Download Human rights in the Netherlands

Human rights in
the Netherlands
Summary and recommendations
of the Annual Status Report
NEXT ▶
Annual Status Report 2013
The annual status report of the Netherlands
Institute for Human Rights reports on the
state of human rights in the Netherlands.
The Institute makes recommendations to
the government and puts human rights
concerns in legislation, policy and practice
in the spotlight. For the full report
www.mensenrechten.nl. We are sorry but
this is only available in Dutch.
◀ PREVIOUS
2
NEXT ▶
Foreword
The statutory duties of the Netherlands Institute for Human Rights include
the publication of an annual report on the status of human rights in the
Netherlands – an obligation that the Institute fulfils with great fervour.
This offers an ideal opportunity to put human rights issues in legislation,
policy and practice in the spotlights – in both a positive and negative
sense. Once again, the need to do so was absolutely clear this year.
A human rights approach is not self-evident – not to aliens policy, not to
the earthquakes in the Province of Groningen, not to the revision of the
healthcare system and not in public discussions. For this reason, the
Institute once again requests attention to human rights education.
This is necessary at schools, in the professional and business community,
and in the government and parliament. Without an appropriate insight into
this fundamental universal framework of standards discussions on these
issues will take the wrong turn, no distinction will be made between
obligation and discretion, and mistakes will be likely. This will on occasion
have irreparable consequences for the life of one or many individuals.
For this reason, the Institute’s second Human rights in the Netherlands
report once again requests attention this very first step: learning.
Laurien Koster
President
◀ PREVIOUS
3
NEXT ▶
Summary and recommendations
Racial discrimination in the Netherlands
National implementation and infrastructure
Discussions on racial discrimination became intense in
2013 and the beginning of 2014, largely due to the Black
Pete issue but also due to a number of incidents on TV.
These discussions began at the end of 2013, on the
publication of reports which established that racial
discrimination is prevalent in the Netherlands.
Many people, including politicians and members of
the government, were either irritated or insulted by the
findings and denied them. Others held that the reports
actually gave an accurate representation of reality.
The Minister of the Interior and Kingdom Relations
submitted the first National Action Plan on Human Rights
to the House of Representatives on 10 December 2013.
However, this action plan was drawn up without making
optimum use of the practical knowledge and insights of
civil society. Furthermore, it is not clear how parliament will
ensure that the action plan will play a role in all relevant
policy areas. Moreover, it is not clear how parliament will
retain structural attention to the recommendations issued
by international monitoring bodies.
1 Provide for an effective dialogue with civil society
during the evaluation of the preparation and
implementation of the National Action Plan on
Human Rights. Specify procedures which will
provide assurances that human rights play a role
in all policy areas.
There are several reasons for this denial attitude: native
Dutch people have a favourable impression of themselves
and of the Netherlands, perceive themselves more as
victims than members of ethnic minorities, and are of the
opinion that they have more rights to everything that is
‘Dutch’. Moreover, the taboo on ‘black racism’ is greater
than on ‘cultural racism’, and people often discriminate
unwittingly on the basis of stereotyping and unequal
balances of power.
The municipalities are being assigned more and more tasks
that impact human rights. However, the municipalities have
only limited knowledge of the application of human rights
at the local level. Notwithstanding decentralisation, central
government retains its responsibility for guaranteeing
compliance with human rights. However, the National
Action Plan on Human Rights does not specify how central
government will supervise the municipalities’ compliance
with human rights.
These fierce discussions have contributed to the
awareness that racial discrimination is an issue in
the Netherlands, and that the authorities have an
important responsibility to prevent and combat racial
discrimination.
◀ PREVIOUS
4
NEXT ▶
Everyone is entitled to the same
human rights. But in practice,
discrimination is in the way of the
actual access to human rights.
The government in particular must
endeavour to tackle discrimination.
◀ PREVIOUS
5
NEXT ▶
2 Monitor the municipalities’ compliance with human
rights. Make the municipalities aware of the
consequences of human rights for the various areas
of municipal policy.
4 Adopt specific measures to guarantee the equal
remuneration of men and women in the form of:
a. the introduction of an obligation on companies
to publish reports on remuneration;
b. requesting the Inspectorate SZW (Ministry of
Social Affairs and Employment) to (randomly)
investigate the willingness of companies to
provide insight into remuneration systems
and to examine existing variances in
remuneration.
