Netherlands centre for social development. This
award is a prize for projects aimed at stimulating relations between social
groups.
The project was aimed at forming enduring social networks between people.
Moreover, it produced a methodology which can be used to implement similar
projects elsewhere.
chars)
sustainable (as opposed to
having concrete measurable
impact
States?
Explain, if applicable, how
the practice involves
beneficiaries and
stakeholders in the design,
assessment and
practice.
the practice provides for
The practice actively involves the people it targets and has won a prize. It
reached 600 people within a year who all participated on a voluntary base.
MOVISIE noticed that the initiative spread to surrounding neighbourhoods
spontaneously. Participators kept on coming up with new ideas for local
initiatives and put them into practise.
It is transferable because the method is catchy, simple and cheap. With its focus
on equality, it supports the UN Convention on the Rights of People with
Disabilities. It can also be applied to stimulate the participation of other
vulnerable groups.
The target group played a key role in the development
and implementation of the project.
The project was assessed by MOVISIE as part its
Diversity Award program.
MAF Area
Title (EN)
Organisation (EN)
Campagne Tekenen en dan ...?
Campaign Signing and then ... ?
Coalitie voor Inclusie
Coalition for Inclusion
Civil society
Internet link
www.vnverdragwaarmaken.nl/index.php/activiteiten
Type of initiative
Main target group
Awareness raising
Public authorities; General public
This campaign was initiated and organised by several NGOs to put pressure
on the Dutch government to ratify the UN Convention on the Rights of
Disabled People. The Netherlands has signed the Convention on 30 March
2007 but has not yet ratified it. The general goal of this campaign is to raise
awareness about the social inclusion of disabled people. In 2010 and 2011,
different kinds of activities took place, not only in order to put pressure on
the Dutch government, but also to increase the public support for the
Convention, to stress the need to amend national legislation and to inform
general public and organisations about the implications of the Convention.
Some activities were: a national manifestation, a conference, and local
meetings during which policy makers, employers and NGOs discussed
matters concerning social inclusion of disabled people.
During this campaign, networks have been developed and awareness has
been raised about the meaning of the UN Convention among the authorities
and employers.
The campaign has one very specific goal, namely the ratification of the UN
Convention by the Netherlands. This goal has not been achieved yet but the
general public and local policy makers are more aware of the convention.
This practise could be an example for NGOs in other countries that have not
yet ratified and implemented the Convention.
chars)
measurable impact
States?
of the practice.
assessment.
Interests groups for and of people with a mental or
physical disability have initiated, planned and
implemented the project.
The campaign has not yet been evaluated. MOVISIE,
the Netherlands centre for social development, has
given the campaign honourable mention in the context
of the Diversity Award (Diversiteitsprijs) 2010 programme.
MAF Area
Monitor lokaal LHBT-emancipatiebeleid & Lantaarnprijs
Monitor LGBT-emancipation local policy measures &
Lantern award
MOVISIE
MOVISIE
Civil society
Internet link
www.movisie.nl/smartsite.dws?ch=def&id=136903
Type of initiative
Main target group
Improved new data collection; Awards, grants
Public authorities
This monitor is developed by MOVISIE, the Netherlands centre for social
development,in order to assess the local implementation of LGBT policies.
The biannual monitor is published since 2003. Municipalities are requested
to fill in a questionnaire on their intentions, plans and the implementation of
policies concerning the emancipation of LGBT people. Each municipality
receives a score on each question in the questionnaire. The municipality that
has the best overall score receives the Lantern Award (Lantaarnprijs). In
2011, this was Amsterdam. A promising smaller municipality receives the
Golden Flashlight Award (Gouden Zaklantaarn).
The questionnaire and the results of the 2011 Monitor are published in a
hand-out called the Pink Guide for Municipalities (Roze gemeentegids), that
also includes advices, practical examples and background information for
municipalities and local interest groups on the shaping or LGBT
emancipation policies, on areas such as the elderly, youth, migrants, social
580
security, education and sport.
The Monitor research has been carried out four times since 2003 and the
Award was handed out four times as well.
Title (EN)
Organisation (EN)
chars)
measurable impact
States?
of the practice.
assessment.
The Monitor and the Awards clearly points out to municipalities how well
they are doing on LGBT emancipation policies in comparison to other
municipalities and on which points there is room for improvement.
Municipalities probably do not like to be known for its bad reputation in this
area. The Monitor and the Award could function as an incentive for
municipalities to implement policies that promote the emancipation of LGBT
people. The Pink Guide full of advice and examples can assist those
municipalities.
In each Member State, the emancipation of LGBT-people is on the agenda,
and an award could probably function as an incentive in other countries as
well.
The Monitor is based on the questionnaires that are
filled in by municipalities.
---
259
580
Schuyf, J. and Hoof, J. van (2011).
MAF Area
Title (EN)
language)
Organisation (EN)
Internet link
Type of initiative
Main target group
chars)
impact
States?
beneficiaries and
assessment and
practice.
Effectively monitoring discrimination
Effectively monitoring discrimination
Art.1, Kenniscentrum discriminatie Nederland
Art.1 , Knowledge centre discrimination, Netherlands
Civil society
www.art1.nl/categorie/106PROGRESS_Effectively_monitoring_discrimination
Improved (or new) data collection
Public authorities; Police, anti-discrimination bodies and other organisations
registering discrimination complaints.
Research project carried out by Art.1 in cooperation with the European Forum
for Migration Studies (University of Bamberg). Several organisations in the
Netherlands collect data on incidents where people are discriminated against.
However, registration, categorisation and exchange of these data are not
optimal. Based on a study of complaints registration systems in the Netherlands
and Germany, recommendations are given for the improvement of existing
registrations systems and the development of such systems in MSs where they
do not yet exist. The project entails interviews with key government officials, a
conference for social and legal scientists, meetings with representatives of
organisations who register discrimination data and desk research. The project
will result in a descriptive report on the current situation in the Netherlands and
Germany with regard to registration of discrimination complaints and an advisory
report on how to improve existing registration systems, including
recommendations for developing new systems. The reports will be published at
the end of 2011.
Both government officials and representatives of registering organisations
underline the need to improve registration of discrimination complaints and to
synchronise data of the organisations involved. This project supports efforts of
registering organisations to realise this. It is in line with national
antidiscrimination policies which also mention the need to improve
discrimination data.
The project is supported by national government officials and registering
organisations in both the Netherlands and Germany. Moreover, Art.1 has
already received several requests from organisations for the results of the study.
This indicates that the study fills in a knowledge gap and responds to the needs
of those organisations.
One of the major goals of this project is to provide other Member States with
useful insights gained from experiences in the Netherlands and Germany on how
to organise the monitoring of discrimination
The project involves all organisations that register
discrimination (on all grounds) in the Netherlands and
in Germany. Representatives of these organisations
have provided feedback in the design and
implementation of the project as well as in its
evaluation.
The conference for social and legal scientists and the
meetings of representatives of organisations that
register discrimination complaints have been evaluated
by means of a satisfaction survey filled out by
participants. The future users of the reports
(organisations that register discrimination complaints)
will give feedback on the reports before they are
published.
MAF Area
Title (EN)
language)
Organisation (EN)
Racism and ethnic discrimination
Welkom in Rotterdam!
Welcome in Rotterdam
Gemeente Rotterdam
Internet link
www.welkominrotterdam.nl
Type of initiative
Main target group
Intercultural dialogue
Migrants
Welkom in Rotterdam is an organisation in Rotterdam that organises
intercultural encounters between migrants who are new to Rotterdam and
native Rotterdam residents. The practise started in 2005. From 2005 to
December 2010 2.173 people participated in this project. Participants from all
age groups and from all walks of life participated in this project. The
encounters focus on practising the Dutch language, getting to know Rotterdam
and improving relations between immigrants and native Dutch. In 2011 an
evaluation study about this project was published (Muijres, M. & Aarts, 2011,
N.). It concluded that the intercultural encounters organised by Welkom in
Rotterdam contribute directly and indirectly to social cohesion in Rotterdam.
People get to know each other better, prejudices are taken away, and people
tend to think in a more nuanced way about people from other ethnic groups.
The project has been in operation in Rotterdam for 5 years.
Brief description
impact
transferrable o other
States?
beneficiaries and
assessment and
practice.
Municipality of Rotterdam
Government
The evaluation study showed that prejudices can be combated by organising
simple encounters between migrants and the native population.
This practice has a very simple design that can be applied everywhere.
Couples compromising ‘old’ and ‘new’ Rotterdam residents are formed based
their interests. Participants’ experiences are evaluated.
An evaluation study was published in 2011: Muijres, M. and Aarts, N. (2011),
Welkom in Rotterdam! Een studie naar interculturele ontmoetingen tussen
'oude' en 'nieuwe' Rotterdammers, Wageningen, Wageningen University &
Research Centre - Wetenschapswinkel.
MAF Area
Title (EN)
language)
Organisation (EN)
Internet link
Type of initiative
Main target group
Brief description
impact
States?
beneficiaries and
assessment and
practice.
Verbinden door Voetbal
Connect through Football
Hogeschool Utrecht / Amateur Voetbalclubs Utrecht
University of Applied Sciences Utrecht / Amateur Soccer Clubs in Utrecht
Civil society
www.stijnverhagen.nl/Content.aspx?PGID=c21477e2-9d5b-4779-842df53384c89d71
Community cohesion - social integration
Migrants; Youth
The goal of this project is to encourage respectful behaviour in and around the
fields of amateur football clubs in Utrecht and to promote interethnic relations
between individuals and groups in those clubs. The project started in 2008. In
2011, the research institute Verwey Jonker Instituut published two evaluation
studies. These studies were carried out at two clubs which participated in this
project: Voetbalvereniging De Meern and Voetbalvereniging Zwaluwen.
Surveys were conducted in 2008 and 2010 among members of both clubs.
Respondents were asked whether the behaviour among club members had
improved. Members of VV De Meern answered that this was the case, but also
noticed more aggressive behaviour at the club. Members of Voetbalvereniging
Zwaluwen reported that behaviour among members and interethnic contacts
inside the club had improved.
The project started in 2008 and has been closely monitored by the Verwey
Jonker Instituut. The findings are used to adapt the project’s activities. The
activities were first carried out by students as part of the research programme,
but will be continued by volunteers and executives of the soccer club.
Evaluation studies have shown that during the project, respectful behaviour in
and around soccer fields and interethnic contacts between members of
football clubs have improved.
The activities can be applied to other football and sports club. Activities such
as a Fair Play Cup, and a training for referees and club trainers can easily be
applied in other settings.
The project is carried out in close cooperation with its target group. The
activities are designed in such a way that volunteers and the clubs’ executives
could continue them. The project has evaluated the experiences of football
players, their parents, and volunteers.
In 2011, two evaluation studies have been published:
Boonstra, N., Hermens, N., Koot, E., Scheijmans, I. and Verhagen, S. (2011), De
verbindende kracht van voetbal. Voetbalvereniging Zwaluwen, Utrecht,
Verwey-Jonkerinstituut.
Boonstra, N., Hermens, N., Koot, E., Scheijmans, I. and Verhagen, S. (2011), De
verbindende kracht van voetbal. Voetbalvereniging De Meern, Utrecht,
Verwey-Jonkerinstituut.
MAF Area
Title (EN)
Organisation (EN)
Together to get there
Together to get there
FORUM, Instituut voor Multiculturele Vraagstukken
FORUM, Institute for Multicultural Affairs
Civil society
Internet link
www.to-get-there.nl
Type of initiative
Main target group
Intercultural dialogue
Students
The project wants to stimulate youngsters (students)
to reflect upon intercultural stereotypes and to
activate youngsters and their networks to participate
in society. Students in vocational training and high
professional education are trained to organise two
house chamber meetings. They invite family members,
acquaintances, neighbourhood residents or a specific
target group (for instance, immigrant youth). During
the first meeting, the participants speak about their
wishes and needs concerning a self-chosen topic, such
as racism or discrimination, or participation in
education, volunteer work or sport. They tackle
questions like: Where do our prejudices come from?
What can we do to improve things? For the second
meeting, a professional or official is invited to consider
the issues that arose during the first meeting. The
participants and the professional or official together
search for solutions and make agreements about a
follow-up. All students that have organised meetings
come together during final session and receive a
certificate.
Several universities for the applied sciences are
involved in the project. A special manual (Czyzewski,
A., Hoogebosch, A., and Wink, R., 2010) and a website
supports teachers as well as students.
An overall evaluation of this project has yet to be
made. However, there are numerous promising
examples of participants improving their interethnic
contacts and social participation.
The project can be implemented in educational
settings to increase students’ intercultural
communicative skills as well as ties between
educational institutions and civil society. The meetings
are relatively easy to organise.
The project is carried out by the students themselves.
Participants design their own project plans with their
own goals, target groups, and analyses.
Brief description
transferrable o other settings and/or Member
States?
The manual devotes a complete chapter to
evaluation. The website contains a questionnaire
through which participants can share their
experiences.
