Strasbourg, 11 March 2009

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Original version

REPORT BY

THE COMMISSIONER FOR HUMAN RIGHTS
MR THOMAS HAMMARBERG
ON HIS VISIT TO THE NETHERLANDS
21 - 25 September 2008
For the attention of the Committee of Ministers
and the Parliamentary Assembly

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Table of Contents
Executive Summary .............................................................................................................................. 3
I.

Introduction .............................................................................................................. 5

II.
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9

National system for protecting human rights....................................................... 6
Status of international human rights standards ......................................................... 6
The judiciary and access to justice ............................................................................ 7
The Dutch constitution: envisaged reforms and status of international treaties ........ 7
Complaints bodies and human rights structures ....................................................... 8
Police ......................................................................................................................... 9
Civil society and Human Rights Defenders ............................................................. 10
Human rights education........................................................................................... 10
National coordination of human rights issues.......................................................... 11
Protection of human rights in the overseas territories ............................................. 11

3.1
3.2
3.3
3.4
3.5
3.6

Treatment of asylum seekers ............................................................................... 12
The asylum framework and its proposed reform ..................................................... 12
Judicial review of asylum decisions ......................................................................... 14
Administrative detention of asylum seekers ............................................................ 15
Children in the asylum procedure ............................................................................ 17
Administrative detention of children......................................................................... 17
Unaccompanied minors/separated children, “1F children” and stateless children.. 17

4.1
4.2

Immigration ............................................................................................................ 19
Legislative framework .............................................................................................. 19
Family life: reunification and formation .................................................................... 20

III.

IV.

V.

Trafficking in human beings................................................................................. 22

VI.

Children’s Rights ................................................................................................... 24
National Youth Policy and Combat to Child Abuse ................................................. 24
Youth Care............................................................................................................... 25
Juvenile Justice........................................................................................................ 26
Application of adult criminal law and detention of minors in adult prison
establishments ......................................................................................................... 28

6.1
6.2
6.3
6.4

VII.
7.1
7.2
7.3

Prevention of discrimination ................................................................................ 28
Legal and institutional framework ............................................................................ 28
Anti-discrimination policy and prosecution of discrimination ................................... 29
Discrimination in the Netherlands ............................................................................ 30

VIII.

Racism, xenophobia, anti-Semitism and intolerance against Muslims ........... 35

IX.

Integration .............................................................................................................. 35

X.

Freedom of expression ......................................................................................... 36

XI.

Anti-terrorism measures and respect for human rights.................................... 37
Measures of criminal nature .................................................................................... 37
Measures of administrative nature........................................................................... 39
Extradition of foreign nationals suspected or convicted of terrorist crimes ............. 40

11.1
11.2
11.3
XII.

Recommendations................................................................................................. 41

Appendix 1: List of authorities, civil society organisations and institutions met or consulted. 44

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Executive Summary
Commissioner Thomas Hammarberg and his delegation visited the European part of the Kingdom of
the Netherlands from 21 to 25 September 2008. In the course of his visit the Commissioner held
discussions with the authorities, parliamentarians, representatives of civil society and members of the
judiciary, and he and his delegation visited several institutions.
I.
National system for protecting human rights. The Netherlands ratified almost all Council of
Europe Conventions and other key international human rights treaties. It has made reservations to the
UN Convention on the Rights of the Child. Fundamental rights in the Netherlands are anchored in the
Constitution and international treaties are directly applicable. The Commissioner welcomes the
legislative proposal to allow courts to assess domestic laws in the light of the fundamental rights
provisions of the Dutch Constitution.
The Netherlands has a dense net of complaints bodies and human rights structures, among them the
Office of the National Ombudsman, the Equal Treatment Commission and the Data Protection
Authority. The Commissioner welcomes the decision of the government to set up a national human
rights institute. He notes the current debate about the scope of the powers of the Ombudsman
regarding non-state actors fulfilling public tasks and recommends that this lacuna be filled. The
Commissioner notes that persons obliged to remain with the police should have the right to notify a
third party immediately and allow attendance of a lawyer during the initial stage of police interrogation.
The Commissioner is aware that human rights in the Netherlands are reflected in cross-cutting goals
of education. He believes that human rights education should be firmly anchored in a comprehensive
manner in primary and secondary school education. The Commissioner notes that more coordination
and cooperation between the ministries could be established. Human rights law should be a
touchstone for policies and legislation, which could for example be achieved by creating a national
human rights action plan.
II.
Treatment of asylum seekers. The Netherlands faces criticism of its current asylum
procedure, mainly for the lack of safeguards, a potential risk of refoulement and excessive length. The
Commissioner notes the proposed change of the asylum procedure, but is concerned about the risk
that the current proposal may not provide enough safeguards for asylum seekers and in particular for
vulnerable groups. The Commissioner is aware that judicial review of asylum decisions is currently
subject to marginal scrutiny by domestic courts. Thus, the Commissioner notes with satisfaction the
new proposal that courts will be allowed to take new circumstances and policy changes into account
in the appeal stage. He remains, however, concerned that the reformed appeal procedure will not
allow for a complete assessment in both law and fact.
Asylum seekers in the Netherlands, including people who have suffered traumatic experiences, can
face long detention, lasting on average more than 90 days. The Commissioner notes the concerns
expressed about the access to essential medical care, education, lack of employment and the few
occupational activities in facilities and reiterates that administrative detention must be kept to a strict
minimum. He welcomes the measures taken to reduce the number of children in administrative
detention, but regrets that there are still many detained unaccompanied minors and urges the
authorities to find alternative solutions. The Commissioner notes the decision to review an asylum
request of a “1F” family member after a period of 10 years. He calls upon the authorities to ensure
that in particular children will benefit from this policy change. The Commissioner is concerned about
stateless children in the Netherlands, albeit a relatively small number, and recommends that this
problem be resolved with priority. There are internationally agreed standards to reduce statelessness
and to ensure that children are not made victims of statelessness.
III.
Immigration. The Netherlands requires a certain group of aliens to pass a test before coming
to the country. The Commissioner notes that this test has been criticised, because of its possibly
discriminatory elements. As a result of the strict family and formation regulations, children are often
under threat of separation from their parents. The Commissioner believes that the ‘integration abroad’
test and the requirements for family formation and reunification could amount to a disproportionate
obstacle and urges the Dutch authorities to review the requirements. Having heard that one of the
biggest problems related to health care for irregular migrants is the existing lack of information about

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how the system works, the Commissioner welcomes the legislative reform currently under way to
establish one fund for financing care for undocumented migrants and (failed) asylum seekers.
IV.
Trafficking in human beings. The Commissioner notes with satisfaction that the
Government fully complies with the minimum standards for the elimination of trafficking and continues
to address trafficking through law enforcement, expanded victim protection and the establishment, as
the first country, of an independent National Rapporteur on Trafficking in Human Beings. He
welcomes that legislation which also opens for ratification of the Council of Europe’s Convention on
Action against Trafficking in Human Beings. He recalls that the Convention requires that under age
victims be given the benefit of the doubt so long as their age cannot be established. Accordingly he
urges the authorities to redouble their efforts to ensure a thorough and speedy identification of victims
to avoid keeping under age victims detained. The Commissioner appreciates the broadened scope for
all forms of exploitation and increased maximum penalties, nonetheless he regrets that ‘labour
exploitation’ is not defined in law and urges the authorities to close this gap.
V.
Children’s rights. The Commissioner notes with concern that juvenile offenders and children
institutionalised with a civil title still share the same institutions in the Netherlands and questions the
detention of children with civil protection orders in custodial institutions. He further notes some
shortcomings in the juvenile justice system including an low age of criminal responsibility, only 12,
and the application of adult criminal law to minors who can be subject to detention in adult prisons.
The Commissioner urges the authorities to ensure the highest standards for the protection of
children’s rights, including the full prohibition of corporal punishment, in the whole of the Kingdom of
the Netherlands. He warns against new measures taken to address problematic youth, such as the
“Mosquito” and the use of curfews.
VI.
Discrimination. The Commissioner is concerned about the fragmented data collection
systems in place and recommends that better coordination and cooperation between the anti
discrimination bodies is established and data collection procedures be streamlined. He also
expressed his concerns regarding the General Equal Treatment Act (GETA) and recommends that
the exemptions for associations based on religion or belief are removed from GETA and to abolish the
‘sole fact’ construction. In relation to the situation of women, the Commissioner encourages the
government to continue to support services for the victims of domestic violence and to exploit all
avenues to take speedy and appropriate measures against female genital mutilation. Regarding the
situation of persons with disabilities, the Commissioner recommends the Dutch authorities to sign and
ratify the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities and to
extend the anti-discrimination legislation to all forms of education, goods and services, public
transport and social protection, and to provide full access to all forms of public transport without
applying financial impediments for persons with disabilities.
The Commissioner is concerned about the current sterilisation and other compulsory medical
(hormone/surgery) treatment required for legal recognition of a person’s gender identity. Finally, the
Commissioner notes the continuing discussion on ethnic profiling. He recommends that the Roma and
Sinti be recognised as a minority under the Framework Convention for the Protection of National
Minorities.
VII.
Racism, xenophobia, anti-Semitism and intolerance against Muslims. The Commissioner
expresses his concerns about racist, anti-Semitic and other intolerant tendencies in the Netherlands,
notably intolerance against Muslims. He encourages the authorities to take a firm stand against antiIslamic undercurrent in society and to promote public the national action plan against racism and
xenophobia and monitor its implementation in close cooperation with civil society.
VIII.
Integration. The Commissioner understands that ‘integration’ has become a prominent issue
in national politics and debates in the Netherlands and notes that some parts of the integration
policies are problematic from a human rights perspective. Regarding segregation in the housing
market and in neighbourhoods, he recommends the government review and evaluate the Special
Measures Act ‘Urban Areas’ as well as the Housing Act to ensure that segregation on the housing
market is efficiently combated.
IX.
Freedom of expression. The Commissioner commends the proposal of the government to
abolish the criminal code article on blasphemy.

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X.
Anti-terrorism measures and respect for human rights. The Commissioner notes that
various anti-terrorism measures have been adopted in the Netherlands in recent years and finds that
a review of such measures is necessary to ensure their full compliance with international human
rights standards and principles. He notes with concern the use of broad and vague concepts lacking
the level of precision required by the principle of legality and urges the authorities to amend legislation
in order to ensure the precision and clarity necessary to enable any individual to regulate his or her
conduct. Furthermore, measures used to combat terrorism which may have a restrictive impact on
human rights should be subject to a preceding judicial authorisation and suspects should be granted
effective procedural guarantees.

I. Introduction
1.

From 21 to 25 September the Council of Europe Commissioner for Human Rights Mr Thomas
Hammarberg conducted an official visit to the European part of the Kingdom of the Netherlands
1
upon invitation by the Dutch Government. The visit was part of a continuous process of country
missions by the Commissioner to all Council of Europe member states to assess their effective
2
respect for human rights.

2.

The focus of the visit was on policies affecting migrants, refugees and asylum seekers,
integration, children’s rights and the fight against discrimination and intolerance. In the course of
his visit the Commissioner met with the Deputy Prime Minister and Minister for Youth and
Families, Mr Rouvoet, the Minister of Justice, Mr Hirsch Ballin and the State Secretary for
Justice, Ms Albayrak, the Minister of the Interior and Kingdom Relations, Ms Ter Horst, the
Minister for Housing, Communities and Integration, Ms Vogelaar and the Minister for Social
Affairs and Employment, Mr Donner. He also met with Parliamentarians and representatives of
civil society as well as with the National Ombudsman, members of the Equal Treatment
Commission and the National Rapporteur on Trafficking in Human Beings and held discussions
with representatives of local authorities and institutions and with members of the judiciary. As
the Commissioner did not visit the overseas territories, his comments in this respect are
naturally not comprehensive.

3.

The delegation visited a shelter for trafficked women, asylum seekers reception and detention
facilities in the vicinity of Amsterdam and Rotterdam as well as a juvenile detention centre in
Sassenheim and a secondary school in Rotterdam. There the Commissioner also visited a
mosque, accompanied by the local ombudsman. The office members completed the visit on
25 September, meeting with representatives of the Ministry of Education, Culture and Science
as well as with representatives of the Association of Netherlands Municipalities. They also
3
visited a forensic psychiatric institution in Utrecht.

4.

The Commissioner expresses his great appreciation for the co-operation of the Dutch
authorities in facilitating the visit and wishes to thank the Minister of Foreign Affairs and his
Department for their commitment to the objectives of the mission. Moreover, he extends his
gratitude to all people met during the visit for their exchange of views. The Commissioner is
also pleased to have had the opportunity to meet with many civil society representatives who
shared their expertise and valuable insights regarding the human rights situation in the
Netherlands.

5.

The purpose of this report is to identify opportunities for improving the protection and promotion
of human rights in the Netherlands. The Commissioner considers that in continuation of the
open dialogue with the relevant authorities during his visit, this report should serve as a tool for
progression, future co-operation and follow-up. He calls upon the authorities and institutions

1

The Commissioner was accompanied by Ms Silvia Grundmann, Ms Rita Patricio and Mr Dennis van der Veur,
members of his Office.
2
See the Commissioner’s mandate – especially Article 3(e), Resolution (99) 50 on the Council of Europe
Commissioner for Human Rights.
3
A full list of people, institutions and facilities visited can be found in the appendix to this report.

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concerned to contribute their collective expertise for further strengthening of human rights
protection in the Netherlands.
6.

This report begins with a brief assessment of the national system for human rights protection in
the Netherlands and is followed by chapters dealing with specific human rights concerns the
Commissioner wishes to highlight. It is based on information acquired during the visit along with
statements, reports and statistics provided by the authorities and civil society organisations in
the Netherlands. Naturally, relevant reports prepared by human rights monitoring mechanisms
of the Council of Europe and other international organisations are also referred to. The report
does not provide an exhaustive analysis of the human rights situation in the Netherlands but
rather reflects what the Commissioner considers to be the priorities for improving the protection
of human rights in the country.

II. National system for protecting human rights
2.1

Status of international human rights standards

7.

The Netherlands ratified the European Convention on Human Rights and Fundamental
Freedoms (ECHR) in 1954, and all Additional Protocols to the convention with the exception of
Additional Protocol 7 relating to mass expulsion, the right to appeal in criminal matters,
compensation for wrongful conviction, the right not to be punished twice and equality between
spouses, which it signed in 1984. The ECHR is directly applicable in Dutch national law and
4
prevails over domestic law in cases of conflict. The Netherlands ratified most of the other
Council of Europe and other international key human rights treaties, including the Framework
Convention for the Protection of National Minorities and the Revised Social Charter to which it
has made reservations only to articles 6A with respect to military personnel in active service
and civil servants employed by the Ministry of Defence, 19 A and L (in that the Charter only
applies to the Kingdom in Europe). It agreed to be bound by the collective complaints procedure
under the Revised Social Charter. It also signed and ratified the Convention on Cyber crime but
not the Additional Protocol. On 13 August 2008, the Netherlands ratified the Council of Europe
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and
on the Financing of Terrorism to enter into force 1 December 2008. It has signed but not ratified
the Convention on the Prevention of Terrorism.

8.

In 2005 the Netherlands signed the Convention on Action against Trafficking in Human Beings
and in 2007 the Convention on the Protection of Children against Sexual Exploitation and
Sexual Abuse. The Commissioner welcomes these steps and strongly encourages the
Netherlands to speedily ratify these two instruments, as it has with the Convention on
Cybercrime. Likewise, the Commissioner calls upon the Dutch authorities to ratify the
Convention on the Prevention of Terrorism, the Convention on the Exercise of Children’s Rights
and the Additional Protocol to the Convention on Cybercrime concerning the criminalisation of
acts of a racist and xenophobic nature committed through computer systems (the latter now
being approved by the Parliament).

9.

Among UN treaties, the Netherlands ratified the UN Convention on the Rights of the Child (UN
CRC) in 1995 with some reservations. It has signed but not yet ratified the Optional Protocol to
the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (OP-CAT). The Netherlands ratified the Convention on the
Participation of Foreigners in Public Life at Local Level and the Convention on the Legal Status
of Migrant Workers. It has however neither signed nor ratified the International Convention on
the Protection of the Rights of All Migrant Workers and Members of their Families. The
Commissioner encourages the Netherlands to ratify this convention as well as the UN
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Convention on the Rights of Persons with Disabilities including its optional protocol. The
Commissioner welcomes the signature of the UN Convention on Enforced Disappearances in
April 2008, which has now 72 signatures and 4 state parties and encourages its ratification. He

4
5

Art. 94 of the Dutch Constitution.
The optional protocol is not yet signed.

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regrets the reservations made to the UN Convention on the Rights of the Child and calls upon
the authorities to withdraw them.
2.2

The judiciary and access to justice

10.

The Dutch judiciary consists of higher and lower courts. There are sub-district (magistrate-like)
and district courts as well as courts of appeal. The Netherlands has no constitutional court. The
Supreme Court (Hoge Raad) of the Netherlands as the last instance in criminal and civil matters
examines questions of law, the facts being deemed to be as established by the lower courts.
Likewise, the Administrative Jurisdiction Division of the Council of State (Raad van State) is the
country’s highest general administrative court. The Central Appeals Tribunal is the highest
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instance of justice in social security matters and the civil service. Apart from its judicial function
as a court of cassation, the Council of State also acts as an advisory body to the government to
be consulted on proposed legislation before a bill is submitted to parliament.

11.

Based on Article 18 of the Dutch Constitution and Article 6 of the ECHR, the Netherlands needs
to provide for a system of legal aid to ensure an effective access to justice. In cases of
subsidised legal aid or mediation the state compensates wholly or in part the costs of a lawyer
or mediator. NGOs have not mentioned substantial shortcomings of the system. They advocate,
however, free legal aid for victims of domestic violence in the form of paid 2 hours’ assistance
7
by a lawyer after which the victim could resort to the regular legal aid system. The government
stresses that free legal aid is provided to victims of sexual offenses and domestic violence if the
case is brought to trial and the victim qualifies for compensation.

2.3

The Dutch constitution: envisaged reforms and status of international treaties

12.

Chapter one of the Dutch Constitution provides a number of fundamental rights. However,
Article 120 prevents domestic courts from scrutinizing domestic laws for their compatibility with
8
these rights. In recent years, a number of proposed legislative reforms have touched on
9
constitutional issues, among them a proposal to reform Art. 120.

13.