Non-discrimination
Various Government policy documents mainly draw
attention to the existing opportunities to lodge complaints
about alleged discrimination. Although adequate
complaint procedures are indispensable, the Government
is also responsible for the enforcement of the law and for
preventing and combating discrimination. This should
address not only the resilience of persons who are
confronted with discrimination, but also combating
structural causes of discrimination. The Social and
Economic Council’s recommendations on discrimination
in the labour market and the Government’s Action Plan
based on those recommendations offer specific points of
departure. The Institute will continue to keep close track
of developments in this field.
Administration of justice and remedies
There are a number of objections to what is referred to as
the procedure called ZSM, that significantly reduces the
time required to complete relatively simple criminal
cases. Public prosecutors imposing a sanction fulfil the
role that is, in principle, assigned to an independent and
impartial court. This may be at odds with the right to a
fair trial. The right to a fair trial can be at stake when the
person involved is not fully informed of the consequences
of waiving his or her right to appeal the punishment
imposed. The right to an effective defence can be at stake,
as many suspects do not exercise their right to legal
assistance. This is particularly pressing in the case of
juvenile suspects. The case file often contains only
summary information, as a result of which the suspect
does not possess all the information possessed by the
public prosecutor. This raises issues with the right to a
fair trial.
Gender identity and gender expression are not included
as separate grounds in the Dutch Equal Treatment Act.
The inclusion of these grounds will improve the legal
protection of transgender persons.
3 Take rapid action to include gender identity and
gender expression as separate grounds in the Equal
Treatment Act.
5 Carry out a timely evaluation to assess whether the
public prosecutor’s change of role during the ZSM
procedure complies with the right to access to an
independent and impartial judiciary.
The position of women on the labour market remains
unequal to that of men. This is particularly evident from
the unequal remuneration of men and women and the
under-representation of women in senior positions.
◀ PREVIOUS
6
NEXT ▶
6 Guarantee that the public prosecutor provides
immediate and full information to suspects which
explains the consequences of accepting the sanction
and on the options for lodging an objection.
7 Guarantee the right to effective defence in the
ZSM procedure:
a. Provide the suspect with full information
about the right to legal assistance.
b. Make sure that all ZSM locations are equipped
with the facilities required to enable arrested
suspects to confidential consultations with
their lawyer.
c. Guarantee equal access of the suspect and
his/her lawyer to all relevant files.
d. Devote specific attention to the interests of
juvenile suspects or adults with a mental
disability.
The Netherlands has many people in pre-trial detention.
It often ultimately transpires that the pre-trial detention was
unjustified or was for too long a period. This is at odds
with the right to be released pending trial unless there are
specific reasons to place the person concerned in custody.
There are legal guarantees, but in practice the courts do
not make optimum use of the existing options to restrict
liberty and instead rather opt for deprivation of liberty.
9 Provide for alternative measures for pre-trial
detention in the law, so they will serve as an explicit
element of the framework judges apply when
considering pre-trial detention.
Migration and human rights
A number of protests have taken place by and on behalf
of aliens in detention pending deportation from
the Netherlands. These protests were directed primarily
against the strict regime. There was also a great deal of
dissatisfaction about the border detention of asylum
seekers, in particular children. A legislative proposal is
designed to guarantee that aliens are detained only in
exceptional situations. However, on their arrival all aliens
are subjected to a strict regime for two weeks, even
though a less strict regime is feasible. Critical reports and
debates in parliament have resulted in the implementation
of new measures in 2014, which will end the border
detention of children seeking asylum.
Assurances with respect to the deprivation
of liberty
The draft legislative proposal for the immediate
enforcement of sentences provides for the immediate
execution of the sentence imposed by the criminal court in
certain situations. Pursuant to this proposal, suspects are
imprisoned before the judgement against them is final
and whose guilt has not yet been definitively established.
The motivation for the legislative proposal is not
convincing and the risk of the unjustifiable deprivation
of people’s liberty is unacceptable.
8 Abandon the submission of the draft legislative
proposal for the immediate enforcement of
sentences.
◀ PREVIOUS
10 Guarantee the principle of ultimum remedium for
alien detention and border detention by law.
