Human rights in the Netherlands Status report by the Netherlands Institute for Human Right START ▶

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Het zou een grote stap vooruit zijn als er It would be a great step forwards if more meer expliciete, systematische en structurele explicit, systematic and structural attention aandacht komt voor de bescherming en would be paid to the protection and bevordering van de rechten van de mens in promotion of human rights in the Nederland. Netherlands. The aim of the Institute is to Het College streeft ernaar dat de have the Dutch government assign a Nederlandse overheid bij het tot stand prominent role to human rights when policy komen en evalueren van beleid een making and evaluation and to do so prominente rol toekent aan mensenrechten explicitly. A National Action Plan for en deze ook benoemt. Een Nationaal Human Rights can make an important Actieplan Mensenrechten kan hieraan een contribution to this. belangrijke bijdrage leveren.

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HOME Preface

Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Preface Human rights are obvious and complex at the same time. It is obvious that every human being is entitled to respect for family life, freedom of expression, freedom of religion and to a roof over their head. However, it is not always easy to realise these rights or even see that these rights are at stake. There is often a friction between the freedom of one person and the rights of another person. In order to make human rights more concrete, it is necessary that many authorities are involved in their protection. This requires an allocation of resources and powers and skills and dedication of people concerned with the protection of individual rights. We can only take the duty to protect human rights seriously by permanently facing their vulnerability and by recognising lacunae. The Netherlands Institute for Human Rights Act took effect on 1 October 2012. From that moment, the Netherlands had a national human rights institution, the Netherlands Institute for Human Rights. The Institute is an independent supervisory body in the field of human rights in the Netherlands. With the foundation of the Institute the Dutch government has given substance to its international obligations and emphasises the importance of human rights and its promotion, also in the Netherlands. In this first report Human rights in the Netherlands 2012 the Institute shows positive and less positive developments and makes recommendations to the government and Parliament to see to it that human rights also apply in practice to everyone in the Netherlands. Laurien Koster President

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HOME Preface

Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Introduction The range of tasks of the Institute includes reporting annually about the human rights situation in the Netherlands (see article 3 of the Act). primarily addresses the government and Parliament. At the same time it is the intention that the content appeals to a broad public, so that human rights and human rights issues are more visible to everyone. The Institute looks forward to receiving the government response to this report and its discussion in Parliament, as well as to the concrete improvements in legislation, policy and in actual practice, which should be a result of this. ■

In this annual report the Institute can make recommendations to improve the human rights situation. The Lower House has decided that it is desirable to schedule this report for debate in the House in order to promote human rights. The Lower House will receive a government response at the latest 60 days after the publication of the Annual Status Report, which will serve as a basis for a debate between the Parliament and the government. This report

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HOME Preface

Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Purpose and delineation Sources The Institute used various sources, such as recommendations of international and national supervisory bodies, reports of debates in Parliament, reports from advisory bodies, jurisprudence from European and national courts, reports of nongovernmental organisations, discussions in academic literature and media reports.

In this first report the Institute describes a broad range of developments that drew attention in the field of human rights in 2012. They are partly positive developments. However, the Institute also formulated critical observations and made concrete recommendations for improvements in various fields. Civil rights and political rights as well as economic, social and cultural rights will be discussed. The subjects have been grouped around ten substantive themes. A separate chapter is dedicated to the Caribbean part of the Netherlands.

In order to make use of the expertise and knowledge of professionals and the public, the Institute consulted stakeholders in January 2013. More than forty organisations and individual citizens stated which developments they considered to be most important for inclusion. Appendix two offers an overview of the stakeholders who made a contribution.

The Institute applied various criteria when deciding about the subjects, including the urgency of an issue, the representativeness of information received for a theme and topicality. Some developments are characteristic for 2012. Other issues have already been addressed for many years, but are still very topical. Therefore, the content of the report has not been strictly delineated to the calendar year 2012. In order to show what human rights means in practice for individuals, the Institute has interviewed nine persons who experience or have experienced in daily life what it means when human rights are at stake.

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In drawing up the report the Institute could use the expertise of the following experts: ■■ prof. dr. Y.M. Donders, Amsterdam Center for International Law (ACIL) ■■ dr. S.A. de Roos, Netherlands Institute for Social Research (SCP) ■■ J. Krommendijk LL.M., Maastricht Centre for Human Rights The Institute expresses its gratitude to the members of the consultative group for their useful comments and suggestions. ■

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INLEIDING

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Reader’s guide The following thematic chapters are included: ■■ Administration of justice, remedies and deprivation of liberty ■■ Migration and human rights ■■ Privacy and personal data ■■ Health and access to care ■■ Physical and mental integrity ■■ Human trafficking ■■ Participation and non-discrimination ■■ Labour ■■ Education ■■ Human rights education ■■ Caribbean part of the Netherlands

The summary contains recommendations to the government, which are always preceded by a brief representation of developments and circumstances which underlie the recommendations. Chapter 1 is a reflection on the nature and origin of human rights and their place in Dutch society. Human dignity as a source and objective of human rights are discussed extensively. This is followed by the legal framework that consists of national as well as international legal standards, which primarily bind the authorities to protect individuals. This chapter also describes the Netherlands’ position vis-à-vis the international treaty system and international monitoring bodies, which intend to ensure human rights in policy, legislation and practice in the States parties.

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Summary Human rights also require permanent attention and ­maintenance in a democratic state under the rule of law. crucial on a national level. International treaties offer protection by important supervisory bodies such as the European Court of Human Rights and the various UN human rights treaty bodies.

Even when systematic and large-scale violations of human rights do not occur, like in the Netherlands, it is not self-evident that every person is free from interference with his human dignity, his individual human rights. In particular the rights of individuals in situations of dependence, of unpopular groups or people without a voice may easily be endangered. People are often not aware when the limits of their human rights or those of others are transgressed and how can they can protect themselves against this. This means that a more explicit, systematic and structural attention is required for the protection and promotion of human rights in the Netherlands.

A number of situations and developments in 2012 merit attention from the perspective of human rights. The Institute has made critical observations and given concrete recommendations for improvements in various fields. The protection of human rights can be strengthened by coordinating national policy and the obligation to report to international human rights bodies. The follow-up of these recommendations could be put into effect in the National Human Rights Action Plan, which is being developed. With concrete objectives and priorities for the protection and promotion of human rights in the European and the Caribbean parts of the Netherlands. Input from civil-society organisations is indispensable. ■

Dignity is the key element in the protection of human rights. It is the source of human rights and at the same time the objective of protecting human rights. Freedom, equality, social and economic security, social participation and commitment between people give content to the term ‘human dignity’. There are important national and international systems for the protection of human rights. The Constitution, the role of parliament, the judiciary and special institutions are

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Recommendations in brief 3. Pay structural attention to relevant human rights standards in the training of prison staff to also guarantee the protection of human dignity when the body is inspected internally and externally.

The Institute makes the following recommendations to the government: Administration of justice, remedies and deprivation of liberty The right to legal aid in relation to police interrogation has been the subject of discussion in recent years. In the current Dutch legal practice the right to consult a counsel prior to the first police interrogation has been recognised. However, there is no right to the presence of a counsel during the interrogation. ‘Other eyes’ are of great value in the field of tension between the prosecution of criminal acts and the human rights of suspects. In its report about the Netherlands in 2012 the European Committee for the Prevention of Torture (CPT) called for creating a more comprehensive right to legal aid in relation to interrogation by the police. The Committee also criticized the detention facilities and received many complaints about the large number of body searches in prisons and the way in which they are conducted. Following this the Institute advises the following: 1. Ensure a full right to legal aid for suspects of a criminal offence when interrogated. 2. Ensure that already built and newly built detention facilities in the Netherlands meet the standards developed by the Committee for the Prevention of Torture.

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Migration and human rights ‘Strict, but fair’ is the motto of immigration policy. Nothing is wrong with this from the viewpoint of human rights when there is sufficient awareness that strictness of policy creates pressure for individual justice. The treatment at arrival, residential conditions, the procedure, decision-making and treatment in the event of a possible departure from the Netherlands must be fair for every person. Aliens, including children, often end up in detention; it seems that the authorities do not use this means as an ultimate remedy. The regime for immigration detention is based on criminal law. It is stultifying because of a lack of useful daytime activities. The Healthcare Inspectorate and the Committee for the Prevention of Torture expressed their concerns in 2012 about the access to medical care for aliens who are detained. Experts expect that access to health care will be under pressure by penalising the illegal residence of aliens in the Netherlands. The same is true with regard to the access to education for minors. Moreover, the penalisation of illegal residence increases the risk that aliens without a residence status will become a victim of exploitation. ››

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Introduction

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Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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4. Increase the pilot ‘alternatives for the detention of aliens’ and make sure that there are sufficient possibilities for useful daytime activities for detainees. 5. Offer good and accessible medical care, including psychiatric care, when detaining aliens. Guarantee that children do not end up in detention centres for aliens and provide alternative, less radical measures than detention. 6. Protect aliens without a residence status against human trafficking, exploitation and other crimes. Access to health care and education must be guaranteed in practice.

Investigative authorities frequently tap telephones in the Netherlands, more often than in other countries. Such taps are not only affect suspects, but also their family and friends. The study on this published by the Research and Documentation Centre (WODC) in 2012 does not answer all questions regarding the assessment by the examining judge when authorising to tap and the practical possibilities for this purpose. The largescale application of telephone taps justifies a closer investigation. Recommendation: 8. Examine the reasons for the large number of requests for tapping telephones and the intensity of judicial scrutiny when granting the authorisation.

Privacy and personal data Fingerprints of aliens are often taken to determine whether they already applied for asylum before in another European country or to examine whether they are staying legally in the Netherlands. In the European Union and in the Netherlands there have been proposals to store the fingerprints of all aliens and their passport photos in a central database and keep these data for ten years. Under certain conditions the data can be used to trace crimes for which pre-trial detention is allowed. There is insufficient justification for the interference with the privacy of aliens, while in addition it is unnecessarily criminalising in effect. The Institute makes the following recommendation to the government: 7. Withdraw the proposals to store the biometric data of aliens for criminal investigations.

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Health and access to health care A bill was introduced to extend the options for nontherapeutic medical-scientific research with persons of less than eighteen years of age or adults who cannot be deemed capable of giving informed consent. The bill is at odds with the right to be subjected to medical or scientific experiments only when a person has been fully informed and after free consent. In contrast, article 17 of the Convention on Human Rights and Biomedicine provides for the protection of persons of less than eighteen years of age or adults who cannot be deemed capable of giving informed consent. This Convention still has to be ratified by the Netherlands. 9. Reconsider the intended amendment to the law to extend the options for non-therapeutic medicalscientific research with persons of less than eighteen years of age or adults who cannot ››

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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be deemed capable of giving informed consent. Ratify the Convention on Human Rights and Biomedicine as soon as possible.

12. Ratify the Convention on Preventing and Combating Violence against Women and Domestic Violence (CAHVIO) without reservations.

Actual access to healthcare depends on understanding and being understood. The fee for interpreter and translation services in healthcare for persons who speak too little Dutch was stopped as from 1 January 2012, except for asylum seekers. This has effects on the accessibility of care, which cannot be overcome by the assistance of family caregivers because of its privacysensitive nature. 10. Ensure that patients who do not speak the Dutch language or only speak it to a limited degree, are compensated for the costs of a medical interpreter in those cases in which the access to healthcare – without an interpreter – is at risk.

The right to physical integrity also plays a role in health care, in particular with the application measures of coercion. They affect one’s human dignity and may result in inhuman or degrading treatment. Restricting the use of these measures is already being examined in the health care sector, but the current regulations do not quite comply with the principle of exercising the utmost restraint when applying coercive measures. New legislation, the Bill on Care and Coercion, is pending before the Lower House. 13. Ensure that the Bill on Care and Coercion provides for the ‘no, unless’ principle in regulating the application of coercive measures and for a sound supervisory mechanism when coercive measures are inevitable.

Physical and mental integrity In November 2012 the Netherlands signed the Convention on Preventing and Combating Violence against Women and Domestic Violence (CAHVIO). The Netherlands does not have a gender-specific policy to combat violence against women and domestic violence. Women are victim of domestic violence more often than men. Violence against women is the result of differences in power relations and gender inequality. This also requires a gender-specific policy. 11. Develop a gender-sensitive National Action Plan for combating violence against women, including domestic violence, with attention for preventing and combating violence and addressing the underlying causes.

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Human trafficking Human trafficking is the overarching term for transport and serious forms of coercion and exploitation of persons. The reports of the National Rapporteur on Trafficking in Human Beings show that this takes place on quite a large scale in the Netherlands in many forms: in prostitution, but also in the horticultural sector and in the private sphere. When addressing human trafficking the emphasis is on the application of criminal law. The prevention of human trafficking and protection of victims of trafficking requires intensifying the implementation of other measures. ››

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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and transgenders is less good in the Netherlands than on average. One of the reasons for this is the negative stereotypes regarding these groups and individual factors such as differences in education. Unequal treatment of women because of pregnancy and maternity has a negative influence on their access to labour and on retaining their job, which has consequences for their career and economic independence. 16. Tackle the disadvantageous position of vulnerable groups on the labour market, in particular elderly persons, youths, persons with disabilities, ethnic minorities, women and transgenders. Inform pregnant women and employers about the rights and duties concerning pregnancy and maternity on the labour market and inform women about the way in which they can report complaints about discrimination, including reporting to the police.

14. Pay even more attention to the prevention of human trafficking by providing information and taking measures to increase the assertiveness of potential victims. Improve the protection of and specialised assistance to victims of human trafficking and pay specific attention to minors. Participation and non-discrimination Actually participating in society results in a greater autonomy and personal development. However, this is negatively influenced by discrimination. The Netherlands signed the Convention on the Rights of Persons with Disabilities in 2007. The Convention has not been ratified yet. Nevertheless, it is important, because the position of persons with disabilities still leaves a lot to be desired in the Netherlands, despite the existence of laws, regulations and policy. The Optional Protocol to the Convention provides for the possibility for individuals to request the independent Committee on the Rights of Persons with Disabilities to examine whether the government meets the obligations under the Convention. The Netherlands has not signed and ratified this additional protocol yet. Ratification of the protocol is both in the interest of ensuring a correct application of the Convention and for the legal protection of persons with disabilities. 15. Ratify the Convention on the Rights of Persons with Disabilities as soon as possible and take steps to start the process for ratifying the Optional Protocol thereto.

Education As from 1 August 2014 schools are obliged to offer a suitable education to pupils who need extra support by virtue of the Inclusive Education Act. The obligations for an educational institution that result from the Equal Treatment of Disabled and Chronically Ill People Act, which also applies, are not equal to the obligations from the Inclusive Education Act. Schools often do not know that they are obliged to investigate whether the child who wishes to enrol can be placed and whether reasonable accommodations are required and are possible if requested by parents of the child with a disability or chronic illness, also when arrangements have been made with other schools as part of inclusive education. ››

Labour The labour position of elderly persons, youths, persons with disabilities, ethnic minorities, women

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Introduction

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Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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situations in the European and the Caribbean part of the Netherlands are unequal or if there is an objective justification for the difference. The essential level of human rights must be guaranteed. 19. When drawing up regulations for the Caribbean part of the Netherlands, it is necessary to carefully assess which consequences this will have for Bonaire, St. Eustatius and Saba. The justification to draw up regulations for the Caribbean part of the Netherlands that differ from those in the European part of the Netherlands must be carefully motivated by applying the so-called comparability and justification test.

17. Organise the information in such a way that schools and partnerships of schools in primary and secondary education meet their obligations to carry out reasonable accommodations when implementing the Inclusive Education Act, as laid down in the Equal Treatment of Disabled and Chronically Ill People Act. Human rights education In the Netherlands the knowledge about human rights is not great. This is reflected in the awareness of one’s own rights and those of others. Human rights education does not have a statutory basis in Dutch law. The obligation for states to pay attention to human rights in education has been laid down in many international treaty provisions. The Netherlands has frequently committed itself to this through politics and the ratification of treaties. 18. Explicitly refer to human rights in the attainment targets for primary and secondary education.

Suspects who have been arrested on Saba are taken to a police cell on St. Eustatius within 24 hours. Suspects of both islands are taken to the detention centre on Bonaire under surveillance after having been held for eighteen days in pre-trial detention. After their conviction they will serve their sentence in the prison on Bonaire. In view of the costs of a flight to Bonaire, the visits of relatives to prisoners are restricted in practice. 20. Examine which reasonable arrangements can be made to guarantee the right to respect for private life and family life for prisoners of Saba and St. Eustatius who are held in preventive custody on Bonaire or who serve their prison sentence there. ■

Caribbean part of the Netherlands Bonaire, St. Eustatius and Saba form part of the Netherlands. Regulations can be drawn up for these islands and other specific measures can be taken in view of the economic and social conditions, the large distance to the Netherlands, their insular nature, small surface area and population size, geographic conditions, their climate and other factors as a result of which these islands clearly distinguish themselves from the European part of Netherlands. The Caribbean part of the Netherlands has other laws and regulations than the Netherlands with regard to many aspects. Differences are acceptable, but only in so far as

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Positive developments The Institute also monitors developments which had a positive effect on human rights in the Netherlands in 2012. ■■ In the coalition agreement the government laid down that it will ratify the Convention on the Rights of Persons with Disabilities. This Convention is an important recognition of the rights of persons with disabilities and demands explicit attention and concrete measures in policy, legislation and practice to guarantee their rights. ■■ In November 2012 the Netherlands signed the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence. This Convention formulates concrete obligations for states to protect women against all forms of violence and prevent, prosecute and eradicate violence against women and domestic violence. ■■ The judiciary has decided to reinforce the expertise in the field of human trafficking. As from 1 January 2013 a limited number of specialised judges will deal with the cases against suspects of human trafficking, so that they can extend their experience and expertise.