MAF Area
Mobiel Medisch Document
Title (EN)
Mobile Medical Document
Dokters van de Wereld
Organisation (EN)
Doctors of the World
Civil society
Internet link
http://www.doktersvandewereld.org/home
Type of initiative581
Support to (irregular) immigrants
Main target group582
Irregular migrants
Brief description (max. 1000 chars583)
This practice has been started in 2006 by
Dokters van de Wereld ( the Dutch branch of
Médecins du Monde) and was renewed in
2011. The project consist of a document that
irregular migrants can use contacting health
providers like general practitioners and
hospitals. The health providers can make a
note in this document. The document
contains information on medication,
diseases and operations. Information will
not be wasted in this way. The document is
owned by the individual irregular migrant.
He or she can show the document when
contacting health care providers.
In 2006 this project was started and is still
going on.
This practice prevents the waste of
information on the health of irregular
migrants. This information can be essential
for a successful treatment.
transferrable o other settings and/or Member States?
beneficiaries and stakeholders in the design, planning,
evaluation, review assessment and implementation of
the practice.
It doest not provides for assessment.
265
581
Please select one or more from the list of categories below
582
Please select one or more from the list of target groups below
583
Characters, no spaces
MAF Area
Title (EN)
Organisation (EN)
Internet link
Type of initiative
Main target group
chars)
measurable impact
States?
of the practice.
assessment.
Participation of EU citizens in the Union’s democratic functioning
Jij wilt een beter Brabant? Wij ook!
Do you want a better Brabant? We do too!
Partij voor de Vrijheid (PVV)
Party for Freedom (PVV)
Civil society
www.patriciavanderkammen.nl
Awareness raising; Encouraging political participation
General public (people with mental disabilities)
The Provincial Council Elections were held on 2 March 2011. The North
Brabant section of the Dutch Party for Freedom (PVV) rewrote its
electoral programme for people with mental disabilities. It explained the
electoral programme of PVV North Brabant in short and simple
sentences. The programme could be downloaded from the website of
one of the PVV candidates, Ms. Patricia van der Kammen.
Programmes in simplified language can be provided at each election to
involve people with mental disabilities in the electoral process.
Electoral programmes in simplified language help people with mental
disabilities to understand the electoral process, which is likely to increase
their involvement.
Political parties in all Member States can make use of the practice.
It does not provide for review and assessment.
MAF Area
Title (EN)
Organisation
(original
language)
Organisation (EN)
Internet link
Type of initiative
Main target group
chars)
impact
transferable
to
other
States?
the
practice
involves
beneficiaries
and
assessment
and
implementation
of
the
practice.
Kieslijsttelefoon
Electoral list phone number
Viziris
Viziris (network of organisations for people with a visual impairment)
Civil society in cooperation with the government
www.viziris.nl/index.php?p=890597&page=0
Encouraging political participation
General public (people with a visual impairment)
During the elections for the Provincial Council held on 2 March 2011, visually
impaired voters could make use of the Kieslijsttelefoon. The special phone
service provided an audio version of the electoral list. Via a special free phone
number, voters were able to acquire spoken information about candidates on
the electoral lists. This was also the case during elections in 2009 and 2010.
The practice has been repeated several times in the Netherlands.
It is a very concrete project that offers people with a visual impairment direct
support.
There will be visually impaired people in all Member States who want to be
informed about candidates they can vote for.
The practice has been developed by a network of organisations representing
or working for people with a visual impairment.
Evaluation has not taken place. Viziris considered the practice a success.
MAF Area
Title (EN)
language)
Organisation (EN)
Government / Civil
society
Internet link
Type of initiative
Main target group
Brief description (max.
1000 chars)
sustainable (as opposed
to ‘one off activities’)
having
concrete
measurable impact
States?
how
the
practice
involves
beneficiaries
and stakeholders in the
design,
planning,
evaluation,
review
assessment
and
practice.
how
the
practice
provides for review and
assessment.
Wegwijs op het gemeentehuis
Find your way in local government
Het Instituut voor Publiek en Politiek (IPP)
Institute for Political Participation (IPP)
Civil society
www.publiek-politiek.nl/Voor-professionals/CursussenWorkshops/Wegwijs-op-het-gemeentehuis-voorinburgeraars/(language)/dut-NL
Encouraging political participation
Migrants
This project aims to make local politics accessible to immigrants (from
inside and outside the EU). For one day, immigrants assume the role of a
member of the municipal council. During an intensive day at the city or
town hall, immigrants engage with local politicians, civil servants and
lobby groups and discuss topics such as power, democracy, lobbying and
the budget. The idea behind the project is that participants learn through
experience. The role play gives them insight into political and municipal
decision-making processes. More insight should lead to more
involvement. In September and October 2010, the project was carried out
in the cities of Dordrecht, Groningen and Amsterdam.
This practice is a project that has been carried out in different places and
can be repeated.
Participants get involved in the political process and learn about local
politics in a very practical way.
In many Member States, immigrants must find their own way into politics.
A project such as this could help them.
There has been no evaluation of this project.
MAF Area
Title (EN)
Organisation (EN)
Access to efficient and independent justice
Ouders uit elkaar
Parents separated
Raad voor Rechtsbijstand
Legal Aid Board
Government
Internet link
www.ouders-uit-elkaar.nl
Type of initiative
Main target group
Legal advocacy
Children
This practice is a website containing information on how to deal with
divorce and is intended for children and parents. The website is divided
into seven sections. Each section is for a specific age group: 0-5 years, 6-8
years, 9-2 years, 13-15 years, 16-18, 18 plus, and parents. Each section
gives practical information to children about how to cope with a divorce of
their parents. The website focuses on the direct consequences for the
children. Where are they going to live? How about the custody and the
arrangements concerning parental access? Children can download a letter
from the website that can be send to the children’s magistrate in order to
express their wishes or to ask questions.
Practice is a website that is permanently online.
Brief description
measurable impact
States?
of the practice.
assessment.
The website contains clear-cut information specifically targeted at
children.
There will be children in other Member States as well that have to deal
with the divorce of their parents, and will be helped with an informative
website in their own native language.
The website has been adapted using the information extracted from a
survey held under 50 children.
Surveys are held under users. People who use the website can give a
reaction.
MAF Area
Title (EN)
language)
Organisation (EN)
Internet link
Type of initiative
Main target group
Brief description
impact
States?
beneficiaries and
assessment and
practice.
Access to efficient and independent justice
Aangifte doen via webcam
File a complaint by webcam
Politie Rotterdam Rijnmond
Rotterdam-Rijnmond Police Department
Government
www.politie-rotterdam-rijnmond.nl/online-service/aangifte/aangifte-viawebcam.aspx
Legal advocacy
General public
In April 2011 the Rotterdam-Rijnmond Police Department started a pilot in
which citizens can report a crime by webcam. The pilot will run until January
2012. A person who wants to file a complaint can use his webcam. On the
website of the Rotterdam-Rijnmond Police he can enter a virtual room. At the
other side is a police officer. This police officer asks questions and fills in the
form. The person who reports has to show his identification papers. The virtual
reporting room is opened from 8 to 22 ‘o clock. Some complaints can not be
filed: violence and sexual crimes and crimes committed by family members of
the person who reports the crime. The webcam pictures are not recorded.
The practice is a pilot that can be easily implemented in standard procedures.
The practice makes it easier to file a complaint.
In all Member States, reporting by webcam can it make easier for citizens to
report crimes. Most countries have the infrastructure to implement this
practice.
The practice will be assessed at end of the pilot in January 2012.
MAF Area
Title (EN)
Organisation (EN)
Protection of victims
Voorschotten aan slachtoffers
Advance money to victims
Ministerie van justitie en Veiligheid
government
Internet link
www.rijksoverheid.nl
Type of initiative
Main target group
Legislation
Victims
On 1 January 2011, a new regulation came into force concerning the
compensation of victims of crime. Under this new regulation an advance
payment is made by the authorities to victims of crime. On 1 September
2011, the first victims received their advance payment. Before this new
regulation was implemented, the victim received compensation when the
offender paid the money. If the offender did not have enough money or did
not want to pay, the victim would not receive any money. Under this new
regulation the victim ceases to be dependent on the offender. If an offender
has not paid the victim the full compensation eight months after the verdict,
the Central Fine Collection Agency will grant the victim an advance payment.
The Central Fine Collection Agency will then collect the money from the
offender.
This practice is a new piece of legislation. Therefore, it is a structural
development.
chars)
measurable impact
States?
of the practice.
assessment.
On 1 September 2011, the first advance payments were made by the
authorities.
It depends on the legal situation in each Member State. If the situation in a
specific Member State can be compared to the situation in the Netherlands
before this practice was implemented, it could be transferred.
---
The practice has not been assessed yet.
MAF Area
Title (EN)
Organisation (EN)
Internet link
Type of initiative
Main target group
transferrable to other settings and/or Member
States?
Explain, if applicable, how the practice provides
for review and assessment.
Oranje huis
Orange house
Blijf Groep
Blijf Groep (Welfare Organisation offering shelter to
victims of domestic violence in the Netherlands)
Civil society
www.blijfgroep.nl/content/download/folderOranjehuis.def.p
df
Support of victims
Women; Victims
The method ‘Orange house’ was introduced in the summer
of 2009 in a shelter in the town of Alkmaar. Main target
group of the method are women that fled domestic violence.
This method breaks with the traditional women's shelter
approach in three important ways: the address of the shelter
is not secret, one location offers both aid and shelter and aid
is provided for all members of the family. The method not to
sever contacts between victims on the one side and the
partner, children and other family members on the other
side is of key importance. Relations are maintained in order
to solve the problem. Professionals support victims and their
abusing spouse to break through a cycle of abuse. An
584
evaluation study was published in October 2010. It turns
out that most women in the shelter are satisfied with the
care they receive. The evaluation also shows that the role of
children is neglected. Recommendations will be used in order
to improve the Orange House method.
The method is applicable in all shelter facilities for women.
The evaluation study showed that victims were satisfied with
the method developed during this project.
The dynamics of domestic violence are the same in all
countries.
---
An evaluation study was carried out in 2010.
5
584
Lünnemann, K. et al (2010).
MAF Area
Title (EN)
Organisation (EN)
Aan de goede kant van eer
At the good side of honour
Ministerie van Wonen, Wijken en Integratie,
Samenwerkingsverband Marokkaanse Nederlanders (SMN),
Inspraakorgaan Turken (IOT), Samenwerkende Turkse
Organisaties Overijssel (STO), Vluchtelingen Organisaties
Nederland (VON)
Ministry of Integration and Housing, SMN, IOT, STO and VON.
Government and civil society
Internet link
www.eervol.com
Type of initiative
Main target group
Awareness raising
Ethnic minorities
Policy programme that took place from 2007 to the
beginning of 2011. It was developed to prevent honourrelated violence among ethnic minorities in the Netherlands.
Goals of this programme were the empowerment of
members from ethnic communities where honour related
violence is prevalent, attitude change inside ethnic
communities, and the improvement of cooperation between
municipalities, professional institutions and immigrant
groups. During this programme, different awareness raising
activities took place in close cooperation with migrant
organisations. The activities consisted of briefings, training
methods, websites and social media. Most of these activities
were organised by migrant organisations on a local level.
Central conclusion from the evaluation is that the
programme has contributed to the acceleration of a
emancipation movement. Honour-related violence and
related themes such as incest, homosexuality and forced
marriage are more open to debate than before the
programme.
The campaign focused on a mentality change among
communities were honour-related violence is prevalent.
Many grass roots organisations were involved.
An evaluation study showed that this issue has been set on
the agenda of ethnic communities. This is an important first
step in combating honour-related violence.
Many Member States have communities were honourrelated violence is prevalent.
practice as sustainable (as opposed to
practice as having concrete measurable
impact
practice as transferrable to other settings
and/or Member States?
Explain, if applicable, how the practice
involves beneficiaries and stakeholders in
the design, planning, evaluation, review
assessment and implementation of the
practice.
Explain, if applicable, how the practice
provides for review and assessment.
A large part of this programme has been carried out by
target groups themselves. During the evaluation, they
could express their views on how the programme
worked.
Evaluation was conducted and published in 2011.
585
6
585
Zweers. J.S., et al (2011)
Annex 3 – Promising practices (three per MAF area)
MAF Area
Vervolg Kwaliteitsmeting slachtofferzorg
Title (EN)
International Victimology Institute Tilburg
Organisation (EN)
International Victimology Institute Tilburg
http://wodc.nl/onderzoeksdatabase/1833aontwikkeltraject-monitorslachtofferzorg.aspx?cp=44&cs=6796
Internet link
Type of initiative586
Main target group
587
Improved data collection
victims
Brief description (max. 1000 chars588)
This research aimed to further the
development of a questionnaire that is used
to assess the quality of victim assistance in
the Netherlands. This questionnaire was
presented in 2009 as part of a monitor.
Goals of this research project were to review
and increase the respondents’
understanding of the survey questions, to
reduce non-response and to develop
‘building blocks’ for the implementation of
the monitor. The original questionnaire was
put to respondents in two series. After the
first series of interviews, the questionnaire
was amended on the basis of the preliminary
findings. The amended questionnaire was
used for the second series of interviews.