11 Develop realistic alternatives for alien detention.
7
NEXT ▶
12 Guarantee that the border detention regime is not
worse than the current regime pursuant to the
prevailing Reglement regime grenslogies (‘Border
Accommodation Regime Regulations’).
13 Do not subject all aliens arriving in the Netherlands
to the strictest regime, but rather to the residential
regime with less restriction of liberty.
In some instances, aliens have been ordered to leave the
Netherlands while there are doubts whether they will have
access to the medical care they need in their country of
origin. In certain circumstances this can be contrary to
the prohibition to subject individuals to inhuman
treatment. There are serious doubts whether the Bureau
Medische Advisering (‘Medical Advisors Office’) always
takes the actual availability of care for the person involved
and the presence of a social and medical safety net into
consideration. These are criteria which the European
Court of Human Rights has developed in its case law.
In October 2013, the European Committee of Social
Rights requested the Netherlands to adopt all possible
measures with a view to avoiding serious, irreparable
injury to the integrity of persons at immediate risk of
destitution, with respect to a group of persons without
valid residential documents. The Netherlands has not
complied with this request.
16 Do not return an ill alien when it is not clear whether
the individual concerned will actually have access to
medical care and a social and medical safety net will
be available to them. Provide for an adequate system
to monitor whether the person involved does
actually have access to the necessary medical care.
14 Provide for the most basic needs of aliens in
distress without residence documents, in
accordance with the European Committee of
Social Rights’ recommendations.
The Netherlands has not implemented a procedure to
establish whether a person is stateless. Persons who are
not recognized as stateless have difficulties in gaining
access to several rights and facilities.
Some aliens have been ordered to leave the Netherlands
but are unable to do so, for example because their country
of origin does not cooperate. They have no access to
basic needs such as accommodation and food.
In specific circumstances they are entitled to a no-fault
residence permit that does grant them access to basic
needs. However, the assessment of these applications
leaves something to be desired.
17 Develop a procedure, with the necessary guarantees,
for the establishment of statelessness.
Privacy
In 2013, a great deal of attention was devoted to the
collection and analysis of data by the US and Dutch
security services. Many more options are available in
2013 than at the time the legislation was formulated
which lays down the powers of these agencies and the
15 Grant a no-fault residence permit when the country
of origin has not issued travel documents and this
cannot be imputed to the alien.
◀ PREVIOUS
8
NEXT ▶
Municipalities already have the
responsibility to ensure the rapid
detection and response to suspected
violence against children. With the
entry into force of the Youth Act
( Jeugdwet) in 2015, municipalities
are responsible for child care.
◀ PREVIOUS
9
NEXT ▶
private life than permanent CCTV systems, only
when their use is strictly necessary, such as in the
case of a specific threat of a serious disruption of
public order.
procedures for their supervision. For this reason the
system of prior consent and review afterwards needs
to be modified.
18 Provide for judicial review prior to all infringements
of the privacy of telecommunications.
19 Enhance the independent supervision of the
intelligence and security services by the CIVTD
(Review Committee on the Intelligence and Security
Services) by making the Committee’s opinions
legally binding and by providing for advance or
accelerated reviews of the legitimacy of large-scale
interceptions of data.
One of the consequences of decentralisation is the
municipalities’ increased exchange and processing of
more citizens’ data. More exchanges of data will take
place both between municipal institutions and between
municipalities and other institutions such as healthcare
insurers. The current legislative proposals do not offer
adequate guarantees for the protection of the private life
of individuals against potential infringements.
22 Develop a substantiated umbrella vision for the
processing of personal data within the complete
area covered by the draft proposals for the Youth
Act, Social Support Act 2015, Participation Act and
Long-term Intensive Care Act. The transparency of
the processing of personal data should be a core
principle.
a. Guarantee that the legislative proposals
incorporate adequate specifications of the
data that institutions may possess for each of
their tasks and the data they may then
exchange.
b. Ensure that the legislation that lays down the
future duties and powers of the municipalities
guarantees that the processing of personal
data takes place only with free and full consent
of the individual concerned, in accordance
with the Personal Data Protection Act.
The Dutch services trust that the foreign services with
which they cooperate in the collection of data respect
human rights. However, the recent developments give
cause to doubts whether this trust is justified.