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■■ In

2012 the attainment targets of primary and secondary education were changed. As a result it is compulsory to discuss sexuality and sexual diversity at schools. The aim of the arrangement is to promote the acceptance of sexual diversity and increase the sexual assertiveness of youths. ■■ On 17 October 2012 the government introduced a bill to amend the Passport Act of 2009. This bill arranges that no fingerprints are required anymore for the identity card. With this identity card it is possible to travel within the European Union and identify oneself in the Netherlands. The bill aims to increase the protection of privacy, because it is possible to obtain an identity card without fingerprints being taken and stored. ■

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Human rights in the Netherlands

It all starts with attention  › Dignity  › The Netherlands and the international legal order  › International procedures: from a burden to an opportunity  › Final comments  ›

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Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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It all starts with attention The Netherlands is bound to human rights standards in many ways: legal obligations with regard to fundamental rights and individual freedoms. Treaty of Lisbon entered into force at the end of 2009. The governments and parliaments of the EU Member States jointly agreed that committing themselves to human rights is relevant and necessary, also when exercising government powers in an EU context.

Human rights standards are guaranteed on a national and international level, in our own Constitution and in various treaties. It concerns civil rights and political rights as well as economic, social and cultural rights. Human rights standards on the one hand impose limits on state action. On the other hand they require state institutions to act in certain fields to realise human dignity.

Apart from the legal obligations, the objective of these human rights standards should be borne in mind. This is why this chapter will start with a brief analysis of human dignity and the values that constitute the basis of human rights. The chapter will then explore a few general themes that are of interest for protecting and promoting human rights in the Netherlands. ■

The necessity to commit authorities to human rights standards is no relic from a post-war past. It is topical and can also rely on broad social support today. It is for a good reason that the EU Charter of Fundamental Rights was given a legally binding status when the

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Dignity The key role of human dignity Dignity Dignity is the underlying value of all human rights. It is an appropriate term, but also a term that everyone interprets in his own way. The preamble of the Universal Declaration of Human Rights (UDHR) refers to the ‘inherent dignity’ and the ‘equal and inalienable rights of all members of the human family’. Article 1 UDHR confirms that all persons are born free and equal in dignity and rights. The meaning of dignity has been studied by scientists from all over the world for centuries. The term has evolved in the course of the years. When the world community of states reaches agreement about international standards within the framework of the United Nations, this will contribute to filling in the concept of dignity. Essential building blocks of dignity are freedom, equality, participation, social security and interrelationship. These building blocks are closely interrelated.

want. These freedoms can only be realised if conditions are created, in which everyone can exercise his civil rights, political rights, economic, social and cultural rights. Dignity plays a key role with to regard to human rights. Dignity is the source of all human rights: persons have rights because they are human beings. At the same time dignity is also an objective of human rights: the aim of human rights is to protect and promote dignity. ››

Source and objective The treaties that followed the UDHR contain comparable words and refer to freedom as a state citizen, political freedom and being free from fear and

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Need for guarantees The effective enjoyment of human rights is not obvious. It therefore proved to be necessary to guarantee human rights in national legislation and various international treaties, resolutions and declarations. The international framework is not only a guarantee additional to national rules, it also specified the human rights. Codification alone is not sufficient. Authoritative interpretation, enforcement and effective supervision of the observation of human rights are also crucial. ■

A fine example is the Convention on the Rights of Persons with Disabilities. In article 1 of this Convention this double meaning of dignity is highlighted. The objective of the Convention is to promote the respect of inherent dignity. Although all human rights obviously apply to persons with disabilities, in practice there is a gap between having all human rights and their actual enjoyment. The new Convention intends to close this gap. Postponing the ratification of this Convention is therefore not an option. Human rights are inherent to being human. They therefore apply to everyone: to women, men, adults, children, rich persons, poor people, Dutch citizens, not-Dutch citizens, good and bad citizens, psychopaths and murderers.

Human dignity Freedom Living in freedom is part of the essence of human dignity. Freedom means to be left in peace, both mentally and physically. A fundamental aspect of this is that the government cannot interfere with a person’s physical integrity without a very strong justification. If the state arbitrarily stops an searches persons or arrests them, there is no freedom. Another important aspect is the freedom to make decisions about one’s life (autonomy). In a free society there is room for ideas

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and political and religious convictions, without the government accepting one view and rejecting another. Authorities have often imposed restrictions on freedoms and deprived persons of their freedom to impair other human rights, for example, to silence dissidents. Not only the state can interfere with the freedom of others, but individuals and organisations, for example companies, can also seriously restrict the other in practice. When one person interferes with ››

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Equality A second fundamental aspect is equality in dignity. It does not make any difference where people are born, what their social position is, what they can do or cannot do and what their record is. Protecting this dignity is an important foundation for all human rights. Equality in dignity also inevitably means that no one can lose his dignity. Even when a person commits a serious crime, the police are not allowed to torture him. That would deprive him of his dignity.

the freedom of another person, the state can act against this according to previously established rules. If the state does not act against crime, people will not feel free in their home and in the public domain. Abusing or locking up a partner or child at home, constitutes an interference with their freedom. Freedom applies to everyone. Ensuring this guarantee is an important task of the state. Freedom also implies an adequate control of the actions of the authorities itself. If a person feels that his or her freedom is interfered with, it must be possible to hold the authorities accountable before an independent body. For example, a court, the National Ombudsman or the Netherlands Institute for Human Rights.

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Closely related to equality in dignity is the principle of equal rights and non-discrimination. Preferential or disadvantaged treatment of a person on the basis of a personal feature fails to recognise the inherent equal dignity of all people and undermines their ››

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Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

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Social security The value social security refers to fulfilling basic needs, such as food, drink and a roof above your head. The fulfilment of these minimum needs is therefore the basis of economic and social rights. It concerns the right of access to labour, social security, sufficient food, healthcare and housing. In his famous Four Freedoms address of 1941 the American president Franklin D. Roosevelt formulated it very well as: ‘freedom from want’.

development. Equality of all people is so fundamental that it is not only an independent human right, but it is also inextricably entwined with all other human rights. In practice having equal rights does not mean equal enjoyment of rights. Often many efforts are required to achieve this. For example, discrimination of ethnic minorities on the labour market requires government efforts to remove current prejudices. Participation Participation means that everyone is entitled to participate in society and have a say in matters that affect them. This may concern one’s own household, school, the design of the street or matters related to work. But also in a broader context: in local and national politics. In order to do justice to everyone, people must be allowed to participate at suitable moments and in a well-informed way. Women and persons from ethnic minorities are, for example, not represented very well in the public and political domain. This means that decisions are often taken that affect them, but they have not been able to have an influence on this and voice their opinion. Education in general and human rights education contribute to the ability of people to participate. Participation is important in enjoying various human rights. For example, the right to vote and the right to be elected, the right of children to be heard in custody matters and the right of people with disabilities to participate.

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Dignity in connecting The individual person can only freely and fully develop his personality in his or her relations with others. Dignity is realised in contact with others. This means that one individual views other individuals by taking all their capabilities, limitations and needs into account. It also means that the individual considers society and society considers the individual. A society in which justice is done to everyone promotes the contact and solidarity between persons. This is not free of obligations. On the one hand persons are entitled to being appreciated as part of society, but they also have the responsibility to respect society as an entity and its individual members. This is an important basis of the rule of law, in which the protection and promotion of human rights are paramount. ■

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Human rights with policy – policy with human rights Fundamental rights No separate comprehensive and coherent strategy has been developed for promoting and protecting human rights in the Netherlands. On the website www.government.nl the issue of human rights has been incorporated with the theme of international and development cooperation. The issue of constitutional rights, as human rights are often referred to when they have been guaranteed on a national level, is not included in the list. The latest policy document about fundamental rights was published in 2004 entitled ‘Fundamental rights in a plural society’. This policy document wanted to answer the question: Is there a sufficient balance in our plural society in the mutual relationship of fundamental rights, in particular in case of (discriminating) remarks which are (also) based on religion or conviction? This theme was clearly inspired by the debate in society shortly after the attacks of 11 September 2001. Although the title may suggest otherwise, the policy document does not deal with all human rights in the Netherlands. For example, economic and social rights are not discussed. ■

The Netherlands has a long tradition of promoting and protecting human rights in foreign policy. For more than 30 years human rights are a visible and clear aspect of foreign policy, for example the policy document Human rights in the foreign policy (1979). In this document the government stated that ‘the promotion of human rights can be considered as an essential part of its foreign policy’. Since then a number of policy documents have been published, in which the government explained its policy objectives, such as the human rights strategy ‘Human dignity for all’ (published in 2007, updated in 2011). The Ministry of Foreign Affairs has a Human Rights, Good Governance and Humanitarian Aid Department. Since 2000 the Netherlands also has had a human rights ambassador for foreign policy and development cooperation. But how is the current situation in the Netherlands with regard to its human rights policy?

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Testing policy regarding human rights Also relevant for the Netherlands Even when human rights is the basis for policy and several ministries are often involved in one policy issue, there is no coordinating department that checks or promotes this. Neither is it a custom in the Netherlands to describe all kinds of policy aspects in terms of human rights. Human rights is a term that is mainly used to discuss the situation in Syria or Russia. Fortunately, the Netherlands does not have any systematic, serious and gross violations of human rights. However, human rights are certainly also relevant for a democratic state under the rule of law such as ours, in which the standard of living is high in general.

The absence of a comprehensive strategy does not mean that there is no human rights policy in the Netherlands. Human rights are strongly embedded in the Dutch Constitution, as well as in other laws and regulations and international and regional human rights treaties. Protecting and promoting human rights is therefore a strict commitment for the government. When regulations are drawn up, it is examined which higher rules should be respected. The higher rules include human rights treaties. These treaties oblige the government to take the necessary measures to realise the rights that are included in these treaties. Almost all ministries are responsible for policy that has consequences for human rights in the Netherlands. When it concerns human rights of women, the Ministry of Social Affairs and Employment develops a policy on working women and the Ministry of Education, Culture and Science on emancipation in a broad sense, plus specifically the emancipation of lesbian women and transgenders. The policy on women and girls with disabilities and on reproductive rights and health is the responsibility of the Ministry of Public Health, Welfare and Sports, while the Ministry of Security and Justice deals with domestic violence and human trafficking. The observation and implementation of national and international standards often require a cabinet-wide commitment.

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From the perspective of human rights However, this does not mean that human rights always get the necessary attention. Sometimes this is the case, when a municipality, for example, wants to place cameras to tackle nightlife violence. It is a subject of discussion whether the protection of the safety of citizens justifies this breach of the right to protection of privacy. When a bill is discussed in the Lower and Upper House to forbid the non-anaesthetised ritual slaughter of animals, the resultant interference with the freedom of religion is considered. However, rights that are less well-known than privacy, freedom of expression and freedom of religion, are hardly discussed. This applies in particular to economic, social and cultural ››

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which always require an answer. No single country must cross the limits set by the core obligations under the right to health. For this it is necessary to apply a human rights perspective in weighing interests.

human rights. However, they are also guaranteed in terms of individual rights in binding documents and therefore also create obligations for the government. The debate about healthcare reforms does not, for example, take place from the perspective of a right to health. A human rights based policy on health care implies that it is always monitored who needs the care most when allocating the financial resources. The physical accessibility of care, the affordability of good care and access to care that is free from discrimination are some of the core obligations in relation to the right to health. We will give an example. When there are too few trained professionals in nursing homes to apply other solutions, the freedom of movement of elderly persons is often limited by restraint belts. They prevent that a person will wander off or fall. Then policymakers should assess whether the obligations laid down in the Constitution and human rights treaties are still fulfilled.

Towards a National Human Rights Action Plan It would be a great step forwards if the protection and promotion of human rights in the Netherlands would be considered in a more explicit, systematic and structural way. The Institute wants the Dutch government to grant a prominent role to human rights and also refer to them when developing and evaluating policy. A National Human Rights Action Plan may make an important contribution in this respect. The Minister of the Interior and Kingdom Relations promised such a document during the review of the second Dutch report by the UN Human Rights Council in September 2012. In the spring of 2013 the first steps were taken towards a National Action Plan. Ideally, the Cabinet adopts such an action plan, so that all ministers are committed to the policy. A National Action Plan can guarantee that human rights will receive the continuous and systematic attention they deserve. The Institute stresses that a National Action Plan should include the European as well as the Caribbean part of the Netherlands. ■

Policy documents about measures in the field of labour and social security, for example, do not contain any sections about the right to work and the right to an adequate standard of living. In view of the effects of policy on the situation of individuals, there is every reason to examine whether a measure in itself, or in relation with other measures, can stand the human rights test. Can the government take these measures in the light of economic and social human rights? How can we see to it that we do not cross the minimum limits set by human rights obligations? These are very legitimate questions from the viewpoint of human dignity. Indeed, it are compelling questions

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Changing role and responsibilities of the government in the implementation Deregulation and decentralisation In some fields the central government assigns more tasks and powers to itself, while in other fields they withdraw themselves from a number of public tasks. In 2012 the changing role of the government was defined in greater detail. Various tasks were transferred to the municipalities, for example, powers in the field of social security, participation in the labour force, youth and health care. The transfer is accompanied by deregulation, which means that the national government has a less clear picture and less control over content and quality of service.

Human rights largely concern what the state should not do: arbitrary arrests, censoring publications and discriminating. At the same time an active input of the state is necessary in order to guarantee all human rights. After all, the government must train the police adequately, so that persons are not arrested arbitrarily and that persons, who think that they have been arrested arbitrarily, can bring their case to court. It is also the duty of the state to prevent persons from using their freedom in such a way that they interfere with the freedom of others. The government must act when persons have interfered with the freedom of others.

The objective of the decentralisation of powers is that municipalities can supply customised service for individual cases. They can apply several services and powers for a certain objective. This does not alter the obligation to motivate decisions properly and prevent arbitrariness. Since the decentralisation is accompanied by major cuts and not all municipalities have the necessary expertise, it is necessary to be observant in the subsequent substantiation and implementation of the local policy. Economic, social and cultural human rights are very relevant for the fields in which decentralisation has already been defined. The Institute stresses that it also concerns individual rights of individuals. The cuts, however necessary they may be, should not mean that the core obligations of the state, which result from human rights, are at issue. ››

In order to increase public safety and prevent terrorist attacks, the government has taken several measures to monitor the behaviour of persons in the public area. Further, the criteria allowing for physical inspection have been broadened. This raises several questions with regard to human rights. Improving the safety is obviously a legitimate objective and pre-eminently a task of the state, but are all measures that have been taken and proposed necessary? Has the risk that these measures will be used for a different objective been sufficiently restricted? How do officials of security services select the persons that they monitor in particular? Is it guaranteed sufficiently that this does not involve stereotyping or discrimination?

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Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

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company, for example a company should not exploit workers and not discriminate when recruiting and selecting staff. It may also be done outside a company, when human rights are breached within the sphere of influence of the company.

The local government is also obliged to observe human rights. Decentralisation, deregulation and even privatisation are not a problem in itself, as long as human rights remain guaranteed. This is a responsibility that the national government can never economise away.

An example is the recent discussion about having clothes made under perilous working conditions in Bangladesh. Another example is supplying raw material to a country or regime, with the risk that they may be used for the production of chemical weapons. Guidelines have been drawn up within various international organisations, such as the United Nations and the Organisation for Economic Cooperation and Development (OECD), to which an increasing number of companies commit themselves.

No research Until now the government has not investigated the consequences that the measures regarding cuts, decentralisation and deregulation jointly may have for various groups of citizens, in particular for groups in a vulnerable position and for whom public services are very important. Economic and social human rights do not play a role in discussions about these measures. This is regrettable, because these rights include the minimum guarantees with which the national policy must comply, both with regard to individual measures and in their totality. The government should examine if the consequences of all measures remain within the limits of international obligations.

In the Netherlands this issue is, among others, highlighted under the denominator of ‘corporate social responsibility’. The government has indicated that it will draw up a National Action Plan for Human Rights and the Business Sector in 2013. On the one hand the government remains responsible for a good national statutory framework, while on the other hand companies are increasingly called to account themselves with regard to their responsibilities. The Institute welcomes this if this results in a greater human rights awareness at companies. ■

Companies A related theme is the increasing attention for the responsibilities of companies. In the first place human rights protect individuals against the influence of the state, but with the increasing power of companies they are also increasingly called to account with regard to observing human rights. This may be done within a

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Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

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Dignity plays a key role when it concerns human rights. Dignity is the source of all human rights: persons have rights because they are human beings. At the same time dignity is also an objective of human rights: the intention of the rights is to protect and promote dignity.

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The Netherlands and the ­international legal order Promoting the international legal order Optional Protocol ICESCR The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) entered into force in May 2013. This protocol creates the possibility to submit individual complaints about the ICESCR to the Committee on Economic, Social and Cultural Rights. If the Netherlands would ratify this protocol, this would make a contribution to specifying and hence protecting these human rights more adequately. However, the Netherlands has not taken any steps in this direction.