Both series have led to a number of changes
in individual questions and an improved
questionnaire. Researchers also translated
the project findings into several
recommendations on the implementation of
the monitor.
The project aims to improve a questionnaire
already in use.
A thorough study has been made in order to
assess the instrument.
transferrable to other settings and/or Member States?
Any scheme to support victims has to be
evaluated and monitored. A questionnaire7is
586
Please select one or more from the list of categories below
Please select one or more from the list of target groups below
588
Characters, no spaces
587
an important instrument for such a monitor.
The study can be helpful for other countries.
beneficiaries and stakeholders in the design, planning,
evaluation, review assessment and implementation of
the practice.
Project is part of an overall evaluation.
ANNEX 4
Decision date
11 January 2011
Reference details
Netherlands, Court of Appeal The Hague (Gerechtshof 'sGravenhage), LJN BO9924, No. 200.063.511/01, 11
January 2011.
For an overview of the facts of the case, see the
interlocutory judgment LJN: BN2164, date 27 July 2010.
Key facts of the case
(max. 500 chars)
A mother and her two children have been denied the
refugee status, and have to leave the Netherlands. Since
2009 they have been living in the limiting freedom
location Ter Apel. Because the mother would not
cooperate with her deportation to Angola she, and her
children, had to leave the limiting freedom location by 1
April 2010. This would come down to mother and
children being homeless.
Main reasoning/argumentation
(max. 500 chars)
The State argues that it does not have to provide the
mother with housing, because her application for
asylum has failed. This consequently means that the
mother, and also her under aged children can be
dismissed from the limiting freedom location. Conform
to the rights of the child, the State would place the
children (without the mother) in a foster family or a
residential care center.
The court confirms that –indeed- the State has the legal
obligation to provide children of failed asylum seekers –
who are thus temporarily staying in The Netherlands
pending their voluntary or forced deportation-with
adequate (medical) care, shelter and education.
Key issues (concepts, interpretations)
clarified by the case (max. 500 chars)
The key issue in this case is how children of failed
asylum seeking should be accommodated and if being
separated from their mother is a ‘necessary’ measure.
The Court concludes that accommodating children in a
foster family or a residential care center, and by that,
separating mother and children, implicated a
disproportional violation of the right of the children to
family life.
Reference to the EU Charter of
Fundamental Rights (max. 500 chars)
The asylum seeker invokes Article 8, the right to family
life to not be separated from her children and to stay in
the limiting freedom location.
Results (sanctions) and key
consequences or implications of the case
(max. 500 chars)
The Court of Appeal:
Prohibits the State to remove the family from the
restricted freedom location.
Orders the State to keep providing shelter and financial
support for the under aged children
Orders the State to repay (several) costs.
Key quotation in original language and
translated into English with reference
details (max. 500 chars)
“Weliswaar komt aan moeder [F] zelf geen aanspraak
toe op langer verblijf in de vbl, maar de aanspraak van
haar kinderen brengt mee dat ook haar verblijf in de vbl
op de huidige voet dient te worden geaccepteerd.(…). De
Staat zal de kinderen [F] daarom in de gelegenheid
moeten stellen hun verblijf in de vbl op de huidige voet,
dus tezamen met hun moeder, en met de tot nu toe
geboden voorzieningen van verzorging en scholing,
voort te zetten, totdat de opvang van de kinderen op
andere wijze is geregeld met inachtneming van hun
recht op continuering van hun gezinsleven met hun
moeder of totdat zij - gezamenlijk met hun moeder - het
land (of de vbl) verlaten.” (Paragraph 5)
“Even though the mother is not entitled to stay longer in
the limited freedom location, the entitlement of her
children brings along that also her current stay in the
limited freedom location should be accepted. (…)
Therefore, the State should give the children the
opportunity to continue their stay as it is right now, so
together with their mother, and with continuation of
the hitherto provided provisions of care and education,
until the children are accommodated in another matter
with due observance of their right to continuation of
their family life with their mother or until they –
together with their mother- have left the country (or the
limited freedom location).”
Decision date
20 January 2011
Reference details
Netherlands, District Court The Hague (Rechtbank 'sGravenhage), LJN: BP1516, No. Awb 10 / 41119, Awb 10
/ 42525, Awb 10 / 42526, 20 January 2011.
589
(max. 500 chars )
An Afghan family, including a girl aged 14 and a boy
aged 16, who have been in The Netherlands for 10 years
have failed to seek asylum and have to leave The
Netherlands.
The children are westernized and do not speak Dari.
They do well in school. In Afghanistan they will probably
not be able to go to school. The children cannot be
expected to adapt to the Afghan norms, values and
social ruled. Especially the daughter runs a safety risk by
going back, because she might be regarded as
desecrating social traditions (by for example not
wearing a head scarf). In short, plaintiffs argue that the
son and daughter are strongly westernized and going
back to Afghanistan will impede their development.
The Court considers that the children have been living in
The Netherlands for a long period, and since a young
age. The daughter of 14 years old, has grown custom to
Western (Dutch) norms and values. Also taking into
account the intellectual capacities the Court stated that
the daughter is in an important phase of personal
development. Under these circumstances the daughter
cannot be expected to adjust to the Afghan norms and
values, which fundamentally differ from the Dutch
norms and values.
Article 3. Defendant (the Minister) argues that plaintiff
has not provided convincing arguments that returning
to Afghanistan gives the risk that plaintiffs will be
treated as described in article 3 EU Charter of
Fundamental Rights. The Court decided that by
adjusting to the social traditions in Afghanistan, the
daughter would have to disavow her personality as
shaped in The Netherlands. It has not been proven that
the daughter is protected from harm by powerful
actors, such as warlords and tribal chiefs (as is
demanded by article 3).
The court:
Declares the decision to refuse asylum invalid and
orders the minister to take a new decision with
consideration of the verdict.
The minister is prohibited to deport the family.
Orders the minister to repay (several) costs to the
plaintiffs.
“is [dochter] veertien jaar oud en mag, mede gelet op
haar intellectuele capaciteiten, worden aangenomen dat
zij zich in een belangrijke fase van haar ontwikkeling
bevindt waarin haar persoonlijkheid zich aan het vormen
is en, naar de rechtbank aanneemt, al voor een
belangrijk deel heeft gevormd. Voorts mag worden
aangenomen dat de westerse normen en waarden
(max. 500 chars)
(max. 500 chars)
11
589
Characters, no space
waarmee zij is opgegroeid tot op zekere hoogte deel zijn
gaan uitmaken van haar persoonlijkheid. De rechtbank
ziet niet zonder meer in dat onder deze omstandigheden
van haar gevergd kan worden dat zij zich in Afghanistan
aanpast aan de aldaar heersende cultuur en normen,
die, naar niet in geschil is, wezenlijk verschillen van de
Nederlandse.” (Paragraph 16)
“The *daughter+ is fourteen years old and, as may be
assumed, also considering her intellectual capacities, is
in an important stage of her development, in which her
personality is forming, and as the Court assumes, is
already formed for an important part. Further may be
assumed that the Western norms and values which she
grew up with, are to a certain extent part of her
personality. The Court fails to understand that she is
expected to adjust to the Afghan culture and norms,
which, are under discussion, fundamentally differ from
the Dutch.”
Decision date
Reference details
(max. 500 chars[1])
(max. 500 chars)
Key issues (concepts,
interpretations) clarified by the
case (max. 500 chars)
Fundamental Rights (max. 500
chars)
consequences or implications of
the case (max. 500 chars)
Key quotation in original language
and translated into English with
reference details (max. 500 chars)
16 August 2011
Netherlands, Administrative High Court / Social Security Appeals
Tribunal (Centrale Raad van Beroep), LJN: BR4959, No. 10/5248
INBURG + 10/5249 INBURG + 10/6123 INBURG + 10/6124 INBURG, 16
August 2011.
The persons concerned are Turkish nationals that have a (temporary
or permanent) residence permit for The Netherlands. On the basis of
the Civic Integration Act (Wet Inburgering) they are obliged to pass a
Civic Integration examination (Inburgeringsexamen). When not
passing this test within the set timeframe, a civil penalty is imposed.
First, the freedom of association and the ‘standstill’ provisions
determine that auspicious conditions should be created for gradual
introduction of freedom of movement (of employees), and freedom of
provision of services (freedom of association, freedom of movement
(of employees), and freedom of provision of services) between the
member States of the EU and Turkey. National governments are
prohibited to raise new hindrances in this regard. It is argued that the
Dutch Civic Integration examination exam is such a hindrance.
The Tribunal has determined that the obligation of the Civic
Integration examination violates the freedom of association and the
‘standstill’ provisions. Moreover, the Civic Integration examination is
also in violation with the obligation to treat Turkish and EU civilians
equally (article 9 of the association treaty and article 10, paragraph 1
of decision 1/80). The possible positive effects for Turkish nationals
(on their integration in the Netherlands) resulting from the Civic
Integration examination obligation, does not change the applicability
of the aforementioned State obligations.
No specific reference. Freedom of association, freedom of movement
(of employees), and freedom of provision of services. Duty to treat
citizens equally.
The Tribunal confirms the decision of lower courts. Plaintiffs are
ordered to pay the registry- and legal fees (to a maximum).
The Court decision has also consequences for the implementation of
the Aliens Act 2000 (paragraph 1.3)
“De Wi (Wet Inburgering) legt voorts niet alleen de verplichting op om
het inburgeringexamen binnen een voorschreven te termijn te
behalen, maar doet dit bovendien op straffe van een door de
Nederlandse overheid op te leggen –oplopende en iteratieve- boete
(…). De combinatie van deze verplichting en deze (bestraffende)
sanctie moet (…) worden aangemerkt als een verslechtering van de
wijze waarop (alle) Turkse staatsburgers hun recht van verblijf in
Nederland uitoefenen en daarmee als een (nieuwe) beperking van het
recht van verblijf (…).”(Paragraph 7.1.8)
The Civic Integration Act (Wet Inburgering) prescribes not only the
obligation to pass the test within the set timeframe, but the Dutch
government will also impose a fine when this is not the case (…). The
combination of the obligation and the sanction (…) must be seen as
worsening the way Turkish citizens exercise their right to stay in the
Netherlands and with that it must be considered as a new restriction
for the right to stay.
Decision date
Reference details
(max. 500 chars[1])
(max. 500 chars)
chars)
11 May 2011
Netherlands, Council of State (Raad van State), LJN: BQ4610, No.
201011782/1/V1, 11 May 2011.
A homosexual female asylum seeker from Sierra Leone is refused
asylum but fears her life will be endangered because of her sexual
orientation when she will go back to Sierra Leone.
The asylum invokes the Ministry of Foreign Affairs Country Report
which states that homosexuality in Sierra Leone is not tolerated, that
people do not uncover their homosexual orientation, that there is a
big taboo on homosexuality and that its existence is denied. Expecting
her to hide her sexuality is in conflict with article 3 and 8 of the EU
Charter of Fundamental Rights.
The Minister argues that the asylum seeker can be expected to hide
her sexuality in Sierra Leone.
The Court agrees with the statement of The Minister that the asylum
seeker can be expected to hide her sexuality, because of three
reasons. First, she has never had problems because of her
homosexuality in Sierra Leone. Second, her sexuality was not the
reason for her departure to The Netherlands. Third, she has had a
sexual relation in Sierra Leone from the second year of high school,
which she kept secret without any problems. The fact that sexual
orientation is a fundamental element of a person’s personality does
not change this. Article 8 is not violated because she has not provided
facts or circumstances, showing that she cannot give a meaningful
realization of her homosexual orientation.
590
Note that this is an interesting court decision , since it is stated in
591
the Aliens Circular that people with a homosexual preference are
not required to hide this preference upon return in the country of
origin.
Article 3 and 8. The asylum seeker argues that expecting her to hide
her homosexuality violates her right to private life.
The Council of State confirms the decision of the lower court. The
Minister is ordered to pay the legal fees (to a maximum).
“Dat seksuele geaardheid een wezenlijk element van iemands
persoonlijkheid is, brengt niet met zich dat van de vreemdeling niet
kan worden verwacht dat zij louter omdat zij in Sierra Leone in het
openbaar niet voor haar homoseksuele geaardheid kan uitkomen haar
prive-leven bij terugkeer naar Sierra Leone op dezelfde wijze als voor
haar vertrek naar Nederland vormgeeft.” (Paragraph 2.2.2)
“The fact that sexual orientation is a fundamental element of a
person’s personality, does not bring along that the asylum seeker
cannot be expected that, just because she cannot disclose her
sexuality in public in Sierra Leone, to shape her private-life in the
same manner as before she came to The Netherlands.”
14
590
Netherlands, LJN: BQ4610
591
Netherlands, Aliens Circular (Vreemdelingencirculaire) 2000 C2/2.10.2.
Decision date
16 June 2011
Reference details
Netherlands, Council of State (Raad van State)
LJN: BQ9503, C, 201010430/1/V1, 16 June 2011.