As long as Art. 120 remains unchanged, international human rights treaties play a special role
in the Dutch legal order in adjudicating conflicts relating to fundamental rights. Article 94 of the
Dutch constitution allows courts to review the compatibility of domestic law provided the
10
respective provisions of international treaties are binding or self-executing. Dutch NGOs and
the Committee on the Elimination of Discrimination against Women (CEDAW) and the
Committee on Economic Social and Cultural Rights (CESCR) have raised the issue of unclarity
with regard to the interpretation of whether provisions of international treaties are self-executing
of not. The government has informed the Commissioner that a national commission will be
established to examine ways of strengthening the constitution and to consider the effect of
international treaties in the Dutch legal order.

14.

Due to the dispute on direct applicability, different domestic courts can arrive at different
11
interpretations, an example being the anti-discrimination Article 2 of the UN CRC or the

6

The Trade and Industry Appeals Tribunal passes the final decision in the area of social-economic administrative
law such as disputes over the Competition or Telecommunications Act.
7
th
NGOs commentary on the 4 periodic report of The Netherlands on the International Covenant on Civil and
Political Rights (ICCPR), 8 August 2008, p. 26.
8
Art. 120 provides that “The constitutionality of acts of parliament and treaties shall not be reviewed by the
courts”.
9
Their topics included corrective referendums, online voting, extension of Article 1 with ‘disability’ and ‘sexual
orientation’ and fundamental rights. Some of these proposals are now bills before the Dutch parliament.
10
Dutch NGOs contribution to the First Universal Periodic Review of the Netherlands by the Human Rights
Council, November 2007, p.5.
11
In cases in which children without a residence permit invoked Article 2 of the CRC, the article is not applied by
the Administrative Law Division of the Council of State. However the Central Appeals Tribunal, ruled it is
applicable for Dutch children. For details see Dutch NGO Coalition for Children’s Right, Third report on the CRC,
July 2008, p. 23.

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dispute in the case of the SGP party. In his meetings with representatives of the Supreme
Court and the Council of State, the Commissioner learned that potential conflicts are usually
solved in an informal way, attempting to arrive at a harmonized interpretation by taking into
13
account the expertise and case law of the respective court leading in a particular domain.
While the Commissioner acknowledges the efforts made to avoid different interpretations, he
believes that a formal procedure would better guarantee a uniform interpretation. In the interest
of legal certainty, the Commissioner encourages the Dutch authorities to ensure a uniform
interpretation of the application of international treaties and welcomes the proposal to reform
the Dutch constitution. He believes that implementing this change would strongly promote the
knowledge of fundamental rights in the Netherlands and would strengthen human rights in the
Dutch legal order.
2.4

Complaints bodies and human rights structures

15.

The Office of the National Ombudsman was set up in 1982 as an independent non-judicial body
appointed for six years by the Lower House of Parliament to which it reports annually. Since
1999, the institution has been enshrined in the Dutch Constitution. Anyone may request the
Ombudsman to investigate the conduct of a government body, and he may launch his own
investigations. His decisions, which are made public, are not legally enforceable. In 2007, the
Office of the National Ombudsman made a total of 2 899 interventions on behalf of individuals.

16.

In addition to the national ombudsman, Dutch municipalities may choose to appoint a local
ombudsman; approximately half of the municipalities have done so, some of them jointly. The
Commissioner observes that this possibility enhances human rights and is particularly valuable
in larger entities such as the city of Rotterdam, where the Commissioner met with the local
ombudsman.

17.

The Commissioner notes that at present there is no children’s ombudsman in the Netherlands.
The National Ombudsman informed the Commissioner that he set up a special investigation
14
team in 2007 to deal with cases involving children. The Ombudsman suggested as a most
practical and efficient solution to make one of his two deputies the Children Ombudsman.

18.

The Commissioner regrets that the Dutch government currently sees no reason to establish an
ombudsman for children. He welcomes the initiative taken by members of parliament who have
submitted a private members’ bill to establish a children’s ombudsman in the Netherlands. The
Commissioner believes that the Netherlands would benefit from establishing a children’s
ombudsman as this would greatly enhance coordination and visibility of children’s issues.
Therefore, the Commissioner urges the Dutch authorities to ensure that ombudswork for
children is undertaken within the ombudsman office or through a separate institution.

19.

After long delays and criticisms and a joint initiative launched in 2005 by the National
Ombudsman, the Equal Treatment Commission, the Data Protection Authority and the Study
16
and Information Centre on Human Rights (SIM), the government in July 2008 decided to set
up a national human rights institution, affiliated with the National Ombudsman. The
competences of the new institution have to be decided on but will most probably include giving
advice to parliament, government and other competent bodies as well as treaty monitoring and
serving as an international contact point. The institute might also play a role in providing human
rights education and increasing public awareness.

15

12

The Reformed Political Party (Staatkundig Gereformeerde Partij (SGP) does accept women only as
exceptional members which means they do not have a right to vote nor have other electoral capacities (the right
to run for election) and are excluded from executive functions. In a dispute over state funding of this party, the
case has been brought before different courts (civil and administrative) and led to different decisions in respect of
constitutional rights. The case is now on appeal at the Supreme Court.
13
E.g. the interpretations of the Supreme Court in areas of criminal law or of the Council of State in aliens law.
14
In particular in the areas of immigration policy, health care and youth welfare, where they see deficits.
15
Dutch NGOs contribution to the First Universal Periodic Review of the Netherlands by the UN Human Rights
Council, November 2007.
16

The centre is part of the University of Utrecht.

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20.

The Commissioner welcomes this development and looks forward to the establishment of the
new institution. The Commissioner trusts that the decision of the government not to set up an
entirely new institution, but to attach the institution to the office of the National Ombudsman will
nevertheless foresee a dedicated budget for the new institution and will result in efficiencies
within the framework of adequately resourced human rights structures.

21.

To combat discrimination, the Equal Treatment Commission (Commissie Gelijke Behandeling,
CGB), in response to a written request, examines whether or not discrimination, within the
meaning of e.g. the Equal Treatment Act and the Equal Treatment (Men and Women) Act, is
taking place or has taken place. The Commission can also, on its own initiative, decide to
17
investigate whether or not such discrimination is systematic.

22.

The Data Protection Authority primarily monitors the protection of personal data. It can advise
on legislation, review codes of conduct and regulations and make decisions on exemptions from
the ban on processing particular types of personal data. The Authority has special powers of
enforcement, such as administrative enforcement and the ability to impose monetary penalties
18
and administrative fines and can also mediate in conflicts.

2.5

Police

23.

The Commissioner attaches great importance to the role of the police authorities in protecting
human rights. He notes with appreciation that both the 2002 and the 2007 visits of the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) found no credible allegations of ill-treatment by law enforcement officials.
Nevertheless, on both visits, the CPT found that the wording of Section 62(2) of the Code of
Criminal Procedure permitting postponement of notification “in the interests of the investigation”
was not sufficiently precise. The Commissioner feels that safeguards against ill-treatment
should be improved in the light of these findings and recommends that persons obliged to
remain with the police should have the right to notify a third party immediately.

24.

The Commissioner is aware of the criticism expressed by the CPT in 2002 and 2007 and by the
UN Committee against Torture in relation to the initial stage of police interrogation, during which
a detainee is not entitled to have access to a lawyer for up to 6 hours. As the period between
midnight and 9am is not taken into account, the total period without access to a lawyer could
amount to 15 hours. The Dutch authorities informed the Commissioner that the Minister of
Justice has opted in favour of video and/or audio registration of interviews conducted by police
officials instead of the mandatory attendance of a lawyer during the first police interrogation.

25.

The Commissioner learned of a pilot project started on 1 July 2008 in Amsterdam and
Rotterdam whereby, subject to certain conditions, the lawyer can attend the first questioning of
a person suspected of murder or manslaughter. The goal of this project is to generate
information on the basis of which a sound decision can be made about a possible revision of
the relevant legal provisions. However, the legal profession has already expressed criticism
about this experiment. For example, the lawyers may not make any remarks, may not consult
with their client and must remain outside their client’s view. Acknowledging this pilot project as a
first step, the Commissioner stresses that the right of access to a lawyer for persons detained
by the police for interrogation should be guaranteed from the very outset of the deprivation of
liberty. He calls upon the Dutch authorities to modify their legislation in such a way that
detainees can enjoy this right.

26.

The European Commission against Racism and Intolerance (ECRI) notes that there is still a
rather low number of ethnic minority police officers, but that the situation is improving. At the
same time, a disproportionately high number of ethnic minority officers have been leaving the
service. Possible reasons appear to be the prevailing police culture, stereotypes/prejudices and
the perception of lack of career prospects. Some measures have been taken aiming at
improving staff diversity. The National Ombudsman is investigating possible patterns of

17

See for further information part on anti-discrimination.
The competences are established in the Personal Data Protection Act (Wet bescherming persoonsgegevens,
Wbp), and for police in the Data Protection (Police Files) Act (Wet politieregisters, Wpolr).
18

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discrimination in police members’ career paths. In a meeting with the chief of police of the city
of Rotterdam, the Commissioner learned that in the Rotterdam-Rijnmond region with an alien
population of 31%, 10.7% police officers come from ethnic minorities. The Commissioner hopes
that in the interest of effective police work close to the public, the number of ethnic minority
officers can be improved.
27.

The Commissioner is aware that internal police complaint mechanisms exist through the Public
20
Order and Safety Inspectorate (POS) and the National Police Internal Investigations
21
Department (Rijksrecherche). As is the case with all acts of the Dutch authorities, the National
Ombudsman can also investigate when approached by an individual or upon his own initiative.
Likewise, the public prosecutor investigates in cases of alleged criminal behaviour. In a 2007
study, the POS Inspectorate concluded that there were substantial differences in the various
forces’ approach to complaints handling. The Inspectorate considers it beneficial to introduce
uniform, national complaints handling procedures that are applicable to all forces. The
Inspectorate also advises the development of a (national) complaint registration system within
the near future. The National Ombudsman writes in his annual report that the internal complaint
mechanism has to be improved for most of the different forces. In 2007 the Ombudsman had
more than 900 complaints about the police and their internal way of dealing with complaints.

28.

The Commissioner discussed models of best practice with the Minister of the Interior and
Kingdom Relations, describing the Irish Police Ombudsman Commission, established in 2007
22
as an independent external police complaint mechanism which might serve as a role model.
He encourages the Dutch authorities to consider the creation of an independent external
mechanism as such a body would be more easily accessible and thus lower the threshold for
reporting police misconduct. Police would benefit as this would allow for early reaction and
interaction, thereby promoting confidence in cases of conflict.

2.6

Civil society and Human Rights Defenders

29.

In the course of the visit, the Commissioner met with various human rights’ NGOs. He is very
grateful for having been able to share their expertise and valuable information. The
Commissioner noted that although some NGOs act mainly as service providers and are funded
to a large extent by the Government, they manage to remain critical. The Commissioner
underlines that a constant, critical and constructive dialogue between the authorities and civil
society is imperative for effective human rights protection. He thus encourages the Dutch
authorities to safeguard, facilitate and promote this dialogue on all levels.

30.

The Commissioner notes with appreciation that the Ministry of Foreign Affairs has developed a
human rights defenders’ policy, supporting human rights defenders with the help of their
embassies practically and financially. Since 2008, the ‘Human Rights Defender Tulip’ as a
special recognition for Defenders’ work is awarded.

2.7

Human rights education

31.

The Commissioner reiterates that human rights education is an essential part of a national
human rights policy. It is a cornerstone for society, ensuring that individuals have an
understanding of their human rights and those of others, thereby promoting critical thinking and
23
mutual respect. During his meetings with numerous stakeholders, including members of the
judiciary, civil society and representatives of various authorities the Commissioner learned that

19

rd

3 Report on the Netherlands, ECRI (2008)3, Strasbourg, February 2008.
The POS Inspectorate supervises the quality of the performance of public tasks of police, police training
institutes, fire brigade and disaster relief and crisis control organisations. It is part of the Ministry of the Interior
and Kingdom Relations. The Inspectorate, with its workforce of around 50, was founded in 2002.
21
The department is responsible for examining complaints concerning the conduct of government officials and
public servants. It also routinely investigates cases involving injury or death following the use of firearms by the
police. The same applies in the event of a detainee's death in prison, information provided by the Dutch
authorities in July 2008.
22
For details see the Commissioner’s report on his visit to Ireland, 26-30 November 2007, paragraph 25.
23
See also the viewpoint of the Commissioner “Human rights education is a priority – more concrete action is
needed”, 6 October 2008, available at www.coe.int/commissioner/viewpoints/.
20

10

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in general, knowledge of the Dutch constitution, its fundamental rights and human rights in the
Netherlands is not well developed. The government is trying to address this problem in several
ways, for example through initiatives in the area of human rights and citizenship education and
making the constitution more accessible.
32.

NGOs active in the field have been lobbying policy makers to make human rights education
24
mandatory.
The Netherlands Platform on Human Rights Education informed the
Commissioner that many schools voluntarily, often supported by Platform members, do pay
attention to human rights education on a voluntary basis.

33.

The Commissioner notes the government’s statement that it has commissioned guidelines for
schools, which mention human rights as an integral part of civic education, though it cannot
make human rights education mandatory in schools as this might contradict freedom of
education as guaranteed by Article 23 of the Dutch Constitution. The Commissioner believes
that human rights education should be firmly anchored in a comprehensive manner in primary
and secondary school education. The UN World Programme for Human Rights Education
launched in 2005 and the Council of Europe initiative “Education for Democratic Citizenship and
Human Rights” may provide valuable guidance in this respect.

2.8

National coordination of human rights issues

34.

Since 1999, the Netherlands has a human rights ambassador to strengthen the human rights
component in foreign policy. In November 2007, the Minister of Foreign Affairs presented a new
human rights strategy for foreign policy, “Human dignity for all”, placing human rights at the
centre of Dutch foreign policy.

35.

There appears to be no national action plan or any other visible human rights mainstreaming
approach nor a comprehensive effective coordinating mechanism among the domestic
authorities within the executive. NGOs expressed their concerns at the lack of clarity as to how
human rights are considered and whether they are consequently monitored and evaluated.
They further alleged that international human rights law is rarely taken as a touchstone for
25
policies and legislation in the Netherlands.

36.

The Commissioner believes that a national human rights action plan could serve as a key tool
to improve the protection and promotion of human rights through a comprehensive and
26
coherent approach involving all stakeholders including representatives of civil society. The
Commissioner is convinced that the Netherlands would benefit from such an in-depth analysis
as it would be useful for identifying and assigning the respective responsibilities and may thus
save resources and minimize overlap, in particular in reporting obligations. Furthermore, the
Commissioner encourages the authorities to ensure effective interministerial coordination for
domestic human rights matters consisting of representatives from all relevant ministries and
agencies.

2.9

Protection of human rights in the overseas territories

37.

The Kingdom of the Netherlands currently has three parts, the European, the Aruban and the
Antillean part. The Netherlands Antilles and Aruba are semi-autonomous areas of the Kingdom.
Due to a process of constitutional change which is close to final conclusion, two of the
Netherlands Antilles, Curaçao and St. Maarten, will become semi-autonomous as is Aruba. The
three other Antilles, Bonaire, Saba and St. Eustatius, opted to become municipalities of the

24

The Commissioner received a letter dated 17 April 2008, that two umbrella organisations, the Netherlands
Platform on Human Rights Education and the Child Rights Collective had sent to various institutions, including
the Minister of the Interior, the Minister of Education, the Dutch Ombudsman, the SIM (Study and Information
Centre on Human Rights), the CGB (Committee for Equal Treatment) and the CBP (Dutch Data Protection
Authority), expressing their concerns on the topic of human rights education. A reply had not been received at the
time of writing.
25
Dutch NGOs contribution to the First Universal Periodic Review of the Netherlands by the Human Rights
Council, November 2007.
26
See also the Commissioner’s viewpoint “Concrete and comprehensive action plans are needed to ensure
implementation of human rights“, 3 November 2008.

11

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Netherlands, that is the European part of the Kingdom. As a consequence, they may decide
whether or not to come into the territorial remit of the national ombudsman, which is currently
not the case.
38.

As to the Caribbean parts of the Kingdom that remain semi-autonomous, NGOs have flagged
the lack of or delayed and incomplete reporting on international obligations for the overseas
territories. The European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT), while acknowledging some progress in its 2007 report,
criticised i.a. prison conditions, excessive length of pre-trial detention, restricted access to
27
lawyers and limited alternatives to the detention of children. Furthermore, there had been
allegations in a report by the UN Committee against Torture of assaults committed by Aruban
28
law enforcement officials. The UN Committee on the Rights of the Child (CRC) expressed
concern that in Aruba children are vulnerable to trafficking for the purpose of transporting illegal
drugs or sexual exploitation, including sex tourism. They recommended, inter alia, to undertake
29
an in-depth study of the issue. During his visit, the Commissioner learned that in some areas
different standards than in the European part of the Kingdom seem to apply, an example being
the difficulties that same sex legally married couples face in the recognition of their marriages in
the Caribbean parts of the Kingdom.

39.

The Commissioner recommends that the Dutch authorities seek ways of ensuring uniformity in
all parts of the Kingdom of the Netherlands with a view in particular to extend the application of
the Revised Social Charter to the Netherlands Antilles and Aruba.

III. Treatment of asylum seekers
3.1

The asylum framework and its proposed reform

40.

Dutch aliens law is shaped by EU law. In the field of migration and asylum, the Aliens Act 2000
(Vreemdelingenwet 2000 (Vw 2000)) in force since 2001, stipulates the conditions for foreign
nationals to enter the Netherlands, the issue of residence permits and removal, for both the
asylum and non-asylum (immigration) categories. The act is elaborated in different types of
secondary legislation; the most important are the Aliens Act implementation guidelines 2000
(Vreemdelingencirculaire 2000 (Vc 2000)). There are also operating instructions which are in
30
principle made public. Since the introduction of the new law in 2001, the number of new
asylum claims declined sharply: 10 000 asylum seekers in 2004 compared to 43 000 in 2000. In
2007 most asylum seekers came from Iraq, Somalia and Afghanistan. Up to June 2008, 6 237
asylum seekers arrived at Dutch application centres. The Commissioner learned that the
authorities revoked the general scheme to grand temporary residence for refugees from Central
and South Iraq as of 22 November 2008. In view of the continued difficult situation in Iraq, the
Commissioner urges the Dutch authorities to reconsider this decision.

41.

The Commissioner commends that the Netherlands recognises sexual orientation as a potential
ground for persecution and thus possibly asylum under the UN Refugee Convention. However,
gender identity is not explicitly recognised as a ground for persecution in line with the UNHCR
Guidance Note on Refugee Claims relating to Sexual Orientation and Gender Identity. The
Commissioner encourages that this be explicitly recognised.

42.