The Netherlands is one of the few countries where the promotion of the international legal order has been laid down in the Constitution as a task of the government. The Netherlands is an important donor of international organisations and makes a contribution to drafting international instruments with which states agree to take further steps in the field of human rights. For example, the Netherlands is active in drafting resolutions about violence against women in the United Nations General Assembly. The international legal order benefits from clear and strong standards. At least as important is improving the enforcement of accepted standards.

Universal Periodic Review The UN Human Rights Council is the most important political body at the UN that deals with human rights. In the Universal Periodic Review the Council discusses the report of states about their own human rights situation. The second report of the Netherlands was discussed in 2012 under this procedure. The Netherlands was represented by the Minister of the Interior and Kingdom Relations. Many non-governmental organisations (NGOs) were actively involved in the procedure and submitted a joint shadow report. The Netherlands Institute for Human Rights also submitted a report to the Human Rights Council. ››

International supervision International supervision of the observation of human rights offers additional protection. This is why an independent supervisory body has been set up under several treaties, for example the UN Human Rights Committee, the UN Committee on the Elimination of Discrimination against Women and the European Court of Human Rights. The UN Committees discuss reports submitted by states and formulate recommendations in this respect which should be heeded by the states. Individuals can submit a complaint to the European Court and UN Committees.

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President Poetin speaks to Rutte about human rights in the Netherlands. The European Parliament discusses human rights inside and outside the European Union. Human rights are also discussed in trade missions. This is very normal, as long as it concerns other countries. However, sometimes it seems that Dutch government members and other politicians find it problematical when an international body criticises the Dutch policy. In recent years politicians have taken several initiatives to try to curb the influence of international rules and international bodies, because the international standards restrict Parliament too much, according to them. Moreover, they allege that the international bodies interpret the standards too broadly. ■

The procedure resulted in recommendations for the Netherlands. In its response the government stated which recommendations would be accepted by the Netherlands. This focus on an international level is a recognition of the importance of human rights. In the first place the protection of human rights is the duty of the state, however it is too important to leave it exclusively to the state. The protection on a regional and international level guarantee that human rights are minimum standards which always apply. Criticism of the Netherlands It has become very common to discuss human rights on many international levels. Countries confront each other: prime minister Rutte speaks with president Poetin about the human rights in Russia, while

Status of international standards Article 93 and 94 Constitution A bill was introduced in 2012 with the objective to amend articles 93 and 94 of the Constitution. By virtue of these articles individuals can invoke international standards in court and the court can assess whether the application of national laws and rules complies with international law. This proved to be a useful and necessary option in practice, in particular with human rights. It would be a step backwards for the protection of human rights if this option would not exist anymore. ››

Publicists and parliamentarians regularly start a discussion on the status of international law in the Netherlands. This is often the result of a judgement of the European Court of Human Rights, or when it is stated by the Council of State in an advice in a legislative procedure that there is a tension between a proposed bill and international standards. The publicists and parliamentarians then raise the question whether the weight of international standards is not too great in the national legal order and therefore whether Parliament has too few options for the required legislation.

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The second proposed amendment, regarding article 94 of the Constitution, implies that treaty provisions that have a binding effect on everybody will only have priority over lower regulations, such as general administrative measures and ministerial arrangements. The proposal restricts the possibility to not apply statutory provisions when they are in conflict with international provisions. In the Netherlands the court is not allowed to test laws against the Constitution (article 120 of the Constitution). This means that the court is not allowed to judge whether a law which has been approved by Parliament is in conformity with constitutional rights or not. Several countries have a constitutional court which is allowed to carry out such a test, however in the Netherlands this is not the case (yet). This is why article 94 of the Constitution in particular plays an important role in the protection of human rights. ■

In the Netherlands, international provisions which may be binding on all persons by virtue of their contents are binding (article 93 of the Constitution). This means that individuals can invoke provisions in court which have been drawn up in such a way that the court can apply them immediately. Treaty standards that have been formulated in a very abstract way, for example the right to an adequate standard of living, can only be applied after the legislator has specified them in national legislation. The court has decided that it can directly apply many provisions from human rights treaties – in particular treaties on civil and political rights. When the court establishes that Dutch rules or practice are in conflict with international standards, it must not apply the Dutch standards by virtue of article 94 of the Constitution. If the proposed bill would be adopted, the legislator will have a decisive vote regarding the binding nature of the provisions. This assessment is currently in the hands of the judiciary, which also takes into account the views of the legislator, as formulated in the parliamentary debate about the approval of a treaty.

The court, Parliament and international standards Debate and dynamics The relationship between Parliament and the independent judiciary is dynamic. Parliament is part of the legislative power, the independent judiciary supervises the implementation of the law. The court

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interprets the law, for example, when a term can be interpreted in different ways. Or regarding the question whether the law applies to a situation that could not be envisaged when the law became effective. This applies to the national court and, with human rights, ››

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also to the European Courts (European Court of Human Rights and Court of Justice of the European Union) and the UN treaty bodies. States are obliged to observe international law, which may require an amendment of national rules. Until now Parliament has played a modest role in the interpretation of international law. It was also for this reason that the debate on the interpretation of these international rules by the court, an advisory body or an international body could result in political dynamics. Parliament International law does not prescribe the application of treaty provisions in detail. Parliament must and can play a crucial role in the further elaboration of international standards in national legislation and policy. The debate in Parliament now often only starts after court decisions regarding concrete cases, where the scope of human rights standards is a surprise for some politicians. In its legislative task Parliament is jointly responsible for guaranteeing human rights standards in legislation, policy and practice. It would be preferable if Parliament would pay structural attention to human rights in the Netherlands, including the relationship with the international protection of human rights.

several amendments in the chapter of fundamental rights of our Constitution. Until now the government has followed one advice, which concerned the amendment of article 13 of the Constitution, about protecting the secrecy of communications. Unfortunately, there was no broader and more fundamental review of the national catalogue of fundamental rights. The Netherlands Institute for Human Rights issued an advice regarding the draft legislative proposal to amend article 13 of the Constitution, in which it agrees with the need to amend this provision. The Institute expresses reservations with regard to the proposed regulation of breaches of the secrecy of communications in order to protect national security. Moreover, the Institute concludes that the protection and regulation of the secrecy of communications is related very much with the regulation of other fundamental rights that a broader and more fundamental reorientation of ››

Role constitutional rights It would be advisable if Parliament would consider the formulation and relevance of constitutional rights. In 2010 the Government Committee on the Constitution published its advice, in which several proposals for reinforcing the normative nature of the Constitution were drawn up. The committee advised to introduce

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treaties on human rights. In the opinion of the Institute this added value should be sought in a refinement of broad international standards, focused on the Dutch situation and conditions. ■

the chapter of fundamental rights in the Constitution seems obvious. This requires a more specific political reflection regarding the position and added value of the Constitution as a catalogue of fundamental rights compared to the various European and international

European Court of Human Rights – too stubborn? Criticism Nevertheless, there has also been substantive criticism of the work of the Court by politicians, academics and national courts. The criticism in particular concerns matters such as migration and asylum, in which the Court regularly concludes that the policy and implementation of the policy by western states is not acceptable. In various countries politicians and commentators think that the Court has a too great influence on their national policy and European asylum policy. They have ‘problems’ with the Court, because rules or actual practice do not comply with the requirements of the European Convention on Human Rights, according to the Court.

Praise The European Court of Human Rights (ECtHR) can adopt binding judgements that have to be observed. Discussions about decisions of international bodies usually refer to this Court. The Court is highly praised for many of its rulings. The Court is an important guardian of human rights within the Council of Europe. Minister Timmermans also agrees with this: ‘The significance of the European Convention on Human Rights as well as the European Court of Human Rights is unquestionably great. The Court is an important catalyst for a good guarantee of the rule of law throughout Europe.’ In recent years the Court has adopted ground-breaking judgements about human trafficking and exploitation and violence against women. These judgements show that the Court offers valuable additional protection when the national protection of fundamental rights is inadequate.

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However, the Court is not alone in its judgement regarding the Dutch policy on asylum, migration and the treatment of aliens who are staying in the Netherlands without a valid residence permit. Other international bodies also voiced their concerns. The European Committee for Prevention of Torture (CPT) of the Council of Europe published a report in August 2012 about ››

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deal with issues such as the marriage between persons of the same sex which it leaves within the margin of appreciation of states.

its visit to the Netherlands in 2011. The criticism of the Committee concerns the grounds for deprivation of liberty and the duration and conditions of the detention of aliens. The measures of the Netherlands to observe the recommendations leave much to be desired. This criticism has been voiced several times by the Institute, as well as by migrant and human rights organisations, lawyers and advisory bodies.

No discretionary power However, the ECtHR is stricter with other issues. In cases in which applicants, for example, allege a violation of the right to be free from torture, the Court tests strictly, because it concerns a right to which no exception is allowed. With such cases no margin of appreciation for states should be allowed. These are actually cases where states have ‘problems’ with the Court. For example, because they cannot extradite a person who is suspected of terrorist activities to a country where he runs the risk of torture. The government must then seek a solution for such persons, for example by investigating whether a different country wants to allow entry of the person in question. ■

Discretionary power Some politicians find it difficult to accept that human rights actually impose limits on their discretionary power. Critics of the Court sometimes give the impression as if states do not have any discretionary power at all anymore. However, in reality the Court upholds the margin of appreciation for individual states when it concerns ethical issues about which there are various views in the different states in the Council of Europe. The Court leaves much room to the state to

Pressure on the European Court Conference in Brighton In April 2012 there was a Ministerial Conference of the Council of Europe in Brighton about the future of the European Court of Human Rights. In the run-up to the Conference the states explicitly wanted to include the following principles in the European Convention on Human Rights (ECHR): the principle of subsidiarity of the Convention and the principle of margin of appreciation.

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Prior to the Conference in Brighton, the Upper House especially advocated the preservation of the position of the Court. Subject of the debate was the government commitment for the Conference. This resulted in adopting the motion of Franken et al. In this motion the Upper House considers that the ‘development of law by the European Court should be respected (…) and that there is no reason for the government ››

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to the objectives of the Declaration regarding transparency and accessibility. As emphasised by the Advisory Council for International Affairs in an advisory letter (2011), the ECHR as such is not subsidiary. However, the supervision of the Court is subsidiary, in the sense that an application to the Court is only admissible when the applicant has exhausted domestic remedies. Because of the ongoing developments and insights it is therefore important that the government always critically examines whether national laws and regulations still comply with the international standards, so as to prevent the submission of a complaint to the Court.

to advocate a wider margin of appreciation of Contracting States when interpreting the standards of the ECHR’. Brighton Declaration The Brighton Declaration contains several agreements between the Contracting States to implement the European Convention and the judgements of the Court. Hereby states reaffirm their international obligations. However, the appeal of states to the Court to attach great importance to the principle of margin of appreciation and the principle of subsidiarity of the Convention shows at the same time that states would like to be given more scope by the Court.

Influence European Court There was a new debate in the Lower House in March 2013 about the question whether the statements of the European Court go too far and whether they are at odds with national laws that were effected democratically. Several MP’s were of the opinion that the Court has too much influence. The Minister of Security and Justice pointed out that the ECtHR only found violations against the Netherlands in a limited number of cases. He also stated that it is the task of a court to not only apply the law, but also interpret it. A judgement by a court may then result in an amendment of the law. ‘Entirely legitimate’, according to Minister Opstelten. It may be expected that the minister will also propagate this view in the Committee of Ministers of the Council of Europe in the subsequent discussions and hence promote that the European Court can continue to offer additional protection in all states that are party to the Convention. ■

The declaration also includes an appeal to the Committee of Ministers of the Council of Europe to add these principles to the preamble of the ECHR. In a meeting with the Upper House the state secretary of Security and Justice emphasised that he was satisfied that the principles of subsidiarity and margin of appreciation would not be included in the provisions of the Convention and that the declaration should not have an effect on the scope of the principle of margin of appreciation. In May 2013 the Committee of Ministers of the Council of Europe accepted Protocol XV to the European Convention, in which these principles were formulated. It is not entirely clear what consequences these principles in the Preamble (which is, after all, part of the Convention) may have on the work of the Court. Merely referring to these principles will not contribute

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Dozens of complaints against the Netherlands were declared inadmissible by the Court in 2012. The Court finds violations by the Netherlands in only a limited numer of cases. In 2012 the Court delivered seven judgements against the Netherlands. In six cases a violation of the ECHR was established. ■ G.R.: violation of article 13, requesting additional information about income to obtain an exemption from the obligation to pay administrative charges was excessively formalistic and resulted in a denial of access to a remedy which could have been effective (ECtHR 10 January 2012, no. 22251/07, G.R. v. the Netherlands). ■ Romet: violation of article 8, the failure to invalidate a stolen driving licence resulted in identity fraud, a violation of the right to protection of one’s private life (ECtHR 14 February 2012, no. 7094/06, Romet v. the Netherlands). ■ Emin: the decision of the court to not grant a compensation after unlawful detention of a migrant is in violation with article 5, paragraph 5 (ECtHR 29 May 2012, no. 28026/07, Emin v. the Netherlands). ■ Vidgen: violation of article 6, paragraph 1, and paragraph 1 (d), the decisive evidence that was the basis for the conviction of a suspect was an implicating statement of a co-suspect who could not be heard effectively by the defence (ECtHR 10 July 2012, no. 29353/06, Vidgen v. the Netherlands).

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■ Van

der Velden: violation of article 5, paragraph 1, no legal basis for the extension of a TBS order with confinement in a custodial clinic after four years when it does not concern a violent crime (ECtHR 31 July 2012, no. 21203/10, Van der Velden v. the Netherlands). ■ Telegraaf: violation of article 8 and 10 because of the way in which the General Intelligence and Security Service (AIVD) used its powers to force journalists to reveal their sources ( ECtHR 22 November 2012, no. 39315/06, Telegraaf Media Nederland, Landelijke Media B.V. and others v. the Netherlands). The Court found no violation in one case: ■ Van der Heijden: the right of spouses not to testify against each other does not apply to cohabitants, no violation of article 8.(ECtHR 3 April 2012 (Grand Chamber), no. 42857/05, Van der Heijden v. the Netherlands). A case that received much media attention should be mentioned separately: the Court declared inadmissible the application of the Staatkundig Gereformeerde Partij (Reformed Protestant Party) regarding a violation of the right of freedom of religion, the right of freedom of expression and the right to freedom of association and peaceful assembly (ECtHR 10 July 2012, admissibility decision), no. 58369/10, Staatkundig Gereformeerde Partij v. the Netherlands).

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International procedures: from a burden to an opportunity Points requiring improvement The UN Human Rights Council and UN treaty bodies examine the situation in the Netherlands. These bodies use reports by the government, national human rights institutions such as the Netherlands Institute for Human Rights, NGO’s and UN bodies to start a dialogue with representatives of the Dutch government. Compared to many other countries, the Netherlands has a constructive attitude in these procedures. However, there is also room for improvement. The reports are not always submitted on time, specified figures miss regularly and there is no fixed procedure for following up the recommendations.

that in particular the still lacking gender-specific policy for combating violence against women will result in a robust dialogue between the Committee and the Netherlands. Reports The reports of the Netherlands to various international treaty bodies result in a greater workload for the departments in question, also because these committees repeatedly want to see disaggregated data. Since the deadlines for reporting to the various committees are not simultaneous, it may happen that the Netherlands will collect data three times within a short period, with a slightly different focus (women and labour or ethnic minorities and labour). However, a structured and specified data collection is not only in the interest of the report itself. When these data are structurally available in conjunction with the recommendations of the Committees and the Human Rights Council, a policy cycle may develop that will primarily benefit the formulation of a national human rights policy. With specific targets, an appropriate allocation of resources and a proper monitoring of the implementation. In that case the reports about obligations from the treaties on human rights will not require an extraordinary effort anymore. ››

Further, the Netherlands does not always observe the recommendations. For example, the UN Committee on the Elimination of Discrimination against Women repeatedly urged the government to formulate a specific policy regarding violence against women, based on the gender-specific nature of violence. The Committee requested the Netherlands to submit an interim report, in which this point should be addressed, amongst others. However, the Committee considered that the interim Dutch report of July 2012 does not entirely meet this request and asked for additional information before July 2013. It is expected

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Involving civil society Such a policy cycle may also include the coordination of the follow-up of international recommendations. It should also include a structural dialogue with civil society and bodies such as the Netherlands Institute for Human Rights. The fact that the Netherlands recognises the value of such a dialogue is shown by the recommendations that the Netherlands made to Canada and New-Zeeland during the Universal Periodic Review.

shadow reports for many years, coordinated the drafting of a shadow report of 25 NGOs for the discussion of the second Dutch UPR report in 2012. The UN Women’s Convention Network submitted a shadow report to CEDAW on behalf of 20 women’s and human rights organisations, as a reaction to the interim report of the Netherlands. Reports from NGOs come from the parts of society. The shadow reports and reports of the Netherlands Institute for Human Rights are beneficial for the quality of the dialogue between those bodies and the government delegation. Moreover, they make an important contribution to increasing the knowledge about human rights and about the way they are important for the Netherlands. ■

In the Netherlands many non-governmental organisations (NGOs) are actively involved in the reporting procedures. Sometimes individually, but increasingly in (ad hoc) coalitions of organisations. The Dutch Section of the International Commission of Jurists (NJCM), which has already been drawing up

Final comments Human rights are also relevant for prosperous democratic states under the rule of law, such as the Netherlands. It must be possible for all persons to live in dignity. The government should not only take human rights into account when viewing the outside world, but also when examining the Netherlands itself. However, it is unusual that relevant policy issues are placed on the agenda of the Dutch government and Parliament as human rights themes. Human rights and their mutual relationship are relevant for all policy fields, because they offer a framework and minimum ››

The Netherlands has a long tradition of addressing human rights issues internationally. This is very commendable. Many countries violated, and still violate, human rights in a serious and systematic way. The Netherlands regularly took initiatives to denounce such violations. In recent decades the government granted much support to individuals, NGOs and international organisations who defend human rights worldwide. Many efforts have been made to build up a state under the rule of law in countries where a conflict was ended.