The case involves the minister of immigration and
asylum and an asylum seeker with the Angolese
nationality. It concerns the appeal of the Minister
against the Court decision that obligated the Minister to
provide the asylum seeker with a permanent residence
permit. In this appeal the Minister disputes that he had
made a inadequate weighing of interests, in the light of
art.8 ECHR. That is, a fair balance test should be used by
the minister in order to assess the interests of both the
individual and the state. The Court of First Instance had
stated that preference should be given to the interests
of the individual, when the fair balance test is discussed.
The Council of State will look at the grounds of appeal
brought forward by the applicants in the Court of First
Instance.
The asylum seeker with the Angolese nationality (the
defendant) complains that the decision of the minister
(the plaintiff) was insufficiently prepared and poorly
motivated. First, according to the defendant, the
plaintiff was wrong in stating that it is not likely that the
family life between the defendant and his biological
mother is over and that she is not willing to provide him
with the necessary care. Second, the plaintiff failed to
appreciate the family life between the defendant and its
foster parents. Third, the plaintiff failed to appreciate
other interests from the defendant, which are based on
art.8 ECHR, such as the private life of the respondent.
Finally, the plaintiff failed to take art. 3.71 (4), of Aliens
Decree 2000 (Vreemdelingenbesluit 2000) into account.
The Minister have responded to these complaints.
First, he states that the defendant has failed to prove
that his biological mother was not willing to take care of
her son. The Council of State accepts this response.
Second, the argument by the plaintiff that the family life
between the defendant and his foster parents started in
a period where it was not sure if this family life could be
exercised continuously, is also accepted by the Council
of State. In this situation, extradition of the individual
only violates art.8 ECHR under special circumstances
(see: case of Rodrigues da Silva592).
Third, it is the plaintiffs opinion that the fact that the
defendant has developed a private life in the western
community, does not have the consequence that
preference is given to the individual, with regard to the
fair balance test. The Council of State accepts this line of
15
592
ECHR Rodrigues da Silva , nr. 50435/99, JV 2006/90.
clarified by the case
Fundamental Rights
details
reasoning.
Finally, the appeal towards art.3.71 is only sustained in
extraordinary situations, who do not apply in this case.
Concluding, The Council of State agrees with the
plaintiff and accepts the appeal.
A fair balance test should be used by the minister in
order to assess the interests of both the individual and
the state. In this test, art. 8 ECHR can result in a positive
obligation for the state to provide the individual with
the right to family life within its territory. A certain
margin of appreciation should be taken into
consideration in this fair balance test. It is the Court who
evaluates this fair balance test and checks if the minister
has taken all the relevant facts and circumstances into
account. Since this evaluation concerns state policy, the
Court should take a cautious approach. It can be argued
that, with this statement, the Court of First Instance has
failed to take a cautious approach.
In the case, it is made clear that, with regard to art.8
ECHR, a fair balance test should be used in order to see
if the state has a positive obligation to provide the
individual with the right to family life. In the EU Charter
of Fundamental Rights, this right to family life is
explicitly provided for in article 7.
The Council of State accepts the appeal of the Minister,
and therefore the decision of the Court of First Instance
was annulled.
In its decision, the Council of State respects the ruling in
the case of Ebrahim vs. Holland593, where the fair
balance test used by the minister in order to assess the
interests of both the individual and the state with
regard to the right to family life, was accepted.
Consequently, the Court takes into account that the
minister has a certain margin of appreciation in this fair
balance test. The decision of the Council of State is in
line the ECHR.
“Niettemin kunnen zich zodanige feiten en
omstandigheden voordoen dat uit het recht op
eerbiediging van het familie- en gezinsleven een
positieve verplichting voor de Nederlandse staat
voortvloeit om de vreemdeling verblijf hier te lande toe
te staan. Volgens vaste jurisprudentie (…) dient bij de
beoordeling van de vraag of artikel 8 van het EVRM in
een bepaald geval de positieve verplichting met zich
brengt een vreemdeling in staat te stellen tot het
uitoefenen van familie- en gezinsleven in een bepaalde
lidstaat, een "fair balance" te worden gevonden tussen
enerzijds de belangen van het betrokken individu en
anderzijds het betrokken algemeen belang van de
lidstaat. Bij deze afweging komt de desbetreffende
lidstaat een zekere beoordelingsruimte toe.” (Paragraph
2.2.3.)
There can be facts and circumstances that the right to
16
593
ECHR, Ebrahim vs. Nederland 59186/00, JV 2003/203
593
case 200901415/1/V1
family life obliges the Dutch State to provide residence.
According to jurisprudence (…) a fair balance test is
needed in judging whether art.8 ECHR obliges the state
to respect the right to family life in a certain case, in
which the interests of the individual and the interest of
the state are weighed. In this balance test, the state is
given some room for assessment.
(Paragraph 2.2.3.)
Decision date
28 December 2010
Reference details
Netherlands, Council of State (Raad van State), No.
201010790/1/V3 , 28 December 2010.
(max. 500 chars)
On 17 October 2010, a migrant is maintained in a Dutch
vehicle during a mobile border check close to the DutchBelgian border. The migrant, who does not have the
required documents to reside in the Netherlands, is
subsequently arrested and incarcerated.
The state claimed in this case that the mobile border
checks did not amount to border control as prohibited
594
the Schengen Borders Code. The Council of State,
however, decided this was the case; it admitted the
mobile border control had different goals as the
Schengen border control, but added that the effect
could still be the same. The Council ruled that mobile
border control lacked a legal framework to ensure it
does not amount to an internal border control, as is
prohibited by the Schengen Code.
Border control under the Schengen borders code.
Conditions under which control of internal national
borders is allowed within the Schengen framework.
(max. 500 chars)
None
(max. 500 chars)
The decision by the Appeals Court is quashed. The
appeal of migrant is founded. The state has to pay
migrant damages worth of €1365.00 and has to pay for
litigation costs of migrant.
Consequences/implications: the mobile border checks
of Dutch borders is incompatible with the Schengen
Borders Code. These checks have to be founded on a
law, which at the time of the decision, was not in
existence.
“Nog los van het gebrek dat de wijze van uitoefening
van MTV-controles niet in een wettelijk voorschrift is
vastgelegd, biedt de bestaande regeling met betrekking
tot de MTV-controle als in deze zaak aan de orde
derhalve niet de door het Hof verlangde waarborgen”
(paragraph 2.7.3).
“Regardless of the lack that the way of executing the
mobile border controls is not established in a legal
provision, the existing regulation of the mobile border
checks as is applicable in this case, does not provide the
guarantees as required by the Court (Court of Justice of
594
17
Council of State (2010).
the European Union (CJEU).”
Decision date
14 February 2011
Reference details
Netherlands, District Court The Hague (Rechtbank 'sGravenhage), LJN: BP4784, No. 10/6045, 14 February
2011.
(max. 500 chars)
On 3 November 2009, a Turkish citizen, residing in the
Netherlands without legal residence documents, is
incarcerated in an alien detention centre. The Dutch
state had refused his application to stay in the country
as an independent worker. The Turkish man claims that
the rules governing Schengen visa applications do not
apply to Turkish citizens.
The Turkish migrant claimed that, based on the stand595
still clause (article 41) of the Additional Protocol to
596
the EEG – Turkey agreement , Turkish citizens who
work independently do not need to apply for a
Schengen visa when entering the EU. The 1973 protocol
froze all rights and obligations between the EU and
Turkey. Any new obligations, such as visa restrictions,
would therefore not apply. The court followed this
reasoning.
Status of article 41(1) of the Protocol with regard to visa
policy in the Netherlands for Turkish independent
workers.
(max. 500 chars)
None
(max. 500 chars)
The court revoked the decision to reject the Turkish
migrant’s application to stay in the Netherlands in order
to work as an independent worker. The Dutch state was
ordered to take a new decision with regard to his
application. The court decided that article 41(1), the
‘stand still’ clause of the 1973 Protocol, governed visa
applications of Turkish citizens. Future Turkish
independent workers could benefit from this ruling
when applying for visas to enter the Netherlands.
“De rechtbank is van oordeel dat uit de tekst van de
verdragsbepaling, niet zonder meer kan worden
opgemaakt dat voor Turkse onderdanen op 1 januari
1973 wel een visumplicht gold” (paragraph 2.20).
“The court finds that it cannot be concluded from the
text of the treaty provision, that there was a visa
obligation for Turkish citizens on 1 January 1973.”
595
European Communities (1963).
596
Additional Protocol (1973).
19
Decision date
4 July 2011
Reference details
Netherlands, District Court The Hague (Rechtbank ’sGravenhage), LJN: BR0684, No. AWB 11 / 19820, 4 July
2011.
On 5 June 2011 The Dutch border police (RNM) carried
out several mobile border checks at the Dutch-German
border. A migrant from Sierra Leone was maintained
and arrested by the border police on the basis of illegal
residency in the Netherlands.
The court ruled that the new law that has been in force
since the Council of State (see first annex) decided that
the mobile border checks lacked a legal base and were
therefore similar to border control, as banned by the
597
Schengen Borders Code , was applied in this specific
case. However, the court deemed the border checks
governed by this new law were not any different from
border control, as prohibited by the Schengen Borders
Code. The practice and law was thus in violation of
article 21 of the Schengen Code.
Border control, as prohibited by the Schengen Borders
Code. Scope and permissibility of border checks of
internal borders
(max. 500 chars)
(max. 500 chars)
None
(max. 500 chars)
The appeal by the migrant is ruled admissible. The state
has to pay damages for the time the migrant was jailed
and for all litigation costs of the migrant.
The judge has decided that the law governing the
internal mobile border checks of the Dutch border is in
violation of article 21 of the Schengen Borders Code.
The state might appeal this decision and if it is upheld,
the law and practice will have to be amended so as to
fall within the framework of the Schengen Code.
“Artikel 4.17a van het Vb 2000 houdt geen rekening met
het gedrag van betrokkene en met specifieke
omstandigheden waarvan een risico op aantasting van
de openbare orde uitgaat, terwijl deze factoren wel van
belang zijn alvorens de controle toelaatbaar is”
(paragraph 13).
“Article 4.17a of the Aliens Act does not consider the
behaviour of the person concerned and with the specific
circumstances that cause a risk of a threat to the public
order, while these factors are important for a control to
be permissible.”
20
597
Decision date
29 September 2011
Reference details
Court of Justice of the European Union (CJEU), C-187/10, Baris Unal
vs. the Netherlands, 29 September 2011.
(max. 500 chars)
Mr Unal entered the Netherlands on 24 February 2004 on the basis
of a provisional residence permit. By decision of 2 September 2004,
he was issued with a fixed-period residence permit valid from
29 March 2004 for the purpose of residing ‘with his partner. That
permit also bore the entry: ‘permitted freely to work; work permit
not required’. Mr Unal’s permit was extended to March 2009. After
his relationship ended, Mr Unal applied to amend the grounds of his
residence permit to continued residence. The under minister of
immigration rejected his application. Mr Unal appealed this decision
at the Council of State. The Council referred the case to the Court of
Justice of the European Union for a preliminary decision.
598
The CJEU decided that, Article 6(1) of Decision No 1/80 does not
allow Member States to unilaterally: “modify the scope of the
system of gradual integration of Turkish workers in the host Member
State’s labour force.” If there has been no fraudulent conduct and if
the Turkish citizen in question has been employed legally for a year
or more, then Decision 1/80 stipulates the national authorities are
not allowed to withdraw the residence permit.
(Legal) Status of Turkish workers in the European Union.
Competence of national authorities within the agreements between
the EU and Turkey.
Main
reasoning/argumentation
(max. 500 chars)
interpretations) clarified by
Reference to the EU Charter
of Fundamental Rights (max.
500 chars)
consequences or
implications of the case
(max. 500 chars)
None.
Key quotation in original
language and translated into
English with reference
“The first indent of Article 6(1) of Decision No 1/80 of 19 September
1980 on the development of the Association, adopted by the
Association Council set up by the Agreement establishing an
Association between the European Economic Community and
Turkey, must be interpreted as precluding the competent national
authorities from withdrawing the residence permit of a Turkish
worker with retroactive effect from the point in time at which there
was no longer compliance with the ground on the basis of which his
residence permit had been issued under national law if there is no
question of fraudulent conduct on the part of that worker and that
withdrawal occurs after the expiry of the one-year period of legal
employment provided for in the first indent of Article 6(1) of
Decision No 1/80” (paragraph 54).
598
None. As a national court has to decide on the issues at hand.
21
Decision No 1/80 (1980).
Decision date
26 July 2011
Reference details
Netherlands, Court of Appeal Amsterdam (Gerechtshof
Amsterdam), LJN: BR3418, No. 200.037.670/01, 26 July
2011.
(max. 500 chars)
This case is between plaintiff (A) and defendant
(Zwartepoorte B.V). The plaintiff is the owner of a
website, and this website is an internet portal. The
information on this website is automatically added,
changed or deleted, without human interference.
Registered users can also post comments about the
companies which are mentioned on this website.
Zwartepoorte B.V. is a car company. If the words
‘Zwartepoorte’ and ‘bankrupt’ are used in the search
engine of Google, the first result of this search is a link
to the website of the plaintiff, where it is suggested that
the company Zwartepoorte is bankrupt. Zwartepoorte is
not bankrupt. The Court decided that, because of the
fact that Zwartepoorte suffered economic damage from
this suggestion of bankruptcy, the plaintiff should take
his responsibility and remove the text about this
suggestion. Plaintiff appealed this decision, stating that
it is the responsibility of Google to remove this
comment, and the case is brought to the Court of
Appeal.