The current asylum procedure begins with an initial assessment of the asylum request in an
31
application centre run by the IND. A maximum of 48 working hours will be needed in order to

27

CPT report on its June 2007 visit, made public by the Netherlands Government on 30 January 2008, CPT/Inf
(2008) 2, Strasbourg 5 February 2008; see also the Response of the Authorities of the Kingdom of the
Netherlands to the report of the CPT on its visits to the Kingdom in Europe, Aruba, and the Netherlands Antilles,
CPT/Inf (2009) 7, Strasbourg 4 February 2009.
28
UN Committee against Torture (CAT), thirty-eight session 30 April – 18 May 2007, CAT/C/NET/CO/4, 3 August
2007
29
UN Committee on the Rights of the Child (CRC), thirty-fifth session, 26 February 2004; reiterating the need for
a comprehensive study, CRC, fiftieth session 30 January 2009. .
30
Access to the instructions may be restricted on grounds laid down by Act of Parliament.
31
Schiphol (arriving by air or sea) and Ter Apel and Zevenaar (arriving by land).

12

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carry out this assessment, known as the “48-hour accelerated procedure”. These 48 hours will
32
be spread across a number of working days, amounting to around five working days.
43.

When the IND decides during the 48-hours procedure that further investigation is necessary the
procedure continues in the reception centre, known as the “prolonged/extended” or “general”
procedure. Generally, the IND is required to take a decision within six months. If the IND
concludes that the asylum seeker meets the conditions for an asylum residence permit, a
temporary residence permit will be granted. After five years the asylum seeker may apply for a
permanent residence permit. In about 40% of the applications for asylum, the IND takes a
33
decision within three to five days, that is in the accelerated procedure. Processing some 60%
of the applications requires more time, usually about six months. If difficulties occur in
establishing the language or dialect of the asylum seeker or the country of origin, the six months
are exceeded. An appeal or a second asylum application based on new facts can further
prolong the procedures.

44.

Numerous stakeholders such as UNHCR and NGOs have criticised the current accelerated
procedure mainly for lack of safeguards and for excessive length. The 48-hours accelerated
procedure is seen as not providing sufficient safeguards and creating excessive time pressure
with a potential risk of refoulement and a detrimental effect on vulnerable groups such as
women who do not immediately inform the authorities that they have been subjected to violence
34
or sexual persecution. NGOs note that the general asylum procedures are quite long due to a
35
capacity problem at the IND and the District Courts. In July 2006 there were 2 154 people
staying four to five years and 1 818 staying three to four years in reception centres. On 1
August 2008, a total of 18 900 people were living in reception centres.

45.

In June 2008, the Ministry of Justice in a letter to parliament, proposed changes to the current
procedure. According to the Ministry, the reform aims towards a more effective asylum
procedure and return policy. Its core is to extend the current 48-hours accelerated procedure
(five working days) to eight days and to process more asylum claims within this period. A rest
and preparation period is introduced to be used for registration, information to the applicant by
the Dutch Refugee Council and legal aid providers as well as for a medical examination. The
Commissioner is aware of the detailed concerns expressed by UNHCR, stating inter alia that
the rest period should not be used for investigations before a sufficient degree of trust has been
36
established and asylum seekers have benefited from legal advice.

46.

In view of the strong criticism already expressed against the current accelerated procedure, the
Commissioner is surprised that the government wants to process more claims within a
somewhat enhanced accelerated procedure, including vulnerable groups such as
unaccompanied minors. The Commissioner is aware that civil society representatives fear that
the enhanced accelerated procedure could became the norm for the majority of cases. A fast
procedure is certainly suitable for clear-cut cases, such as manifestly unfounded or wellfounded claims, but it can be detrimental to all other cases and is clearly unsuitable for
vulnerable groups such as victims of violence and unaccompanied children. The Commissioner
feels that the reform proposal insufficiently addresses the criticism raised towards the current
law when it comes to providing better safeguards for asylum seekers. He therefore urges the
Dutch authorities to limit the enhanced accelerated procedure to clear-cut cases and to provide
for a general procedure that gives the authorities sufficient time to diligently establish the facts
of the case while allowing the asylum seeker to discharge the burden of proof by submitting
suitable evidence.

32

The assessment is carried out in 8 steps; reporting, registration, the initial interview, the initial assessment, the
detailed interview, the report and intended decision, the response of the asylum seeker to the indended decision,
the decision in the application centre, residence or departure.
33
IND Immigration and Naturalisation Service Asylum leaflet April 2008, available via www.ind.nl
34
In the past, the Netherlands has been criticized for forcible returns to countries where their safety may not be
rd
secured, i.e. Iraq, Somalia, and Congo. See also ECRI, 3 Report on the Netherlands.
35
Report Refugee Council. Vreemdelingenwet 2000, Een ontspoorde asielwet, September 2007, p. 42;
Submission to the UN Universal Periodic Review (AI Index: EUR 35/001/2007).
36
UNHCR Comments on the plans of the Government of the Netherlands for “a more careful and faster” asylum
procedure, UNHCR Regional Representation Brussels, September 2008.

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3.2

Judicial review of asylum decisions

47.

Asylum decisions of the IND are partly based on information from the Ministry of Foreign Affairs
contained in official reports (ambtsberichten) the accuracy of which have been questioned by
37
38
the NGO Refugee Council, the national ombudsman and in one case also by the ECtHR.
Under the accelerated procedure, appeals must be lodged within one week with the District
Court and on appeal with the Council of State. The courts do not make an assessment on the
merits but only examine points of law. Appeals under this procedure do not have suspensive
39
effect and applicants are not allowed to await the outcome of the procedures in the
Netherlands but must leave the country. UNHCR has consistently taken the position that the
suspensive effect of asylum appeals is a critical safeguard to ensure respect for the principle of
40
non-refoulement. The applicant can apply to a district court for an injunction to prevent
expulsion.

48.

Asylum seekers do not have a right to stay in the reception facilities during the appeal
procedure. Under current Dutch law, decisions of the IND are subject to a limited scrutiny by the
courts, the facts largely deemed to be established as found by the State Secretary, including
the credibility assessment of the applicant. Evidence that theoretically could have been brought
forward earlier may not be taken into account at the appeal stage. This leads to a considerably
41
high number of repeat applications. The Council of State may deliver a judgment without a
reasoning and frequently does so.

49.

During his visit the Commissioner was pleased to learn of a reform proposal, namely to provide
reception facilities during the appeal stage, albeit for a limited duration of four weeks. While in
principle welcoming this proposal, the Commissioner questions what will happen to those
applicants whose appeal might take longer. He believes that the authorities should not stop
short and only remedy the currently unsatisfactory situation in part, leaving a certain number of
asylum seekers again without accommodation in the future. The Commissioner calls upon the
authorities to provide reception facilities to asylum seekers until the final closure of their case.

50.

The Commissioner notes with appreciation that the current limitations to the introduction of
further evidence will be abolished. The courts will then be allowed to take new circumstances
and policy changes into account in the appeal stage and the IND will of its own accord weigh
new circumstances put forward in the appeal stage and see if these could lead to another
outcome. The Commissioner understands that evidence will be considered by the courts even if
it could have been brought forward at an earlier stage. The Commissioner welcomes this
proposal, but he remains concerned that the reformed appeal procedure will still not allow for a
complete assessment of the first instance decision in both law and fact, including the credibility
of the applicant. He calls upon the Dutch authorities to reconsider and expand their reform
proposal in that respect as well as to consider the introduction of a suspensive effect for such
cases in which the asylum seeker can establish that he or she would be subject to bodily harm.
He welcomes the repeated assurance by the Government that Article 3 of the ECHR has an
absolute character and will always be respected.

37

Refugee Council. Summary Report on the Aliens Act (Vreemdelingenwet) 2000, ‘Een ontspoorde asielwet’,
September 2007, p. 5. National Ombudsman, ‘De geloofwaardigheid van ambtsberichten, Hoe asielverhalen
worden bevestigd of ontkracht’, 27 September 2007.
38
Case of Salah Sheekh v. the Netherlands, judgment of 11 January 2007 final on 13 May 2007.
39
Guideline 5 para 3 of the Twenty guidelines of the Committee of Ministers of the Council of Europe on Forced
Return, adopted May 2005 provides that there should be a suspensive effect when the returnee has an arguable
claim that he or she would be subject to infliction of bodily harm.
40
UNHCR Comments on the plans of the Government of the Netherlands for “a more careful and faster” asylum
procedure, UNHCR Regional Representation Brussels, September 2008.
41
Already in 2003, UNHCR expressed concern about the limited scope of judicial review, submitting detailed
observations on the Aliens Act, UNCHR paper of July 2003 “Implementation of the Aliens Act 2000: UNCHR’s
observations and recommendations“.

14

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3.3

Administrative detention of asylum seekers

51.

Every year several thousand irregular migrants and asylum-seekers are detained in the
42
Netherlands. Asylum seekers arriving by plane are routinely subjected to border detention
during and immediately following the accelerated asylum determination procedure at the
Schiphol Application Centre. If further investigations are deemed necessary beyond the 48hours accelerated procedure and in certain other circumstances, asylum seekers may face
continuous border detention, lasting on average almost 100 days (including investigation,
objection and appeal procedure), and in some cases as long as 381 days. This includes people
who have suffered traumatic experiences, including victims of trafficking, unaccompanied
43
minors and people who fall under the Dublin Regulation. In the view of the Dutch government,
the administrative detention of asylum seekers is designed to guarantee a fair and speedy
44
determination of their asylum claims. However, there is no evidence supporting this belief. The
Netherlands and the UK are the only countries in Europe were there is no maximum term to
45
hold an alien in detention. The CPT criticised this policy in its last report, inviting the
Netherlands to introduce a maximum period. The Dutch authorities informed the Commissioner
that with the implementation of the EU-return directive, generally alien detention will be limited
to six month with a maximum stay of up to 18 month under specific circumstances.

52.

As to detention conditions, the CPT in 2007, with some exceptions, reported a generally still
46
satisfactory standard. However, the CPT delegation noticed a deterioration in the way in which
immigration detention centres were operated, as compared to 10 years ago. The Dutch
approach to administrative detention of immigration detainees has changed, and now duplicates
the prison system without immigration detainees having access to a full community regime.
NGOs as well as the Dutch Council for the Administration of Criminal Justice and Protection of
47
Juveniles have also expressed their concerns as only essential medical care is available and
48
access to education and employment are lacking.

53.

The Commissioner visited the Noord-Holland Detention Centre “Oude Meer” near Schiphol and
the closed application centre at Schiphol airport. He also visited the open reception centre ‘s
Gravendeel where he met with the General Director of the Central Agency for the Reception of
Asylum Seekers (COA), Ms Nurten Albayrak. In all three facilities, the Commissioner held talks
with staff members and was shown around the premises, making use of the possibility to talk to
detainees in private and to meet with residents in the open facility. On the positive side, the
Commissioner notes that the material conditions were of a high standard. In the closed
application centre, women and men spend the night in separate dormitories with sanitary
facilities, as do unaccompanied minors. The applicants are not allowed in these rooms during
daytime but must be present in waiting rooms where only a TV is available.

54.

The Commissioner spoke in private with some unaccompanied male minors in the closed
application centre and with detainees in the expulsion centre. On both occasions, the
Commissioner was given the impression that the detainees did not understand the application

42

Report Amnesty International, The Netherlands: The Detention of irregular migrants and asylum seekers,
June 2008, p. 5; according to the Dutch authorities, since 2005, the number of aliens detained in a year has been
closer to 10,00 than to 20,000.
43
Annual Report 2007, Dutch Council for Refugees, p. 12.
44
The Council for Administration of Criminal Justice and the Protection of Juveniles concluded that the
effectiveness of the detention of foreign nationals is limited; less than half of all detentions actually lead to
deportation. The Council believes that the Dutch government could do more to avoid detention, see
Recommendations of the Council for the Administration of Criminal Justice and the Protection of Juveniles,
Summary, ‘Detention of foreign nationals’, issued to the State Secretary for Justice, 16 June 2008.
45
In June 2008, the European Council decided that there will be a maximum term of six months and in specific
cases of up to eighteen months detention.
46
CPT Report on the Netherlands 2007, supra.
47
The Council was set up in 2001 and consists of 60 expert members. It is an independent body with two tasks:
administering justice and giving advice on youth protection and the enforcement of sentences and non-punitive
orders.
48
Report Amnesty International, The Netherlands: The Detention of irregular migrants and asylum seekers,
June 2008, p. 17; Dutch Council for the Administration of Criminal Justice and Protection of Juveniles, supra, 16
June 2008.

15

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procedure and they expressed anxiety as to their detention. While the Commissioner
appreciates the close cooperation with NGOs and legal aid providers, he calls upon the
authorities to make sure that all asylum seekers, including those whose claims have been
rejected, are informed in an adequate manner and in a language they understand.
55.

During his visit to the expulsion centre, the Commissioner noted that women are being detained
together with men in the same detention facilities, their cells communicating to the same
corridor where they spent their daytime together unless they decide to stay in their own cell.
Staff members of the institution told the Commissioner that so far, they had not encountered
problems with this policy of mixed detention but thought it beneficial for the general climate.
However, three detained women, one of them a Muslim, expressed a strong feeling of
discomfort for lack of privacy to female members of the Commissioner’s delegation, in particular
as they claimed to have found men in their showers. The government authorities have informed
that women objecting to live with men can request to be moved to a different centre.

56.

The Commissioner regrets that few occupational activities appear to be available in all three
facilities he visited. While children in the open reception centre in ‘s Gravendeel attend a regular
school, there is little extra curricular activity for them in the centre. The Commissioner learned
that the programme for adults is even more limited due to budgetary cuts and that language
courses have been abolished. Dutch authorities have pointed out that ‘s Gravendeel is a return
centre and no Dutch language classes are given at such centres. This was a problem for a
family that the Commissioner met which had stayed several years in the centre with a child
(before being given a permit to stay in the country).

57.

The Commissioner reiterates that administrative detention must be kept to a strict minimum and
that detention conditions should not be worse than in criminal detention. He therefore urges the
Dutch authorities to make a variety of meaningful activities available to all detainees in the
asylum and expulsion process. The Commissioner is aware that some asylum seekers spend a
considerable length of time in open reception centres. The Commissioner calls upon the Dutch
authorities to expand meaningful activities and to reintroduce language courses in such
facilities. The Commissioner welcomes the newly introduced possibility to seek employment for
24 hours per week and urges the authorities to promote this possibility in the respective
municipalities, helping the asylum seekers to find occupation.

58.

The Commissioner recalls that the general legal principle of proportionality requires an
individual assessment of each case as well as consideration of alternatives to detention. This is
particularly true for vulnerable groups of asylum seekers, e.g. unaccompanied minors and
victims of trafficking. The Commissioner believes that the current scheme to detain all asylumseekers entering the Netherlands by air is not in line with these principles and urges the
authorities to consider modifying this practice.

59.

Individuals have the right to appeal their detention and its continuation before a district court.
Pursuant to Article 59 Aliens Act 2000, the detention and its continuation is generally lawful, if
expulsion is foreseeable, e.g., if the authorities are actively pursuing to expel the person
concerned within a reasonable time, or when that person actively obstructs or frustrates this
process. The interests of the asylum-seeker are only taken into account in so far as a possibly
burdensome situation exists but no full proportionality assessment is made. This limited
49
possibility of judicial review has faced criticism and may be in contradiction with the case law
50
of the European Court of Human Rights.

60.

The Commissioner believes that a full judicial review is a core instrument to safeguard the due
application of law by the authorities. In view of the severity of a detention decision, the question
whether this balance has been struck, must be subject to an effective judicial review. The
Commissioner therefore calls upon the Dutch authorities to use the reform discussion and

49

Report Amnesty International, The Netherlands: The Detention of irregular migrants and asylum seekers,
June 2008, pp. 18-19, see also the Recommendations of the Council for the Administration of Criminal Justice
and the Protection of Juveniles, supra, 16 June 2008.
50
See the case of Saadi v. UK, judgment of 29 January 2008 (Grand Chamber) in which the Court required that
when detaining an alien for the purpose of expulsion, a balance must be struck between the interest of the
society and the right to liberty of the individual.

16

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change the current law allowing for a full judicial review of the detention decision as well as the
continued detention by domestic courts.
3.4

Children in the asylum procedure

61.

Children coming to the Netherlands with their family are generally included in the asylum
procedure of their parents. There is no organisation making sure that the decision is in the best
interest of the child in contrast to other areas of Dutch law such as family law, where the
Council for Child Protection (‘Raad voor de Kinderbescherming’) is involved. The IND verifies
51
the aspects directly related to the asylum request. Children from the age of twelve and above
may be heard, and from the age of fifteen they have to be heard by the IND. On 1 August 2008
there were 18 900 asylum seekers in reception centres, including 6 102 children (up to 18 years
of age).

3.5

Administrative detention of children

62.

Until January 2008, the Dutch authorities were widely criticised for detaining about 240 children
52
and their families, for an average time of 59 days and a maximum of 244 days. In response to
this criticism and a parliamentary motion, on 29 January 2008 the Dutch government publicized
its new policy regarding administrative detention of children and their families. The aim is to
reduce the detention period for children by introducing a maximum of two weeks detention prior
to expulsion, the creation of more alternative accommodation for children and their families, and
the improvement of detention conditions. Furthermore, the government announced that it would
add 12 weeks to the 28-day period given to asylum seekers and migrants to leave the country
voluntarily after their application has been rejected. In the case of children with two parents,
only one of them would be detained, to allow the other parent and the child(ren) to remain
outside a detention setting until their effective return. One NGO, albeit criticising this choice as
illusory as families choose to stay united with their children resulting in the detention of the
children, reports that the number of children and their parents in administrative detention
53
already decreased significantly in 2007.

63.

The Commissioner welcomes the measures taken to reduce administrative detention for
children with parents. He calls upon the Dutch authorities to provide further alternatives to
detention, keeping families united, and not to detain children, except in extraordinary
circumstances precisely defined in law in accordance with the standards of the ECHR and the
CRC.

3.6

Unaccompanied minors/separated children, “1F children” and stateless children

64.