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requirements for many policy options. This is why it is also meaningful that international recommendations and their follow-up are subject of debate in Parliament. The Netherlands Institute for Human Rights, other relevant supervisory bodies and advisory bodies and NGOs all play their own role. They boost the discussion, protection and promotion of human rights in the Netherlands and therefore should be independent, but regular discussion partners for the government and Parliament.

The Netherlands Institute for Human Rights recommends the government to develop a National Human Rights Action Plan for the European and the Caribbean part of the Netherlands to ensure that human rights are permanently considered in legislation, policy and in practice. The government can explain in this action plan how they implement the protection and promotion of human rights, in consultation with the civil-society organizations, and which concrete objectives and priorities they hereby have.

These are arguments for an ambitious National Human Rights Action Plan and an infrastructure in policymaking and policy accountability, which takes account of the crucial role of human rights. ■

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Administration Het begint of met aandacht Justice, Remedies and Deprivation of Liberty

Developments in 2012  › Points requiring attention  ›

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Conditions in detention are sufficient, but improvements are necessary for detainees. case must be independent and impartial and the trial must take place within a reasonable time frame. Article 6 of the ECHR sets extra requirements specifically for criminal proceedings: persons must be presumed innocent until their guilt has been established in court and they must be given sufficient time and opportunity to defend themselves with the assistance of a lawyer, to dispute evidence and interrogate witnesses.

Suspects and convicted persons can be restricted in their freedom, but do not lose all claims to the protection of their human rights. On account of article 5 of the European Convention on Human Rights (ECHR), amongst others, arrested persons must be informed about the reasons for their arrest and about all charges that are brought against them as soon as possible after their arrest and in a language they understand. They must also be brought before a judge within a period of a few days. The judge can then decide about the lawfulness and possible continuation of their detention. When it concerns detention conditions, medical and other facilities for detainees and the application of interrogation methods, the requirements that have been developed in the case law regarding article 3 of the ECHR play an important role. In addition, the right to a fair trial (article 6 of the ECHR) is also obviously essential: the court that tries a

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An issue in this field that attracted attention in 2012 is the right to consult a lawyer prior to police interrogation. At present legislation is being drawn up about this. The treatment of and care for detainees has been investigated by various supervisory bodies. Their reports show that the Netherlands does not come off badly with regard to the conditions in detention, but that there is still room for improvement. ■

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‘Sometimes it takes a fresh pair of eyes to put things into proper perspective’ Anton van Kalmthout is a member of the Committee for the Prevention of Torture (CPT). The CPT is an international committee of the Council of Europe. The CPT supervises prisons, police cells, detention centres for aliens and other places where persons are detained in all 47 member states of the Council of Europe. The CPT inspects the various institutions and advises to combat inhuman or degrading treatments. ‘Since the Dolmatov case the CPT has never been mentioned so much in the Lower House’, according to Van Kalmthout. Dolmatov is the Russian asylum seeker who committed suicide in a Dutch detention centre before he was about to be deported from the Netherlands. The CPT makes recommendations to the government to prevent this type of situation. Besides the international supervision of the CPT there is also a national supervision. However, there is an important difference. Van Kalmthout: ‘Dutch supervision committees monitor their own prisons or psychiatric institution to see whether they comply with the Dutch rules, but they do not question whether these rules are compatible with international standards. However, that’s what we do. Sometimes it also takes a fresh pair of eyes to put things into proper perspective when introducing measures.’ Despite the fact that things are relatively well in the Netherlands, there are certainly still some points that require improvement, in particular regarding the detention of aliens. Van Kalmthout: ‘Their treatment, as if they are criminals, has often been criticised by the CPT. Aliens on a hunger strike are placed systematically in an isolation cell in violation of the CPT standards, with rip-proof clothing, camera surveillance, without furniture and television, in order to stop their hunger strike. In general the restrictions imposed on aliens who are detained are not compatible with human rights standards.’

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Persons with a prison sentence or who are treated in a forensic hospital come under the responsibility of the state and entirely depend on the state during their deprivation of liberty, which means that they are potentially in a vulnerable position.

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Developments in 2012 Position victims The position of victims and surviving relatives in criminal law has gained increasing attention in recent years. This was, for example, the case in the trial about the Amsterdam sexual abuse case against Robert M., in which the victims were too young to make a statement themselves. The parents were given a right to speak during the trial on behalf of their children. In a legal sense they cannot be recognised as a victim themselves, according to the clarification of the court in Amsterdam. That is the responsibility of the legislator. This case has accelerated the legislation to improve the position of the victim in criminal proceedings.

be extended once again after four years only in the event of violent crimes, according to the law. Because the judge did not include the aspect of violent crime in his considerations, the European Court of Human Rights (ECtHR) stipulated in the Van der Velden case that the foreseeability requirement had been violated: the guarantees concerning the deprivation of liberty resulting from article 5 of the ECHR imply that an extension of the deprivation of liberty should not come as a surprise for the person involved. Following this, the Council for the Judiciary states that there is a threat that the imposed detention under a hospital order cannot be extended in 111 cases. In early January 2013 the Supreme Court judged that an extension of the detention under a hospital order is possible when it evidently concerns a violent crime. According to the Supreme Court, the mere fact that the judge who imposed the hospital order did not state in his motivation in so many words that it the result of a violent crime, does not mean that the hospital order cannot be extended anymore. However, the other considerations of the judge should evidently show that it certainly involved a violent crime. In its ruling the Supreme Court seems to set slightly less strict requirements with regard to the extension of detention under a hospital order than the ECtHR. It is possible that this ‘dialogue between judges’ will be continued as soon as a new case of extending the detention under a hospital order will be submitted to the ECtHR. ››

Juvenile court judge Another development is an experiment to let the juvenile court judge actively go to the place where a minor is held, in order to have the public enquiry on extending the care and supervision order or custodial placement take place there. This means that a child does not have to wait for hours in a cell for court. In this experiment the interest of the child is given explicit priority. Detention under a hospital order In 2012 there was commotion about extending the detention under a hospital order, whereby a judge did not explicitly consider whether the case concerned a violent crime. The detention under a hospital order can

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Right to interrogate An important part of the right to a fair trial is that a suspect must have the possibility to interrogate any witnesses himself or let others interrogate them. This is in particular important when the statement of the witness is used to a decisive extent for a conviction. Until recently the Supreme Court in the Netherlands accepted certain restrictions in this right to interrogate. The Supreme Court assumed that if a witness refused to answer questions of a suspect, this did not mean that the right to a fair trial was violated. This was even not the case when this statement was used to a decisive extent for conviction and insufficient compensating measures were taken, including strong procedural guarantees for the suspect. However, the Netherlands was hauled back into line in 2012 by the ECtHR in the Vidgen case. Under reference to previous judgments the ECtHR concludes that the right to a fair trial was violated. Following this judgment the Supreme Court changed its course. In January 2013 the Supreme Court concludes that if a witness simply refuses to answer, the suspect does not have sufficient opportunity to verify the witness testimony. This development is positive, because as a result the right to a fair trial can be realised more adequately.

possibilities to hold suspects of a violent crime in ­ pre-trial detention, in view of applying accelerated proceedings. That is to say: adjudication within 17 days and 15 hours. However, it must concern violent crimes that have been committed at a location that is accessible to the public or violent crimes against persons with a public duty. Moreover, it is also a condition that this crime must have caused ‘social unrest’. Various advisory bodies have extensively discussed the compatibility of this bill with the relevant human rights provisions. This resulted in a better substantiation and providing a better framework of the terms that are applied in the bill by the government and in an explicit consideration of human rights during the parliamentary debate of the bill. Nevertheless, the Institute observes that this bill is part of a political and social trend towards a stricter criminal law system, in which pre-trial detention is accepted sooner. This is at odds with the right of a suspect to be presumed innocent until he has been sentenced definitively; ››

Pre-trial detention In the Netherlands a relatively large number of suspects are held in pre-trial detention. These persons have not been (definitively) sentenced yet. In 2012 the Minister of Security and Justice introduced a bill to extend the criteria for pre-trial detention. This bill extends the

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interests with regard to the need to record telephone conversations at the institution. Hereby various factors may play a role, for example the protection level of the institution and the prevailing detention regime. Following this statement, the State Secretary of Security and Justice indicated that the governor of the institution can make a telephone available for a conversation with a lawyer whereby no recordings will be made, if requested by the detainee. Furthermore, a number recognition system will be introduced, whereby telephone numbers of lawyers are recognised, so these conversations will not be recorded.

there is a risk that pre-trial detention will function as a form of provisional punishment, prior to the decision of the judge. The Institute stresses that the recognised ultimate remedy nature of pre-trial detention always requires due consideration in legislation as well as in practice; this far-reaching measure must only be applied when it is really necessary. Recording telephone conversations detainees Detainees can have telephone conversations with third parties from penal institution or detention centres where they are held. These telephone conversations can be taped, for example to supervise the discipline in the institution or prevent a convicted person from harassing the victims of his crime. However, such recordings interfere with the right of respect for the private life of the detainee, which has been laid down, amongst others, in article 8 of the ECHR. It also depends with whom a detainee is phoning: a conversation with a lawyer must always be confidential, in a conversation between spouses it must play a role that they have a mutual right to refuse to give evidence; they do not have to testify against each other.

The Institute thinks that it is very important that the implementation of this system will be introduced swiftly: a distinction must be made between recording regular telephone conversations and recording telephone conversations with holders of confidential information. The state must guarantee that detainees can have confidential conversations, without running the risk of tapping by third parties. In the meanwhile it is important that the current practice of tapping telephone conversations is supervised. At present such supervision has not been arranged structurally, so that it is possible that recorded telephone conversations with lawyers are still tapped (accidentally). For this a guarantee mechanism must be introduced.

On 29 October 2012 the appeals commission of the Council for the Administration of Criminal Justice and Protection of Juveniles (RSJ) made a statement about the standard recording of telephone conversations in a penal institution. The appeals commission judged that the Custodial Institutions Framework Act did not offer a legal basis for this standard recording and argued that the governor, in the light of the privacy protection of article 8 of the ECHR, should explicitly weigh

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Tapping as a means of investigation One of the objectives of recording conversations may be collecting evidence. This always requires an authorisation from an examining judge. In May 2012 an examining judge refused such an authorisation. ››

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compelling reasons dictate otherwise. He also pointed out that tapping in the conditions of this case would in essence imply that a trick was applied to elicit a statement from the suspect that could not be obtained in an interrogation. He judged that this conduct would make the right of suspect to remain silent ineffective and that this would lead to a violation of the right to a fair trial. ■

The public prosecutor had demanded the authorisation in the hope that the suspect, who was held in remand, would talk with his wife about the crime of which he was suspected. The examining judge considered that a person with immunity from testifying should in principle be able to consult a suspect in confidence, unless very

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Points requiring attention Right to legal assistance EU directive At the same time the European Union (EU) is discussing the elaboration of the right to legal assistance in an EU directive. With the negotiations it is important that the right of access to a lawyer is in agreement with the right to a fair trial and that the minimum protection that is offered now must be maintained or increased. There must be sufficient room to develop this further according to the interpretation of the ECtHR. ››

When a person is picked up by the police, he will be involved in proceedings that are complex for most persons. Everybody has a right to a fair trial, but how is this implemented in practice when the person who is picked up does not know what is happening and what position he should take? Legal assistance is an important aspect of the right to a fair trial. In order to exercise this right effectively, a suspect must be able to consult a lawyer at an early stage of criminal proceedings. Right of consultation The ECtHR judged in 2008 that a suspect already has the right to consult a lawyer before the first police interrogation. At the time such a right was not recognised yet in that phase of the proceedings in the Netherlands. This was in contrast with other European countries, where the right to this early legal assistance has already been integrated to a greater extent. In 2009 the Supreme Court confirmed this right to consult a defence counsel. The Board of Procurators General has regulated this in detail in instructions for the Public Prosecution Service. A bill will be introduced that offers a legal basis for this right.

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Right to legal assistance during interrogations At present the right to legal assistance prior to interrogation has therefore been recognised in the Netherlands. This does not apply to a general right to legal assistance during an interrogation. In 2012 the European Committee for the Prevention of Torture (CPT) of the Council of Europe published its report about the Netherlands. This report also included two recommendations about the right to legal assistance with police interrogation. In it the Committee called on the government to create a full right to legal assistance with interrogation, whereby a lawyer should also be present at the interrogation. ■

The Netherlands Institute for Human Rights recommends the government to guarantee a full right to legal assistance for the suspect during the interrogations when he is suspected of a criminal offence and hence to comply with the recommendation of the European Committee for the Prevention of Torture.

Detention conditions Layout requirements cells In the Netherlands six cubicles were discovered in the police station Sprang-Capelle by the CPT of the Council of Europe, which had a surface area of two square metres, which did not have any windows and only had a concrete block to sit on. These rooms may only be used for a very short detention on the basis of European standards: for not more than six hours in total. Two minor children were detained in these rooms for more than ten hours, with brief interruptions, between twenty to thirty minutes. This is possible because the night hours are not counted when persons are detained in these cells, according to Dutch police guidelines. ››

Persons with a prison sentence or who are treated in a forensic hospital come under the responsibility of the state and entirely depend on the state during their deprivation of liberty, which means that they are potentially in a vulnerable position. In order to see to it that this does not lead to a situation in which inhuman or degrading treatment takes place (which is forbidden by article 3 of the ECHR, amongst others), there is national and international supervision of detention conditions.

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Strip searches The CPT also criticised the frequency with which and the way in which strip searches are carried out in prisons. In order to maintain human dignity, the CPT stresses that such actions always have to comply with certain rules, such as not having to remove all clothes at the same time and undress in the presence of a person of the other sex.

In view of the limited facilities in these cells, this is a curious principle that should be changed at once. The CPT also found that there hardly was any daylight in a new cell complex in Apeldoorn. In the Penal Institution of Arnhem-Zuid there was only a mattress on the floor in an isolation cell. There was no bed, no table or chair, while the CPT thinks that they should be present, also in isolation cells. Moreover, the exercise area consisted of a covered area of about fourteen square metres, with a large window on one side and an opening that was blocked with bars on the other side. The CPT thought that it did not suffice to refer to it as an exercise area that ‘offered room for exercise in the outside air’.

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Positive In its report of August 2012 the CPT is in general positive about the detention conditions in the Netherlands. According to the CPT, the relationship between the population and staff seems to be very good in general. However, the above-mentioned bottlenecks should be solved. ››

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No timely response The Institute points out that the government did not respond to the findings and recommendations of the CPT within the stated period (5 October 2012). The government has not responded until now (June 2013). The CPT plays a very important role in monitoring the human rights of a vulnerable group of persons. The government can emphasise the importance of the CPT by responding as yet to the recommendations of the CPT and doing this on time in the future. ■

The Netherlands Institute for Human Rights urges the government to guarantee that all detention facilities in the Netherlands comply with the standards developed by the European Committee for the Prevention of Torture (CPT) of the Council of Europe, including the presence of natural light in cells. These standards must be observed in particular when new cell complexes are built. In order to protect human dignity, the guarantees related to strip searches as formulated by the CPT must always be applied in practice. Structural attention must be paid to relevant human rights standards in the training of the staff in question.

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Migration and human rights

Developments in 2012  › Points requiring attention  ›

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A humane policy starts with respect for human rights, whereby human dignity is a core value. In recent years the rights of aliens have been under pressure. Rights under pressure A humane policy starts with respect for human rights, whereby the human dignity is a core value. In recent years the rights of aliens have been under pressure. The Netherlands seeks the boundaries of human rights when designing new policy measures and carrying out current policy. It is exactly because of this a system is created in which the human dimension is sometimes lost. In a field that is managed in particular by human rights standards, this may result in distressing situations. ■

The starting point of the policy on aliens is: strict, but fair. Nothing is wrong with this principle from the viewpoint of human rights. Asylum seekers who do not need protection and can return to their country of origin should actually return. This also applies to other aliens who do not qualify for a residence permit on the basis of human rights standards or for reasons under national law. However, a fair policy requires that content and execution are humane in all aspects of the aliens chain: the treatment when arriving in the Netherlands, the residence conditions, proceedings, the decision-making process and treatment concerning a possible departure from the Netherlands.

