Application of Legislation, Criminal Cases, Court Rulings
Supreme Court of the Netherlands
An important criterion for assessing law enforcement practices is the ability of the authorities to build an effective infrastructure to counter discrimination and hate crimes, from information collection to policing or judicial remedies. On these parameters the Netherlands has made significant progress.
There are currently two types of equality bodies in the Netherlands. The Netherlands Institute for Human Rights (NIHR) is a quasi-judicial body that has been assigned with the tasks of hearing complains about unequal treatment (which result in a non-binding Opinion), drafting reports, giving advice to the government and investigating possible instances of structural discrimination . The Anti-Discrimination Bureaus (‘anti-discriminatievoorzieningen’ ADV’s) have a legal basis in the Act on Local Anti-Discrimination Bureaus . All 393 municipalities are obliged to install and subsidize an ADV. The ADV’s work together in the National Association of Anti-Discrimination Bureaus (‘Landelijke Vereniging ADB’s) and are supported by expert institute ‘Art.1’.
Within each municipality, it is the statutory responsibility of the local antidiscrimination service to register discrimination complaints. Each of the 11 regional public prosecutor’s offices in the Netherlands has a specially trained public prosecutor who handles all discrimination cases in the region. Recently, both Art.1 and the NIHR have published new statistics on discrimination, showing a large increase of complains about discrimination to ADV’s in 2014 (from 6.186 complains in 2013 to 9.714 in 2014) . However, most of these complains concerned one incident, namely Geert Wilders’ remarks on less Moroccans. In fact, there has been a substantial decrease in the number of complains lodged to the ADV’s. Most of the reported complains concern discrimination on the ground of race/ethnic origin. Equality bodies publish statistics on discrimination; Public Prosecution Service only takes on a fraction of discrimination cases reported to the police. According to an internal report of the National Expertise Centre Discrimination, the handling of discrimination cases by the Public Prosecutor is worrying: out of 1600 cases of discrimination reported to the police in 2013, only 83 were taken on by the Public Prosecutor – the lowest number since registration began in 1998, while there is no reason to assume that the actual prevalence of discrimination is lower than before. Again, most cases concert the non-discrimination ground race/ethnic origin.
According to the Dutch daily NRC, on 16 March, the police and the municipality of Twente prevented a concert of German neo-Nazi band Kategorie C known as “Hungrige Wolfe” (Hungry Wolves).
A number of measures were taken against radical Islamists. The authorities obtained the right to deport foreign radical preachers. Suspected jihadists and militants who returned from Syria should be observed daily in the police. Moreover, Salafism itself is not prohibited in the Netherlands.
According to a recent report that has been submitted to the UN Committee on the Elimination of Racial Discrimination by the independent Dutch Equal Treatment Commission, the Dutch government has not invested enough efforts into prevention of discrimination against ethnic and religious minorities, and lacks concrete measures aimed at combating prejudice and stereotypes . As a consequence, the latent intergroup animosity may easily progress into everyday discriminatory practices and, as several incidents in the past months indicate, into violence.
The Dutch law enforcement agencies often face the problem of distinguishing between observing freedom of speech and identifying hate speech. For example, the leader of the ultra-right Party of Freedom, Gert Wilders, is regularly tried and acquitted of hate speech. As Judge Marcel van Osten said in 2011: Wilders' statements are “rude and hateful,” but since they technically do not encourage violence against Muslims, they are an acceptable as part of the Dutch culture of debate. At the end of 2015, court acquitted a Muslim rapper Ismael Hulich, who insulted Jews and LGBT people, citing his artistic self-expression.
There are currently more than 95 criminal investigations in progress concerning violent jihad-related offences and focusing on around 145 individuals. Rotterdam district court sentenced a man to four years in prison for preparing a terrorist offence and possessing and trafficking in illegal firearms . A woman was sentenced 6 months in prison for financial support to the Islamic Jihad Union.
In the Netherlands has only recently started in 2015 prosecuting anti-Semitic and Islamophobic hate speech on Facebook . Nevertheless, charges brought against the offenders were overly light. Meanwhile, manager of Holland’s football club was not prosecuted for provocative posts at all, as he promptly removed them on police’s request. It is worth noting that in 2015, out of 15 thousand reports of violent hate crime only 105 have reached trial (0.7%) . This is only 20 cases more than in 2014.
In 2017, 3'499 discrimination incidents were registered with the police in the Netherlands (a decrease of 20 percent compared to 2016).[1] The decline is particularly visible at police units Amsterdam, Midden-Nederland and Oost-Nederland. There were 1,450 incidents of discrimination based on descent. In more than a third of these cases, the discrimination had to do with the victim's skin color. Just over a quarter of the cases involved discrimination based on the victim's sexual preference. The number of incidents of discrimination include 162 Islamophobic and 284 anti-Semitism cases.