Unaccompanied minors may be seeking asylum because of fear of persecution or the lack of
protection due to human rights violations, armed conflict or disturbances in their own country.
They may be the victims of trafficking for sexual or other exploitation, or they may have travelled
to Europe to escape conditions of serious deprivation. Since the introduction of the Aliens Act
2000, the number of unaccompanied minors seeking asylum declined sharply from 6 681 in
55
2000 to 585 in 2007. The definition of unaccompanied minors seeking asylum was changed in
July 2004, and now refers to a person below the age of 18 who is not married and is not
56
accompanied by a parent or guardian. A minor applying for asylum initially follows the same
procedure as adult asylum seekers. Most of the unaccompanied minors are coming from Asia
(China and India) and Africa (Angola and Somalia). In 2007, there where 658 unaccompanied

54

51

Unicef Nederland, ‘Vreemdelingenkinderen in Nederland’, 2008, p. 17.
Amnesty International, The Netherlands: The Detention of Irregular Migrants and Asylum-seekers, June 2008,
p. 47.
53
Ibid.
54
In international terms, unaccompanied minors are defined as children under the age of 18 who have been
separated from both parents, or from their previous or customary primary caregiver, but not necessarily from
other relatives.
55
Third Report on the CRC of the Dutch Coalition for Children’s Right, July 2008, p. 30.
56
Ministerial circular concerning aliens C2/7. 1.2. and 7.1.3 - Third Report on the CRC of the Dutch Coalition for
Children’s Right, July 2008, p. 27.
52

17

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57

minors registered in the Netherlands; the figure for 2008 is 739. During his visit, the
Commissioner learned that an NGO founded about 10 years ago, the Nidos Foundation, serves
as a guardian for unaccompanied minors, the actual guardian seeing the individual child every
six to eight weeks.
65.

Children who disappear from reception facilities are registered as having left with unknown
58
destination. Although the absolute number of minors leaving for an unknown destination has
decreased, the percentage of unaccompanied minor aliens leaving for an unknown destination
is still very high at 84.3%. In 2007, 122 unaccompanied minors left a reception centre with
unknown destination. Protection measures have since been taken for a limited group, such as
the earlier assignment of a guardian and placing the unaccompanied minor in closed high
59
security reception centres referred to as “warded reception centres”.

66.

NGOs report that the new policy for asylum-seeking children in administrative detention has not
yet led to an equally significant decrease in unaccompanied migrant minors in detention,
estimating in June 2007 that some 40 unaccompanied minors were at the time detained in
60
juvenile detention centres. In a letter to Parliament, the Ministry of Justice explained that they
see detention of unaccompanied minors as a measure of public order since the risk to let these
children free is sufficiently higher than for children with parents, referring also to the danger of
being trafficked. Nevertheless, the government started a pilot project, providing semi-closed
secure shelter facilities to unaccompanied minors considered to be at risk of trafficking. The
Dutch authorities informed the Commissioner that they always seek alternatives to detention
when faced with an unaccompanied minor and that in 2007, about 150 unaccompanied minors
61
were placed in detention.

67.

Unaccompanied minors who have been in the Netherlands for less than three years, have to
leave the country, when they turn eighteen. The government seeks to repatriate them, albeit
with little success as most of them prefer illegal residence over repatriation to their country of
62
origin, with all of the consequences this may entail, including exploitation.

68.

The Commissioner commends the first steps taken to reduce administrative detention of
unaccompanied minors. He encourages the Dutch authorities to expand these measures and
provide alternatives to detention for all unaccompanied minors in order to provide equal
treatment for all asylum-seeking children being in the country with or without their parents. He
believes that providing a child friendly supportive accommodation as well as establishing a
concept of guardianship with regular frequent visits will also reduce the number of children
absconding and thus their risk of becoming victims of trafficking. Reiterating that the principle of
taking into account the best interest of the child should also prevail in asylum decisions, the
Commissioner calls upon the Dutch authorities to find a solution for unaccompanied minors
turning eighteen, who grew up in the Netherlands, having lost the ties to their country of origin.

69.

Foreign nationals that come under Article 1F of the Geneva Convention on Refugees
(suspected war criminals) cannot obtain a residence permit in the Netherlands as they are
considered to be a threat to public order. Also their relatives, including their children, cannot get
such a permit unless they themselves are recognized as refugees. In some cases, the asylum
seekers and their families cannot be expelled due to a risk of being subjected to torture or to
63
inhuman or degrading treatment or punishment. Also signs of trauma can, according to the

57

http://www.coa.nl/NED/website/page.asp?menuid=101
Containing children leaving/disappearing from a reception centre, but it can also be unaccompanied minors of
who the guardian organisation, after signalling the disappearance by the COA, noticed that the minor is safely
somewhere with family in the Netherlands or elsewhere.
59
Children’s Rights in the Netherlands, The third report of the Dutch Coalition for Children’s Rights on the
implementation of the Convention on the Rights of the Child, July 2008.
60
Ibid. p. 48.
61
NGOs report 160 detained unaccompanied minors between Jan. and Nov. 2007, NGO Commentary ICCPR
2008, supra, p. 8.
62
ECPAT, Minderjarigen in de prostitutie in Nederland, een quick scan, Amsterdam, August 2003, p. 30.
63
According to information provided by the Dutch government this concerns a group of 40 persons out of a total
of 350.
58

18

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Government, be a ground for residence permit. Due to a lack of criminal evidence, this category
of asylum seeker cannot be prosecuted and eventually resides illegally in the Netherlands.
64

70.

In June 2008, the Ministry of Justice explained their new policy concerning 1F cases. There
are currently 350 foreign nationals falling into the 1F category and 550 family members.
Regarding the 550 family members, 260 have a residence permit or have been naturalized. For
80 persons the proceedings are still pending. 210 family members are residing unlawfully in the
65
Netherlands as they are obliged to return.

71.

The Dutch government remains firm on not issuing a residence permit for suspected war
criminals but seeks a solution for family members. After a period of 10 years an asylum request
would be considered for 1F family members.

72.

While generally welcomed, the new policy is subject to some criticism. NGOs consider the ten
years period too long for children and object to the requirement that the family members must
so far have co-operated with their departure process as this cannot be reasonably expected
from children. NGOs are also concerned with possible separation of siblings if some family
members may stay and others are expelled.

73.

The Commissioner commends the new policy as a measure to rectify the currently
unsatisfactory situation in particular for children. In the light of the requirements of the policy, he
wonders whether all so-called “1F children” can benefit from this policy change and calls upon
the Dutch authorities to ensure that this will be the case.

74.

The Commissioner learned that on 1 January 2007 there were 1 463 stateless children in the
Netherlands. NGOs have expressed their concerns about an unknown number of children being
registered with an ‘unknown’ nationality, in most cases the nationality being disputed for lack of
relevant documents.

75.

NGOs argue that two groups of children are particularly affected. The first group consists of
stateless children without a residence permit as no rules are available to help them to acquire a
nationality. The second group consists of children whose nationality is not established. For
example, refugees who are granted refugee status and have children born in the Netherlands,
may have no possibilities to register their child in their country of origin. In such cases, the child
66
has neither his parent’s nationality, nor Dutch nationality.

76.

In view of the grave consequences a stateless individual faces, the Commissioner trusts that a
solution be found for the relatively small number of children who have spent most of their lives
in the Netherlands but have no clear citizenship status. There are internationally agreed
standards to reduce statelessness and to ensure that children are not made victims of
67
statelessness.

IV. Immigration
4.1

Legislative framework

77.

Based on the Aliens Act and subsequent law, the Netherlands has five primary types of
immigration status, which are further subdivided into more specific categories. The five main
68
categories are: family-related immigration, studies or training, seasonal work, employment and
self-employment. Additionally, Dutch law recognises other immigration statuses, such as:
migrants for medical treatment, victims of human trafficking, au pairs, and former Dutch

64

Letter from the Minister of and the State-Secretary for Justice to Parliament, 9 June 2008.
Written information provided by the Dutch authorities in July 2008.
66
Children of a parent residing in the Netherlands who him or herself is a chidl of a parent having resided in the
country would acquire Dutch nationality at birth (‘third generation rule’).
67
Examples are the UN Convention relating to the Status of Stateless Persons 1954, the Convention on the
Reduction of Statelessness and the CoE Convention on Nationality 1997 ratified by the Netherlands.
68
Including migrants who will be working for a religious organization, e.g. imams.
65

19

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69

nationals. Aliens wanting to stay in the Netherlands for more than three months must first
apply to a Dutch embassy or consulate in their own country for an 'authorisation for temporary
stay' (machtiging tot voorlopig verblijf or MVV). Since 2006, certain foreign nationals need to
take a basic test before they may join their partner in the Netherlands or take up a position as a
70
religious leader. According to the Dutch authorities the test aims at ensuring that immigrants
already have a basic knowledge of the Dutch language and Dutch society before they arrive in
the Netherlands. This should enable the long process of integration to take place more
efficiently and more effectively. The test costs a fee of € 350 each time it is taken. It applies to
foreign nationals from the age of 18 to 65 years, with the exception of nationals from certain
countries believed to have levels of economic, social and political development prevailing
71
comparable to Dutch ones. Since March 2008, candidates need to answer more questions
correctly to pass the Dutch language test.
78.

The ‘integration abroad’ test has faced numerous criticisms from NGOs and academics. It is
considered to be discriminatory as it affects migrants from poorer countries although no
evidence has been provided that the level of a country’s development is a reliable indicator of
72
the skills, capacity, or willingness of a potential individual migrant to integrate. Opportunities to
learn Dutch outside the country are far more limited than the opportunities to learn English, and
people living in the countryside are particularly disadvantaged for lack of possibilities.
Furthermore, people with little education are more affected, having to invest more time and
73
money than highly educated ones. The test is believed to hamper family reunification and
formation to an extent that can amount to a violation of Article 8 ECHR, if a family member is
unable to pass the test and there is no other country where the spouses can reasonable
expected to live together, or the spouse in the EU cannot be expected to give up the life he or
74
she has built up in the country of residence.

4.2

Family life: reunification and formation

79.

In the Netherlands several categories of person are entitled to family reunification such as
75
holders of temporary or permanent residence permits for asylum or other reasons. The rules
on family reunification only apply if the family ties already existed abroad. The main requirement
is that the person with whom the migrant will reunite has sufficient financial means. This means
that the person already resident in the Netherlands must have a net income that equals 100 per
cent of the social welfare norm for the kind of family they will constitute (with or without
children); on 1 January 2007 this was € 866 per month for a single parent.

80.

The requirement for family formation is stricter. Family formation is only an option for sponsors
who have reached the age of 21 years, despite the fact that the marriageable age in the
Netherlands is 18. The rules on family formation only apply if the family tie did not yet exist
abroad. Apart from the requirement that both partners must be over 21 years of age, again the
person with whom the migrant will form a family is required to have sufficient financial means.
This means that the person residing in the Netherlands must have a net income that at least

69

For details see the European Parliament report, Comparative study of the laws in the 27 EU Member States for
legal immigration, February 2008, p. 356.
70
Civic Integration Abroad Act (‘Wet inburgering buitenland’, or Wib) of 15 March 2006.
71
Exempted from the examination are citizens of those countries for which an authorisation for temporary stay is
not required, i.e. citizens of all EU member States, Australia, Canada, Iceland, Japan, Liechtenstein, New
Zealand, Norway, South Korea, Switzerland and United States. More specific exemptions are given to persons of
Surinamese nationality who have completed primary education in the Dutch language in Surinam or the
Netherlands, as well as to migrants for a temporary reason, such as study, au pair work or medical treatment.
Other categories that are exempted are persons with a work-permit, self-employed persons, skilled immigrants
and family members of a person in possession of an asylum residence permit.
72
Human Rights Watch; The Netherlands: Discrimination in the Name of Integration, Migrants’ Rights under the
Integration Abroad Act, 2008, p. 1-2.
73
Prof. Groenendijk, Integration tests abroad as a condition for family reunification in the EU, 1 May 2007.
74
Prof. Groenendijk, supra. The latter was the case in Sen v. the Netherlands, ECHR judgment of 21.12.2001,
final 20 March 2002 in which a violation of Art. 8, the right to family life was found.
75
European Parliament report, Comparative study of the laws in the 27 EU Member States for legal immigration,
February 2008, p. 359.

20

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equals 120 per cent of the minimum wage of a 23-year-old-worker which was set at 1 484 EUR
76
per month on 1 January 2007.
81.

The Aliens Chamber of the District Court of Amsterdam ruled on 15 July 2008 that it is unlawful
to require an illiterate Moroccan woman wishing to come to the Netherlands for family formation
to pass the “integration abroad” test before being allowed into the country. The Court found that
the Aliens Decree does not serve as a legal base for such a requirement being an extra
condition as it is not stated in the articles of the decree. The Minister of Justice appealed, noting
that the Court is not judging the requirement as such, but the way it is regulated in the law. In
October 2008, the European Commission, evaluating the disposition of the family reunification
directive in the member States, expressed detailed criticism via the Netherlands for the high
77
and too strict document
income thresholds, the “integration abroad” test, high fees
78
requirements for refugees.

82.

As a result of family reunification and forming regulations, children in the Netherlands are often
under threat of separation from their parents legally in the country when children above 18
years of age have arrived in the Netherlands without the necessary authorisation for temporary
stay (Machtiging tot Voorlopig Verblijf, MVV) or when the children are legally in the country but
their parents are not. In addition, children who lost contact with their parents due to war in their
home countries are not allowed to enter the country to reunify with their parents as quickly as
possible.

83.

The Commissioner recalls that Article 7(2) of Directive 2003/86/EC on the right to family
reunification only permits “integration measures” before entry, not “integration conditions”. The
directive allows prospective immigrants to be required to undertake a language course, if there
are such courses in the country of origin, but not to pass an exam as a condition for admission.

84.

The Commissioner is aware that the first collective complaint lodged against the Netherlands
under the Revised Social Charter was declared admissible. It concerns the alleged
discrimination against children not residing lawfully in the Netherlands. An NGO submits that
such children, approximately 25,000 to 60,000 individuals, are not entitled by law to receive the
social assistance benefits (Article 13) which could help them enjoy adequate housing (Article
31). The NGO maintains that the denial of the right to housing hinders the proper protection of
the right to health (Article 11), the right to develop fully, both physically and mentally (Article 17)
as well as the right to the full development of the family (Article 16). The NGO considers that
illegal children are discriminated against in the enjoyment of these rights because of their
residence status and that by denying adequate housing to these children, Dutch legislation
79
contributes to increasing extreme poverty and social exclusion (Article 30).

85.

The Commissioner wonders about the age requirement of 21 years for foreign nationals wishing
to unite with a partner residing abroad to form a family in the Netherlands, when the
marriageable age for Dutch citizens is 18. He finds it difficult to understand why the financial
requirement for family formation is higher than the one for reunification. He calls upon the Dutch
authorities to assess carefully the current immigration laws, including those denying social
benefits to children not possessing a residence permit.

86.

The Commissioner notes that irregular migrants are entitled to health care provided the
treatment is medically necessary while they are in the Netherlands. Yet, civil society
organisations, health care providers and local authorities stress that one of the biggest
problems in the Netherlands is the existing lack of information about how the system works. The
existing confusion and aptitude of some health care providers, particularly hospitals, is also
creating a misconception among undocumented migrants, who believe that they do not have

76

European Parliament report, supra, p. 361.
The total fee amounts to € 1 368 (visa € 830, integration test € 350, residence permit € 188) in the Netherlands
while on average the fee is between € 50 and € 150. See Report from the Commission to the European
Parliament and the Council on the Application of Directive 2003/86/EC on the Right to Family Reunification,
Brussels, 8 Oct. 2008, COM(2008)610 final, p. 10.
78
Ibid.
79
Defence for Children International (DCI) v. the Netherlands, complaint no. 47/2008, decision on admissibility of
23 September 2008.
77

21

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80

the right to seek health care they cannot pay for. The Commissioner welcomes the legislative
reform adopted by Parliament in January 2009 to secure financing of care for undocumented
migrants and (failed) asylum seekers.
87.

The Commissioner notes with appreciation that the Netherlands under their penal law has a
special scheme for people who have committed serious offences and suffer from a psychiatric
illness or disorder, commonly known as TBS. Offenders are detained under a hospital order in
forensic institutions, receiving treatment to enable them to return to society. A delegation of the
Commissioner’s office visited the Van der Hoeven Stichting in Utrecht, a forensic psychiatry
under the TBS scheme. The members of the delegation were impressed by the modern and
well kept facilities offering a wide range of training and occupation to the inmates and by the
devotion of staff to their difficult task. The Commissioner notes with appreciation the reform
under way to expand the system and make it more flexible. He is, however concerned that no
policy change is envisaged for the three foreign detainees who have been declared undesirable
aliens pursuant to article 67 of the Aliens Act. It seems that they do not benefit from
rehabilitation treatment under the TBS scheme and do not have any prospects to be released if
81
they cannot be repatriated to their country of origin for lack of suitable facilities or treatment.
The Commissioner calls upon the Dutch authorities to include a solution for them in their reform
proposals.

V. Trafficking in human beings
88.

As many European countries, the Netherlands is a source, transit, and destination country for
men, women, and children trafficked for the purposes of commercial sexual exploitation and
forced labour. In 2006, a total number of 579 victims were registered at the Coordination Centre
for Human Trafficking (Comensha), mainly coming from the Netherlands, Nigeria, Bulgaria,
82
Romania and China. Of the 579 victims in 2006, 103 were minors and 30 were male victims
among them 5 minors. 310 were referred by the police, 104 by NGOs and 56 by the border
83
security forces (Kmar).

89.

The Government fully complies with the minimum standards for the elimination of trafficking and
continues to address trafficking through vigorous law enforcement and expanded victim
84
protection. Since 2000, prostitution is legal in the Netherlands. Currently it is the responsibility
of the municipalities to decide whether sex businesses require a licence. A 2007 study found
that such businesses, in particular escort services, were relocating to municipalities with less
85
strict regulations. Reacting to these findings, the government announced a new policy to
tackle situations of abuse in the prostitution sector. Its central pillar is a proposed “Framework
act on prostitution licences” which will incorporate a compulsory licensing system for
municipalities, expected to come into force in 2010. The possibility of penalizing clients of nonregistered prostitutes is also discussed. The Commissioner also learned that information
campaigns on labour laws and health are being carried out by several ministries and that a
programme targeting those wanting to leave prostitution is being developed.

90.

Under the Foreign Nationals (Employment) Act (Wet arbeid vreemdelingen) no work permits
may be issued to non-EU nationals for activities in the prostitution sector. Police regularly
inspect places of legal and suspected places of illegal prostitution and have liaison officers all
over the world to cooperate with local authorities in source countries. Since 2005 a multidisciplinary Expertise Centre for Human Trafficking and Smuggling under the authority of the

80

For details, see report ‘Access to Health Care for Undocumented Migrants in Europe’, The Platform for
International Cooperation on Undocumented Migrants (PICUM), November 2007, p. 65.
81
For details, see the study WODC Research, Undesirable aliens detained under a hospital order (TBS
measure), 2008, http://english.wodc.nl/onderzoeksdatabase. According to the Dutch authorities, two aliens are
currently in the situation described above. For a third alien efforts for his expulsion are currently being made.
82
The figures for 2005 were 424 victims and for 2004 403 victims, see Trafficking in Human Beings.
Supplementary figures. Sixth report of the Dutch National Rapporteur. The Hague, July 2008.
83
Sixth report of the Dutch National Rapporteur, supra.
84
U.S. “Trafficking in persons” report 2008. The report therefore classifies the Netherlands as a tier 1 country.
85
Wetenschappelijk Onderzoek- en Documentatiecentrum (WODC), Prostitution in the Netherlands since the
lifting of the brothel ban, 2007.