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‘Waiting is difficult’ Ali (35) arrived in the Netherlands as a Somali refugee in 2007. Now he has a residence permit. His wife and three children, two boys and a girl between the age of six and ten, live in Ethiopia. He only saw his family once in almost five years. ‘Everybody wants to be with his family’, Ali says. ‘But I have no choice, I have to wait until they are here.’ Somalia is a country where there has been a war for many years. Ali fled the country. Via Syria, Turkey and Greece he ended up in the Netherlands. Here he received a residence permit after three years and six months. Now he has to wait until he is reunited with his family. He misses his wife and children every day. ‘In October 2011 I went to the Dutch embassy in Ethiopia to apply for a family reunification’, according to Ali. ‘I would be informed within six months, but I didn’t hear anything. I repeatedly phoned the Immigration and Naturalisation Service (IND), but they always said: ‘You must wait until tomorrow’. Nine months after I had visited the embassy my lawyer contacted the IND, and I finally received a message. A DNA test would be carried out on my children to prove the family ties.’ In March 2013 the DNA + was taken of the family. ‘Now we have to wait again’, Ali sighed. ‘And waiting is difficult.’ There is nothing what Ali can do against the IND. ‘Lawyers also say: ‘rules are rules’, but that’s life, you have to be strong.’ The name Ali in this interview was made up.

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Developments in 2012 Some aliens ended up on the street. Others were given shelter by local authorities or churches, who took measures to give the most basic necessities of life to this group of aliens. Despite the position of the government, the municipalities therefore comply with the duty of care on the basis of human rights to guarantee ‘a bed, bath and bread’. ■

In 2012 there was much publicity about final rejected asylum seekers and who could not return to their country of origin for technical or policy reasons. The so-called no-fault policy does not always offer a solution then, because it is difficult for them to prove that the countries in question do not provide travel documents. This group of aliens will then end up in a hopeless situation. In conformity with the current regulations and the government policy to not allow exceptions to this, they have no right to facilities. Moreover, there is a great chance that they will be placed in alien detention, while they can not leave the Netherlands. Aliens protested against this in 2012 by staying in tent camps in several municipalities.

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Points requiring attention Detention of aliens Persons who are staying in the Netherlands without a valid reason must leave the Netherlands voluntarily. They must be forced to leave if they do not take any action themselves to leave. Aliens are then detained for the purpose of deportation in order to prevent that they evade supervision and are therefore ready for deportation. In 2011 more than six thousand persons were detained for the purpose of deportation. Because deprivation of liberty is the most radical measure that the government has at its disposal, the detention of aliens must be applied restrictively and only as an ultimate remedy and only when there is an actual chance of deportation. Furthermore, the detention regime must not result in an inhuman or degrading treatment. Concerns about detention and detention conditions The National ombudsman voiced his concern that the measure of detention of aliens, functions insufficiently as a last resort. He is concerned about the ease and arbitrariness with which aliens are detained and about the way in which aliens are placed in isolation when detained. He criticises the conditions of detention. The detention is monotonous. Aliens are not allowed to leave the double cell between 16:30 and 08:00 hours; they are not allowed to work or follow education.

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The European Committee for Prevention of Torture (CPT) is also concerned about this and made recommendations to improve detention conditions. The Institute found that there are persons among the group of detained aliens who cannot be deported. Therefore the government deprives these persons of their liberty, while it is known in advance that it is very likely that the objective for which this deprivation of liberty is allowed, that is to say deportation, is not feasible. ››

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Four pilots In 2012 four pilots were started in the Netherlands with alternatives for the detention of aliens. For example, the possibility was offered to impose a requirement on the alien to report or impose a deposit on him, instead of detention. Although it is good in itself that alternatives for the detention of aliens are examined, the scope of these pilots is broadly criticised. Its intent is too limited, also because most illegal aliens are excluded from participation; thousands of aliens were still detained in the first half of 2013.

Immigration, Integration and Asylum stated that he did not consider the detention conditions for aliens to be degrading. According to him, a number of reforms had been introduced to bring the regime more in line with the administrative nature of the measure. For example, the aliens now have limited access to the internet and the visiting hours have been extended. After the debate about the death of Mr Dolmatov in April 2013, who was detained for the purpose of deportation, the State Secretary of Security and Justice promised that a more humane policy on aliens would be developed, with a greater focus on its human dimensions.

Statutory regime The Custodial Institutions Framework Act applies to the implementation of the detention of aliens, which is an administrative measure. This Act was designed for persons who have been sentenced for a crime and also stipulates their punishment. It is therefore a different objective than preventing evasion from supervision pending deportation. As a result of this statutory regime aliens are subjected to various safety measures: frequent security search, body searches, cuffs during transport and disciplinary punishments and measures, such as isolation in an isolation cell. Various supervisory and advisory bodies think that the regime is disproportionate. Its execution of the regime is sometimes even more basic than in criminal proceedings.

The Institute appreciates this intention, when it actually leads to adaptations in the regime. Persons who are detained for the purpose of deportation must receive such facilities that justice is done to the fact that it does not concern a form of punishment here, but a measure of an administrative nature. Granting facilities such as the internet and longer visiting hours still insufficiently comply with relevant human rights standards and the resultant requirement to offer useful daytime activities to the aliens in question. Medical care Everybody in the Netherlands has a right of access to medical care. Aliens also have this right when they are detained for the purpose of deportation. Medical care is available at all detention centres for aliens. There are nurses, doctors and psychologists. If an alien already received psychological care or other care before being detained, this care must be continued during the detention. ››

More humane detention policy The CPT and the National ombudsman have made recommendations to draw up specific rules for the detention of aliens. However, the then Minister for

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The detention of aliens is now sometimes an obstacle in the continuity of care, in particular with long-term treatment.

The Netherlands Institute for Human Rights is of the opinion that the detention of aliens may only take place as an ultimate remedy and when there is an actual chance of deportation of the alien in question. In addition, it must be considered in each individual case whether there is a not a less radical way to guarantee that the alien is available for deportation. The Institute advises the government to develop a specific regime that considers the fact that detaining aliens does not concern punishment and that prisoners have sufficient possibilities for useful daytime activities. As a start for this development the Institute advises to extend the pilot ‘alternatives for detention of aliens’.

Following its findings in 2009, the Healthcare Inspectorate made a follow-up visit to the detention centres in 2012. Several aliens complained spontaneously about the fact that they did not have access to medical care. According to them, health problems were underestimated and hospital treatments that were necessary from a medical viewpoint did not take place or were not started. The CPT is also critical: it alleged that the medical staff in the detention centre in Rotterdam was not equipped to treat all prisoners and a medical inspection of aliens was not carried out within 24 hours after arrival. A medical inspection after arrival is necessary to assess whether aliens require medical care or medicines during their residence in the detention centre. Moreover, the CPT expressed its concern about psychiatric patients detained for the purpose of deportation who did not receive any special facilities or appropriate activities. ■

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Vulnerable persons must qualify for alternative, less radical measures than detention. Children should not be detained for the purpose of deportation. The Institute urges to improve medical care, including psychiatric care, in agreement with the findings of the Healthcare Inspectorate and the CPT, amongst others.

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Everybody in the Netherlands has a right of access to medical care. If an alien already received psychological care or other care before being detained, this care must be continued during the detention. The detention of aliens is now sometimes an obstacle in the continuity of care, in particular with long-term treatment.

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Family reunification Tightened regulations The rules concerning family reunification have been tightened substantially in recent years. For example, by increasing income requirements and increasing the age for family formation. Family reunification is also complicated because an increased threshold has been introduced to pass the assimilation exam abroad. In 2012 the circle of family members who qualify for (regular) family reunification was also limited. Critical judicial system The European Court of Human Rights (ECtHR) was critical in 2012 about the level of the charges an applicant has to pay for a residence permit in relation to his (low) actual family income. Another criticism in this case focused on the ‘excessive formalism’ in the implementation of the family reunification proceedings. As a result an Afghan man was withheld an effective remedy in these proceedings. The Court of Justice of the EU judged that exaggerated and disproportionate high charges are in conflict with the rights from the EU directive 2003/109/EC for long-term residents. In the meanwhile the charges for family reunification have been reduced as a result of these statements. The Dutch court also gave its verdict about the threshold to pass the assimilation exam abroad, which was increased in 2011, and stated that this threshold is in violation with the EU family reunification directive.

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Minimum requirements as regards human rights The Netherlands therefore regularly breaches the right to family life in a disproportionate way and changes the policy when the measure does not pass the human rights test. Advisory bodies and interest groups already often expressed their concerns in the formation phase of legislation and policy measures regarding the fact that these proposals are in conflict with human rights standards. The government should heed such ››

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On 5 June 2013 the Child Ombudsman concluded that children have not had a real chance to make use of the right to family reunification since 2008.

concerns instead of complying with the minimum requirements. On the basis of treaties on human rights there is an international consensus that the family, as a fundamental unit in society, should be respected and protected. The guarantee for children that they will not be separated from their parents against their will has been explicitly laid down in the International Convention on the Rights of the Child (ICRC). The right to family life for aliens can only be realised if they can unite with their family members and relatives.

Because the government permanently tries to comply with the minimum requirements, the Institute sees cause to carry out a study on the developments regarding the policy on family reunification in the Netherlands and its consequences. ■

Penalisation illegal residence Right to care, legal assistance and education The Netherlands is obliged to guarantee the minimum standards as regards human rights in practice and the access to education and medical care. It is therefore important to assess the consequences of the bill with regard to the human rights of those involved.

As from 1 January 2012 the Aliens Act has changed. As a result aliens without a residence permit are liable to punishment when they are staying in the Netherlands in spite of an entry ban imposed on them personally. At present a bill has been submitted in which illegal residence in itself will become liable to punishment. Aliens who do not return to their country of origin, for reasons of safety or because the country of origin will not provide any travel documents, are not excluded from the current penalisation of illegal residence (after imposing an entry ban). They continue to be liable to punishment on the basis of the bill on penalising illegal residence, without being able to do anything against this. After all, they cannot leave the Netherlands. This means that these aliens run the risk that they will be punished and detained repeatedly.

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Aliens without lawful residence are entitled to medical care, legal assistance and education for minor children. At an expert meeting held by the Institute experts from various organisations stated that there is a risk that the penalisation of illegal residence will result in (the reinforcement of) a negative image of aliens and social criminalisation of this group of persons. They also expect behavioural effects on aliens and institutions. Aliens could avoid medical care or not send their ››

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children to school anymore. Institutions could be afraid to provide care or offer education, because it may result in complicity in the criminal offence of illegal residence. The intention to penalise illegal residence will therefore probably put a greater pressure on exercising the above-mentioned rights. Protection against human trafficking and exploitation Specific attention should be paid to the protection against human trafficking, exploitation and other crimes, including the possibility to report a crime. It must always be possible for aliens to press charges safely, also when they do not have a lawful residence. The Institute also mentioned the above-mentioned points in its advice about the bill on penalising illegal residence, which was published in March 2013. ■

If the government decides to introduce penalisation of illegal residence, the Netherlands Institute for Human Rights urges that the government sees to it that aliens without a residence status are protected against human trafficking, exploitation and other crimes. In practice aliens without a residence permit must have access to medical care and education for children. Aliens who cannot be deported must be excluded from the penalisation of illegal residence.

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Asylum protection Asylum report When arriving at Schiphol, many aliens are detained automatically in order to assess as soon as possible whether there is sufficient reason to start asylum proceedings. This border detention does not offer a safe environment and also does not inspire them to report about the reasons for their request for asylum. A state is not allowed to return a refugee if he has a wellfounded fear that the refugee will be persecuted in its

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country of origin, as stipulated by the international convention of refugees. The state is also not allowed to send persons back to a country where they may expect cruel, inhuman or degrading treatment. This ban, which has been laid down in article 3 of the ECHR and article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), amongst others, implies that it is important that the individual report of the reasons ››

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hardship’, so that the alien will run the risk as yet to be subjected to cruel or inhuman treatment. This safety net in the form of grounds for protection of certain categories in the law is important for aliens who cannot prove that they personally may expect such a treatment. The government has the intention to abolish these grounds for protection of certain categories. The Institute is concerned about the protection of the fundamental rights of the aliens in question.

for one’s request for asylum are observed with due care in the asylum proceedings. Discussions with asylum lawyers show that they are concerned that the asylum policy does not offer sufficient flexibility in all cases, that is to say, if aliens do not immediately give a full report of their experiences. Examples that were mentioned include traumatised and homosexual asylum seekers, victims of sexual violence and single minor asylum seekers. For them it is extra important that they have confidence in the Dutch government before reporting about their experiences.

With regard to the proceedings and policy, the Institute urges to fully ensure the guarantees on account of article 3 of the ECHR, article 7 of the International Convention on Civil Rights and Political Rights and article 3 of the CAT after abolishing the protection policy regarding certain categories. This also applies to asylum seekers from countries which are known for their widespread violence and violations of human rights. ■

Grounds for protection of certain categories In the Aliens Act the conditions are stated under which a alien is entitled to a residence permit. This usually has to do with the personal situation of a alien. However, it is also possible to obtain a residence permit if the general situation in the country to which he would be returned is known for its ‘exceptional

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Privacy and personal data

Developments in 2012  › Points requiring attention  ›

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Privacy is a comprehensive not a clear-cut concept. It is important that citizens are able to lead their own lives. In society there is an increasing consideration of privacy. The protection of private life has been the subject of debate more often, for example during all the commotion about the security of DigiD. It seems that persons attach more value to the protection of privacy. This is not strange in view of the major developments in recent decades in digitalisation and technology, in particular in biometrics: recognising persons on the basis of body characteristics through information technology. The storage of large amounts of data hereby, the linking of systems, the accessibility of these data for third parties and the increased technological developments regarding data collection have an enormous impact on the private life of individuals. Not only do citizens leave more (digital) traces, there are also increasing possibilities to breach their private sphere, possibly unnoticed. There is often a tension between manageability, monitoring, promotion of safety, terrorism and anti-crime measures on the one hand and the individual freedom and need for privacy of citizens on the other hand.

These rights are stated in articles 10 up to and including 13 of the Constitution and in article 8 of the European Convention on Human Rights (ECHR). The Personal Data Protection Act (Wbp) offers specific rules for registering, using and processing personal data, both by the government and by private organisations. The Dutch Data Protection Authority (Cbp) monitors the observation of the Personal Data Protection Act (Wbp). Privacy is a comprehensive, but not a clear-cut concept. It is important that citizens are able to lead their own lives. In situations in which they want to be themselves without inhibitions, they must not be spied on. An important aspect in this respect is that a person has the right to decide himself in what way and to what degree he exposes himself to others. The right of privacy is based on the right of freedom, autonomy and self-determination of each individual citizen. The right to privacy protection is not absolute, but breaches of this right always require a due consideration of the necessity and proportionality of this breach, in relation to the objective pursued with the breach.

Rights Respecting the privacy of individuals affects various rights: the right to protection of private life in general, the right to protection of personal data, the right to inviolability of the home, the privacy of correspondence and the telephone and the right to physical integrity.

Risks: function creep, discrimination, presumption of innocence at stake and accumulation of measures A phenomenon that regularly occurs when one’s privacy is breached is the so-called ‘function creep’. Certain measures that breach one’s privacy are gradually used for a different objective than for ››

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which they were originally intended. It often concerns the use of data from a database for investigative purposes, while these data were originally collected and stored for an entirely different objective. It remains to be seen whether this secondary use can withstand the proportionality and necessity test. In addition, the confidence in the government plays a role with regard to the large-scale storage of data. When the government makes misstates in the storage, processing or protection of data, this will undermine the confidence of citizens in the government. Another problem with the registration of personal data is the possibility of discrimination. Data of certain population groups, in particular aliens, are regularly collected and stored. This may be stigmatising and discriminating for these groups. This is certainly the case when these data are subsequently used for investigative purposes. An important legal principle that may be at stake when personal data are published is the presumption of innocence. This is under discussion, for example when photos of suspects of crimes are published for investigative purposes. A last point requiring attention is the accumulation of measures that breach one’s privacy. Because even when an individual measure is not a disproportionate breach of one’s privacy, an accumulation of such measures can result in such a breach. ■

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‘I don’t mind identifying, but I don’t want to give my fingerprints’ Peter Groothuis (52) is a self-employed entrepreneur. His passport has expired since 13 April. As a result of this he cannot register for an assignment as freelance project manager at digi-inkoop, the digital purchasing organisation for government bodies. He will not receive a new passport, because he refuses to give his fingerprints. ‘Reading out passports is extremely easy’, Groothuis explains. ‘The university of Nijmegen has even shown in a master class how easily this can be done.’ Groothuis thinks it is very worrying that persons can copy fingerprints so easily. ‘I don’t want create any doom scenarios, but I am worried: everything that is digital can be read out and is regularly hacked and cracked.’ Moreover, the entrepreneur thinks that it is unacceptable that there is no independent party that checks the producer of passports. Groothuis: ‘I asked the local authorities whether they can give guarantee that the producer protects fingerprints. They cannot give this guarantee, it is unclear what is happening there.’ When asked how he views the future, Groothuis says: ‘I hope that fingerprints will be completely abolished in the passport, or that there will be a variant for persons with conscientious objections. Then I can travel abroad again and accept assignments. Then I do not have to suffer economic loss. I don’t mind identifying myself, but I don’t want to give my fingerprints.’