The Court of Appeal had to decide if Google had a
responsibility to remove the suggestion of bankruptcy of
Zwartepoorte B.V. The Court of Appeal decided that the
fact that Google has a takedown procedure does not
mean that the plaintiff has no responsibility to remove
the comment. It might be possible for Zwartepoorte to
hold Google responsible, but this should be done in a
different procedure.
The fact that Google might have a responsibility to
remove a false suggestion of the bankruptcy of a
company when their search engine is used, does not
mean that websites who are linked to Google and
function as an internet portal are acquitted from this
responsibility.
No reference to EU Charter or other European
legislation
(max. 500 chars)
(max. 500 chars)
The Court of Appeal rejects the appeal by the plaintiff
and confirms the decision of the Court in First Instance
that plaintiff was responsible for the suggestion of
bankruptcy.
“Dat Google zelf een Notice and Take down procedure
kent, brengt niet mee dat de onderhavige vordering in
kort geding tegen [ Appellant ] niet toewijsbaar kan zijn.
Mogelijk is dat Zwartepoorte - zoals [ Appellant ]
betoogt - ook Google zelf met succes had kunnen
aanspreken, maar of dit daadwerkelijk zo is, is
onvoldoende duidelijk. In ieder geval kan voorshands
niet met voldoende zekerheid worden aangenomen dat
een vordering tegen Google op korte termijn het
gewenste effect zou hebben gehad. Voor nader
onderzoek op dit punt is in kort geding geen plaats’.
(paragraph 3.6.)
‘The fact that Google had a Notice and Take Down
procedure, does not have the the consequence that in
this case, the claim towards the plaintiff will not be
awarded. It could have been possible that Zwartepoorte
was able to bring a succesfull claim against Google, but
is unknown if this is indeed the case. It was not sure if a
claim against Google would have had the desired effect
on short term. In this case, this issue will not be
elaborated on further.
(par. 3.6.)
Decision date
21 July 2011
Reference details
Netherlands, District Court Middelburg (Rechtbank
Middelburg), LJN: BR2524, No. 12/700282-08, 21 July
2011.
(max. 500 chars)
A man is accused of the possession and distribution of
child pornography. He allegedly was aware of the socalled ‘peer-to-peer’ functioning of the different shareprogrammes. The public prosecutor argues that the man
knew or should have known that others could also have
access to his hard drive and download files.
The public prosecutor argues that the accused knew or
should have known that others could also have access
to his hard drive and download files. The court attaches
importance to the fact that the accused did not only
possess, but also distributed child pornography.
What is interesting about this case is the consideration
of the Court that the children involved will endure long
term negative effects. Therefore, the Court decided that
the accused has to pay 10,000.00 Euros to Defence for
Children as a form of compensation. The aim of Defence
for Children is, among other things, the prevention of
the (sexual) exploitation of children.
No reference.
(max. 500 chars)
(max. 500 chars)
- 240 hours of community service (unconditional).
- Six months prison sentence (conditional).
- Payment of 10,000.00 Euros to Defence for Children.
Key implication is that the Court attempts to provide
some kind of compensation for victims of child
pornography by ordering the remittance of a sum of
money to an NGO, which has as its aim to support these
children and prevent the (sexual) exploitation of
children.
“De rechtbank zal de ernst van het feit verder tot
uitdrukking brengen in het opleggen van een
aanmerkelijk hogere storting in het ‘fonds Defence For
Children’. (…) de rechtbank (heeft) de hogere
strafmodaliteit juist gezocht in een vorm van
genoegdoening in de richting van de slachtoffers van
kinderporno.” (paragraph 6.3)
“The Court will express the severity of the fact in the
imposition of a remarkable higher remittance to the
Defence for Children fund. (…) the Court sought to
increase the sentence in the form of compensation
towards victims of child pornography.”
Decision date
13 October 2010
Reference details
Netherlands, District Court of The Hague (Rechtban ‘sGravenhage), LJN: BO1314, No.10/29208, 13 October 2010.
(max. 500 chars)
An unaccompanied minor asylum seeker was placed in the
application centre at Schiphol airport. She claims the
placement was unlawful: the application centre is not suitable
for minors and feels like a prison.
The court refers to the case law of the ECtHR, which entails
that detention prior to admission to a state’s territory is
allowed, but only when the detention is in line with Article 5
ECHR, i.e. is not arbitrary. One of the criteria to establish
whether detention is not arbitrary is that it must be applied
“in good faith”. Border control and the prevention of a pull
effect on minor asylum seekers – which were given as
justifications for the placement – do not relate to the
requirement of good faith. Moreover, the court found the
living conditions in the centre not suitable for minors. Based
on these two findings, The court concluded that the detention
was arbitrary and therefore contrary to Article 5(1) (f) ECHR.
Detention of minor asylum seekers is not applied in good faith
when this occurs solely for reasons of border control and to
prevent pull effects. The detention at AC Schiphol does not
provide for suitable living conditions for minors. In these
situations, detention is arbitrary and unlawful.
No reference to the Charter. Reference is made to the ECHR
and the International Convention on the Rights of the Child.
(max. 500 chars)
chars)
The State is ordered to pay compensation.
The consequences of this case are that policy needed to be
changed to ensure appropriate reception for minor asylum
seekers.
The minister has responded to the case by restricting the
detention of minor asylum seekers (see policy developments
4.1).
“De rechtbank is van oordeel dat het ten uitvoer leggen van de
maatregel in het AC Schiphol ten aanzien van amv’s van
vijftien jaar en ouder louter ter voorkoming van aanzuigende
werking op minderjarige asielzoekers zich niet verhoudt tot het
vereiste van goede trouw als hiervoor bedoeld. Niet in geschil
is voorts dat verweerder beschikt over alternatieven ten
aanzien van het bewaken van het grensbelang.” (paragraph
8.3)
“The court finds that the *detention+ measure in AC Schiphol
imposed on UMA’s of 15 years and older solely in order to
prevent the pull effects on minor asylum seekers does not
relate to the requirement of good faith as mentioned above.
The availability by the defendant of alternative ways of to
ensure border control has not been disputed.”
Decision date
17 December 2010
Reference details
Netherlands, District Court of The Hague (Rechtbank ‘sGravenhage ), LJN: BO9130, No. 09/32665, 17
December 2010.
The plaintiff is a minor asylum seeker whose application
for asylum in the Netherlands has been rejected on the
ground that Italy is responsible for the application.
The plaintiff relies on Article 24 (2) Charter of
Fundamental Rights of the EU and argues that the
specific circumstances of the individual child must be
considered before rejecting a claim. The defendant
(Minister of Immigration and Asylum), alleges that the
interests of the child are already incorporated in the
asylum policy.
Article 24 of the Charter stipulates that, in actions
relating to children, the child’s best interests must be a
primary consideration. The interests of the child must
be specifically examined in every case. It must be
checked whether the rules applicable to a certain case
sufficiently take these interests into account. If such
rules are not applicable, an individual assessment
(“specific examination”), must be carried out.
(max. 500 chars)
(max. 500 chars)
(max. 500 chars)
Article 24 (see above).
The defendant must take a new decision on the
application, with due observance of the court’s
judgment.
All – governmental or other – actions relating to
children must be guided by the principle of the best
interest of the child. In case no rule or policy is
applicable in which these interests are incorporated (as
in this case), a specific examination of these interests is
required.
“Uit deze bepaling [Artikel 24 Handvest] volgt, naar het
oordeel van de rechtbank, dat de belangen van het kind
door verweerder specifiek dienen te worden getoetst.”
(paragraaf. 2.5)
“De rechtbank is van oordeel dat uit het bestreden
besluit ook verder niet blijkt van de in rechtsoverweging
2.5 genoemde specifieke toets die van verweerder wordt
geëist. Het bestreden besluit ontbeert dan ook een
deugdelijke motivering en het beroep is reeds daarom
gegrond.” (paragraaf. 2.7)
“According to the court, it follows from this provision
[Article 24 Charter] that the interests of the child must
be specifically examined by the defendant.” (paragraph.
2.5)
“The court is of the opinion that the required specific
examination mentioned in paragraph 2.5 appears not
incorporated in the contested application decision.
Therefore, the contested decision lacks a solid
motivation.”(paragraph. 2.7)
Decision date
15 July 2011
Reference details
Netherlands, Administrative High Court (Centrale Raad
van Beroep), LJN: BR1905,No. 08/6595,
15 July 2011.
(max. 500 chars)
Parents without legal residence rights, staying in the
Netherlands with their children, have applied for child
allowance but were not granted this allowance. They
appealed the decision.
On behalf of the appellants, it was argued that the
exclusion from child allowance based on the parents’
residence status is a difference in treatment which is not
in line with Article 8 jo. Article 14 of the ECHR. In
addition, it was argued that child allowance is of great
importance to the development of the child and the
difference in treatment would also run contrary to the
government’s obligations following from the Convention
on the Rights of the Child (CRC).
In general, the Court considered the difference in
treatment based on residence status justified. However,
since the parents have stayed in the Netherlands for a
sustained period of time, this raises obligations for the
state towards the children. In these circumstances, the
difference in treatment is not justified.
The key issue clarified by the Court in this case is that,
when undocumented parents have been living in the
Netherlands for a sustained period of time and the
government knowingly accepted their presence, there
are certain obligations towards the children, following
the ECHTR and the CRC. Especially when they stayed
legally (for example pending an application), and when
the family can be considered to have a lasting bond with
the Netherlands. The Court concluded that the lack of a
legal residence status is no valid justification for not
granting these parents child allowance.
No reference.
Reference to Article 8 ECHR and the CRC.
(max. 500 chars)
(max. 500 chars)
A new decision must be taken, which takes the Court’s
judgement on the granting of child allowance into
account.
Key consequence of the case is that undocumented
parents without legal residence status, who have lived
in the Netherlands for a sustained period of time, of
which a certain period legally, can now apply – in the
future and in retrospect – for child allowance.
“Hoewel de Nederlandse staat bedoelde personen niet
tot zijn grondgebied heeft toegelaten, heeft hij
welbewust aanvaard dat zij gedurende een geruime tijd
in Nederland verblijven. Naast een uit artikel 8 van het
EVRM voortvloeiende zorgplicht om het recht op privéen gezinsleven te beschermen, heeft de Nederlandse
staat ook welbewust een zekere, uit het IVRK
voortvloeiende zorgplicht ten opzichte van de kinderen
van deze personen op zich genomen.” (paragraaf. 4.14)
(…) “Het ontbreken van een verblijfstitel als in artikel 6,
tweede lid van de AKW bedoeld, kan derhalve niet aan
deze groep worden tegengeworpen.” (paragraph 4.16)
“Even though the Dutch state has not admitted these
persons to its territory, it has knowingly accepted their
stay in the Netherlands for a sustained period of time.
Apart from the obligation following from Article 8 ECHR
to protect the right to private and family life, the
Netherlands has also knowingly accepted to a certain
extent the duty, following from the CRC, to care for the
children of these persons.” (paragraph. 4.14) (…) “The
lack of a residence status, as required by Article (2) of
the Child Allowance Act, is therefore no valid reason to
exclude this group *from child allowance+.”
Decision date
11 January 2011
Reference details
Netherlands, Court of Appeal The Hague (Gerechtshof ),
‘s-Gravenhage) LJN BO9924, No. 200.063.511/01, 11
January 2011.
(max. 500 chars)
A mother and her two children have been denied the
refugee status and are obliged to leave the Netherlands.
Since 2009, they have been living in the limiting
freedom location Ter Apel. Given the fact that the
mother would not cooperate with her deportation to
Angola, she and her children had to leave the limiting
freedom location by 1 April 2010. This would result in
the mother and children being homeless.
The State argues that the State does not have to provide
the mother with housing, because her application for
asylum has failed. This means that the mother and her
under aged children can be dismissed from the location.
According the rights of the child, the State would place
the children (without the mother) in a foster family or a
residential care centre.
The Court confirms that the State has the legal
obligation to provide children of failed asylum seekers,
who are temporarily staying in The Netherlands pending
their voluntary or forced deportation, with adequate
(medical) care, shelter and education.
The key issue in this case is if children of asylum seekers
whose asylum claims were rejected should be
accommodated. Another key issue is if separation from
their mother is a ‘necessary’ measure.
The Court concludes that accommodating children in a
foster family or a residential care centre has the
consequence that the children and their mother are
separated. Therefore, this implicates a disproportional
violation of the right of the children to family life.
No reference.
Reference to Article 8 ECHR
(max. 500 chars)
(max. 500 chars)
It was prohibited for the State to remove the family
from the restricted freedom location.
The State is ordered to provide shelter and financial
support for the under aged children
The State has to repay (several) costs.