22

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national public prosecutor for trafficking in human beings collects, analyses and disseminates
information to all its partners, namely the national police, the Royal Military Constabulary, the
IND and the Social Security Information and Investigation Services. The Netherlands was the
first country to establish an independent National Rapporteur on Trafficking in Human Beings in
the year 2000 whose numerous recommendations, made in six reports, have lead to several
amendments in law and policy. Examples are the Action Plan of 2004 and the Human
Trafficking Task Force of February 2008, although NGOs are not represented in the latter as
recommended by the National Rapporteur.
91.

The Commissioner commends the continuous and impressive efforts of the authorities on all
levels to combat trafficking in human beings. He appreciates that the legislation of January
2005 broadened the scope of Article 273f of the Dutch Criminal Code to all forms of exploitation
and increased maximum penalties. Yet he is aware that “labour exploitation” is not defined in
the law. Consequently, it is left to the courts to develop a definition through case law. NGOs
expressed criticism, stating that the main focus is still on trafficking for the sex industry, leaving
86
victims of labour exploitation unrecognised and unprotected. The Dutch authorities have not
yet defined the term “labour exploitation” precisely despite a recommendation of the National
Rapporteur in her third report. The Commissioner urges the Dutch authorities to follow this
recommendation speedily to end ambiguity thereby enhancing the protection for victims of
labour exploitation and thus relieve the judiciary from rather complex trials.

92.

The Commissioner notes with appreciation that in April 2006 the Board of Procurators General
formulated guidelines for the investigation and prosecution of offences against trafficking in
human beings, giving highest priority to cases involving sexual exploitation, exploitation of
minors and trafficking in human organs. As legislation is already pending in Parliament for the
purpose of adopting and implementing the Council of Europe Convention on Action against
Trafficking in Human Beings, the Commissioner encourages the Dutch Authorities to complete
speedily the procedure.

93.

The Commissioner commends the three months reflection period granted to victims of
trafficking and appreciates that it exceeds the minimum requirement of the Council of Europe’s
Trafficking Convention. He welcomes the elaborate and recently extended B9 regulation
scheme, giving a temporary residence permit, including a working permit, to such victims who
cooperate with investigation and prosecution of their traffickers as well as the possibility of
continued residence on humanitarian grounds.

94.

The Commissioner commends that the Dutch authorities, in close cooperation with NGOs,
provide special accommodation for victims of trafficking. He visited such a specialized shelter in
Amsterdam and met with staff, residents and a member of the police force specialised in
trafficking. He learned that despite measures taken to ensure early identification of victims, such
87
as an easy to use system developed jointly by police and NGOs and regular police training,
problems still exist. As a result, victims spend some time in detention for aliens before being
brought to a shelter, a policy that was endorsed by the Council of State and strongly criticised
by the National Rapporteur and NGOs. Due to shortage of specialized shelters, detention is
also sometimes used as an interim solution. Furthermore, it appears that there is a risk that
even trafficked children may spend some time in aliens’ detention if they are not identified as
under age victims.

95.

The Commissioner recalls that the Council of Europe Trafficking Convention requires that under
age victims be given the benefit of doubt so long as their age cannot be established. He urges
the authorities to give young victims the benefit of doubt when it is difficult to establish whether
they are under-age or not and to avoid further traumatisation by keeping them detained. He

86

The Commissioner learned from the National Rapporteur that in the first five cases concerning hemp picking,
restaurant personnel, cleaning staff and a soja factory, the defendants were acquitted in the first instance, and
that one appeal and one Supreme Court hearing are still pending. The National Rapporteur does not regard the
two cases that led to convictions, both concerning domestic staff, as examples of an effective legislation as the
cases were extreme, the victims facing excessive working conditions coupled with physical and emotional
violence and limitations of personal freedom.
87
The system contains over 70 risk factors and a list of specific work areas at risk such as construction,
agriculture and cleaning services.

23

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calls upon the authorities to increase the capacity of specialized shelters to accommodate
victims of human trafficking in an adequate and timely fashion. Regarding repatriation, the
Commissioner is aware that the current policy that an alien has to prove that her country of
origin is not safe, also applies to victims of trafficking. In view of existing criminal networks in
such countries, the Commissioner recommends that the authorities reconsider this policy for
victims of trafficking and in particular for those who are under age.
96.

88

The Commissioner notes that little seems to be known about youth prostitution and that more
research seems to be required. Such research should assess the effectiveness of the measures
taken to combat the special form of youth prostitution described as the “lover boy”
89
phenomenon and the measures taken to better protect unaccompanied minors. The
Commissioner encourages the authorities to strengthen their efforts and support the
municipalities in their activities to combat trafficking. He joins the National Rapporteur in calling
for the provision of adequate capacity within the police force to ensure that the legalised as well
as the underground sex industry can be monitored closely.

VI. Children’s Rights
97.

Children in the Netherlands are generally defined as all persons below the age of 18, in line with
the UN Convention on the Rights of the Child to which the Kingdom of the Netherlands is a
state party. In the course of the visit, the Commissioner discussed children rights’ policy and
practice with the Minister and the State-Secretary for Justice, the Ministers of the Interior and
for Youth and Families and representatives of the Ministry of Education. The issue was further
explored with the Dutch National Rapporteur on Trafficking in Human Beings, the National
Ombudsman and in Rotterdam with the Mayor, the Municipal Ombudsman and with the Chief
Commissioner of the Rotterdam-Rijnmond Police Region. The Commissioner visited the City
college St. Franciscus in Rotterdam and the Youth Forensic Centre Teylingereind in
Sassenheim.

98.

The Commissioner urged the Ministers of Justice and Youth and Families to withdraw the
reservations made in respect of the United Nations Convention on the Rights of the Child (CRC)
regarding entitlement to social security (Art.26), application of adult penal law to children from
age 16 (Art. 37c), and trial for minor offences without the presence of legal assistance (Art.40).

6.1

National Youth Policy and Combat to Child Abuse

99.

NGOs met by the Commissioner during the visit expressed concern with the fragmentation of
responsibility for the Dutch National Youth Policy, in particular as regards civil and criminal
youth care which, despite the many crossing points, fall under the responsibility of the Ministers
for Youth and Families and of Justice, respectively.

100.

The Commissioner welcomes the introduction in 2007, of the full prohibition of corporal
punishment in all settings in the Netherlands, but notes with concern that Aruba and the
Netherlands’ Antilles have yet to introduce the prohibition in the home, schools and in care
settings. He appreciates that the May 2008 Action Plan on Child Abuse “Children Safe at
Home” includes administrative measures applicable in cases of grave suspicion of domestic
violence and child abuse. Noting the absence of a professional obligation to report child abuse,
the Commissioner recommends the introduction of such obligation in the law, notably for social
workers, teachers and medical professionals.

101.

Based on the power to maintain public order, mayors are increasingly taking new administrative
measures to address youth related problems, despite criticism with respect to the
proportionality, necessity and legality of the measures. In a meeting with the Commissioner, the
Ombudsman of Rotterdam questioned the use of curfew measures for children after 9 pm, in
force in some Rotterdam neighbourhoods, as well as the use of the so-called “Mosquito”. This

88
89

See the WODC study, Prostitution in the Netherlands since the lifting of the brothel ban, 2007.
Young men who seduce vulnerable girls and lure them into prostitution.

24

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device emits ultrasonic tones which can produce pain and discomfort to youths below the age of
approximately twenty-five. It is used by numerous municipalities, police forces and housing
associations to prevent “troublesome” youths from remaining in certain areas. In 2008, the
Ministers of the Interior and Youth and Families recognised that it was not “wise to stay longer
than one hour in a distance of about two metres of the Mosquito”. During a Parliamentary
session in November 2008, the Minister of the Interior admitted the lack of legal basis for its
use, and that it could infringe upon basic rights. However, the Minister did not wish to push for
the prohibition of the “Mosquito” prior to a court’s ruling.
102.

During the meeting with the Minister of Justice, the Commissioner expressed concern in respect
of the impact of the “Mosquito” on the health of children. Moreover, the Commissioner finds that
the use of the device arbitrarily restricts the freedom of movement and freedom of assembly of
all children and young adults within the range of the device and urges the government to ban,
as a priority, the use of the “Mosquito”.

103.

The Commissioner further notes the stances against the use of the “Mosquito” taken by various
Child Commissioners and Ombudsmen, notably in Belgium and in the United Kingdom,
questioning the legality of its use, the restrictions on freedom of movement and assembly, and
the impact to the health of children. In Ireland, the Garda Commissioner, who heads the
national police, considered the use of the device as potentially of criminal nature.

6.2

Youth Care

104.

The Youth Care Act regulates civil law youth care including voluntary and judicial youth care,
mental health care, and care for slight mental disabilities. Youth care is provided mostly on a
voluntary basis but mandatory forms are also foreseen. Juvenile courts issue child protection
orders that restrict and transfer the authority from the parents to a Youth Care Office.

105.

The Minister for Youth and Families informed the Commissioner of the lack of capacity of the
youth care institutions, shortage of psychiatrists, untrained staff and long waiting periods
preceding voluntary or mandatory care. By 1 July 2008, 3 911 children waited longer than 9
90
weeks without any interim care.

106.

A 2008 amendment to the Youth Care Act allowed for accommodation in closed youth
residential institutions of youths under 21 years of age who had been subjected to a placement
order at the moment they attained majority. Those youths are considered to be minors by the
Act. The Commissioner notes with concern that the consent of the individual is not necessary
for the continuation of such placement and that young adults may be therefore detained against
their will.

107.

The Youth Care Act, as amended in 2008, also determined that children on child protection
orders should be placed in closed youth care residential institutions, and not any longer in
custodial institutions. Under the previous system, both children on child protection orders and
on criminal titles would be placed in the same juvenile detention centres. According to the Dutch
Government however, due to insufficient places in (semi-)open institutions, separate placement
will in principle be guaranteed in the Netherlands by 2010 only. Meanwhile, children on civil
titles can still be held in youth custodial institutions. According to the Government, on 1 October
2008, 831 children stayed in youth custodial institutions under a civil title for closed and secure
youth care, from whom 348 waited for treatment and 483 received treatment in the custodial
facilities. In the first nine months of 2008, children waited for treatment for an average of 72
days.

108.

The Commissioner finds the mixed detention of children on civil and criminal grounds to be
highly problematic. Not only is such mixed placement stigmatising for non criminal offenders, it
is also counterproductive and potentially threatening to the child, in particular when victim and
perpetrator are accommodated in the same institution. During a meeting with the
Commissioner, the State-Secretary for Justice assured that children previously involved in child

90

See Letter from Mr Rouvoet, Minister for Youth and Families, to President of Parliament, 'Stand van zaken
wachtlijsten in de jeugdzorg en invoering nieuwe financiering jeugdzorg', 5 September 2008.

25

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prostitution would not be mixed with adults and would be placed in a special section.
Notwithstanding, in the Forensic Centre Teylingereind, the Commissioner found that the
majority of the girls there were victims of prostitution and were detained under civil child
protection orders. They shared facilities and activities with young offenders below the age of 23,
male and female and did not receive adequate treatment. The Commissioner is seriously
concerned with the lack of security and adequate care for child victims and finds it unacceptable
that such mixed placement will be prolonged until 2010. The Commissioner urges the
authorities to ensure, in legislation and in practice, that all child victims of abuse receive
adequate treatment, support and effective protection with a view to their full recovery and
reintegration.
109.

Furthermore, the Commissioner questions the legality of the detention of children under child
protection orders in custodial institutions in the absence of a criminal conviction, as well as the
respect for the right to no punishment without a law since it appears that they are subject to the
same regime as young offenders.

6.3

Juvenile Justice

110.

In the Netherlands, children aged 12 bear criminal responsibility, which is a distinctively low age
as compared with other European countries where the average age of criminal responsibility is
14 or 15. Although some political parties argue to lower the age even further, the StateSecretary for Justice confirmed to the Commissioner that such decrease was not being
considered. The Commissioner recommends to considerably increase the age of criminal
responsibility, in line with other European countries.

111.

When a child is arrested, the parents and the Council for Child Protection are informed. The
police can arrest and interrogate children of any age, without the presence of parents, guardian
or a lawyer, during the initial six hours period of detention. The denial of access to a lawyer
during that period was noted by the CPT following its 2007 visit to the Netherlands. In addition,
police interviews are not recorded, although the Government informed the Commissioner that,
with respect to children below the age of 16, a change of policy is contemplated to make
registration of the interview compulsory. During its visit in 2007, the CPT further noted that the
police may apply a regime of “all restrictions” which does not allow for the notification of a third
party following the deprivation of liberty. According to the Government of the Netherlands, the
police follow special protocols when detaining and interrogating suspects under the age of 18.
Still, the Commissioner urges the authorities to ensure that the special needs of children are
guaranteed during police detention, enabling them to immediately call their parents or a
responsible adult, as well as to be accompanied by a lawyer during police interrogation.

112.

Children detained by the police are held under similar conditions as adults and are usually kept
alone in a cell. Children under the age of 12 may be held for interrogation at the police station
for six hours, which can be extended by other six hours if the child does not give his/her identity.
Children aged 12 to15 may be remanded in a police cell for three days until transport to a youth
custodial institution is arranged. Police custody of youths between 16 and 18 can last up to
three days and may be extended by three days, or even up to ten days when waiting for
placement in a youth custodial institution, according to the Youth Custodial Institutions Act.
During its 2007 visit, the CPT found that juveniles aged between 16 and 18 years appeared to
spend 10 to 14 days detained in a police cell due to capacity problems in juvenile detention
facilities. Since police facilities do not offer suitable accommodation for lengthy periods of
detention, particularly for children, the Commissioner finds that the authorities should ensure, as
a priority, the prompt transfer of youths to the appropriate institutions.

113.

Following apprehension, the police can issue a warning, take no further action and/ or refer the
case to child support services. Cases of vandalism or minor property offences should be
referred to ‘Halt’, a service for first offenders between the ages of 12 and 18, where juveniles
who plead guilty can carry out up to 20 hours of restorative and other activities, or provide for
damage compensation. The police can also issue a summons for the further handling by the
public prosecutor who can seek an out-of-court settlement. For common criminal conducts
punishable up to a maximum of 6 years, Art. 257a of the Code of Criminal Procedure enables
the Public Prosecutor to order children from age 12 with a fine, community service up to 60

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hours, or financial compensation. The youth can complain against the order before a criminal
judge, within two weeks. It is unclear for the Commissioner how fundamental guarantees such
as the presumption of innocence are guaranteed in such procedures.
114.

The youth section of the Criminal Code applicable to juvenile offenders from age 12 foresees
various types of sentences, including youth detention and the measure of placement for
treatment (PIJ) applicable to children who are not fully accountable for the crime, for instance
91
due to development disorders. Both are executed in closed youth custodial institutions, under
the supervision of the Ministry of Justice. Equally, young adults below the age of 21 may be
sentenced under youth provisions and held in youth custodial institutions.

115.

The Commissioner welcomes a 2008 amendment to the criminal code of the Netherlands that
no longer allows life imprisonment sentences to minors. Notwithstanding, he notes with concern
the stiffening of the penalties for juveniles over the last years. According to NGOs, alternative
measures to detention are limited and the maximum length of youth detention has increased
from six to twelve months for 12-15 years’ old, and from six months to two years for those aged
92
16 to 17. Reportedly, 4 726 children were detained in 2007 due to criminal conduct. During the
visit, the Commissioner stressed that detention of children in closed institutions should be used
as a measure of last resort and for the shortest period, and that preference should be given to
non-custodial alternatives.

116.

Youth custodial institutions are divided in institutions for detention (judicial youth institute) which
accommodate youths in pre-trial detention, detention and juveniles on the waiting list for
treatment; and treatment centres for those sentenced to a PIJ-measure. Some institutions
function as both a detention and a treatment centre.

117.

Youths sentenced to a treatment measure should start treatment within three months, according
to the Youth Custodial Institutions Act. Yet, NGOs report that it may take one year before a
suitable place becomes available. According to the Ministry of Justice, an average of 73 youths
detained in custodial youth institutions awaited placement in a treatment facility between
January and June 2008. During the second half of 2008, the average waiting period for
placement in the correct treatment facility was 93 days. Courts in the Netherlands have found
breaches of Articles 5(1)(d) of the ECHR and 37 of the CRC and have granted compensation to
children for psychological damages caused by such delays, ordering, in some cases, the State
93
to provide the adequate treatment facility.

118.

The Commissioner visited the Forensic Centre Teylingereind in Sassenheim, a private
institution under the responsibility of the Ministry of Justice with a capacity for 120 children and
young adults up to 23 years of age. On the day of the visit, there were 24 girls and 96 boys,
under civil protection orders, on pre-trial detention (27%) and serving criminal sentences (6%).
Most girls (85%) were held mainly due to child prostitution, and 45% of the boys were detained
with civil child protection orders. Children and young adults held on civil and criminal grounds
were mixed in all the facilities and activities.

119.

Children complained to the Commissioner about the quality and irregularity of contacts with
guardians, restricted contacts with their families and difficulties to obtain authorised leave.
Children on waiting lists for civil institutions claimed they did not receive specialised treatment,
some already for one year. Regrettably, the schooling programme was considered to be
incomplete as compared with the one offered in regular schools. After release, children would
need extra courses to obtain the necessary school equivalence. Conversely, the Government
informed that the school programme offered in closed institutions was equivalent to the one in
regular schools and that equivalent official diplomas were given to those staying long
enough. Accordingly, youths who leave the institution can get extra guidance for one year,
financed by the Ministry of Education.

91

Other possible options for underage offenders include fines; alternative sanctions; youth probation; behaviour
therapy programmes; forfeiture; confiscation of the offender’s driving licence; confiscation of property;
confiscation of the proceeds of crime, and the payment of damages.
92
Commentary on the Fourth Periodic Report of the Netherlands on the International Covenant on Civil and
Political Rights (ICCPR), 8 August 2008.
93
Decisions of the Groningen District Court on 20 December 2006 and on 17 November 2006.

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120.