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Developments in 2012 DNA Since 1997 the Netherlands Forensic Institute (NFI) has been storing DNA profiles of convicted persons, victims and suspects in a databank. It contains about 150 thousand profiles. In April 2012 the DNA Relationship Test Act took effect. It was applied at once in the investigation of the murder of Marianne Vaatstra. In November 2012 the results were very successful: the perpetrator was found among more than eight thousand men who voluntarily cooperated in a large-scale DNA investigation.

such a databank. Traces are often found when the scene of a crime is investigated that only contains an incomplete DNA structure. Such a trace will only result in a large number of matches in the databank, which hardly makes it easier to trace perpetrators, and sometimes even makes it more difficult. All this means that a compulsory national storage of DNA profiles of all persons in the Netherlands should be considered to be disproportionate and unjustified. Tracking persons New technological developments make it possible to track, register and subsequently investigate the movements of persons. This type of data are registered and stored on a large scale, for example through the public transport chip card, in aviation and through the camera surveillance @MIGO-BORAS at the border. They can show the patterns of life of persons. The Dutch Data Protection Authority (Cbp) published a study in August 2012 on the use of personal data of public transport chip card holders for marketing purposes. It showed that the Dutch Railways (NS) had laid down a detailed picture of the travelling behaviour of public transport chip card holders. The NS used these data without permission of its passengers for marketing purposes. The Dutch Data Protection Authority (Cbp) concluded that this was in conflict is with the Personal Data Protection Act (Wbp). ››

According to the current legislation, the NFI has to destroy the collected DNA material and destroy the profiles. Because of the success in the Vaatstra investigation there is a growing opinion that a central DNA bank should be set up, in which the DNA material of all Dutch citizens is compulsorily stored for investigating (serious) criminal offences. With this large-scale storage and use of DNA data the right to not have to cooperate with your own conviction or that of close relatives is at stake. This right is even completely undermined as a result of this. In addition, it is doubtful whether such a databank with data of all Dutch citizens is a proportional means, in view of the fact that only a very small part of the Dutch citizens have committed serious criminal offences. Finally, there should be serious doubts about the effectiveness of

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Fingerprints On 17 October 2012 the Minister of the Interior and Kingdom Relations submitted a bill to amend the Passport Act of 2009. This proposal arranges that no fingerprints are necessary anymore for the identity card. Without fingerprints it is not an official travel document, but persons can travel with this identity card in the European Union and persons in the Netherlands can identify themselves with the identity card. Fingerprints are still necessary for a passport, two instead of four. However, they will not be stored anymore in the central databank of the travel document administration. They are kept during the application process and then stored on the chip in the passport. Then they are destroyed. It is a positive development that there is a debate on legislation that makes it possible for people to obtain an identity card without fingerprints. After all, an identity card is required for numerous matters, for example opening a bank account, renting a house or something simple as taking out a subscription at the library. Adopting this bill would mean that persons who want to give fingerprints can participate in Dutch society more easily. It is also positive that these fingerprints will not be stored anymore. ■

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Points requiring attention Fingerprints of asylum seekers and aliens Eurodac When asylum seekers report to an application centre in the Netherlands, fingerprints are made of their ten fingers. They are stored in the central European databank Eurodac. Since 2004 this databank has already been storing fingerprints of the ten fingers of all asylum seekers who are older than 14 years. It stores them for at most 10 years. The system compares fingerprints of asylum seekers and illegal aliens to determine whether someone has already applied for asylum in Europe before. On 30 May 2012 the European Commission suggested to the European Council of Ministers and the European Parliament to adapt the Eurodac regulation. The adaptation makes it possible to compare fingerprints of suspects and traces of serious criminal offences with fingerprints of asylum seekers and other persons in Eurodac under strict conditions.

country must give their fingerprints and passport photo. These biometric data are stored for ten years. The objective of the bill is to establish and register the identity of aliens as reliably as possible in order to implement the policy on aliens in an effective way. Moreover, the data can be used for investigating crimes for which pre-trial detention is permitted. This can only be done under certain conditions. There must be a reasonable suspicion that the suspect is ››

Bill amending Aliens Act The bill amending the Aliens Act that was adopted by the Lower House on 29 January 2013 follows the same line. The Act arranges that ten fingerprints and a passport photo of all aliens are stored in a central databank. The aliens who are already present in our

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an alien. The investigation must have come to a deadlock or a quick result is required to solve the crime. The public prosecutor always decides whether these conditions have been met. However, this verification by the public prosecutor does not alter the fact that the bill creates very broad possibilities for investigative services to make use of the data in the databank, also when there is no concrete suspicion.

The Netherlands Institute for Human Rights urges the government to withdraw or reject the proposals for storing biometric data of aliens for investigative purposes. The possibilities for investigative services to apply the data have been formulated too broadly and offer insufficient protection against a disproportionate breach of the privacy of aliens. Moreover, the bill creates a direct link between aliens and crime, which is stigmatising and discriminating.

Non-discrimination principle Like everyone else, asylum seekers and aliens have a right to the protection of their privacy. Taking and storing their fingerprints is a breach of this right. The possibility to also use these fingerprints for investigative purposes stigmatises these groups. People establish a link between being an asylum seeker or alien and committing criminal offences. This is in conflict with the non-discrimination principle and the principle to not cooperate with one’s own conviction.

Insufficient protection The Institute is of the opinion that the statutory conditions to apply data for investigative purposes have been formulated in such an open way that they protect aliens insufficiently against a disproportionate privacy breach. Moreover, the stigmatisation of aliens may result in a discriminating implementation of these open standards in practice. The Institute is of the opinion that the legislative proposals for storing biometric data of aliens should not be introduced, neither in the Netherlands not in an EU context. ■

There was much criticism on the bill to change the Aliens Act, so that the fingerprints of all aliens can be stored for investigative purposes. The Aliens Advisory Committee is of the opinion that the criminal law chain should only be allowed to make use of data of aliens with due caution and under strict conditions. However, this criticism did not prevent the approval of the bill in the Lower House.

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A phenomenon that regularly occurs with privacy breaches is the so-called ‘function creep’. Certain measures that breach the privacy are gradually used for a different purpose than for which they were originally intended. It often concerns the use of data from a database for investigative purposes.

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Telephone tapping Telephone-privacy Tapping a telephone conversation conflicts with the freedom to speak to each other confidentially without the government listening in. The second paragraph of article 13 of the Constitution stipulates that the privacy of the telephone is inviolable, except by or with authorisation of those persons who have been designated for this by law, in cases stipulated by law. The police must ask the public prosecutor for permission for each telephone tap. The public prosecutor then requires an authorisation from the examining judge, which implies that he will verify whether the statutory conditions have been met. In practice the examining judge usually will grant an authorisation.

microphones. According to the researchers, the reason for this in particular is that the investigated countries have a different opinion about which means of investigation is the most serious and makes the greatest breach on privacy. Number of telephone taps worrying It is worrying that there are so many telephone taps in the Netherlands. After all, they are a serious breach of one’s private life. This breach may not only affect a suspect of a crime, but also other persons involved, such as friends and family. It is also possible that their telephone conversations are tapped within the context of an investigation. Also due to the fact that there are much fewer telephone taps in other countries than in the Netherlands, we can question the proportionality and necessity of this means. In the Netherlands investigative services seem to almost automatically focus on telephone taps as an investigation method. This raises the question whether they have investigated sufficiently whether the use of this means of investigation is proportionate and whether other means are available that may breach the private life of those involved to a lesser degree. The large-scale application of telephone taps may also raise questions about the intensity of the review by the examining judge when the authorisation is granted. Because of the central place of this consent of the court in the Dutch system of protecting the privacy of the telephone, it is very ››

Investigation In May 2012 the Research and Documentation Centre (WODC) published a report with the title ‘The use of telephone and internet taps in investigations’. It shows that telephones are tapped much more often in the Netherlands than in countries such as the United Kingdom, Germany or Sweden. According to the study, more than 22 thousand telephone taps were placed in the Netherlands in 2010. In contrast, other special means of investigation are used much less frequently in the Netherlands than in the investigated countries, for example the infiltration by undercover agents or recording of confidential information by means of

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important to understand the way in which things are taken into consideration by the court in practice. The Institute thinks that this should be investigated, in particular because the appearance of a possible nonpenetrating review by the court must be avoided.

Tapping telecommunication is applied more frequently in the Netherlands in comparison to surrounding countries. This is why the Netherlands Institute for Human Rights thinks that it is desirable to further investigate the reasons for the large number of tap requests and the intensity of the judicial review when granting an authorisation for this.

In the chapter ‘Administration of justice, remedies and deprivation of liberty’ of this report we already discussed the practice of recording and tapping telephone conversations of prisoners. ■

Publication photos suspects opposes publication. A reasonable interest also included the protection of privacy. The photos in the newspaper and on the billboards were published without permission and against the wish of those involved. After all, it deprives them of their freedom to decide themselves how they want to present themselves to others. The publication is hence a breach of the private life of those involved. The Public Prosecution Service (OM) placed the billboards for investigative purposes. This may justify a breach of the right to privacy, but in that case a number of conditions must have been met. In addition, the breach must be in reasonable proportion to the pursued objective. In both matters it concerns suspects and not convicted persons. It is therefore not certain that ››

The newspaper Het Parool published a large photo of a suspect of a serious violent crime with an article about his life. The suspect had already participated in a television documentary about his life and acted in a YouTube film. The photo in the newspaper is a so-called ‘still’ from the television documentary. Another example: the Public Prosecution Service (OM) in Rotterdam placed billboards with photos of suspects of robberies in April 2012. It had already also placed photos of hooligans during football riots in Rotterdam. Copyright Act By virtue of article 21 of the Copyright Act a portrait that has not been commissioned may not be published when a reasonable interest of the portrayed person

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the pictured persons actually committed the criminal offences. Publishing the pictures and relating them to criminal offences is therefore also at odds with the presumption of innocence. Judicial system forces exercising restraint On 20 March 2012 the court of Amsterdam sentenced Het Parool to pay 1,500 euros to the person in question for publishing the photo. The court states that restraint should in principle be exercised when publishing portraits of suspects. In May 2012 the single-judge section of Rotterdam reduced the punishment of a number of portrayed hooligans who were involved in the football riots in Rotterdam. This was done because of the disproportionate breach of their privacy by publishing their portraits. As the judicial system shows, it is necessary to exercise restraint when publishing portraits of suspects of criminal offences. The Public Prosecution Service (OM) should also consider that the pictures and further information which it publishes can also be copied, changed and supplemented by social media, so that the breach of privacy may increase in scope in the follow-up of the publication by the Public Prosecution Service (OM). ■

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Right to inviolability of the home in the event of home visits Home visit Employees of the Social Affairs and Employment Department can check the living conditions of the person entitled to a benefit through a home visit. It usually concerns the question whether the person entitled to a benefit is really single and does not live together. This often determines the level of the benefit he receives. If the occupant refuses the home visit, this may have consequences for his benefit. Usually occupants give their permission for the home visit. The Social Insurance Bank carried out 2,855 home visits for inspection and reinforcement in 2011.

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Only in 1.9 present of the cases the occupants refused access to the house. Extending the authority regarding home visits Since 2007 the Central Appeals Tribunal (CRvB) made a series of statements in which the possibility for carrying out home visits with the resultant consequences for the right to a benefit is limited. The CRvB hereby bases itself on the right to privacy and the right to inviolability of the home as embedded in article 8 of the ECHR. An important condition set by the CRvB to carrying out home visits is that ››

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aspects of this law have been extensively discussed. Because a large part of the Upper House had objections against the law, the State Secretary of Social Affairs and Employment promised to draw up an order in council (AMvB) in order to clarify the legal position of those involved in home visits. It is expected that this AMvB will take effect on about 1 July 2013.

there must be a well-founded reason for a home visit, in other words a ‘reasonable ground’ (a suspicion resulting from concrete facts or conditions that a person has wrongly received a benefit). Furthermore, the CRvB stated that the inspectors who carry out unannounced home visits must inform the occupant that if he does cooperate with the home visit this will not automatically have consequences for (the level of) the benefit. After all, the starting-point is that the government may only enter a house with permission of the occupant. However, if not allowing an official inside may have major negative consequences for the benefit on which the occupant depends, the question may be raised to what extent this permission is voluntary.

The Institute considers it to be important that restraint is also exercised in practice when home visits are carried out on the basis of the new laws and that they will be limited to cases in which there are concrete indications of benefit fraud. In addition, those involved must be informed adequately about their legal position and the consequences of not cooperating with a home visit. The officials who carry out home visits must be given good instructions, so that they are aware of the preconditions of human rights within which they operate. ■

On 4 October 2012 new laws were introduced that extended the authority to carry out home visits in the social security law. It concerned, amongst others, the Work and Social Assistance Act (Wwb), the General Old Age Pensions Act (AOW), the Surviving Dependants Act (Anw) and the General Child Benefit Act (AKW). By virtue of these new laws a person who is entitled to a benefit can be requested to prove that he is entitled to this. If he cannot do this or remains in default, a home visit may be carried out, also without an immediate suspicion of fraud. It remains to be seen how this law relates to the requirement of ‘reasonable grounds’ that the CRvB derives from the protection of the right to inviolability of the home of article 8 of the ECHR, certainly now that this treaty article in principle has priority over national legislation. In the parliamentary debate regarding this law the privacy

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Health and access to care

Developments in 2012  › Points requiring attention  ›

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The government is obliged to promote, protect and implement the right to health and a number of fundamental rights related to healthcare. is good, which is accessible and available. Besides this general government obligation with regard to an adequate level of healthcare, various individual fundamental rights also play a role in this field, which have been worked out in patient rights, amongst others. They include the right to information and consent, the protection of privacy and the rights in connection with a person’s file, for example the right of inspection. ■

Everybody in the Netherlands has a right to the highest attainable standard of physical and mental health conducive to living a life in dignity. In an international context health is taken to mean: ‘a condition of complete physical, mental and social well-being and not merely the absence of illness or other physical defects’. The government is obliged to promote, protect and implement the right to health and a number of fundamental rights that are related to healthcare. It concerns healthcare of which the quality

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Developments in 2012 Increasing care costs In the Netherlands there was much publicity about the increase in the individual and general healthcare costs in 2012. This, for example, concerned the increased personal contributions for care and care facilities within the Exceptional Medical Expenses Act (AWBZ) and the Social Support Act, but also the curtailment of the personal budgets (pgb’s). In this time of economic crisis the affordability of healthcare costs is a structural point that requires more attention than ever before.

have to take into account the position of persons in a vulnerable social position who hence sooner run the risk of being excluded from care facilities. This is conditional to everyone’s human right to a high-quality, accessible and available healthcare. Decentralisation In 2012 there was also a discussion about decentralising the implementation of parts of the ­ long-term care and the youth care; from the central government to the municipalities as from 2015. The Association of Netherlands Municipalities (VNG) doubts the feasibility of this decentralisation, because it is primarily prompted by savings and asked for a study to assess the risks as quickly as possible.

Care in institutions is funded on the basis of care intensity packages (zzp’s). Because of the measures within the Exceptional Medical Expenses Act (AWBZ) new clients with a slight demand for care (zzp 1 or 2) cannot claim the residence in an institution anymore as from 2013. These clients must stay at home for a longer period and this requires developing more extramural care. Self-reliance and self-direction are key elements and there is a greater reliance on informal care.

The Netherlands Bureau for Economic Policy Analysis (CPB) will carry out this study in 2013-2014. It will examine the financial risks and opportunities of decentralisation. The Institute hereby notes that these decentralisation operations partly concern facilities that are related to human rights of citizens to adequate care. If cuts are necessary with regard to care entitlements, the government must monitor that health services, facilities and support will be divided according to these human rights standards. Specific attention is needed for persons in a vulnerable position. This means that the organisation and planning of the decentralisation ››

The Institute observes that certain groups, such as elderly persons who are (slightly) becoming demented and (former) patients with a psychiatric disorder, are given less access to care facilities as a result of the cuts. It is not sufficiently clear at present who will feel the (sum of) cuts most. When deciding about (austerity) measures, the government will explicitly

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and spending cuts have to meet certain requirements. This also applies to the implementation of the decentralised tasks by the municipalities. A greater consideration of patient safety Patient safety was at the basis of many political and social discussions in 2012. Hospitals were in the news because they had hardly tackled an infection with the Klebsiella bacteria, there was a poor cooperation at a heart department and the observation of hygiene instructions was inadequate. Hereby the safety of care facilities is at stake. The government should guarantee high-quality and safe healthcare. also under pressure in 2012. In recent years numerous lawful exceptions to professional confidentiality have been adopted. A proposal to make an exception to professional confidentiality for the exchange of information between the family supervision official and the medical professional is (still) being debated in the Upper House.

At the same time the focus on patient safety has improved. Since a number of years there have been all kinds of procedures to improve safety, for example by introducing safety management systems and by improving the supervision by the Healthcare Inspectorate (IGZ). In the coalition agreement the current government also pays attention to improving the quality of care. In the coming years the IGZ will focus on stronger maintenance and will thus take measures when a hospital does too little to monitor and increase patient safety. The Ministry of Public Health, Welfare and Sports understands the necessity of integrating patient safety into the education of care professionals. This focus should not decrease in the coming years.

Jurisprudence shows that when courts have to weigh the interests between exchanging data and protecting professional confidentiality, they have given priority to the latter quite often. However, individual care providers sometimes have to consider whether they should depart from professional confidentiality. Protocols and guidelines of professional organisations are sometimes helpful when in doubt. Each particular reason to restrict professional confidentiality may be understandable, but it remains necessary to look over the entire situation and assess whether professional confidentiality is not eroded too much. ■

Doctor-patient confidentiality Professional confidentiality is important for the unlimited access to health services; however it was

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Doctor-patient confidentiality is important for the unlimited access to health services, however it was under pressure in 2012. In recent years there have been numerous statutory exceptions to professional confidentiality.