“Weliswaar komt aan moeder [F] zelf geen aanspraak
toe op langer verblijf in de vbl, maar de aanspraak van
haar kinderen brengt mee dat ook haar verblijf in de vbl
op de huidige voet dient te worden geaccepteerd.(…). De
Staat zal de kinderen [F] daarom in de gelegenheid
moeten stellen hun verblijf in de vbl op de huidige voet,
dus tezamen met hun moeder, en met de tot nu toe
geboden voorzieningen van verzorging en scholing,
voort te zetten, totdat de opvang van de kinderen op
andere wijze is geregeld met inachtneming van hun
recht op continuering van hun gezinsleven met hun
moeder of totdat zij - gezamenlijk met hun moeder - het
land (of de vbl) verlaten.“ (paragraph 5)
“Even though the mother is not entitled to stay longer in
the limited freedom location, the entitlement of her
children results in the fact that her current stay in the
limited freedom location should also be accepted. (…)
Therefore, the State should give the children the
opportunity to continue their stay as it is right now, this
means together with their mother, and with
continuation of the hitherto provided provisions of care
and education, until the children are accommodated in
another matter, with due observance of their right to
continuation of their family life with their mother or
until they –together with their mother- have left the
country (or the limited freedom location).”
Decision date
30 May 2011
Reference details
Netherlands, Administrative High Court (Centrale Raad
van Beroep), LJN: BQ6438, No. 11/2850 WMO-VV +
11/3201 WMO-VV, 30 May 2011.
(max. 500 chars)
A Ghanaian child and his mother applied for a residence
permit. The applications were rejected. They appealed
the decisions and during the procedure, they were not
entitled to social accommodation. They requested the
court to issue a provisional measure in order to ensure
their entitlement to reception during the procedure.
Applicants have argued that the child is a vulnerable
person – and as such entitled to the protection of the
right to private and family life, as laid down in Article 8
ECHR – and that the mother must be allowed to take
care of the child in a safe environment. This would not
be possible if they are put on the street.
The court found that the child is vulnerable and belongs
to the group of persons who have a special right, based
on Article 8 ECHR, to protection of their private life.
Depriving this child from accommodation threatens his
physical and psychological integrity and is contrary to
the article. Given the fact that the mother takes care of
the child, she is entitled to social accommodation on the
grounds of Article 8 ECHR as well.
When a child has a right to social accommodation
during the procedure on appeal for a residence permit,
based on the right to private life laid down in Article 8
ECHR, the mother is also entitled to social
accommodation in order to fulfil her role as a mother
and take care of the child.
No reference to the Charter. Reference is made to
Article 8 ECHR.
(max. 500 chars)
Both child and mother are entitled to social
accommodation and the municipality must provide for
the accommodation.
“Ook indien aan verzoekster zelf geen beroep op artikel
8 EVRM zou toekomen, brengt de aanspraak van
verzoeker mee dat ook aan verzoekster
maatschappelijke opvang dient te worden verstrekt
teneinde haar in staat te stellen om haar zorg- en
opvoedingstaken als moeder te kunnen vervullen.”
(paragraph 4.6)
(max. 500 chars)
“ Even when the applicant *the mother+ cannot rely on
Article 8 ECHR, the valid claim of the applicant [the
child] entails that the mother is also entitled to social
accommodation in order to allow her to fulfil her care
and child raising duties as a mother.”
Decision date
20 October 2011
Reference details
Netherlands, Administrative High Court (Centrale
Raad van Beroep), LJN: BO3581, No. 09/365 AWBZ
+ 09/3626 AWBZ, 20 October 2011.
(max. 500 chars)
Applicant is a child staying in the Netherlands with
his mother. The child is waiting for a decision on
his application on appeal for a residence permit.
He is autistic and intellectually disabled and
requires special care. The insurance company
refuses to compensate for all of these costs,
because the applicant is not eligible for this
particular insurance based on the so-called linkage
principle, which excludes certain groups of
migrants from social security benefits, including
health insurance.
The applicants argue, among others, that when
the special care is not provided for, the right to
private life as laid down in Article 8 ECHR is
violated.
According to the linkage principle, the applicants
are not eligible for the insurance in question. Yet,
the court ruled that the linkage principle must be
declared inapplicable in this case because in this
specific situation the application would be
contrary to Article 8 ECHR. Due to his age, the
child belongs to the special category of vulnerable
persons who have a special right to protection of
their private life. Not providing for the care that
was indicated as necessary for this child, would
make his personal development impossible. This
seriously jeopardises his human dignity, and this is
contrary to Article 8 ECHR.
Denying appropriate care to a child staying
(legally) in the Netherlands while awaiting a
decision concerning a residence permit on appeal
is contrary to Article 8 ECHR, when this entails
that his personal development is made
impossible. The linkage principle, which excludes
certain groups of migrants from social security
benefits, including health insurance, must be
declared inapplicable in such situations.
No reference to the Charter. Reference made to
the Article 8 ECHR.
(max. 500 chars)
consequences or implications of the
The insurance company must provide for the care
as indicated as necessary for the child.
“De Raad komt tot de conclusie dat het onthouden
van de geïndiceerde ondersteunende en
activerende begeleiding aan appellant tot effect
heeft dat zijn persoonlijke ontwikkeling onmogelijk
wordt gemaakt waardoor hij in het behoud van
zijn menselijke waardigheid ernstig wordt
bedreigd.” (paragraaf. 4.5.5) “Het bovenstaande
betekent dat artikel 5, tweede lid, van de AWBZ in
het onderhavige geval wegens strijd met artikel 8
van het EVRM buiten toepassing dient te worden
gelaten.” (paragraph 4.6)
“The Court concludes that denying the applicant
the indicated support and counselling leads to
making his personal development impossible,
which would seriously threaten his human
dignity.” (paragraph. 4.5.5) “The above means
that Article [= the Article laying down the linkage
principle] must be declared inapplicable in this
particular case because of conflict with Article 8
ECHR.”
Decision date
30 November 2010
Reference details
Netherlands, Equal Treatment Commission (Commissie
Gelijke Behandeling, CGB) (2010b), Opinion no. 2010-175, 30
November 2010.
A university graduate that underwent a sex change operation
requested a new certificate with his present male name. This
certificate would make his job search in New York easier.
After consulting the Ministry of Education, the university
turned down the request, insisting that legislation did not
allow handing out more than one certificate per graduate.
The ETC concluded that the university’s stance amounted to
discrimination based on sex.
The Commission concludes that legislation does not
explicitly forbid the provision of a new certificate. Not
providing duplicate certificates leads to indirect
discrimination on grounds of sex, as it particularly
affects transsexuals. There is no objective justification
for this. The university also argued that providing a
certificate just once reduces fraud. The ETC reasons
that this is no justification for the indirect
discrimination, as the university could investigate other
ways to reduce fraud.
Article 7.11 of the Higher education and scientific
research act states: “per study one certificate is
599
issued”. The Ministry of Education had referred to this
article when it was approached by the university with
the former student’s request. In a letter to the Lowe
House, the Minister acknowledges that her Ministry
had interpreted the article too strictly and that
600
transsexuals should be able to receive new certificates.
No explicit reference made.
Reference is made to an issue paper the Council of
Europe Commissioner for Human Rights, in which
member states are recommended to develop quick and
transparent procedures for changing the first names
and gender of transsexuals on birth acts, identity cards,
601
passports, certificates and other key documents.
The ETC issues non-binding opinions and advice.
However, the university directly provided the former
student with a new certificate. Parliamentary question
were asked and the Minister of Education promised to
point out to educational institutions that the article
should not be interpreted too strictly. In its outline
paper on emancipation policy the cabinet states that
article 1:28 of the Company Code (Burgerlijk Wetboek)
and the Dutch Secondary Education Organisation of
Teaching Decree (Inrichtingsbesluit VO) will be adapted
(max. 500 chars)
(max. 500 chars)
Key issues (concepts, interpretations) clarified
by the case (max. 500 chars)
Reference to the EU Charter of Fundamental
Rights (max. 500 chars)
Results (sanctions) and key consequences or
implications of the case (max. 500 chars)
34
599
Netherlands (1992).
600
601
Council of Europe (2009) .
to make change of sex on diplomas easier.
translated into English with reference details
(max. 500 chars)
602
“De Commissie concludeert dat verweerster jegens verzoeker
in strijd heeft gehandeld
met het bepaalde in artikel 7, eerste lid, onderdeel c,
AWGB, in samenhang met artikel 1 AWGB, door de
weigering hem een nieuw getuigschrift te verstrekken
met zijn huidige voornamen,” (paragraph 3.23).
“The Commission concludes that defendant acted
against article 7, first section, part c, Equal Treatment
Act (ETA), in relation to article 1, ETA, towards plaintiff
by its refusal to provide him with a new certificate with
his current first names.”
35
602
Decision date
4 July 2011
Reference details
Netherlands, Court of Appeal Arnhem (Gerechetshof
Arnhem)
LJN: BR0342, No. K10/0408, 4 July 2011.
In 2009 and 2010, a male same-sex couple from the Leidsche
Rijn district of the city of Utrecht filed seven separate police
reports of discrimination, harassment, vandalism and
damage to property to the police. The police hardly took any
action and the men eventually found themselves forced to
sell their house and leave the district. The Court of Appeal in
Arnhem rejected the couple's request that the Public
Prosecutor's Office be ordered to bring charges against the
perpetrators.
The court stated that the reports indicate a serious violation
to the privacy of the complainants, related to their sexual
orientation. However, as the alleged crimes were committed
more than a year ago, a new investigation would be
pointless. The Appeal Court criticises the police and Public
Prosecutor's Office, saying they failed to investigate properly
whether any crimes had been committed. The court states
that it is regrettable that apparently no or insufficient priority
was assigned to the reports in order to clarify the offences.
This court case clearly points out the responsibility of
police and justice to take incidents of a discriminatory
nature seriously.
(max. 500 chars)
(max. 500 chars)
No explicit reference made.
Results (sanctions) and key consequences
or implications of the case (max. 500 chars)
No charges were taken against the alleged
perpetrators.
Mayor Wolfsen, the officer of justice and the head of the
police apologised for the mistakes that were made. In a
letter, the municipality of Utrecht takes full responsibility on
what happened to the couple, and promises to sharpen
603
procedures to approach and handle discrimination reports.
The mayor faced criticism from the city council, especially
after acknowledging that important documents on the case
had been destroyed. Opposition parties and angry citizens
604
demanded his dismissal. The National Ombudsman
installed a temporary registration point where LGBT people
who experienced bullying and violence can file complaints on
the (lack of) actions taken by the police or the
605
municipality.
“Uit het dossier zoals dat aan het hof is voorgelegd komt
naar voren dat op deze meldingen niet in alle opzichten
adequaat en
36
603
Netherlands, Municipality of Utrecht (2011).
604
Volkskrant (2011a).
605
See: www.nationaleombudsman.nl/meldpunt-gepeste-homos
voortvarend is opgetreden door politie en justitie. Het
valt te betreuren dat er kennelijk geen of onvoldoende
prioriteit aan de meldingen is toegekend teneinde de
gepleegde strafbare feiten tot klaarheid te brengen,” (page 2,
no paragraph numbering).
“The file as presented to the court shows that on these
reports adequate and decisive action was not taken in all
respects by police and justice. It is regrettable that
apparently no or insufficient priority is given to the reports in
order to clarify the criminal offences.”
Decision date
6 September 2011
Reference details
Netherlands, Court of Appeal Amsterdam (Gerechtshof
Amsterdam) LJN: BR6764, No. 200.086.954/01, 6 September
2011.
A Roman Catholic secondary school introduced a ban on
headscarves after a pupil had requested permission to wear
one and had begun doing so. She was then suspended. The
ETC ruled in the girl’s favour, arguing that denominational
schools can only refuse expressions of other faiths if they can
prove that this is necessary to preserve the school’s identity,
606
and that this was not the case at this school. The school
ignored the opinion of the Commission, prompting the girl to
607
go to court. It found in favour of the school. The girl then
took the case to appeal.
The Supreme Court rules that the headscarf ban is
consistent with the school’s Roman Catholic principles.
Denominational schools can set standards to uphold
their own values, as long as they apply the rules
consistently. This is the case at the Don Bosco College,
the Court says. In addition, the pupil was well aware the
school was a Catholic institution when she applied and
should have realised that adopting Islamic dress would not
be allowed.
Contrary to the standpoint of the ETC, the Supreme
Court rules that it is primarily a responsibility of the
school to judge if certain requirements, like a ban on
headscarves, are necessary to preserve the
denominational school’s ideological or religious
identity. The judge’s task here is limited. Such
requirements should, however, be applied consistently.
The court can only consider whether or not a
requirement that is set in a specific individual case can
be defined as an arbitrary act.
No reference made. Reference is made to the European
Convention on Human Rights.
The Don Bosco College is within its right to ban pupils
from wearing Islamic headscarves. This verdict could
give more leeway for denominational schools to set
their own admission rules or clothing regulations.
The subsequent rulings received much attention from
media and politics. The Minister of Education and the
Minister of Interior Relations answered parliamentary
608
questions.