The Commissioner urges the government to ensure that all children in detention have access to
the same quality of education as in the regular school system. In this respect, the Committee of
Ministers recommendation on the rights of children living in residential institutions calls on
member states to recognise the right of the child to maintain regular contact with the family and
other significant people, except where necessary in the child’s best interest, as well as to
ensure the right to equal opportunities and the right to have access to all types of education
94
under the same conditions as for all other children.

6.4

Application of adult criminal law and detention of minors in adult prison establishments

121.

Pursuant to the Kingdom of the Netherlands’ reservation under Article 37 (c) of the CRC,
juveniles aged 16 and 17 can be tried under adult criminal law and condemned to prison
sentences of up to 30 years. The judge decides on the application of adult criminal law by
considering the nature of the offence and the shock caused to society (Art. 77b of the Criminal
Code). Such sentences are executed in an institution for adults.

122.

In the discussions with the authorities, the Commissioner argued for the separation of minors
and adults in all detention facilities and for the application of juvenile criminal law even in
serious offences. In addition, he finds that the wide margin given to the criminal judge under
article 77b of the criminal code falls short of the precision and certainty that criminal law should
guarantee. Moreover, the policy to incarcerate juveniles in prisons for adults contravenes
international treaties and standards, notably the CRC and the Havana Rules, setting the
95
Kingdom of the Netherlands aside from the practice in most European states.

VII.

Prevention of discrimination

7.1

Legal and institutional framework

123.

The legal basis of equality and anti-discrimination, as embodied in Article 1 of the Netherlands’
Constitution, is found in criminal law Articles 429 and Article 137 c-g as well as in civil law: the
General Equal Treatment Act (GETA). The GETA outlaws any direct or indirect distinction
between people on the grounds of religion, belief, political opinion, race, sex, nationality,
heterosexual or homosexual orientation or civil status in the field of employment, liberal
professions, by organisations of employees, employers or professionals and in providing goods
or services, in concluding, implementing or terminating agreements thereon and in providing
educational or careers guidance. The Equal Treatment Commission oversees the
implementation of the GETA.

124.

The Commissioner notes the number of different governmental and non-governmental bodies
that collect and publish statistics on the scale of discrimination and intolerance in the
96
Netherlands. Some of the bodies collect data on all grounds of discrimination, whereas others
only focus on particular grounds or particular sectors where discrimination occurs. The
Commissioner is concerned about the rather fragmented data collection systems in place and
recommends that better coordination and cooperation between the anti discrimination bodies is
established and data collection procedures be streamlined.

94

Rec(2005)5 of the Committee of Ministers to Member States on the Rights of Children living in Residential
Institutions, 16 March 2005.
95
United Nations Rules for the Protection of Juveniles Deprived of their Liberty ,14 December 1990, in particular
Rule 29.
96
Apart from the statutory responsibilities of the Police and judiciary, the Equal Treatment Commission publishes
data on discrimination cases under the Equal Treatment Legislation, the Anti-discrimination Agencies collect
statistics on complaints on discrimination received from people, the Dutch Complaints Bureau for Discrimination
on the Internet collects information on discrimination cases on (Dutch) Internet sites, the National Ombudsperson
collects information on complaints received from citizens about governmental bodies, the Social Cultural Plan
Bureau (SCP) and Statistics Netherlands provide annual figures on the use and application of the discriminatory
felony by the police. Moreover, the Racial Discrimination Monitor bi-annually monitors matters concerning racial
discrimination and the national Monitor on Racism and extreme right monitors extremism.

28

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125.

Civil society representatives, parliamentarians and academics raised concerns regarding the
GETA. The Commissioner also notes the European Commission’s ‘reasoned opinion’ about the
lack of full implementation of Directive 2000/78/EC in GETA regarding the definition of indirect
discrimination, the ban on discrimination which does not apply to personal services, the general
exception for internal affairs of churches and other spiritual congregations and the exemptions
97
for organisations based on religion or belief. Regarding the latter, the European Commission
argues that the GETA allows for exemptions which are broader than authorised by the
Directive. Insofar as the conditional exemptions for organisations based on religion or belief
leave some scope for discrimination on grounds other than religion or belief, they can be
regarded as incompatible with the Directive. The Dutch Equal Treatment Commission also
advised the government that the GETA is not in conformity with the EC Directive and needs to
98
be changed.

126.

The Commissioner noted the government’s response to the European Commission and learnt
that the Netherlands’ government will propose some changes to the GETA, following an inter99
ministerial evaluation already finalised in 2006. However, based on the oral information he
received during his meeting with the authorities, the Commissioner is concerned that the
government regards the arguments of the European Commission mainly as an exercise to
clarify some wording in GETA while he believes the concerns expressed are rather a matter of
principle.

127.

The Commissioner is particularly concerned about the exemptions regarding employment in an
association (for example a school) based on religion or belief which may impose requirements
on the occupancy of a post which, in view of the organisation’s purpose, are deemed necessary
to live up to its founding principles. Despite the fact that the GETA stipulates that ‘’such
requirements may not lead to distinction on the sole grounds of political affinity, race, sex,
nationality, heterosexual or homosexual orientation or civil status’’, those requirements may,
however, be based on additional circumstances that relate to the religious ethos of the
100
organisation but which are not further specified. The Commissioner is concerned that some
educational associations indeed interpret the GETA in a way to allow schools to lawfully refuse
to employ a homosexual teacher. The Minister of Education has pointed out in a letter to these
associations that this approach is in his opinion not compatible with the GETA.

128.

The Commissioner believes that the freedom for associations based on religion or belief as laid
down in the GETA is currently too broad and interpreted too broadly. The Commissioner calls
upon the Dutch authorities to remove the exemptions for associations based on religion or
belief. The Commissioner particularly recommends the Dutch legislature to abolish the ‘sole fact
construction’, also taking into account that denominational schools are part of the publicly
funded education system which should guarantee full accessibility in a non discriminatory way
both in admitting pupils and in recruiting teachers.

7.2

Anti-discrimination policy and prosecution of discrimination

129.

Combating discrimination and all forms of intolerance is a policy spearhead for the Dutch
government. Six ministries share the responsibility in order to secure an integral approach
under the lead of the Minister of Social Affairs and Employment although some other official
documents from the authorities suggest it is the Ministry of the Interior and Kingdom Relations
taking the lead. NGOs expressed concern about the lack of information and political
coordination of anti-discrimination policies.

130.

The government submitted the bill ‘Municipal Anti-discrimination Provisions’ to Parliament which
aims to improve the system for recording complaints and to increase cooperation between
police and the prosecutor’s in this respect. The law is expected to enter into force in 2009 and

97

Reasoned Opinion of the European Commission, 31.01.2008, no. 2006/2444, C(2008)0115.
Advisory opinion on the letter of formal notice to the Netherlands from the European Commission in connection
with the incorrect transposition of Directive 2000/78/EC, Equal Treatment Commission, March 2008.
99
Letter sent by the Netherlands authorities to the European Commission, 18 March 2008.
100
Article 5(2) of the GETA; this is commonly referred to as the ‘sole fact construction’.
98

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involves the extension of the network of antidiscrimination bureaus to a nationwide coverage.
Currently only 33 bureaus covering half the territory of the European part of the Kingdom of the
Netherlands are operational. One NGO questions the capacity of municipalities to take on the
101
increased tasks under the new law. Concerns have been expressed by NGOs about the lack
of appropriate funding that goes along when introducing the bill. The Commissioner considers
the new law as a good step forward but stresses that efficient implementation is crucial as
registration and recording of and reporting on cases of discrimination is indispensable for
adequate monitoring.
131.

The Discrimination Instruction (guidelines of the Prosecutors-general on the handling of
discrimination cases by the police) requires the Prosecutor to prosecute discrimination as a
matter of principle, and to request a sentence increased by 25% in case of an offence with
racist or discriminatory motivation or background. However, he was informed by civil society
representatives that the 25% increase in the sentence is not often used or not visibly used. The
o
Commissioner recommends that, in line with ECRI’s General Policy Recommendation n 7 the
public prosecutor and the Courts should specify the particular aggravating or mitigating
102
circumstances they have taken into account including the relevant criminal law provisions.
The Commissioner encourages the Dutch authorities to raise awareness within the legal
professions and police on the need to recognize aggravated circumstances specific to hate
crimes and discrimination on all levels of prosecution and criminal procedures.

132.

The Commissioner is concerned about the lack of official statistics on common criminal
offences with a discriminatory motive despite the legal obligation to register these offences. The
Prosecutor Office informed the Commissioner that only as of 2008 the police have started to
register these cases. In the absence of data, the Prosecutor estimates that such offences
amount to between 750 and 1000 per year. Police statistics show that in the period JanuaryJune 2008 1512 ‘discriminatory incidents’ were detected and it is expected that this number will
103
Data from the Prosecutor’s office show that in 2007 216
double for the entire year 2008.
discrimination offences were reported to the Public Prosecution Service. This number has been
rather constant over the last few years: approximately 220 cases per year. In 2007, in 89 cases
the suspect was found guilty. This rather low number of cases reported to the Prosecution
Office compares with a much higher number of discrimination complaints received by the Antidiscrimination Agencies (4 247 in 2007). One explanation that could account for the differences
in data is that the Anti-Discrimination Agencies, Police, Public Prosecution Service and Courts
use different data collection systems and terminology. The Commissioner considers that this
incompatibility of systems makes it hard to monitor the ‘progress’ of a particular case and
recommends to streamline the data collection procedures.

7.3

Discrimination in the Netherlands

7.3.1 Discrimination based on sex and gender
133.

The Commissioner welcomes the governmental policy document ‘More opportunities for
women: Emancipation policy 2008-2011’ and he commends the government for regularly
104
evaluating the implementation of each Ministry’s women’s equality policy. He considers this
an example of good practice.

134.

The Commissioner notes that despite the decreasing pay gap between men and women, men
105
still earn on average 11.8% more than women for the same job and that the participation rate
of women on the labour market is low. The biggest fall in labour market participation is among
young and single women and the activity rate of migrant women is lower than that of indigenous
women. Research shows that discrimination is one of the reasons why the participation of

101

Amnesty International, Anti-discrimination policies by Netherlands municipalities: 443 chances, May 2007.
ECRI general policy recommendation N°7 on national l egislation to combat racism and racial discrimination.
103
Police, Reportage homofoob geweld. Politiegegevens. Periode 1 januari – 1 juli 2008, p. 6. Police statistics
don’t include Article 429quater cases.
104
All reports are available at www.emancipatieweb.nl/mainstreaming#2366.
105
Paymentindex 2008 as well as information provided by the NGO Equality. The Netherlands ranks 9th in the
2008 Global Gender Gap Index.
102

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106

migrant women is lagging behind.
Several reports have expressed the presumption that
employers select trainees and job applicants on ethnic origin and that in particular Muslim
107
women wearing a headscarf suffer from this type of discrimination.
The Commissioner
discussed this with the Minister of Social Affairs and Employment and welcomes the antidiscrimination campaign currently being set up. The Commissioner encourages the Dutch
authorities to continue combating structural and persistent inequality of women on the labour
market, including the pay gap and the lack of participation of migrant women.
135.

The Commissioner notes that of all complaints in 2007, the Equal Treatment Commission
received 17% related to discrimination based on sex. The Anti-discrimination Agencies received
6.7% of all complaints on ‘sex’. The persistence of violence against women, including domestic
violence also remains an area of concern, in particular against the most vulnerable groups, like
migrant women. Almost 85% of the victims of domestic violence are women. The Commissioner
encourages the Dutch authorities to continue to support services for victims of domestic
violence to ensure that all victims of violence, including migrant women and children can access
them effectively.

136.

As of January 2009, the Minister of Justice will introduce a new law on temporary restraining
orders for perpetrators of domestic violence. The Commissioner discussed this law and one of
its pilot projects with the Rotterdam police and the responsible Public Prosecutor at national
level. Stressing that the new law must afford sufficient safeguards for the alleged perpetrators,
the Commissioner welcomes the law, which enables each mayor to impose a denied access
period of 10 days to a perpetrator of domestic violence (with extension to 4 weeks subject to
judicial scrutiny by the District Court) during which a support and counselling therapy is set up
for all involved.

137.

The Commissioner is concerned about NGO and media reports on female genital mutilation in
the Netherlands. Despite the fact that it is prohibited by law, approximately 50 to 500 girls are
illegally mutilated each year. The government announced that special educational programs are
developed against female genital mutilation and honour related violence. The Commissioner
urges the government to further exploit all avenues to take speedy and appropriate measures
against female genital mutilation and send out the unequivocal message that female genital
mutilation is an attack on the integrity of the human body and as such a violation of women’s
human rights.

7.3.2 Discrimination based on disability
138.

The Commissioner welcomes the signature of the UN Convention on the Rights of Persons with
Disabilities and understands that ratification is underway. He recommends that the Dutch
authorities adopt the Optional Protocol. The Commissioner underlines that policies should not
only be directed at persons with physical disabilities but also at persons with intellectual, mental
and psychological disabilities.

139.

The Equal Treatment of Disabled and Chronically Ill People Act (2003) implements EC Directive
2000/78/EC and forbids discrimination in the fields of employment, occupation and education
(only vocational training). The scope to which the Act is applicable will gradually be increased
and for this reason is criticised by NGOs because it is not (yet) applicable to supply of goods
108
and services, social protection and access to public transport. Regarding the latter, persons
with disabilities face problems since the government can’t guarantee full access to all public
transport before 2030. Until then local authorities are expected to provide transport within the
municipal boundaries and national authorities for interregional transport. The current system in
place entails a maximum number of kilometres that a person with a disability can travel and
have reimbursed. The Commissioner believes that this so-called 'personal kilometre budget'

106

“Ethnic Minorities on the Labour Market”, Ministry of Social Affairs and Employment (2005).
The Dutch organisation of employers and employees in education notes for instance an alarming number of
students from ethnic minorities who drop out from teacher training colleges and relates this to the difficulties in
finding a place as a trainee. See Annual Report 2006 of the Equal Treatment Commission available at
www.cgb.nl/downloadables.php.
108
NGOs commentary on the 4th periodic report of the Netherlands on the International Covenant on Civil and
Political Rights (ICCPR), 8 August 2008, p. 21.
107

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puts limits on the full exercise of their freedom of movement. He notes The Hague’s’ District
Court ruling that it ‘’deemed it not unlikely (that) these limitations imposed on people with
disabilities with regard to their possibilities to travel were to be considered as constituting an
109
infringement of their human rights. The Commissioner urges that full access to all forms of
public transport is guaranteed without applying financial impediments for persons with
disabilities and that the anti-discrimination legislation is extended to all forms of education,
goods and services, public transport and social protection.
140.

The Equal Treatment Commission received 13% of all complaints related to disability in 2007
and the Anti-discrimination Agencies 3.9%. The complaints mainly referred to employment.
Young people with disabilities (including chronically ill persons) are dependent on the
110
Disablement Assistance Act for Young Persons with Disabilities (Wajong) to gain an income.
The Commissioner is concerned by NGO reports that the financial situation of this group of
persons is very difficult, especially when they cannot find employment. The Commissioner
discussed this with the Minister of Social Affairs and Employment and he commends the
government to continue taking measures to improve their financial situation.

7.3.3 Discrimination based on age
141.

The Equal Treatment Commission received 26% of all complaints in 2007 on age discrimination
(32% in 2006). The Anti-discrimination Agencies received in 2007 22.7% of all their complaints
on ground of age (18% in 2006), mainly concerning the labour market, including explicit age
limits in job ads and 'last-in-first-out'-principle during collective job dismissal. Governmental
measures for the elderly are described in the report ‘Policy for older persons in the perspective
111
of an ageing population.
Promoting social participation is the key aim of the policy, e.g.
various measures are taken to allow older persons to work longer and maintain their
independence. The Commissioner is concerned about the weak position of older employees
and unemployed elderly and calls upon the authorities that measures are taken to prevent the
elderly from suffering disproportionally. He is also concerned about elderly persons with health
problems, single elderly persons with few social contacts and elderly persons in a weak
financial position. The Commissioner welcomes the measure that under the new Social Support
Act local authorities will be responsible for the provision of information to the public and to
provide guidance, care and concrete help to those in need.

7.3.4 Discrimination based on sexual orientation and gender identity
142.

Equality between heterosexuals and homosexuals is the legal and social norm in the
Netherlands as reflected in the official policy paper ‘Simply Gay – Dutch government’s LGBT
Policy Document 2008-2011’. The Commissioner considers such a policy plan and a LGBT
focal point within the government administration as an example of good practice. However, the
Commissioner observes a number of worrying trends in the Netherlands despite the low
number of complaints related to sexual orientation or gender identity received by anti
discrimination bodies. Social acceptance and safety of LGBT persons are under pressure and
the Commissioner discussed this with victims of anti LGBT violence and the ‘pink’ network of
the Amsterdam police, who report a growing number of LGBT persons being insulted,
discriminated against or physically assaulted. The police recorded 150 homophobic incidents in
the period January-June 2008 nationwide, which represents 10% of all discriminatory incidents.
Other data show that in 2007, in Amsterdam alone 201 cases of homophobic incidents were
recorded, representing an increase of the number of police registrations of anti-LGBT violence
112
since 2006. The Commissioner commends the government for prioritizing combating violence
against LGBT persons in its policies and piloting projects on homophobic hate crime and

109

District Court The Hague 09-07-2004, LJN AP9816 r.o. 3.7. However, the judge considered it beyond his
judicial power to make a judgement.
110
The maximum income (for those who face an occupational disability of 80% or more) is 75% of the statutory
gross minimum (youth) wage. This could be their lifelong fate. At present times only about 25% of the concerned
group of persons is employed.
111
Publication of the Ministry of Health, Welfare and Sport, February 2006.
112
University of Amsterdam, Als ze maar van me afblijven – een onderzoek naar anti-homoseksueel geweld in
Amsterdam, November 2008.

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suggests that research on homophobic and transphobic hate crimes is continued, nationwide
with regular intervals.
143.

The Commissioner is concerned about the exemption from the equal treatment rule granted to
civil servants who are in charge of conducting civil marriages. They may opt out of their duty to
113
The Equal Treatment
marry same-sex couples if they have conscientious objections.
Commission ruled in April 2008 that local authorities have the duty to implement the law which
provides that all civil wedding proceedings should be conducted without discrimination and the
114
Association of Netherlands Municipalities also expressed this opinion.

144.

The Commissioner welcomes the government’s support to invest in LGBT-friendly
environments at school, at work and in sport. He learnt that the situation at many schools is
worrying: the attitude of the youth is negative and hostility towards LGBT teachers and pupils
occurs frequently. The Commissioner welcomes the initiative of the government to make
homosexuality more of a topic for dialogue and debate in different population groups in society
as homosexuality is still a taboo in certain ethnic and religious communities. The Ministry of
Health is currently funding projects in four cities offering emergency shelters for LGBT youth
who are not accepted by their parents and left to their own devices.