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Points requiring attention Ratification Biomedicine Convention The Netherlands signed the ‘Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine’ (or the Biomedicine Convention) of the Council of Europe In 1997.

In 2012 the Minister of the Interior and Kingdom Relations stated that the approval certificates for the Biomedicine Convention were being prepared. However, with regard to the bill referred to below it will be reviewed whether ratification is still advisable. Bill regarding the amendment of the Medical Research Involving Human Subjects Act The bill to amend the Medical Research Involving Human Subjects Act was submitted on 21 December 2012. In brief, this bill extends the possibilities for nontherapeutic clinical trials using as subjects persons of less than eighteen years of age or adults who cannot be deemed capable of giving informed consent.

The Convention is the first international document with legally binding provisions, in which the ethical and legal standardisation of developments in the field of healthcare is laid down. The Biomedicine Convention lays down a number of fundamental principles for healthcare, such as the primacy of individual interests above collective interests, equal access to care, the right to information and consent, protection of vulnerable persons and the prohibition of discrimination on account of genetic features. Healthcare and scientific research increasingly have a cross-border character. Therefore it is important that the above-mentioned principles are recognised internationally (and therefore also by the Netherlands).

This proposal affects various human rights, including the right to inviolability of the human body, honouring personal privacy and the ban on inhuman and degrading treatment. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) states that nobody may be subjected to medical or scientific experimentation without his or her free consent. Everyone who participates in non-therapeutic clinical trials must give permission deliberately and voluntarily for the implementation of this research. The objective of non-therapeutic clinical trial is usually to improve the treatment of future patients. Children and adults who ››

The Netherlands has announced several times that it will ratify this Convention. In the meanwhile 29 of the 47 member states of the Council of Europe have ratified the Convention, mostly without reservation. However, the Netherlands has not ratified the Convention until now.

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cannot be deemed capable of giving informed consent must be protected because of their vulnerability. The bill is at odds with article 17, second paragraph, of the Biomedicine Convention. It is for this reason that the government wants to make a reservation on this point when ratifying the Biomedicine Convention. However, making a reservation already requires a great restraint, however this applies all the more with a legislative change after the Convention has been signed.

The Netherlands Institute for Human Rights requests the government and Parliament to reconsider the intended legislative change to extend the possibilities for non-therapeutic clinical trials using as subjects persons of less than eighteen years of age or adults who cannot be deemed capable of giving informed consent. The intended extension is at odds, amongst others, with the Convention on Human Rights and Biomedicine (Biomedicine Convention), which was signed by the Netherlands. In addition, having signed the treaty the Netherlands is also obliged to respect the obligation of international law to not carry out any actions of which the intention is to undo the subject and objective of this Convention. Furthermore, the Institute urges the government to submit a bill soon to ratify the Biomedicine Convention.

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Interpreter’s fee A limited access to care may affect the right to healthcare. That is the case when no medical interpreter is available for persons who do not or hardly speak the Dutch language. After all, medical interpreters see to it that care remains accessible and that patients receive the right treatment. In addition, an interpreter always translates impartially and adequately and regards the discussions as being confidential. A family member who acts as an interpreter is often emotionally involved or has an indirect interest in the case. Moreover, complaints of the patient may be a taboo and the patient may not want to discuss them in the presence of a family member. Specific information about medical interpreters by general practitioners and in hospitals is necessary to ensure the right of access to care. ››

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In the past the Ministry of Public Health, Welfare and Sports paid the costs for interpreting and translating services in the healthcare. This compensation ended as from 1 January 2012 as a result of cuts, except for asylum seekers. However, other patients who do not or hardly speak the Dutch language run the risk of limited access to care or even exclusion from care. On 16 December 2011 the Special UN Rapporteur on the Right to Health questioned the Netherlands about the ending of fees for interpreters. This is because the Netherlands runs the risk of violating article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This article includes the obligation of a State Party to the Convention to ensure that health services are accessible without discrimination, in particular for the most vulnerable marginalised groups in society.

The Netherlands Institute for Human Rights recommends the government to ensure that patients who do not or hardly speak the Dutch language are compensated for the costs of a medical interpreter, that is to say, in those cases in which the access to healthcare is at risk without an interpreter.

The Netherlands was asked to inform the Special Rapporteur about the decision to let patients pay the costs of interpreting themselves and its possible effects for the access to healthcare for persons with a limited command of the Dutch language. The Special Rapporteur is of the opinion that the accessibility of care may be at stake with this measure and that persons may show care-avoiding behaviour. ■

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Physical and mental integrity

Developments in 2012  › points requiring attention  ›

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Dependent relationships can make persons vulnerable to violence. Committing violence and violating a person’s physical integrity often follow from each other. Physical integrity is more than violence in relationships of dependence, but because of the seriousness of these specific problems, this chapter will mainly focus on this aspect. ■

In relationships of dependence persons can be more vulnerable for violence. It may, for example, concern a relationship between a mentally impaired person and his or her carer, between a child and father or mother or sometimes also between a wife and her husband.

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‘The tying up was done with three men’ Jo Jacobi (60) ended up in hospital after a number of cerebrovascular infarctions. He became rebellious, so that hospital staff had to tie him to his bed. In total he was tied up to his bed for eight months. Now he is staying in nursing home Lückerheide in Kerkrade, where he can move freely in the ward. His wife Angela says. ‘A nurse phoned me and told me: ‘I have tied your husband up, I will not have him kick me in my face’. The hospital staff tied him up with his arms and legs. I thought that it was the only solution and that it would be temporary’, Angela says. After a month Jo went to a rehabilitation centre. He was tied up there again and only left his bed to eat or go for a therapy. ‘Three men tie him up,’ Angela said with tears in her eyes, ‘they regularly tightened the belt too much and there was no emergency knife.’ Angela also found her husband lying in his own urine. ‘When I got out of the lift in the rehabilitation centre, I already sometimes heard him scream. I asked the staff what was happening. They answered: ‘he has already been screaming for an hour’. The staff was irritated because of this, but no one wondered why he was screaming so much’, Angela says. Now that Jo is in nursing home Lückerheide he is not tied anymore. ‘He has regained some of his freedom’, according to Angela, ‘which also gives me peace.’ Jo is now monitored with cameras. ‘In the beginning he was rebellious once’, Angela says, ‘he received medication to relax, but he was not tied up.’ Tying up causes aggression and anger, she knows now. ‘It irritates me that the staff are so lax about tying up persons’, Angela says. Now that they are applying a method for her husband whereby the nursing home staff seek tailor-made solutions for each client (the ‘ex-belt’ method), he feels much better: ‘Jo can even laugh again.’

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Developments in 2012 Clients of non-western origin Crime suspects of non-western origin with a psychiatric disorder are admitted compulsorily up to four times as much than comparable native suspects. This is shown in a study by the Netherlands Institute for Forensic Psychiatry and Psychology. The researchers cannot explain the differences entirely on the basis of the data, but think that the differences may be smaller if behavioural experts would know more about other cultures. A doctoral thesis from 2012 showed that certain patients of non-western origin with a serious psychiatric crisis had a greater chance of being admitted involuntarily with a hospital order. The third evaluation of the Psychiatric Hospitals Compulsory Admissions Act shows that there is an increased risk of forced treatment with clients of non-western origin in comparison to native clients.

(22,661 in 2010). In order to prevent and signal child abuse, he thinks that it is important to use evidencebased prevention programmes which tackle the problem in an integral way. And that professionals who signal the problems also actually make use of reporting codes. An example of a positive development in the field of child abuse is the opening of two multidisciplinary centres for victims of child abuse in 2011. These centres exchange information from different disciplines. Discussions between the Institute and these centres show that this approach is successful, because children are helped faster and better and the cooperation between welfare services and police proceeds more smoothly. ■

Child abuse Child abuse continues to be a widespread problem in 2012. This is evident from the 2012 Child Right’s Monitor of the Ombudsman for Children, in which this issue is discussed extensively. He observes a difference between the estimation of the number of cases of abuse, which was above 110,000, and the number of reports of abused children at the Advice and Child Abuse Counselling and Reporting Centre (AMK)

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The Netherlands does not have a genderspecific policy (in particular aimed at women) in order to combat domestic violence against women. However, the government has established that violence concerns women in particular, that violence results from differences in power relations and that gender inequality plays a role.

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Points requiring attention Violence against women Every year the police register about 65,000 cases of domestic violence, but the actual number is much higher. It is estimated that every year more than 200,000 women are a victim of physical and sexual violence, often committed by their own (former) partner. Many men and women have stereotype ideas about what is female and what is male. In combination with a sense of power and lack of self-restraint this may result in violent situations. Violence against women has a great effect on various human rights of women. It does not only breach their physical and mental integrity, but it also violates their dignity. It often also concerns a restriction of the freedom of movement and suppression. In order to prevent and combat violence against women it is necessary to also examine the underlying causes. differences in power relations and that gender inequality plays a role. Nevertheless, this finding did not result in a gendersensitive policy. This is remarkable, because the causes of violence lie in the historical and structural inequality between women and men. The policy of the government is intentionally gender-neutral, ››

Gender-specific policy The Netherlands does not have a gender-specific policy (in particular aimed at women) in order to combat domestic violence against women. However, the government has established that violence concerns women in particular, that violence results from

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29 countries, including the Netherlands. The government has announced that by mid- 2013 the parliamentary approval documents would be drawn up in order to ratify the Convention, so that – after approval by the Cabinet – the parliamentary approval proceedings can start. The Institute thinks that it is very important that a gender-specific policy is conducted with the implementation of the Convention. ■

because men are also a victim. The government is of the opinion that each individual case should be examined. For years experts, non-governmental organisations (NGO’s) and the UN women committee have been making recommendations about the importance of gender-sensitive policy. The added value of a gendersensitive action plan is that the underlying cases of violence against women are tackled. This does not have to affect the individual consideration of violence against men.

The Netherlands Institute for Human Rights urges the government to develop a gendersensitive National Action Plan for violence against women, including domestic violence, which focuses on preventing and combating violence against women and tackling the underlying causes.

In an international context the Netherlands promised that it would draw up a National Action Plan Domestic Violence before 2012. However, it has not been published yet. Convention The Dutch government signed the ‘Convention on Preventing and Combating violence against Women and Domestic Violence’ of the Council of Europe on 14 November 2012. This Convention creates a legal structure on a European level to protect women against all forms of violence and prevent, prosecute and ban violence against women and domestic violence. The Convention also appoints a group of independent experts who will supervise an effective implementation of the Convention by the states.

The Institute also urges the government to submit the bill for approving and implementing the ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence without any reservations.

The Convention will become effective when it has been ratified by ten states. At this moment the Convention has been ratified by four countries and signed by

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‘He once even cut my hair’ Nidia (21) has been living now in a women’s shelter for five months. After a period of almost five years in which her boyfriend cursed and beat her, she moved to the shelter. Nidia has a son (1) and a daughter (6). After her birth her daughter soon went to live with Nidia’s mother. Her son stayed with her. ‘My former boyfriend did not work and hung about on the street. He began to beat me. It became worse’, Nidia said. She moved, but did not find any work to provide a living for herself and her son: ‘My former boyfriend then helped me and asked if I would return. That’s what I did.’ However, the fights started all over again. ‘I was his property. He wanted power and to decide about everything. To him, I was not a good mother and not a good wife at home. He also did not want me to go outside much. He once even cut my hair. He hoped that I would lose my selfassurance as a result.’ One evening Nidia was staying with her mother. At 22:00 hours her former boyfriend phoned and said that he wanted to see his son. Nidia refused. One moment later he was at the door. Nidia: ‘He kicked in the door. He almost beat me into hospital in front of my children. That evening I reported this to the police.’ The police referred Nidia to the women’s shelter. They soon referred her to a location far way. Her situation has improved now. She receives medical assistance and follows courses to deal with violence.

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Application of coercion in the care sector In the Netherlands there has been social unrest several times about the use of coercive measures in the care sector. The use of freedom-restricting measures was in particular criticised, for example in the situation of Brandon. He has a serious mental disability and had been chained in an empty room for years, because the carers did not know how they should deal with his aggression. Compulsory measures Some persons with a serious mental disability require intensive and individual, professional supervision. Most institutions cannot provide this. In regular psychiatry compulsory measures are applied. Psychogeriatric (demented) clients undergo compulsory measures, such as being tied with a Swedish belt or the use of bed gates. This restricts their freedom and in some cases even puts their life at risk. Every year elderly persons are injured by the use of belts and/or bed gates. A few persons have even died because of freedom-restricting measures. Other negative consequences are pressure spots, loss of muscle power and physical condition, incontinence and aggression.

restriction in freedom of movement means that you cannot organise your life without the involvement of other persons. This breaches the right to respect of privacy, physical integrity and autonomy. The care provider must always make it possible for the client to take a decision himself, for example by providing information. The client is entitled to this. The right to personal autonomy therefore means that there must be as little intervention in the personal freedom as possible, but also that care providers support the client actively in making his own choices. The UN Convention for the Rights of Persons with Disabilities stipulates that every person’s indication ››

Autonomy and equality The use of coercive measures affects human dignity and may have a degrading or humiliating treatment. This is prohibited according to article 3 of the European Convention on Human Rights (ECHR). Moreover, a

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Current legislation fails The tying (‘fixing’) of psychologically clients, including psychogeriatric clients, and persons with disabilities, is one of the forms of involuntary care. Involuntary care is care with which the client did not agree or which is opposed by the client. Other compulsory measures are isolation, medication and administering liquids and food. This is why compulsory measures must be applied as little as possible. The current legislation on involuntary care does not do sufficient justice to this principle.

of intent must be considered. Persons with a (mental) disability must be approached on the basis of equality when applying care and coercion. Measures and change in culture The government and relevant actors from the field have taken several measures to restrict the use of compulsory measures. The government also stimulates the necessary change in culture through projects such as Ban the Belt and Tailor-made Measures. The Healthcare Inspectorate has established that care providers and carers in psychogeriatric care and in the care for the disabled have clearly made an effort to reduce tying up persons by means of a Swedish belt, isolation and separation. In many cases they managed to reduce freedom restrictions in a responsible way.

Role for care providers The currently applied coercion in the care sector is not always in line with the right to physical and mental health (see, for example, article 12, paragraph 1 of the International Convention on Economic, Social and Cultural Rights (ICESCR)). The government is responsible for these quality aspects of healthcare. Care providers also have a task here in this respect. The Institute understands that they have to do their work under great pressure, whereby their own safety and that of the occupants must be guaranteed. The Institute encourages the government to equip care providers in such a way that they can provide adequate tailor-made care. In addition, the Institute asks to make structural changes on the basis of hopeful experiments.

Research also shows that it is very well possible to reduce freedom restrictions. For example, nursing homes can safely stop with using (Swedish) belts. An example is the ‘ex-belt’ method. As part of this method the board of an institution must announce a clear ban on tying up. Furthermore, care providers must be trained, specialised nurses must be deployed as a consultant, family must be involved in changes and, if necessary, modern resources must be made available. Applying this method shows that no extra employees and funds are required, but much more a change in culture.

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‘No, unless’ principle New legislation, that is to say the bill on Care and Coercion, has been submitted in the Lower House. However, the progress in the debate of this bill is still pending. ››

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The starting point in the bill is the ‘no, unless’ principle: the main rule is: ‘no application of compulsory measures’ and exceptions to this are only possible after careful decision-making. The Institute states that human dignity and autonomy must play a key role. Nurses should have different treatment options at their disposal, so that they can choose the least burdening compulsory measure in each individual situation. If they have to apply a coercive measure, there must be sufficient rules that protect the rights of patients. The supervision of the actual introduction of the ‘no, unless’ principle must be guaranteed with compulsory measures. ■

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The Netherlands Institute for Human Rights urges the government to see to it that the bill on Care and Coercion both provides for the ‘no, unless’ principle with regard to applying compulsory measures, and for a sound system of supervision. Better supervision must guarantee that the use of compulsory measures always complies with strict conditions.

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Human trafficking

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Human trafficking seriously violates the dignity, integrity and freedom of the victim. In essence it concerns the exploitation of a victim through coercion, a certain dominance of the perpetrator or a vulnerable position of the victim. Forced prostitution One of the most well-known examples of human trafficking and exploitation is forced prostitution. An example is the so-called ‘loverboy method’, which used to be called the ‘pimp method’, to which minors in particular fall victim. The government recognises the seriousness and extent of the problem. It focuses on prevention, which is reflected in the government-wide approach concerning the loverboy problems and bilateral contacts with source countries – and criminal prosecution. Despite this, it fails to effectively reduce exploitation in prostitution. However, an approach based on human rights, whereby the victim is the focus of attention, is also important. After all, this approach recognises that the victim, for example, has a right to shelter and assistance.

received much media attention. These examples show that companies may be involved in human trafficking. However, it is illegal for companies to commit this offence. They can play an important role in preventing human trafficking.