20 Exchange data solely with states that have
implemented adequate systems for the
supervision of the security service’s compliance
with human rights.
Proposed legislative amendments will grant mayors more
powers for the deployment of mobile camera supervision
(CCTV). Flexible CCTV systems can make a greater
infringement on the private life of individuals than
permanent CCTV systems. However, the legislative
proposal makes no distinction between the two.
21 Guarantee that the Municipalities Act prescribes
that mayors may authorise mobile CCTV, with
cameras that make a greater infringement on
◀ PREVIOUS
10
NEXT ▶
Some transgender children have transgender feelings at
as early as the age of 12 and live accordingly. The
minimum age for sex change is 16. Transgender children
may be confronted with exclusion, discrimination or
violence. In addition to the implementation of measures
to prevent and combat behaviour of this nature, it is also
necessary to review which options are available to prevent
the disclosure of the sex at birth.
Pursuant to the Aliens Act, ten fingerprints and a passport
photo of all aliens may be retained in a databank for ten
years and may be used in the investigation of criminal
offences. The central storage of the data or the use of
these data for purposes other than the prevention of
identity fraud is not justified.
23 Amend the Aliens Act so that the biometric data of
aliens may be used solely to combat identity fraud.
26 Review which measures are required to prevent the
disclosure of transgender children’s sex at birth.
The following recommendation from 2012 has yet to be
followed up. The Government has not given any reasons
for this, and for this reason the Institute repeats its
recommendation.
The gas extraction in the Province of Groningen is
continually causing damage and many residents are
concerned. They fear further damage to their buildings
and property and are also afraid of personal injury
caused by falling rubble or the collapse of a home.
Serious threats to safety or to the physical environment
in the residential environment fall within the scope of
the right to the protection of private life and family life.
To date, the decision-making process on gas extraction
and compensation for damages has not devoted
sufficient attention to the authorities’ obligations
pursuant to human rights.
24 Examine the reasons for the large number of
requests for tapping telephones and the intensity of
judicial scrutiny when granting the authorisation.
Marriage and private and family life
Transgenders wishing to amend the record of their sex or
first name in the register of births, deaths and marriage
require a declaration from an expert on the permanence
of the transgender’s wish. It is still unclear which experts
may issue this declaration and which grounds for refusal
are valid. This may be at odds with the right to
self-determination.
27 Pay due regard to human rights, in particular the
right to the protection of private life and family life,
in the decision-making process on gas extraction
and compensation for the damages incurred to date.
25 Provide for transparent regulations governing the
expert’s declaration on a transgender’s wish for a
change of sex. Base this on the transgender’s right
to self-determination.
◀ PREVIOUS
Physical and mental integrity
A number of reports on domestic violence and violence
against women received attention in 2013. Steps have been
taken for the ratification of the Convention on preventing
11
NEXT ▶
Discrimination is much more
common than most people realise.
Much discrimination is unconscious
and unintentional, but no less
harmful to those it affects.
Discrimination often stems from
stereotypes.
◀ PREVIOUS
12
NEXT ▶
29 Review the effectiveness of the measures to prevent
human trafficking.
30 Guarantee appropriate protection and specialised
assistance for victims of human trafficking
(including minors).
and combating violence against women and domestic
violence (the Istanbul Convention). For the time being
this will be applicable only to the European part of the
Kingdom of the Netherlands, whilst there are also major
problems in the Caribbean Netherlands.
28 Ratify the Istanbul Convention as soon as possible
for the European and Caribbean Netherlands, and
take specific measures for the implementation.
a. In anticipation of the ratification and
implementation of the Convention, take steps
to address immediately the problem of
domestic violence and violence against
women in the Caribbean Netherlands.
b. Guarantee that the municipalities are aware of
their obligations pursuant to the Convention
and to other relevant conventions, including
the UN Convention on the Rights of the Child
and the UN Women’s Convention , and that
they comply with these obligations.
c. Monitor the municipalities’ implementation
of these treaty obligations.
Few victims of human trafficking receive compensation,
whilst this is an important element of the right to an
effective remedy.
31 Train professionals that provide support to victims
of trafficking on the right of victims to an effective
remedy, including the right to compensation.