145.

The Commissioner is concerned about the obligatory legal conditions for change of a person’s
registered gender on birth certificates, in particular the requirement of sterilisation and medical
115
(hormone/surgery) treatment.
The Commissioner learnt that this condition is now under
review. He calls for abolishing the sterilisation and medical treatment requirements. He recalls
the Yogyakarta Principles, which the Dutch government considers as authoritative for its
policies, that “No one shall be forced to undergo medical procedures, including (…) sterilisation
116
(…) as a requirement for legal recognition of their gender identity”.

7.3.5 Discrimination based on race and ethnicity, racial violence and ethnic profiling
146.

Racial discrimination on the labour market, in particular relating to the recruitment process is
one of the most pressing problems, especially for young people from certain ethnic minority
117
Only one third of Dutch-Moroccans and half of Dutch-Turks have paid
communities.
employment. The Minister of Social Affairs and Employment proposed a Plan of Action
particularly focusing on combating discrimination on the work floor, including a campaign to
combat negative perceptions and discrimination in relation to ethnic minority job-seekers.

147.

Figures on racial violence and violence incited by the extreme right are difficult to obtain as
there is a lack of data. NGOs and academics pointed out that the registration of racist incidents
(alike homophobic incidents until recently) by police and judiciary has serious shortcomings. It
appears that more and better use could be made of criminal law in this field.

148.

A large number of civil society representatives, human rights experts and ECRI drew the
attention of the Commissioner to the Reference Index Antilleans. The Minister for Housing,
Communities and Integration decided to introduce this Index in 2006 as a temporary reference
system (database) which includes ‘reference and identifying data’ concerning ‘problematic’
young Antilleans and Arubans who are not registered in the Municipal Database and meet one
or more of other so-called bottleneck-criteria. The authorities informed the Commissioner that
the Index only includes reference information and is only available to local authorities, police

113 The ‘opt out’ possibility is an explicit part of the Government Action Plan (Regeeraccoord), Chapter VI, para.
11.
114 Ruling of the Equal Treatment Commission available at www.cgb.nl/opinion-full.php?id=453056852;
Association of Netherlands Municipalities, Een nieuwe koers ten aanzien van de gewetensbezwaarde
ambtenaar, May 2008.
115
The legal requirements are described in Article 1:28 of the Civil Code. NGOs commentary on the 4th periodic
report of the Netherlands on the International Covenant on Civil and Political Rights (ICCPR), 8 August 2008.
116
Human dignity for all. A human rights strategy for Foreign Policy. Ministry of Foreign Affairs, p. 54.
117
This is also confirmed by the Equal Treatment Commission and the Anti-discrimination Agencies: the majority
of registered complaints of discrimination continue to concern employment, mainly in relation to ethnicity and
gender (for example pregnancy). The unemployment rates are 27% for Dutch Moroccans and 21% for Dutch
Turks, as compared to 9% for the indigenous Dutch.

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and care institutions to identify and reach Antillean ‘risk youth’ in a timely manner. Since this
Index contains the processing of sensitive personal data, the Data Protection Authority granted
an exemption to the prohibition of the registration of ethnicity in December 2006 for a period of
two years on grounds that the necessity of the problems justified the use of the Index. This case
was brought before the court in The Hague, which declared the Reference index not to be in
conformity with Dutch law. The Council of State in September 2008 overruled the judgement of
the Hague court.
149.

The Commissioner is concerned about the Index as it involves a form of ethnic profiling. The
distinction to target Antillean youth is based on ethnicity, since the other persons who meet the
bottleneck criteria are indigenous Dutch, who are not registered in the Index. The Netherlands
is under international obligations not to engage in acts of racial discrimination. The
Commissioner raised his concerns during meetings with the (then) Minister for Housing,
Communities and Integration and with the Council of State. During both meetings the aspect of
‘non registration of the Antillean youth’ in the Municipal Database was cited as the most
important argument to introduce the Index.

150.

The Commissioner notes that the government referred in the past to alternatives for the Index,
such as to improve its municipal registration systems and to use existing instruments such as
the «Police Discussion network». He is not convinced that a special Index should be used while
there are alternatives. The Commissioner commends the government for the decision of
December 2008 to discontinue the Reference Index Antilleans, The Commissioner notes the
introduction of a more general Register of At Risk Juveniles (VIR) which, according to
information from the authorities, does not list the ethnicity of those registered.

7.3.6 Discrimination against National Minorities and Roma and Sinti
151.

The Framework Convention for the Protection of National Minorities applies to the Frisians but
not to the Roma and Sinti since the latter are not recognized as a national minority in the
Netherlands. NGOs disagree with this restrictive point of view, which will be discussed in the
context of the first report submitted by the Netherlands under the Convention. He urges the
Dutch authorities to give recognition to the Roma and Sinti as a minority under the Convention.
He also notes that the Frisian and Romanes language are recognised under the European
Charter for Regional or Minority Languages. The State report under the Charter pointed out that
the Frisian language in primary and secondary schools in the province of Fryslân needs more
attention. Regarding the Romanes language the Committee of Ministers recommends that the
authorities “ensure that a structured dialogue is developed with the representatives of the
Romanes-speakers and (that) measures to protect and promote Romanes (are taken), in
118
particular in the field of education, in co-operation with the speakers”.

152.

The Commissioner received worrying though fragmented reports about the situation of Roma
and Sinti in the Netherlands, including information about problems with housing, high
unemployment rates, health, school drop-out, discrimination on the labour market, problems
with delivery of goods and services and a negative image among the police and justice system.
However, he notes a low number of complaints submitted by Roma and Sinti to the Antidiscrimination Agencies.

153.

The Commissioner was informed that number of competences regarding Roma and Sinti
policies have been transferred from national to the local authorities. While the Commissioner
acknowledges the rationale behind transferring competencies to the local authorities he also
notes ECRI’s recommendation “that the Dutch authorities draw up, at the central government
level and in close co-operation with the Roma, Sinti and Traveller communities, a
comprehensive strategy aimed at reducing the disadvantage and discrimination these face and
make available adequate resources to implement it”. The Commissioner urges that national
authorities involve Roma and Sinti in all levels of political decision-making. He is concerned
about the termination of funding for Roma and Sinti organisations which could impede dialogue
with Roma and Sinti. A government funded multifunctional centre, which main purpose will be to

118

Recommendation of Committee of Ministers, adopted July 9, 2008.

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offer best practices and practical services to local authorities, should not be considered as a
substitute for funding organisations of Roma and Sinti.

VIII. Racism, xenophobia, anti-Semitism and intolerance against Muslims
154.

Racism, xenophobia, intolerance against Muslims and anti-Semitism remain areas of concern in
the Netherlands. Racism, including Muslim hatred topped the statistics of the discrimination on
the Internet together with complaints about anti-Semitism. A new action plan against racism,
xenophobia and intolerance plan was due to appear in 2008. The Commissioner encourages
the authorities to publish and promote publicly the national action plan and to monitor its
implementation in close cooperation with civil society.

155.

A particular group affected by intolerance is the Muslim community. Hate against Muslims (with
sub-category ‘Moroccans’) is one of the two largest categories of online hate speech. The Antidiscrimination Agencies list Dutch Moroccans as one of the largest groups of victims of
discrimination and ECRI observed that ‘’Muslims in the Netherlands have been subject of
stereotyping, stigmatising and sometimes outright racist political discourse and of biased media
portrayal.’’ The Commissioner is concerned about these phenomena, in particular as some
participants in the social and political debate claim that Dutch and Muslim lifestyles are
irreconcilable. He discussed with some members of the Muslim community in Rotterdam and
noted that, apart from polarising developments in Dutch society, there are also concrete
attempts by civil society and authorities to improve relations and mutual understanding between
population groups, for example projects to promote dialogue between Muslims and non
Muslims as well as projects that stimulate discussion within the own ethnic-religious circles. The
Commissioner encourages the authorities to take a firm stand against anti-Islamic undercurrent
in society.

IX. Integration
156.

‘Integration’ has become a prominent issue in national politics, mainly referring to immigrants
from non-Western background and notably Muslims. In response to ECRI’s concerns regarding
the toughening debate the government has stated that it ‘‘takes the view that the debate reflects
119
real concerns of citizens, which cannot simply be ignored’’.
The government notes that
certain parts of the population feel a level of alienation with Dutch society. The Commissioner
recognises that there is a need for such a debate but urges that this debate is conducted based
on careful and precise use of language as sweeping distinctions such as ‘immigrant’ versus
‘indigenous’ may be counterproductive.

157.

The authorities have issued an Integration Memorandum containing 56 policy initiatives on
integration for 2007-2011. A special Ministry for Housing, Communities and Integration was set
up to implement the policy. One aspect of the Integration policy is the Civic Integration Exam
which consists of a compulsory ‘language and culture’ exam for newcomers (who have already
successfully taken the ‘integration abroad’ test) as well as persons who have been residing in
the Netherlands since before the Civic Integration Act of 1 January 2007. Candidates must pay
270 Euro for the preparatory integration courses for the exam, organised by the municipalities.
NGOs expressed concern about the limited supply of integration courses and the discriminatory
nature of the test as nationals from some countries are exempted from the obligation to do the
Exam. The authorities informed the Commissioner that almost 7 000 candidates passed the
exam. The Commissioner wonders whether the Civic Integration Exam in practice promotes
integration and recommends that the effectiveness and side-effects of the Civic Integration
Exam be thoroughly evaluated.

158.

A second aspect of the Integration policy is combating segregation in housing and
neighbourhoods. Ethnic segregation in the housing market is a reality in the four largest Dutch

119

Government’s response to the Third report on the Netherlands by the Council of Europe’s European
Commission against Racism and Intolerance, ECRI (2008)3, Strasbourg, February 2008.

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cities. For this reason the government identified 40 neighbourhoods with a high concentration of
immigrants, lower income families, high unemployment rates, high rate of school drop-out and
high crime rates. Several instruments, including extra financial support, stimulation of a mix of
residents, improving living standards, and promotion of employment and education, are applied
to combat segregation. The introduction of the Special Measures Act ‘Urban Areas’ serves as
the legal basis for municipalities to enable them to put extra conditions to ‘newcomers’ on the
housing market. The authorities informed the Commissioner that Rotterdam is the only
municipality using the Act. The initial condition imposed by Rotterdam to demand 120% of the
minimum wage as a criterion to allocate housing in some parts of the city has been replaced by
‘income from labour’ (as opposed to income from social security) after an Equal Treatment
Committee ruling in July 2005. Nonetheless, NGOs criticised that this implies that people
without employment are excluded from living in certain areas. The Commissioner is concerned
that poor and/or unemployed people may be discriminated against by this legislation. He
recommends to evaluate and review the Special Measures Act ‘Urban Areas’ as well as the
Housing Act to ensure that segregation on the housing market is efficiently combated.
159.

Another effect of segregation in the housing market is the de facto racial segregation in schools.
Almost 10% of all primary and secondary schools belong to the category of so-called ‘black
schools’ (70% of all pupils are from a non-western immigrant background). In the four big cities
50% of the schools belong to that category. As the Constitution guarantees the freedom of
choice of parents to select the school, many parents choose a school which is known as a
‘white school’. This is known as the white flight and it creates de facto segregated schools. The
National Ethnic Minorities Consultative Committee expressed concerns that segregation in
education continues rapidly and that children from minority groups are attending the worse
120
performing schools. Nevertheless, the Commissioner notes the improvement of the education
level of ethnic minorities and that the number of students attaining secondary and higher
education qualifications is slowly but surely increasing. This was also the impression he was
given during a visit to a secondary school in Rotterdam. While the government decided not to
make structural changes to combat the white flight, it urges municipalities to work in close
cooperation with schools and focus their policy on eliminating educational disadvantage.

160.

The Commissioner learned about so-called “intervention teams", which coordinate the combat
against fraud in the social security system and for that purpose also visit private homes. He was
informed that respect for the right to privacy was not always ensured in the course of such
visits. The Commissioner appreciates the improvements made in Rotterdam following an
investigation by the Rotterdam Ombudsman which contributed to the introduction of a protocol
and to reducing the number of team members when visiting. While the Commissioner
commends that the government takes a multidisciplinary approach to combat segregation, he
urges that this is done in a non discriminatory and non intimidating way. Intervention teams
should be subjected to a formalised way of supervision.

X. Freedom of expression
161.

Freedom of expression is guaranteed in the Dutch Constitution. Restrictions, laid down in the
Criminal Code, can only be imposed if the expression thereof incites to discrimination, racial
hatred or violence or if the expression thereof is needlessly injurious or insulting. Members of
Parliament have immunity for their statements in the public debate. Case law shows that artistic
expressions or expressions based on a religious belief enjoy a wider margin of appreciation and
lawsuits are unlikely to be successful. Sometimes the right to freedom of religion or belief, the
right to freedom of speech and the ban on discrimination can thus clash, as in a number of
complaints filed against religious or political spokesmen who publicly condemned
homosexuality. The government realises that fundamental rights can clash, but believes that the
existing relationship between the various fundamental rights provides adequate scope for
dealing with these kinds of conflicts, to the disappointment of some civil society organisations
which argue that freedom of religion has a higher ranking than other fundamental rights.

120

This Committee serves as a platform advising on governmental policies affecting ethnic minority groups, all
ethnic minority communities are represented.

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162.

Freedom of expression has been under pressure in the Netherlands after the paralyzing impact
of the politically and religiously motivated violence that led to the death of Theo van Gogh and
the death threats against former MP Ayaan Hirsi Ali and other politicians. Protective security
measures for politicians are a new reality in the Netherlands. The government realises that the
number and gravity of incidents where freedom of expression has been impeded by (the threat
of) violence appear to have increased. The Commissioner is concerned that the debate on
freedom of expression is influenced by fears of terrorism, as well as a fear of growing selfcensorship in cultural and social life.

163.

After offensive discourses against believers and other minority groups, the government is trying
to balance Freedom of Expression with the non discrimination principle. On 31 October 2008 it
announced its intention to submit to Parliament a proposal to abolish Article 147 Criminal Code
(blasphemy) but to strengthen the anti-discrimination provision in the Criminal Code in a way
121
that reinforces the protection against slander and insult of minority or religious groups. The
Commissioner commends the government for abolishing the blasphemy law, which is in line
with Recommendation 1805 of the Council of Europe Parliamentary Assembly and the recent
122
report of the Venice Commission.

XI. Anti-terrorism measures and respect for human rights
164.

The Commissioner discussed the impact of anti-terrorism measures on human rights with the
Ministers of the Interior and of Justice, with members of the Supreme Court and the Council of
State and with the National Ombudsman. While recognising the duty of every state to provide
security and protection to its population, the Commissioner is concerned with various criminal
and administrative measures adopted in the Netherlands to combat terrorism and recommends
an evaluation with a view to ensure full compliance with international human rights standards.

11.1 Measures of criminal nature
165.

Broad definitions can be found in the Crimes of Terrorism Act in force since 2004, which
123
introduced terrorist crimes in Dutch criminal law.
The presence of a terrorist aim on the
commission of an existing offence made the offence a terrorist crime subject to tougher
penalties. “Terrorist aim” is broadly defined as the aim to seriously intimidate the population or
part of the population of a country, and/or to unlawfully force a government or international
organisation into acting, to refrain from acting or to tolerate, and/or to seriously destroy or
disrupt the political, constitutional, economical or social structure of a country or international
organisation (article 83 Criminal Code). More severe punishments apply to offences committed
with the objective of preparing or facilitating terrorist offences. Certain crimes were separately
defined as terrorist crimes, for example conspiracy to commit a terrorist offence, membership of
terrorist organisations and threatening to commit a terrorist crime. During the meeting with the
Minister of Justice, the Commissioner recommended avoiding vague and broad definitions of
crimes and its elements as they may lead to unjustifiable restrictions on the exercise of human
rights and freedoms.

166.

Another anti-terrorism measure raising human rights concerns is the Witness Identity Protection
Act. In force since 1 November 2006, the Act broadens the use of official reports of the General
Intelligence and Security Service (AIVD) by allowing the investigation of information contained
in those reports through the questioning of intelligence agents by an examining judge.
According to the Government, the defence retains the right to interview witnesses since it can
submit questions, which may be posed through the intervention of the examining judge.
However, the Commissioner notes with concern that, in the interest of national security, the

121

Letter of Minister of Justice to Parliament, 31 October 31 2008. The current version of Article 137c only
applies when someone makes an insulting or discriminatory statement about a particular group rather than that a
statement is insulting for a particular group.
122
.See Report on the relationship between freedom of expression and freedom of religion adopted by the Venice
th
Commission at its 76 plenary session, Venice, 17 -18 October 2008.
123
Act adopted on the basis of the EU Council Framework Decision 2002/475 on combating terrorism.

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defence cannot always attend the examination of the witness. He finds that the position of the
defence is weakened, considering that the witness remains anonymous in most cases and has
a decisive say in the decision as to whether the official report of the investigating judge will
become part of the case file and accepted as evidence. The Commissioner questions how the
principle of equality of arms, an essential guarantee of the right to fair trial, is safeguarded by
the Act and recalls the right of the individual to know the full case against him or her.
167.

Some of the anti-terrorism measures in force in the Netherlands significantly restrict the right to
privacy, an essential part of the right to respect for private life guaranteed by Article 8 of the
ECHR. The Commissioner recalls that the right to privacy includes the right to “data protection”
which entails protection from intrusions into one’s privacy or private life, and guards against the
124
improper collecting, storing, sharing and use of data.

168.

Already in 2000, the Act on Special Investigative Measures enabled, without the consent of an
investigative judge, the recording of telephone conversations of persons whom, while not being
suspects of a crime, had had contacts with a suspect. The Commissioner addressed the issue
of interception of calls with the Minister of Justice. The Minister informed that the General
Intelligence and Security Service (AIVD) works under the Minister of the Interior who authorises
the tapping by the AIVD solely in the context of intelligence-gathering.

169.

It should be noted that during regular criminal investigations judicial approval of phone tapping
is required and the tapping of conversations with lawyers is not allowed. Notwithstanding, the
Data Protection Authority found that recordings with professionals who have a confidentiality
duty, notably lawyers, are not immediately destroyed. The Commissioner recommends that the
authorities ensure that all telephone tapping be preceded by judicial authorisation.

170.

