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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