There is still an insufficient insight into the scope of
human trafficking outside the sex industry. This relates to
labour exploitation and other forms of exploitation such
as forced begging and perpetrating fraud under coercion,
where the benefits that are then received are surrendered
to the human trafficker.
32 Identify situations that entail a risk for human
trafficking and implement measures tailored to
the situation.
33 Invest in raising awareness of exploitation in sectors
other than the sex industry.
Human trafficking
Although a number of measures have been implemented
to prevent human trafficking, the degree to which these
have been successful is not sufficiently clear. Victims of
human trafficking within the Netherlands require suitable
shelter and specialised care. However, these are not
available to a sufficient extent. Shelters and care for girls,
in particular, are inadequate. The Bureau for Youth Care
has insufficient knowledge for the recognition of victims
of human trafficking within the Netherlands.
◀ PREVIOUS
Business and human rights
Businesses can infringe human rights also in the
Netherlands. They are still insufficiently aware of this
issue. The supervision of compliance with the relevant
legislation and regulations needs to be improved.
13
NEXT ▶
34 Make businesses aware of the UN Guiding
Principles on Business and Human Rights, also
with respect to their operations in the Netherlands.
Translate the UN Guiding Principles into Dutch.
35 Ensure that the inspectorates have the resources
required to investigate complaints about business’
infringements of human rights and to take
measures when necessary.
the target group may encounter more difficulty in finding
a job in the future.
37 Monitor the intended and unintended effects of
the Participation Act and Quota Act after they enter
into force.
Only sections of the social security legislation and labour
legislation are applicable to domestic workers who are
employed for less than four days by the same private
employer. As a result, they are in a less favourable position
than other employees. The Convention of the International
Labour Organization (ILO Convention No. 189) protects
the rights of domestic workers.
A number of frameworks for corporate social responsibility
for the assessment of applications for State aid co-exist.
The situation is unclear for businesses operating outside
the Netherlands.
36 Clarify the conditions for corporate social
responsibility and make them more coherent so
that businesses can understand how and when
reviews are carried out.
38 Ratify ILO Convention No. 189 as soon as possible
and take all necessary measures to implement this
Convention, in order to ensure that domestic
workers have access to the social security system
on the same footing as other employees.
Work
The Social and Economic Council’s recommendations
on discrimination in the labour market were published in
April 2014, and were followed by the Government’s plan
of action. This offers specific points of departure for
combating and preventing discrimination in the labour
market. The Institute will continue to keep close track
of these developments.
Municipalities may impose an obligation on recipients of
social welfare benefits to perform some form of work in
exchange. They can then exercise their discretion in their
policy. Normal civic obligations and community services
do not constitute forced labour or compulsory labour.
A number of factors give cause to doubts whether the
manner in which the work in exchange is carried out
complies with human rights requirements. These include
the duration and scope of the required work, the use of
such work to replace regular work which is discontinued
to reduce costs and the deployment of persons to the
benefit of private parties. all. The right to fair and just
The proposed Participation Act and Quota Act aim to
advance the participation of women and persons with a
disability in the labour market. However, not all persons
with a disability fall within the scope of these legislative
proposals, as a result of which persons falling outside
◀ PREVIOUS
14
NEXT ▶
The ZSM-method shortens the long
lead times of relatively simple
criminal cases significantly. This is
desirable for the accused, society and
victim. It has, however, a number of
drawbacks. A good balance between
smooth handling and the right to
an effective defence is important.
◀ PREVIOUS
15
NEXT ▶
40 Guarantee that patients can give their free and full
consent for the processing and exchange of their
medical data.
41 Guarantee that the staff of health care institutions
have access to medical data solely when they are
involved in the medical treatment of the patient.
working conditions and the right to equal remuneration
can also be put in jeopardy. Moreover, the refusal to
perform work in exchange can have serious consequences
for the ability of the relevant person to support him
or herself.
39 With respect to work in exchange for the social
welfare benefits:
a. Ensure that municipalities do not act in
conflict with the prohibition on forced labour
and compulsory labour or with the right to
just working conditions.
b. Clarify the permitted nature and scope of the
work in exchange.
c. Guarantee that the municipalities’ reduction
of the benefits on the refusal to work in
exchange is not in conflict with the right to
social security and the right to an adequate
standard of living.