“ Nu de Stichting aan artikel 7, tweede
lid, Awgb de vrijheid ontleent de eis inzake de
hoofddoek te stellen, handelt zij in beginsel niet in strijd met
die wetsbepaling door die eis te stellen, ook niet wanneer die
(max. 500 chars)
(max. 500 chars)
by the case (max. 500 chars)
38
606
Netherlands, Equal Treatment Commission, 2011-2, 7 January 2011.
607
Netherlands, LJN: BQ0063, 4 April 2011.
608
Netherlands, House of Representatives (2011e)
bepaling wordt beschouwd in samenhang met artikel 1 van
die wet en artikel 1 Grondwet,” (paragraph 3.11).
“Now that the Foundation derives the freedom to
pursue the demands concerning the headscarf from
Article 7, second section, ETA, it does not act in conflict
with this legislation by setting that requirement, even
if that clause is considered in relation to article 1 of
that law and Article 1 of the Constitution.”
Decision date
28 April 2011
Reference details
Gelijke Behandeling (CGB)) (2011b), Opinion No. 2011-68, 28
April 2011.
A man placed politically motivated reactions on the Internet
forum of a magazine, and called the magazine ‘right-wing’.
Elsevier removed his reactions and blocked his account. The
man felt discriminated on grounds of his political convictions,
and turned to the ETC. He describes his political preference
as D66-like. According to the ETC, the press freedom that the
magazine has weights heavier than the right of the man not
to be discriminated against on grounds of his political
convictions.
Key facts of the case (max. 500 chars)
(max. 500 chars)
The ETC reasoned that Elsevier indeed made a distinction
against the man on the basis of his political convictions.
However, Elsevier has the freedom to define its own
journalistic product and to refuse reactions. Press freedom is
part of the freedom of expression as laid down in the ECHR.
The ETC weighted the interests of both parties. The press
freedom of the magazine was considered more important
than the right of the man not to be discriminated against.
Two arguments were given: the human dignity of the man
was not violated and the man has other means and forums
to express political views.
For the first time ever, the ETC decided whether the nondiscrimination principles as recorded in the GETA are
compatible with international conventions such as the
European Convention on Human Rights (ECHR). In cases
where two fundamental rights clash, it cannot be said
beforehand which fundamental right outweighs the other. In
this specific case, the ETA felt competent to give an opinion
on which fundamental right should be subordinated to the
other. An important consideration was whether or not a
distinction against a person would violate his human dignity.
If human dignity would have been violated, the nondiscrimination principle could have been given more
importance.
No reference made. Reference is made to the ECHR.
The Commission issues non-binding opinions and
advices.
Elsevier wrote on its website to be very content with the
opinion and the fundamental argumentation, even though
the reactions were removed because of rude language, and
609
not at all because of the man’s deviating political views.
40
609
Elsevier (2011).
“Alle belangen afwegend is de Commissie van oordeel
dat in het onderhavige geval het belang van verzoeker
om niet op grond van zijn politieke gezindheid te
worden gediscrimineerd, moet wijken voor het belang
dat verweerster als persorgaan heeft bij de
persvrijheid,” (paragraph 3.37).
“Balancing all interests, the Commission has the opinion that
in this case the interest of plaintiff not to be discriminated
against on grounds of his political conviction, must make way
for the interest that the defendant has as press organ.”
Decision date
11 October 2010
Reference details
Netherlands, Court of Justice Amsterdam (Gerechtshof
Amsterdam) (2010), LJN: BO0041, No. 23-2197-09, 11
October 2010
(max. 500 chars)
A 30-year old blogger has regularly published insulting
texts about Muslims and Turks on his website called
610
‘Misdefinition’. On 7 April 2009 the Court in Haarlem
acquitted the defendant because the court was not
convinced that the utterances referred to Muslims or
Turks in general. In an appeal, the Amsterdam District
Court ruled that the blogger regularly and intentionally
insulted a group of people based on their race and/or
religion.
The defendant could not convince the District Court that
the utterances were meant as satire. The court
evaluated the utterances as insulting for Muslims and
Turks because they were compared to cockroaches, rats
and rapists. In the context of the website articles, the
utterances were judged as insulting for a group of
people based on their race and/or religion. In these
utterances, Muslims and Turks were referred to as a
group.
A bitter utterance in itself can be regarded as not
insulting if it is conducive to public debate or if it can be
considered an artistic or humorous exception. According
to the District Court, this was not the case here. It is
thereby irrelevant whether the suspect himself
considered them humorous. Furthermore, these
utterances were not conducive to public debate. The
suspect cannot claim acquittal based on his right of
freedom of expression.
The ruling refers to the article on non-discrimination
(article 21) and the right of freedom of expression
(article 11)
The blogger was sentenced to a 500 euro fine. The
implications of the case are important for the
demarcation of the potential conflict between one’s
individual freedom of expression (on the Internet) and
the prohibition of discrimination based on ethnic origin
or religion.
“Een op zichzelf grievende uitlating kan haar
beledigende karakter verliezen doordat zij dienstig kan
zijn aan het maatschappelijk debat of tot de artistieke of
humoristische excepties moet wor-den gerekend. Dit
laatste is naar het oordeel van het hof in het geheel niet
het geval,” (page 5, no paragraph numbering).
“A bitter utterance in itself can lose its insulting nature
by being conducive to public debate or if it should be
regarded as an artistic or humorous exception. The
latter is, according to the judgment of the court,
completely not the case.”
(max. 500 chars)
(max. 500 chars)
610
42
See www.misdefinition.nl.
Decision date
12 May 2011
Reference details
Netherlands, District Court (Rechtbank ‘-Gravenhage)
(2011), LJN: BQ4301, No. 09/753472-08, 12 May 2011.
(max. 500 chars)
A website administrator was accused of insulting
utterances on his website regarding Jews, Moroccans,
Turks, Gypsies, non-western allochthonous people,
Muslims and homosexuals. He was convicted of publicly
and intentionally uttering insults towards a group based
on race or religion and of publicly inciting hatred
towards a group based on religion. He was further
convicted of making public utterances that (as he would
or should know) are insulting for a group based on their
race or religion. And he was convicted of having a stock
of CDs for distribution that were insulting.
The administrator has allowed these insulting texts to
be read on the site, by either placing them on the
website or allowing them to be placed by others, and
not changing or removing them. He also sold a CD with a
song Kut Marokkaan (literally: Cunt Moroccan) via the
website. He intentionally offered the means and
opportunity and/or was helpful by offering the website,
as an administrator allowing those texts to be placed.
He did not change or remove these texts and allowed
them to be read and viewed on the website.
The case points at the individual responsibility of a
website administrator for the content of the website.
(max. 500 chars)
Right of non-discrimination (article 21).
(max. 500 chars)
The administrator was sentenced to a community
sentence of 36 hours. The implication of this case is that
it demarcates the responsibility of a website
administrator for the content of the website, even if it
was placed on the website by others.
“Hij heeft dit gedaan door beledigende en/of
haatzaaiende uitingen op een voor het publiek
toegankelijk forum van een website te plaatsen, dan wel
in zijn hoedanigheid van beheerder van (het forum van)
deze website beledigende en/of haatzaaiende uitingen
van anderen te laten staan en hierop te reageren”, (page
49, no paragraph numbering).
“He did this by placing insulting and/or hatred-inciting
utterances on a public forum of a website, or as an
administrator of the (forum of the) website not
removing and responding to the insulting and/or hatredinciting utterances of others”.
Decision date
27 June 2011
Reference details
Gelijke Behandeling, CGB) (2011c), Opinion no. 2011-99,
case no. 2010-0304, 27 June 2011.
(max. 500 chars)
A male applied several times for a job as a financial
trainee at the firm Control Finance B.V. but was rejected
each time. The man suspects that he was rejected
because of his Turkish origin. He applied again with a
fictitious Dutch-sounding name and was invited for a job
interview. The man asks the Equal Treatment
Commission (ETC) for its opinion. The Commission
judges that the firm has made an unlawful distinction
based on race in the selection procedure.
According to the ETC, the firm could not refute the
suspicion that the Turkish origin of the applicant was
considered when rejecting the applicant. The firm
referred at different moments in time to different
reasons for rejection, such as lack of work experience or
differences in hiring policies over time. However, the
commission ascertained that the two CVs were very
similar with regard to education, training, motivation
and work experience.
Although the firm referred to the lack of work
experience as the main reason for the (first) rejection of
the applicant (the applicant had internship experience
as requested in the job ad), the firm could not refute the
allegation that the applicant was rejected due to his
Turkish origin. The firm also could not convince the
Commission that hiring policies had changed between
the application with the original CV and the CV with the
Dutch-sounding name.
Right of non-discrimination (article 21)
(max. 500 chars)
(max. 500 chars)
The ETC concluded that the GETA had been violated and
that an unlawful differentiation based on race had been
made.
“Verzoeker is naar aanleiding van zijn eerste sollicitatie
onder zijn eigen naam afgewezen vanwege een gebrek
aan gerichte werkervaring (... ). Dit terwijl het cv van
verzoeker onder zijn eigen naam en het cv van verzoeker
onder de naam Jeroen Akkerman op dit punt niet
verschilde” , (paragraph 3.11).
“Applicant has been rejected during his first application
due to a lack of relevant work experience... Although
the CV’s of applicant with his own name and the name
Jeroen Akkerman do not differ in this respect.”
Decision date
9 August 2011
Reference details
Netherlands, District Court The Hague (Rechtbank ‘s
Gravenhage) (2011), LJN: BR4406, No. 398200 / KG ZA
11-812, 9 August 2011.
611
(max. 500 chars )
In summary proceedings of the Stichting Bestrijding
Antisemitisme [Foundation to Combat Anti-Semitism]
against the football club ADO The Hague, the provisional
court dictated the football club to immediately take
adequate measures to prevent or end anti-Semitic
chanting during matches organised by the football club.
The Foundation Combat Anti-Semitism went to court in
response to anti-Semitic chanting during the match
between ADO The Hague and Ajax on 20 March 2011.
The football club ADO The Hague is the first party
responsible to act against undesirable chanting and as
such also liable. The chanting during the
aforementioned match was anti-Semitic, offensive and
consequently impermissible. The football club’s
argument that it did not hear them is implausible. Based
on social decency, the rules of the Dutch Football Union
and its own club rules, it should have reacted
immediately.
Impermissible chanting does not have to lead to
immediate shutdown of the match. A professional
football club could first take less drastic, but increasingly
more serious measures before shutting down a match,
temporarily or not. The professional football club should
anticipate possible organisational problems and/or risks
for maintaining public order.
Right of non-discrimination (Article 21)
(max. 500 chars)
(max. 500 chars)
The provisional court dictates the football club to
immediately take adequate measures to prevent or end
anti-Semitic chanting during matches organised by the
football club. If necessary, such measures could include
shutting down the match.
The implication is that the football club has a
responsibility to prevent or end anti-Semitic chanting
during matches, and should anticipate organisational
and public order problems when doing so.
“Het bovenstaande leidt tot de conclusie dat ADO op 20
maart 2011, tijdens de wedstrijd ADO
Den Haag- Ajax, onrechtmatig heeft gehandeld door niet
onmiddellijk over te gaan tot het treffen van
maatregelen teneinde de zich bij herhaling voordoende
spreekkoren te beëindigen,” (paragraph 3.11).
“The aforementioned leads to the conclusion that ADO
on 20 March 2011, during the match ADO The HagueAjax, acted unlawfully by not immediately taking
measures to end the repeated chanting.”
45
611
Characters, no space
Decision date
10 June 2011
Reference details
The Netherlands, Supreme Court (Hoge Raad) (2011), LJN:
BO5087, No. 09/05113, 10 June 2011.
(max. 500 chars)
The applicant has received an additional assessment in the wage
tax/national insurance contributions over the period January
1999-December 2001. As a result he was fined. The applicant
appealed both the additional assessment and the fine, but the
District Court Arnhem rejected this appeal. The applicant then
went to the Court of Appeal. This Court confirmed the decision
with regard to the additional assessment and annulled the
decision with regard to the fine. The fine was reduced to 2000
Euro. Finally, the case was brought to the Supreme Court.
The Supreme Court had to answer the question if the requirement
of ‘reasonable time’, as provided for in article 6 of the ECHR, could
also be applied in a tax case. According to previous European case
law, tax disputes do not fall within the scope of article 6 of the
612
ECHR. However, in this case, the Supreme Court answered the
former question affirmative. The principle of legal certainty is a
generally accepted principle of law and can be applied within the
national legal order, separately from article 6 of the ECHR. As a
consequence, a tax dispute, like any other dispute, should be
concluded within a reasonable time. According to case-law of the
ECtHR, a violation of the ‘reasonable time’ requirement leads to a
situation of tension and stress, and this has the consequence that
613
a claim for non-pecuniary damage can be awarded. Only in
specific circumstances can a claim for damage be rejected.
614
According to earlier case-law of the Supreme Court , the
requirement of ‘reasonable time’ is violated when it is longer than
two years ago that the applicant has brought the decision for the
Court of Appeal and the case is still pending. After these two
years, 500 Euro should be awarded for every 6 months that the
procedure is still pending.
Important in this case is that the Supreme Court emphasised that
the requirement of ´reasonable time´ can also be violated in a
dispute which concerns tax issues.