The Access to Data (General Powers) Act in force since 1 January 2006, expands the
possibilities to collect data from third parties that may be relevant to the investigation of crimes,
as well as to search places and objects. In order to demand certain data, the mere indication
that a terrorist attack is under preparation suffices without the need for a formal suspect in the
criminal sense. The public prosecutor, and no longer a judge, is authorised to demand data for
identification regarding location, nature of services and traffic. The Act creates the possibility to
demand data that is not yet available but will be in the future as well as sensitive data on
religion, philosophy of life and political conviction. Such sensitive data however can be claimed
only with a judicial order in cases of crimes that seriously threaten the legal order and that are
punishable with a detention sentence of four years minimum. The Commissioner notes with
concern that ‘indications’ serve as a basis for a very wide range of powers to investigate
terrorist offences, and urges the Government to ensure that the processing of personal data be
based on clear and specific rules and formulations. Furthermore, the Commissioner finds that
the collection of data on persons not suspected of involvement in a specific crime or of posing a
threat, as well as the collection of information through intrusive and secret means such as
telephone tapping and the use of “profiling” techniques must be subject to a particularly strict
“necessity” and “proportionality” test. The Commissioner recalls that the collection of data on
individuals solely on the basis that they have a particular racial origin, religious convictions or
political opinions should be prohibited. The collection of data concerning these factors may only
125
be carried out if absolutely necessary for the purposes of a particular inquiry.

171.

Another measure raising privacy concerns is the Investigation and Prosecution of Terrorist
Offences Act, in force since 1 February 2007. It broadens the opportunities and use of powers
to investigate and prosecute terrorist crimes and simplifies the process of authorisation to use
such powers. Powers can be used based on indications that a terrorist crime is being prepared
rather than, as previously, a reasonable suspicion of a crime. The Act allows for detention upon
mere suspicion of a terrorist crime, whereas other crimes require ‘substantial evidence’ against
the suspect. The Act further authorises systematic surveillance, wiretapping, infiltration,
systematic collection of information, covert installation of sound recording and video equipment
in private spaces and preventive investigation. It further allows for searching individuals and

124

See the CoE Commissioner for Human Rights Issue Paper “Protecting the Right to Privacy in the fight against
terrorism” CommDH/Issue Paper(2008)3.
125
Recommendation R(87)15 Council of Europe Committee of Ministers recommendation on data protection in
the police sector, Principle 2.4.

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items without a concrete suspicion of a crime and the postponement of full access to procedural
documents for a maximum period of two years. The Act also extends the maximum period of
pre-trial detention from ninety days to two years, for people charged with terrorism offences.
This Act met broad criticism from NGOs for its far-reaching investigative powers and vague
terminology. Again, the Commissioner is concerned with a possible conflict with the right to a
private life, as well as freedom of movement, since the Act lacks the sufficient precision
required to regulate one’s conduct. The Act may also infringe upon the principle of equality of
arms since suspects may be withheld access to the information in the process file for two years.
11.2 Measures of administrative nature
172.

Local and central government in the Netherlands have at their disposal various criminal and
administrative measures to combat terrorism. The Commissioner is concerned with the trend
found in the Netherlands to use administrative law and sanctions, circumventing the
fundamental safeguards offered by criminal law. Such measures intervene at an earlier stage
than in criminal proceedings and may affect persons who do not intend to pursue violent
actions. Administrative proceedings usually offer lower safeguards, not least because the
judicial oversight provided by the administrative court is possible only after appeal.

173.

In the meeting with the Commissioner, the members of the Supreme Court noted that some of
the recently adopted administrative measures imply that several principles of criminal law
should be applied in administrative courts and noted the risk of conflicting interpretations of the
law by criminal and administrative courts.

174.

The Commissioner is particularly concerned with the administrative measure ‘disturbance of an
individual’, which aims at preventing terrorism by disturbing a person in his/her daily life. It is
executed by police officers and can consist of house calls, inviting the person to the police
station, approaching acquaintances or visiting public spaces where that person is present.
Although the Municipality and the Police Acts give the Mayor the power to maintain public order
in conjunction with the police, it is unclear under what conditions the Mayor can impose this
measure. Unlike the criminal law “investigating power of observation”, which is subject to the
authorisation of an investigative judge, “disturbance of an individual” does not require judicial
authorisation, and judicial supervision will only be provided in case of appeal.

175.

NGOs question the legal basis of this measure, its interference in private life and note that the
Police and Municipality Acts merely determine the task and division of powers between the
Mayor and the police force. In at least one court ruling, the end to a measure of individual
126
disturbance was ordered.
The Commissioner finds that such serious interferences and
restrictions to the fundamental rights and freedoms of the individual should not be based on
vague and unspecified concepts as “maintaining public order”, and that the conditions required
to impose the measure are unclear. Judicial authorisation of such measures should be
mandatory.

176.

Another controversial measure, pending before the Parliament in November 2008, is the Bill on
Administrative Measures for National Security. The Bill provides for administrative measures to
prevent terrorism related activities, to be taken by the Minister of the Interior, in agreement with
the Minister of Justice, and by municipalities and administrative bodies. It authorises exclusion
orders in relation to the surroundings of certain objects or parts of the country; or/ and in the
immediacy of certain persons; as well as an obligation to report periodically to the police. In
addition, municipalities and administrative bodies will have the power to revoke subsidies or
permits of persons and organisations associated with, or facilitators of, terrorist activities. The
measures can be imposed on the basis of facts and circumstances that would not in themselves
be grounds for criminal prosecution. They apply to persons who, based on their behaviour, may
be “associated with terrorist activities or the support “of such activities and are extendable by a
maximum of 2 years. If the subject ignores the measure, a custodial punishment of up to one

126

Court of Amsterdam, 1 December 2005, AB 2006, 284. The measure of disturbance consisted of systematic
police surveillance of the house, police phone calls and regular house visits. The Mayor’s decision considered
that the subject had changed from Christian to Islamic belief, engaged in an Islamic marriage, refused to shake
the hand of a man and had contacts with a person connected to a terrorist group.

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year may be imposed. The affected party may lodge a written objection with the Minister of the
Interior. Only if the subject appeals, a court will review the legitimacy of the measure. One NGO
reports that, since the information that led the authorities to impose a measure on a person is
127
often from the General Intelligence and Security Agency, the data may be difficult to access.
177.

The Commissioner considers that the application of such severe custodial punishment is
disproportional. Furthermore, he is concerned with the restrictive impact of such measures on
freedom of movement and the right to respect for private life, especially given the lack of judicial
oversight. In addition, the Bill’s legal terminology is vague and unclear. Moreover, the measures
may be applied on the basis of facts and circumstances insufficient for the application of regular
criminal law. Given the impact of the measures on human rights, the Commissioner urges the
government to reconsider the Bill on Administrative Measures for National Security.

11.3 Extradition of foreign nationals suspected or convicted of terrorist crimes
178.

Pursuant to the Aliens Act 2000, the Minister of Justice can declare a foreign national an
“undesirable alien” if the person constitutes a risk to the public order or national security or in
the interest of the international relations of the Netherlands. Undesirable aliens can neither have
legal residence nor enter the Netherlands for an unlimited period. The person will not be
expelled if he/she can demonstrate a risk of being tortured or ill-treated in the country of origin.
If the Minister decides to deport the foreign national, he/she can appeal to the competent
judicial authorities. If the appeal is rejected, the foreign national can complain to the European
128
Court of Human Rights. Two applications have been submitted.

179.

NGOs questioned the guarantee of the presumption of innocence in such proceedings and
argue that aliens served with an exclusion order for reasons of national security face obstacles
to challenge such order. The Commissioner notes with concern that the exclusion order is
based on secret reports of the intelligence service, to which the alien has no access and over
which the administrative judge has no full judicial scrutiny.

180.

The Minister of Justice reassured the Commissioner that the Netherlands would not resort to
diplomatic assurances for deportation that could contravene Article 3 of the ECHR. There are
no reports of the use of extraordinary renditions in the Netherlands.

127

NJCM, Terrorism, Counter-terrorism measures and human rights in the Netherlands, background briefing on
the occasion of the ICJ Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, Brussels, 2-4
July 2007.
128
Ramzy (appl. no. 25424/05) declared admissible on 27 May 2008 and A. (appl. no. 4900/06).

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XII.

Recommendations

The Commissioner, in accordance with Article 3 paragraphs b, c and e and with article 8 of Resolution
(99) 50 of the Committee of Ministers, recommends that the authorities of the Kingdom of the
Netherlands:
National system for protecting human rights
1.

Ensure a uniform application and interpretation of international treaties in national law.

2.

Ensure that ombudswork for children is undertaken within the ombudsman office or through a
separate institution.

3.

Review current legislation for police detention and first interrogation to ensure that detainees
and in particular children, have the right to notify immediately a third party and enjoy the right of
access to a lawyer from the outset.

4.

Review the existing mechanisms for assessing complaints against police and consider creating
an independent external body.

5.

Conduct a base-line study to assess the extent to which human rights are integrated into
education and training, so that further needs can be identified and addressed.

6.

Develop a national human rights action plan to serve as a tool for analysis and continuous
improvement of the human rights situation in the Kingdom of the Netherlands.

Treatment of asylum seekers
7.

Ensure that authorities will have sufficient time to diligently establish the facts of the case and
that asylum seekers can discharge the burden of proof within the reformed asylum procedures.

8.

Provide reception facilities to all asylum seekers until the final closure of their case.

9.

Provide for a full judicial review of asylum decisions as well as detention decisions taken.

10.

Ensure that asylum seekers, including those whose claims have been rejected, are adequately
informed of the procedure.

11.

Enhance occupation and training for aliens in detention and reception facilities and promote the
new scheme allowing non-detained asylum seekers to work.

12.

Review the current scheme of detaining all asylum seekers arriving by air in the light of the
Asylum Procedures Directive, leave families united and limit detention of children to exceptional
circumstances precisely prescribed by law.

13.

Introduce and ensure effective application of the principle of the best interest of the child in
asylum and refugee law and policy.

14.

Establish a concept of guardianship with regular, frequent visits for unaccompanied minors and
ensure that each stateless child living in the Kingdom of the Netherlands can acquire a
nationality.

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Immigration
15.

Review current entry conditions for family reunification and formation to ensure that tests, fees
and age requirements do not amount to a disproportionate obstacle.

16.

Review proposals made to reform the TBS system to include a solution for detained aliens
declared undesirable who cannot be repatriated to their country of origin.

Trafficking in human beings
17.

Ratify promptly the Council of Europe Convention on Action against Trafficking in Human
Beings and define precisely in law the term “labour exploitation”.

18.

Avoid keeping victims of trafficking in aliens’ detention by improving means to speedily identify
victims. Give young victims the benefit of doubt when it is difficult to establish whether they are
under-age or not.

19.

Increase the capacity of specialized shelters to adequately and timely accommodate victims of
trafficking and ensure adequate support for municipalities combating human trafficking.

Children’s rights
20.

Expedite the ratification of the Council of Europe Convention on the protection of children
against sexual exploitation and abuse as well as the Optional Protocol to the Convention on the
Rights of the Child on the involvement of children in armed conflict and withdraw all its
reservations to the said convention.

21.

Legislate on the obligation to report child abuse for professionals dealing with children, notably
social workers, teachers and medical professionals.

22.

Ensure that the highest standards for the protection of children’s rights, including the full
prohibition of corporal punishment, are a reality in the whole of the Kingdom of the Netherlands.

23.

Ban the use of the “Mosquito” by state and local authorities as well as by private entities.

24.

Ensure the quality and equivalence of school programmes used in all Youth Institutions, civil
and custodial, to guarantee equal opportunities for detained children.

25.

Ensure the speedy separation of juvenile offenders from children institutionalised with a civil
title, and the separation of minors from adults.

26.

Increase the age of criminal responsibility in line with the majority of European countries and
apply juvenile criminal law to all minors, even in serious offences.

Prevention of discrimination
27.

Establish better coordination and cooperation between all anti-discrimination bodies, police,
public prosecutors and courts and streamline data collection procedures.

28.

Remove the exemptions for associations based on religion or belief from GETA and abolish the
‘sole fact’ construction.

29.

Exploit all avenues to take speedy and appropriate measures against female genital mutilation.

30.

Sign and ratify the Optional Protocol to the UN Convention on the Rights of Persons with
Disabilities.

31.

Extend the anti-discrimination legislation to all forms of education, goods and services public
transport and social protection and to provide full access to all forms of public transport without
applying financial impediments for persons with disabilities.

32.

Abolish the legal condition of sterilisation and other compulsory medical treatment as a
requirement for legal recognition of a person’s gender identity .

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33.

Recognise the Roma and Sinti as a minority under the Framework Convention for the
Protection of National Minorities and involve Roma and Sinti in all levels of political decision
making.

Racism, xenophobia anti-Semitism and intolerance against Muslims
34.

Promote publicly the national action plan against racism and xenophobia and monitor its
implementation in close cooperation with civil society.

Integration
35.

Evaluate and review the Special Measures Act ‘Urban Areas’ as well as the Housing Act to
ensure that segregation on the housing market is efficiently combated.

Fight against terrorism
36.

Review the anti-terrorism measures implemented and proposed, notably the Bill on
Administrative Measures for National Security, in order to ensure that they fully comply with
international human rights standards and principles.

37.

Ensure that anti-terrorism measures, such as telephone tapping and disturbance of an
individual, are subject to full judicial oversight and offer effective procedural safeguards to
suspects.

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Appendix 1:
List of authorities, civil society organisations and institutions met or consulted
Authorities
Members of Government
Ms G. ter Horst, Minister of the Interior and Kingdom Relations
Mr J.P.H. Donner, Minister of Social Affairs and Employment
Mr E.H.M. Hirsch Ballin, Minister of Justice
Ms N. Albayrak, State-Secretary for Justice
Ms E. Vogelaar, Minister of Housing, Communities and Integration
Mr A. Rouvoet, Minister for Youth and Families and Deputy Prime Minister
Mr P. van der Werve, Head of department Multilateral Affairs, Ministry of Education, Culture and
Science
Board of Procurators-General
Mr H.J. Bolhaar, Member of the Board of Procurators-General
Ms H.W. Samson-Geerlings, Member of the Board of Procurators-General
Mr W.J.B. ten Kate, Public Prosecutor
Parliament
Ms G. Verbeet, President of House of Representatives
Ms prof.dr. M.L. Bemelmans-Videc (CDA)
Mr J.S. Voordewind (ChristenUnie)
Ms C.W.A. Jonker (CDA)
Ms M.L. Pater-van der Meer de (CDA)
Mr P.H.Omtzigt (CDA)
Mr S. van Haersma Buma (CDA)
Ms F.Joldersma (CDA)
Mr J.H. ten Broeke (VVD)
Mr B. van der Ham (D66)
Supreme Court
Mr W.J.M. Davids, President
Mr G.J.M. Corstens, incoming President
Ms W.M.E. Thomassen, Judge
Administrative Jurisdiction Division of the Council of State
Mr P. van Dijk, President
Mr H.G. Lubberdink, State Councillor
Mr B. Vermeulen, State Councillor
National Ombudsman
Mr Dr Prof A.F.M. Brenninkmeijer
Equality Treatment Commission
Ms L.J.L. Koster, President
Dutch Rapporteur on Trafficking in Human Beings
Ms C.E. Dettmeijer-Vermeulen
The Association of Netherlands Municipalities
Ms A. Wissink
Mr B. van der Meijden
City of Rotterdam
Mr I. Opstelten, Mayor of Rotterdam
Mr A. J. Meijboom, Chief of Police of Rotterdam-Rijnmond
Mr M. van Kinderen, Municipal Ombudsman of Rotterdam
City college St. Franciscus, Secondary School

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Mosque Annasr
Civil Society
Non-governmental organisations
o Aim for Human Rights
o Amnesty International
o Anne Frank House
o Art. 1, the national association against discrimination
o Bonded Labour in Nederland (BLinN) (Oxfam Novib/Humanitas)
o Broad Human Rights Council, Breed Mensenrechten Overleg (BMO)
o Buro Jansen & Janssen
o Dutch Council of Chronically Ill and Disabled People, Chronisch Zieken en Gehandicapten Raad
Nederland (CG Raad)
o Centre Information and Documentation on Israel (CIDI)
o Centre for Culture and Leisure, Cultuur en Ontspannings-Centrum, (COC)
o Comensha, coordination centre Human Trafficking, La Strada Netherlands
o Contact Body for Muslims and Government, contactorgaan Moslims en Overheid (CMO)
o Defence for Children International (DCI)
o Dutch National Foundation 'Roma Emancipatie'
o E-Quality, knowledge centre for gender, family and diversity issues, kenniscentrum voor
emancipatie, gezin en diversiteit
o FORUM, the Institute for multicultural development, Instituut voor multiculturele ontwikkeling,
o Forum for Democratic Development, Forum voor Democratische Ontwikkeling
o The Johannes Wier Foundation, human rights organisation for doctors, dentists, nurses and
paramedics, Johannes Wier Stichting
o Justitia et Pax, Justice and Peace Netherlands, Catholic organization working for justice and peace
o Open Society/Justice Initiative
o Coalition for Child Rights, Kinderrechtencollectief
o The National Ethnic Minorities Consultative Committee, Landelijk Overleg Minderheden (LOM)
o National organisation for Sinti and Roma, Landelijke Sinti en Roma Organisatie (LRSO)
o Magenta Foundation, foundation to combat racism, and other forms of discrimination
o Dutch Complaints Bureau for Discrimination on the Internet, Meldpunt Discriminatie Internet
o MOVISIE, centre for social development, kennis en advies voor maatschappelijke ontwikkeling
o Netherlands Transgender Network
o NIDOS, independent guardianship and family supervision agency
o Netherlands Committee of Jurists for Human Rights (Dutch section of the International Commission
of Jurists (ICJ), Nederland Juristen Comité voor de Mensenrechten (NJCM)
o Pharos, knowledge and advisory centre on refugees, migrants and health
o Forum for Human Rights Education, Platform Mensenrechten educatie
o SPIOR, Platform Islamic Organisations Rijnmond, Stichting Platform Islamitische Organisaties
Rijnmond
o National Support Point for Undocumented Migrants Stichting Landelijk Ongedocumenteerden
Steunpunt (Stichting Los)
o Unicef
o Dutch Refugee Council, Vluchtelingenwerk Nederland
Institutions and Sites
o Application Centre Schiphol, Amsterdam
o Mental Health Institute ‘Van der Hoeven Kliniek, Utrecht
o Detention Centre Schiphol ‘Oude Meer’, Amsterdam
o Women Shelter ‘De Roggeveen’, Amsterdam
o COC Amsterdam
o Forensic Centre, ‘Teylingereind’, Sassenheim
o Asylum seekers centre (reception centre) ‘s Gravendeel
International Organisation
Mr Rene Bruin, National Officer, Office of the UN High Commissioner for Refugees (UNHCR) in the
Netherlands

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