Education and human rights education
Students with a disability , for example an autism disorder,
experienced difficulties in gaining access to secondary
vocational education and finding an internship.
This was largely due to prejudices and unawareness
of legal obligations.
42 Undertake specific awareness raising activities for
the secondary vocational education sector on the
rights and obligations arising from the rights of
students with a disability to equal treatment and
to tailored education. Review whether comparable
problems are an issue at other educational
institutions.
Health and care
The exchange of medical data has a major impact,
especially when the data are exchanged with persons
other than the physician in attendance. This information
is by very definition sensitive information. A number of
bottlenecks have been identified during the development
of new information system for the health sector. Access to
medical data by authorised persons only is not always
guaranteed. The doubts about the adequate protection
of medical confidentiality and the personal data of the
patient have not yet been alleviated to an adequate extent.
Schools devote insufficient attention to human rights.
As human rights education has yet to be included in the
attainment targets of the school curriculum, structural
attention to the issue is not guaranteed. Teachers have
insufficient knowledge of human rights education
generally and of closely related themes , such as the
emancipation of LGBTs (lesbian, gay, bisexual and
transgender people).
43 Include human rights education in the attainment
targets of the school curriculum.
◀ PREVIOUS
16
NEXT ▶
Poverty is an everyday reality for
many inhabitants of the Caribbean
part of the Netherlands. According
to estimates, 60% of the population
lives below the poverty line. The price
of basic necessities of life are 65%
higher than in the European part of
the Netherlands at 60% average
lower income.
◀ PREVIOUS
17
NEXT ▶
Caribbean Netherlands
44 Implement specific measures to train teachers
in the field of human rights.
45 Devote attention to the rights of young LGBTs.
It is not always clear which considerations play a role in
decisions whether legislation and regulations governing
the European part of the Kingdom of the Netherlands
shall also be applicable to the Caribbean Netherlands.
This is undesirable. When the rules are not identical it is
not always clear whether they comply with the principle of
equality. The forthcoming evaluation of the constitutional
structure offers an ideal opportunity to examine this issue.
Standard of living
Austerity measures and the economic crisis have an
influence on purchasing power. Some groups of people
experience difficulty in supporting themselves. People
living in long-term poverty have problems with housing,
health and participation. Policy aimed at combating
poverty and debts is not based on human rights, whilst
these would constitute a suitable framework. Nor does
the National Action Plan on Human Rights devote
attention to the right to a an adequate standard of living.
48 Clarify whether and how the considerations for the
introduction, amendment or enforcement of
legislation in the Caribbean Netherlands have been
reviewed against the principle of equality laid down
in Article 1 of the Constitution.
46 Adopt human rights as the framework for the
poverty and debt policy, with an eye for the
relationship between poverty and health, housing
and participation in situations in which solely an
improvement in purchasing power is insufficient.
A number of concerns regarding criminal law and
penitentiary law identified in the previous status report
have again been included. In view of the seriousness and
scope of the problem, the Institute repeats the relevant
recommendations below.
The European Committee of Social Rights requested the
Netherlands to adopt all possible measures with a view
to avoiding serious, irreparable injury to the integrity of
persons at immediate risk of destitution, with respect to
homeless people and a group of persons without valid
residential documents. The Netherlands has not
complied with this request.
49 With respect to criminal law and penitentiary law:
a. Invest in alternatives to custodial sentences.
b. Increase the deployment of forensic care.
c. Introduce regulations for placement under
an entrustment order and for the option of
imposing placement in an institution for
juveniles orders.
d. Guarantee the right of access to a lawyer
for suspects and prisoners throughout the
Caribbean Netherlands.
e. Guarantee the right of respect for family life
for suspects and prisoners.
47 Provide for the most basic needs of homeless
persons and aliens in distress without residence
documents, in accordance with the European
Committee of Social Rights’ recommendations.
◀ PREVIOUS
18
NEXT ▶
◀ PREVIOUS
19
NEXT ▶
Publisher:
The Netherlands Institute for Human Rights
Kleinesingel 1-3
P.O. Box 16001
3500 DA Utrecht
The Netherlands
+31 30 888 38 88
www.humanrightsinstitute.nl
◀ PREVIOUS
Photo cover: Peter Hilz / HH
Publication date: July 2014