(max. 500 chars)
No reference to EU Charter, reference to case-law of the ECtHR.
(max. 500 chars)
The Supreme Court overrules the decision of the Court of Appeal
and refers the case to the same Court. This Court should take the
decision of the Supreme Court into consideration.
“De rechtszekerheid als algemeen aanvaard rechtsbeginsel dat
aan art.6 ECHR mede ten grondslag ligt, geldt evenzeer binnen de
nationale rechtsorde en evenzeer los van de genoemde bepaling.
Dit beginsel noopt ertoe dat belastinggeschillen binnen een
redelijke termijn worden beslecht, in voorkomend geval na
612
ECtHR, 12 July 2001, Ferrazzini vs. Italy, nr. 44759/98.
613
ECtHR, 9 March 2006, Riccardi Pizzati vs. Italy nr. 62361/00.
614
Netherlands, Supreme Court, 22 April 2005, LJN AO9006, nr. 37984.
46
behandeling door een onafhankelijk en onpartijdig gerecht”
(paragraph 3.3.2).
“The principle of
legal certainty is a generally accepted principle of law and can be
applied within the national legal order, also separately from art.6
ECHR. As a consequence a tax dispute, like any other dispute,
should be concluded within a reasonable time in front of an
independent and impartial Court.”
Decision date
10 June 2011
Reference details
The Netherlands, Supreme Court (Hoge Raad) (2011), LJN:
BO5046, No. 09/02639, 10 June 2011.
The applicant disputes the fact that he has to pay fees when
applying for a building permit. His appeal against these fees is
rejected by the municipality of Tilburg. Applicant appeals this
decision at the Court of Appeal. The Court accepted the appeal
and asked the municipality of Tilburg to review this decision.
After consultation with the applicant, the municipality of Tilburg
confirms its earlier decision. Again, the applicant appealed this
decision at the Regional Court, but this appeal was rejected. He
then lodged an appeal to this decision, but the Court of Appeal
decides to confirm the decision of the Regional Court. Finally, the
case is dealt with by the Supreme Court .
The Supreme Court again had to decide if the requirement of
‘reasonable time’ can also be applied in a tax dispute. The Court
argues: the principle of legal certainty is a principle underpinning
article 6 of the ECHR. The principle is also applicable within the
national legal order and can be applied separately from article 6 of
the ECHR. If this principle is applied, this must result in a
procedure which takes place within a reasonable time, and is dealt
with by an independent and impartial court. This is also the case
when tax disputes are discussed. In the current case, if one wants
to see if the requirement of ‘reasonable time’ is violated,
615
attention should again be given to previous case law. This
means that this requirement is violated when the duration of the
procedure is more than two years, starting on the date the appeal
was received by the municipality of Tilburg.
Important in this case is that the Supreme Court emphasised that
the requirement of ´reasonable time´ should also be given
significance in a matter dealing with the payment of fees when
applying for a building permit.
No reference to EU Charter, reference to case-law of the ECtHR.
(max. 500 chars)
(max. 500 chars)
(max. 500 chars)
The Supreme Court annuls the decision of the Court of Appeal and
refers the case to the same Court.
“Bij de beoordeling van de vraag of de redelijke termijn is
overschreden moet ook in zaken betreffende de heffing van leges
aangesloten worden bij uitgangspunten die zijn neergelegd in het
arrest van de Hoge Raad van 22 april 2005, LJN AO9006. De in
aanmerking genomen termijn begint bij dergelijke geschillen in
beginsel op het moment waarop de heffingsambtenaar het
bezwaarschrift ontvangt,” (paragraph 3.3.2).
“If one wants to know about a possible violation of the
requirement of reasonable time, attention should be paid to the
criteria which were laid down in previous case law of the Supreme
Court, also when there is a dispute with regard to the payment of
fees. The procedure starts when the appeal is received by an
employer of the municipality of Tilburg.”
615
1
Netherlands, Supreme Court, 22 April 2005, LJN AO9006, nr. 37984.
Decision date
16 November 2010
Reference details
Netherlands, Supreme Court (Hoge Raad), LJN: BM4308, No. 08/02652, 16
November 2011.
The defendant has had sexual contact with a minor between the age of 12
and 16. In such cases, Dutch law obliges the public prosecutor to give the
minor victim the opportunity to give his/her opinion on the criminal act.
The defence argued that if the victim has expressed the opinion that
he/she does not want the prosecution to continue, the case should not be
brought before the court, unless there are very serious reasons to the
contrary.
Hoge Raad (Supreme Court): the public prosecutor is obliged to ask the
opinion of the minor in a case, in order to prevent penal intervention if
this is against the interests of the minor. The public prosecutor should
weigh the public interest against the interests of the minor, and should
involve the minor’s view in this consideration. If the public prosecutor fails
to do this, it can lead to inadmissibility of the case, but only if the minor’s
interests are so seriously injured that prosecution should not have taken
place after weighing all the interests in question.
What are the consequences when the public prosecutor has decided to
prosecute a case of sexual contact with a minor between the age of 12
and 16, when the minor has expressed the view that she does not want
the prosecution to continue?
case
Fundamental Rights
No reference made.
the case
Prosecution is admissible, unless it goes very much against the concern
the prosecutor should show for the minor.
reference details
“Niet-naleving *van art. 167a Sv+ kan (…) leiden tot niet-ontvankelijkheid
van het openbaar ministerie in de strafvervolging van de verdachte. Voor
een dergelijke, vergaande, consequentie is eerst plaats indien het
openbaar ministerie bij zijn op art. 167, tweede lid Sv gegronde afweging
of in het gegeven geval van vervolging moet worden afgezien op gronden
aan het algemeen belang ontleend, de mening van de minderjarige niet
heeft betrokken en door dit na te laten zodanig in strijd heeft gehandeld
met de jegens de minderjarige te betrachten zorgvuldigheid, dat dit in de
omstandigheden van het geval moet leiden tot niet-ontvankelijkheid van
het openbaar ministerie. “ (paragraph 2.5)
“Not conforming *to section 167a Sv+ can lead to inadmissibility of the
prosecution. This radical consequence is only fitting if the public
prosecutor has not included the point of view of the minor while
considering art. 167, subsection 2 Sv or if prosecution is not in the public
interest. In neglecting this, the prosecution has acted so much against the
concern he should show for the minor, that in the circumstances of the
case, this should lead to inadmissibility of the prosecution.”
Decision date
15 February 2011
Reference details
Netherlands, Supreme Court (Hoge Raad), LJN: BP0095, No.
09/03293, 15 February 2011.
The offender was convicted for growing cannabis. This
offence took place in a property that the offender rented
from the victim. The victim claimed damages to this property
(damage to floors, doors, etc.). The offender argued that the
court should not have awarded the claim, because he was
not convicted of criminally damaging the property.
Therefore, the damages were not a direct result of the
offence in question (growing cannabis).
Hoge Raad (Supreme Court): For a victim to be allowed to
claim compensation within a criminal case, there has to be a
direct relation between the damages and the interests that
are meant to be protected by the section of the criminal law
that the offender is convicted for.
To what extent can damages be considered to be the direct
result of a certain offence?
by the case
Rights
No reference made.
Victims can only claim compensation if the public prosecutor
has alleged a criminal section that is meant to protect against
the interest that was damaged. It is not sufficient that the
damages occurred while committing the offence.
“Op grond van art. 51a, eerste lid, Sv kan degene die
rechtstreeks schade heeft geleden door een strafbaar feit,
zich ter zake van zijn vordering tot schadevergoeding als
benadeelde partij voegen in het strafproces. Van
rechtstreekse schade is sprake indien iemand is getroffen in
een belang dat door de overtreden strafbepaling wordt
beschermd. “(paragraph 3.2.6)
“According to Article 51a (1) of the Criminal Code, a person
that has suffered direct damages as a result of a criminal act,
can enter the criminal proceedings as an injured party, in
order to claim damages. There are direct damages when
someone is damaged in an interest that is protected by the
criminal section that was violated.”
Decision date
26 April 2011
Reference details
Netherlands, Supreme Court (Hoge Raad), LJN: BP1278, No.
09/05083, 26 April 2011.
The defendant was convicted for stalking a man, his wife and
their children. Prosecution for this offense requires a formal
complaint by the victim. In this case, only the husband had
put in a complaint.
The requirement of a complaint is meant to protect a victim’s
personal interest not to be exposed to possibly negative
consequences of prosecution. Therefore, the court was
wrong in deciding that the husband’s complaint could also be
regarded as a complaint on his wife’s behalf. A parent can
complain as a legal representative of his/her children, but
only if they are younger than 16 years of age.
When a crime is only punishable after a complaint, what are
the consequences if one of the victims files a complaint, but
the others do not?
by the case
Rights
No reference made.
When a complaint is required, each individual victim has a
right to decide for himself/herself.
“Het klachtvereiste van art. 285b, tweede lid Sr strekt ertoe
dat het persoonlijk belang bij het slachtoffer niet te worden
geconfronteerd met eventuele negatieve gevolgen van een
strafvervolging de voorrang heeft boven het algemeen
belang van strafvervolging. Die gedachte zou worden
ondergraven indien in een geval als het onderhavige de ene
klachtgerechtigde zou kunnen bewerkstellingen dat de
mogelijkheid van strafvervolging ook zou worden geopend
voor zover het feit of de feiten zijn begaan ten opzichte van
zijn medeslachtoffers.” (paragraph 3.4)
“The requirement of a complaint in section 285b, subsection
2 of the criminal code is meant to give precedence to the
personal interest of the victim not to be confronted by
possibly negative consequences of prosecution over the
general interest that is served by prosecution. This idea
would be undermined if in a case like this one complainant
could open the possibility of prosecution also regarding
offences committed towards fellow victims.”
Decision date
5 July 2011
Reference details
Netherlands, Supreme Court (Hoge Raad), LJN: BQ5780, No.
09/04196, 5 July 2011.
A child was abducted by her father, while the mother held
custody. The mother claimed both emotional and financial
damages. During the trial, her lawyer explained that these
damages were partly her own, partly her daughter’s. The
defence argued that the court was wrong in deciding that the
mother had both claimed damages for herself, and as legal
representative of her daughter.
Hoge Raad (Supreme Court): The mother’s lawyer filed a
claim both for the mother’s and the daughter’s damages. On
this basis, the court could decide that the mother acted both
on behalf of herself and as the legal representative of her
daughter.
How explicitly does a parent have to file separate claims for
herself and her child, when they are both victims of the same
offence?
by the case
Rights
No reference made.
A parent can claim their own and their child’s damages
together.
“In aanmerking genomen dat uit het proces-verbaal van de
terechtzitting van de Rechtbank blijkt dat de advocaat van de
benadeelde partij [...] opgave heeft gedaan van de ten
behoeve van [betrokkene 1], de minderjarige dochter N.,
gevorderde schadevergoeding, geeft het oordeel van het Hof
dat [benadeelde partij] zich mede als wettelijk
vertegenwoordiger van [betrokkene 1] als benadeelde partij
in het geding in eerste aanleg heeft gevoegd, geen blijk van
een onjuiste opvatting omtrent art. 51b (oud) Sv.”
(paragraph 2.5)
“Considering that the transcript of the trial in first instance
shows that the injured party’s lawyer has declared the claim
for damages for [subject 1], the minor daughter N., the court
has not shown a wrong interpretation of article 51b (as it was
then) of the criminal proceedings code, in deciding that [the
injured party] has entered the criminal proceedings also as
the legal representative of *subject 1+.”
Decision date
5 July 2011
Reference details
Netherlands, Supreme Court (Hoge Raad), LJN: BQ6562, No.
09/03287, 5 July 2011.
A 15 year old girl was sexually molested by her mother’s
boyfriend on a frequent basis. The defendant wanted to add
some documents to the evidence. This was refused by the
court, because the documents contained private information
about the victim. The defendant had obtained the
documents from the mother.
Due process entails that documents containing private
information can only be added to the evidence in a criminal
case against someone else, when the subject of the
documents gives his/her permission (article 8 ECHR).
Does the defendant have the right to use any information
(not illegally obtained) on the victim in a criminal case?
by the case
Rights
No reference made.
Victims are protected against a breach of privacy by the
defendant.
“De rechter of het openbaar ministerie zal gegevens van zeer
persoonlijke of vertrouwelijke aard immers niet, althans niet
zonder toestemming van de betrokkene, aan een dossier in
een tegen een ander lopende strafzaak kunnen toevoegen,
aangezien het in art. 8, eerste lid, EVRM gewaarborgde recht
op eerbiediging van de persoonlijke levenssfeer zich ertegen
verzet dat dergelijke gegevens zonder meer ten behoeve van
een ander doel dan waarvoor zij zijn verschaft, worden
gebruikt en in een wijdere kring bekend worden.” (paragraph
3.5)
“The judge or the public prosecutor will not, at least not
without permission from the subject, add information of a
very personal of confidential nature to the evidence in a
criminal case against another person, because the right to
respect for private life of article 8, subsection 1, ECHR
prevents that such information is used for a purpose the
information was not intended for, and that such information
gets known in a wider circle.”

franet submission ar2011

Transcription

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