With regard to Roma people, there wasn’t documented cases of discrimination in 2017. It should be noted that Roma people who live in trailer camps (as well as other Travellers) do receive special attention from local authorities, as their specific housing situation in many regards demands a specific policy.[2]
In May 2017, Dutch court convicted 20 people of sexist and racist online hate speech directed against a black politician and media personality Sylvana Simons. The court said it had focused on prosecuting those who had made the worst comments and whose identities could be ascertained. “Freedom of opinion is great, especially if it fits into a social debate,” the court said in a statement. “But when this opinion is an insult, threat, riot or discrimination, there is a criminal offense.”[3]
In October, the appeal in the hate speech trail against right wing leader Geert Wilders started.[4] In December 2016, Wilders was found guilty of insulting a group of people and inciting discrimination.[5] "Partly in view of the inflammatory nature and manner of these stamens, others were hereby incited to discriminate against persons of Moroccan origin", the court ruled. The court did not give him any form of punishment, saying that the verdict is punishment enough.[6]
In 2017, several important steps have been taken to enhance antidiscrimination practices: [7]
- The police adopted a code to prevent ethnic profiling, which includes a professional standard and guidance for how to act in situations when they must stop citizens.
- Specific attention is paid to countering anti-Semitism in the National antidiscrimination action programme. Education on the holocaust is part of schools’ curriculums.
- A draft bill was submitted by parliament to clarify discrimination on the grounds of gender in the Equal Treatment Act, so it would thereafter include physical sexual characteristics, gender identity and gender expression.[8]
- A covenant has been concluded between the Public Prosecution Office, the police and anti-discrimination organisations to promote cooperation in the area of freedom of expression. Most notably, a public awareness campaign against hate speech on the Internet was launched (ibid). In addition, an independent hotline has been set-up regarding hate speech on the internet and that the government had established a broad anti-discrimination campaign which included online hate speech.
On January 1, 2019, new State Attorney's Office guidelines on discrimination went into effect, focusing on investigating absolutely all offenses with a discriminatory aspect, rather than exclusively discriminatory acts, such as group slurs or incitement to hatred, discrimination and violence. Gender identity has recently been added as an aspect of discrimination upon which to base a penalty enhancement.
The European Commission against Racism and Intolerance (ECRI) reported four notable improvements in the Netherlands in 2018: on LGBTI rights, civic education, integration policy and traditional Roma camps. The first improvement concerns the 2018 Emancipation Memorandum, which includes specific measures to emancipate and promote LGBTI social welfare and recognition. The second concerns the 2018 nationwide anti-discrimination campaign, which includes public events such as the abolition of slavery, and educational measures to promote tolerance and equality in schools as a mandatory element of civic education. The third improvement is related to the expansion of integration policies at the national level, which has led to increased aid to immigrants and refugees in Dutch municipalities. The fourth improvement is defined as "ending the national policy of reducing the number of traditional Roma camps. It refers to the 2018 Anti-Discrimination Handbook, which includes a special section on policies regarding nomadic camps.
The Dutch National Counterterrorism Strategy 2016-2020 includes measures to strengthen communities, increase resilience to radicalization and prevent terrorist financing. The strategy identifies five lines of action and areas for action:
- Reception (i.e., timely collection and analysis of intelligence on [potential] threats to Dutch national security and national interests abroad.
- Preventing and suppressing extremism and thwarting terrorist attacks before they occur .
- Protecting people, property and vital processes from extremist and terrorist threats, both physical and virtual.
- Optimal preparation for extremist and terrorist violence and its consequences.
- Prosecution (i.e., enforcement in the face of extremism and terrorism). The strategy prioritizes prevention. To this end, the government has chosen a local, multidisciplinary approach to prevention and is developing individual action plans to combat suspected radicalization.
Terrorists go through a radicalization process before turning to violence. Teachers and youth workers try to recognize this and, if necessary, report their suspicions to police and criminal justice agencies. Community police officers are the cornerstone of the local approach to prevention. Other stakeholders include local authorities supported by the Office of the National Coordinator for Security and Counterterrorism, prosecutors, social workers, child protective services, educators, and community leaders. This approach prioritizes the use of preventive measures, including mentoring, counseling, access to vocational training programs, and other social services. Similar programs aim to rehabilitate former terrorists. To combat reports of terrorism, local governments work with community and religious leaders to strengthen alternative and more credible voices.
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