Human trafficking Human trafficking also takes place in horticulture, the catering sector and other branches. For example, there was considerable publicity in 2012 about the exploitation in the mushroom industry in the Netherlands. The (definitive) conviction of an asparagus grower in Limburg in 2012 for exploiting her employees also

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The government also recognises the seriousness and extent of the problem. The need of prevention, investigation and punishment of human trafficking is undisputed. The UN Palermo Protocol and the Convention on Action against Trafficking of ››

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beeld’ (‘Human Trafficking in the picture and out of the picture’). In addition, the Coordination Centre Human Trafficking (CoMensha) registers probable victims of human trafficking. CoMensha hereby depends on the reports from other actors, such as the police. They must report (probable) victims of human trafficking to CoMensha. Shelter homes and lawyers can also do this.

Human Beings of the Council of Europe oblige countries to actively combat human trafficking. In 2010 the European Court of Human Rights made a statement that served as a guide for tackling human trafficking. Besides criminal prosecution, the Court refers to the obligation of countries to organise the care for victims in an adequate manner, to identify and trace victims and prevent that persons become a victim of human trafficking. In short: prevent, prosecute and protect.

Underreporting minor victims Figures from CoMensha show that the share of minor victims of human trafficking is 16%. On the basis of signals from the actual practice the National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children suspects that this issue is underreported. This has several causes. First of all, notall relevant actors, such as shelter homes or guardianship institutions, report victims to CoMensha. This applies to actors who can report, but also to actors with a duty to report, that is to say, the police, the Royal Netherlands Military Constabulary and the Social Affairs and Employment Inspectorate. In addition, the age at the moment of registration is included in the statistics, while it is important to know what the age was at the start of the victimization. By knowing this, it could, for example, become clear how great the share of minors is, so that the policy can be adapted accordingly and its effectiveness can be tested.

National efforts Because it recognised the problem of human trafficking, the Netherlands has had a National Rapporteur on Trafficking in Human Beings since 2000. In the meanwhile her mandate has been broadened to sexual violence against children. The National Rapporteur is independent and carries out research on the nature and extent of human trafficking and sexual violence against children. She monitors the policy and makes important recommendations to the government to improve the situation in the Netherlands. Moreover, a National Task Force on Human Trafficking was set up in 2008 to combat human trafficking through a comprehensive approach. However, despite all efforts, human trafficking is still a real problem in the Netherlands. Invisibility In order to tackle human trafficking in an effective way, it is important to have a better understanding of its nature and scope. The National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children describes the problem of invisibility of human trafficking in her report ‘Mensenhandel in en uit

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Full report The National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children recommends authorities to report all (probable) victims of human trafficking. It is obvious that ››

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immaterial damage (emotional distress as a result of exploitation). Hereby it is necessary that victims do not experience any thresholds when reporting. However, the shortages of capacity in the welfare services that provide assistance and shelter to victims remain a point of concern, as a result of which their protection is under pressure state.

the duty to report must be observed consistently, but it is also important that authorities who do not have a duty to report nevertheless report the victims they know about to CoMensha. In addition, the Rapporteur thinks that it is important that CoMensha registers the age at which the victimization started. This means that the share of minor victims will be registered in a more realistic way. At present the age that applies at the moment of registration is registered. The Institute emphasises the importance of these recommendations.

Time for reflection Probable victims without lawful residence in the Netherlands have a statutory right to a maximum period of three months for reflection. In this period they can calm down and escape from the influence of the human trafficker, so that they have room to decide whether they want to report human trafficking or contribute in a different way to the criminal proceedings. After all, this may carry certain risks ››

Shelter and protection Next, it is important that victims who are identified or who have submitted a report themselves are accommodated and protected. It must be made as easy as possible to recover their material and

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for them, also because they do not always receive a residence permit in the Netherlands after the end of the criminal proceedings. In 2012 the then Minister for Immigration, Integration and Asylum announced that he would not offer time for reflection anymore to foreign victims of human trafficking who had been out of a situation of human trafficking for more than three months. Shortly afterwards, the National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children published her report ‘Investigating Human Trafficking’ and the B9 scheme. In this report she made serious objections against the announced adaptation. First of all, the adaptation of the B9 scheme was at odds with the Convention of the Council of Europe on Action against Trafficking of Human Beings. This Convention includes the obligation to offer time for reflection to victims of human trafficking before they report an offence. Secondly, the arguments for the adaptation are based on a (too) restrictive explanation of the function of the time for reflection. Finally, she did not think it was clear to which problem it offers a solution.

Beings and Sexual Violence against Children published a case law study about the prosecution and adjudication in cases of human trafficking. In this study she recommends the administrative courts and Public Prosecution Service to guarantee that the judges and public prosecutors in question are trained in these types of cases and that they can specialise. As from 1 January 2013, a limited of number of judges per court will be responsible for hearing cases of human trafficking, so that they can broaden their experience and expertise.

As a result, the minister decided that he would not introduce the adaptation until the improper use of the B9 scheme would be investigated. The results of this investigation are expected in the course of 2013.

The Netherlands Institute for Human Rights pleads for more attention for the prevention of human trafficking, in particular for providing information and other measures to increase the assertiveness of potential victims. It is also necessary to protect victims of human trafficking more adequately and to offer specialised assistance to them, and specifically considering the minors in question.

Gross violation The Institute stresses that human trafficking is a gross violation of human rights and therefore emphasises the importance of the continued efforts of the authorities in question to prevent and combat human trafficking. Human rights, as referred to in numerous conventions and the guiding principles on human trafficking of the United Nations High Commissioner for Human Rights, offer an essential framework for this approach. ■

Specialised judges An important positive development in 2012 is the intention of the judicial authorities to involve specialised judges for suspects of human trafficking. The National Rapporteur on Trafficking in Human

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The Institute stresses that human trafficking is a gross violation of human rights and therefore emphasises the importance of the continued efforts of the authorities in question to prevent and combat human trafficking.

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Participation and non-discrimination

Developments in 2012  › Points requiring attention  ›

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Participation is important, because it helps people to feel accepted and contributes to the quality of life and individual development. Non-discrimination Excluding persons on the basis of traits that are not relevant is forbidden in accordance with nondiscrimination provisions in numerous treaties on human rights. Exclusion in the sense of unequal treatment or discrimination is a violation of human dignity and affects the quality of life of the person in question. Exclusion is contrary to feelings of justice and tolerance. Exclusion results in an increase in the tax and social insurance contributions for society, because of a lower participation in the labour force and a higher unemployment, but also because of a greater reliance on support and (psychological) care. Discrimination and exclusion in labour and education are described in separate chapters of this report. This chapter describes developments with regard to the participation of persons with disabilities and the approach towards discrimination with regard to race and ethnic origin. ■

One of the starting-points of the Dutch government is that everyone in society can participate. The keyword for this is participation. Participation means that citizens participate in society through work, volunteer work or informal care, that they make use of facilities such as public transport and shops, follow a course, make use of cultural and leisure activities and meet persons. Participation is important on a personal level, because it helps persons to feel accepted and contributes to the quality of life and individual development. Participation is also important for society. People who participate in society and organise activities promote social cohesion and rely less on social security benefits. For a society in which everyone participates, it is necessary that both the government and private parties create the conditions and act in a non-discriminating way.

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Developments in 2012 Assessing equal treatment One of the aims of the equal treatment legislation is combating exclusion and promoting participation in society. Every year the Institute assesses the exclusion of persons with regard to housing, the purchase of goods or services, places of entertainment and sports. In 2012 the Institute received more than 600 requests to assess cases of possible exclusion. We will give a few practical examples. Exclusion is at issue when a Christian housing corporation preferably allocates rented accommodation to persons with a Baptist background. Or when a corporation only wants to rent houses to members who are married or have a registered partnership and not to other persons who have already been cohabitating for a long time. Companies sometimes also draw up improper conditions when they lease a car. For example, it may happen that a person with a non-Dutch driving licence will not be given a rental car. Telephone shops set conditions with regard to nationality. For example, the mobile subscription of a Polish customer was not extended. Sports schools exclude women with a headscarf or ask their members to only speak Dutch. And sometimes there are places of entertainment that refuse entrance disproportionally often to persons with a non-western background.

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Exclusion on the basis of prejudices or stereotypes still often takes place in everyday life. This is why it is necessary to remain alert in order to make the government and citizens aware of their obligation to not discriminate. ■

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Because of the Convention on the Rights of Persons with Disabilities the approach towards persons with disabilities has changed. The physical or mental disability and therefore a medical approach does not play a key role anymore, but the focus is now on removing obstacles for persons with disabilities. In the Convention this is called the ‘inclusive society’.

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Points requiring attention Announcement ratification UN Convention on the Rights of Persons with Disabilities population. Research also shows that there is more poverty among persons with disabilities. There is not much information available about the participation of persons with serious mental or psychological disabilities.

In the coalition agreement ‘Building Bridges’ of October 2012 the current government stated that the International Convention on the Rights of Persons with Disabilities (CRPD) will be ratified, under the condition that the obligations under the Convention can be implemented gradually. The ratification of the Convention in the Netherlands is important, because the position of persons with disabilities leaves much to be desired, despite the existence of laws, regulations and policies.

Convention on the Rights of Persons with Disabilities The International Convention on the Rights of Persons with Disabilities (CRPD) was concluded in 2006 and signed by the Netherlands in 2007. The approach towards persons with disabilities has changed as a result of the Convention. The physical or mental disability, and hence a medical approach, does not play a key role anymore, but the focus is now on eliminating obstacles for persons with disabilities. In the Convention this is called the ‘inclusive society’. The Convention does not offer any new rights, but is rather a catalogue of already existing rights that focus on persons with disabilities. It is obvious that laws and policies, also in the Netherlands, must be adapted in order to realise and promote the rights from the Convention. In view of the current financial circumstances, the CRPD gives the government the opportunity to introduce the measures step by step ››

Persons with disabilities Many persons with a physical and light mental disability take part in society. For example, they work and are active in social and cultural organisations. This is not self-evident for some persons. The Participation Monitor 2011 of the Netherlands Institute for Health Services Research (Nivel) shows that the participation degree of persons with a disability is on average lower than that of persons without a disability. The participation in the labour force of persons with a physical disability was 38% against 67% among the entire population in 2010. Daily persons with a light or moderate mental disability go outside less: 78% against 94% of the entire

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over a certain period. However, this should be done within a reasonable period and with maximum use of the available resources. The CRPD also includes an additional, optional complaints protocol, which stipulates that individuals can ask the independent supervisory UN Committee whether the government is observing the obligations of the Convention. They can ask this when certain conditions have been fulfilled. The Netherlands has not signed or ratified this additional protocol yet. ■

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The Netherlands Institute for Human Rights urges the government to submit the legislative proposals regarding the approval and implementation of the International Convention on the Rights of Persons with Disabilities to Parliament as soon as possible (preferably before the end of 2013). Also the Institute thinks that it is important that the government signs the additional Optional Protocol belonging to the Convention in the short term and also initiates the approval process for this protocol.

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Accessibility of the public area, buildings, transport and facilities Appropriate measures In many fields the position of persons with disabilities is taken into account. Article 9 of the CRPD stipulates that the state has to take appropriate measures to guarantee access for persons with disabilities on the basis of equality with others. That is to say, access to the physical environment, transport, information and communication, including information and communication technologies and systems, and other public facilities and services.

bathrooms are too small, the access to lifts is too small, the thresholds at entrance doors are too high or there is no possibility to place a scoot mobile. Buildings Decree In order to participate in society, it is not only important to have unlimited access to buildings and the physical environment, but also to have access to other general facilities. For example care, public transport, government information and the internet. The dimensions with which public buildings and houses have to comply are stated in the Buildings Decree. However, these rules only apply to public areas that exceed 400 square metres. Smaller public buildings are not part of the stipulated requirements of the Buildings Decree.

We will give a few examples. On many websites you can change fonts for persons with a visual disability. In addition, authorities have made the language in official letters easier, so that persons with a mental disability can also understand the information. And events, such as the Floriade in Venlo in 2012, are increasingly well-accessible for persons with disabilities.

Emergencies A specific point requiring attention is the safety of persons with disabilities in the event of emergencies. Although there are fire and similar regulations that stipulate that warning and escape route facilities must be present in public buildings, persons with disabilities are disregarded in many cases. Warning signals are almost always acoustic signals in the form of sirens. Persons with an auditive disability cannot hear them. Some escape routes consist of a fire-escape, which cannot be used by persons with a rollator or in a ››

However, sometimes things really go wrong. For example, the new Amsterdam Film Museum Eye, which was opened in 2012, is poorly accessible for persons in a wheelchair. You can enter the building through the staff entrance at the back when you phone the museum in advance. A ramp at the entrance would solve the problem. However, the architectonic concept does not allow a ramp. Another example: there are also often complaints about how houses are built: the

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wheelchair. After the ratification of the CRPD the state is obliged to take measures in this field (article of the 11 CRPD). Websites There are no laws and regulations with regard to the accessibility of websites. Nevertheless, the national government and municipalities agreed in 2011 that the government websites should meet the minimum requirements of accessibility in 2012. In 2015 they will have to be accessible for persons with a visual or auditive disability. However, the Minister of the Interior and Kingdom Relations stated at the end of 2012 that government websites do not have to comply with the sixteen basic web guidelines for the time being, which were compulsory before and that he wants to leave the accessibility to government organisations themselves.

and managers should adapt bus stops and stations. In 2012 the part of the Act became effective that focuses on buses and underground railways and on the individual support of passengers with disabilities. In the long term bus stops, tram stops and underground stations will have to be adapted and travel information must be available for everybody. Trains must ultimately be accessible in 2030.

The government should serve as an example here. The obligations arising from article 9 of the CRPD force an adaptation of the Buildings Decree in order to bring it in line with the standards of the Convention. The accessibility of government websites is crucial for the provision of information and must comply with the right of access to information on the basis of article 21 of the CRPD.

Obstacles in public transport The phased introduction of the accessibility of public transport created obstacles in the first years. Now that underground lines and busses have been accessible as from April 2012, there is a problem that underground platforms and bus stops only have to be adapted as from 1 January 2015 and 1 January 2016 respectively. At present there are situations in which ››

Mobility An important condition for participation is the mobility of persons, in particular the availability of transport. The Dutch government broadened the Equal Treatment Disability and Chronic Illness Act in 2012 (WGBH/CZ) with public transport and stipulates that transporters

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necessary in legislation and policies in order to comply with the treaty obligations. The Institute would like to draw specific attention to amending the Buildings Decree, making government websites accessible and the obstacles in public transport. ■

an accessible bus cannot be reached, because the bus stop is not accessible. Even though the law stipulates that the transporter must provide assistance, it is still not always possible. In the run-up to the ratification of the CRPD, the government must investigate which adaptations are

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Dealing with (racial) discrimination Anti-migrant debate Discrimination is of all times. The social climate has not been beneficial for migrants and persons from ethnic minority groups since the beginning of the 21st century. There is a negative image of these groups. Research from the University of Tilburg shows that the access to employment for minorities is restricted by the dominant anti-migrant debate of the past decade.

warning the Netherlands for years that the state is responsible for combating discrimination. The government knows about the developments in this field, but has hardly conducted a specific policy on combating racial discrimination. The 2012 Progress Letter on Discrimination of the government paid some attention to preventing and combating discrimination. The letter focuses on eliminating breeding grounds for discrimination and improving the social climate. In particular the government focuses on combating anti-Semitism, discrimination of Muslims and homophobe violence.

Racial discrimination Racial discrimination is a continuing phenomenon in the Netherlands, which is reflected in various social fields. This is shown in studies on discrimination experiences by the Netherlands Institute for Social Research (SCP), in discrimination reports to the police and municipal anti-discrimination facilities, and in assessments of the Institute. There is much discrimination at work, at places of entertainment and in the living environment. In many cases it concerns discriminating or offensive expressions or acting in a discriminating way when offering goods and services.

Municipalities In the Progress Letter it is stated that municipalities will be given more responsibility for combating discrimination. Handling discrimination complaints and their registration is regarded as a task of municipalities. For this purpose the Municipal Antidiscrimination Measures Act was introduced in 2008. This Act was evaluated in 2012. It was established that nearly all municipalities offer their citizens access to anti-discrimination facilities and that they also register complaints. However, the Act does not offer a solution for the phenomenon of not reporting discrimination experiences, as shown in the study of the SCP. ››

Hardly a specific policy International supervisory bodies such as the European Committee against Racism and Intolerance and the Supervisory Committee with the Convention on the Elimination of Racial Discrimination have already been

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International recommendations The Institute found that the Progress Letter on Discrimination does not discuss the recommendations by international supervisory bodies with regard to combating racial discrimination. This creates the appearance that the recommendations of the international bodies in question do not play a role in drawing up regulations and policies. Nevertheless,

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the government states in the reports to those bodies that its policy and regulations are aimed at a correct implementation of the treaty standards in the Netherlands. If the government would explain how the international recommendations and the policy in the Netherlands are related to each other, this may remove the impression that recommendations do not play a role. ■

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Labour

Developments in 2012  › Points requiring attention  ›

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Work is very important for persons, it offers them the opportunity to support themselves. they are not always observed in practice. This is also the case in the Netherlands. In 2012 the focus in the public and political debate was on the position of domestic workers and EU migrant workers. There was also a debate on equal access to employment and maintaining one’s job. Equal access is not obvious for all groups for reasons related to discrimination. In addition, unemployment increased in 2012, which has great consequences in particular for vulnerable groups. ■

Human rights do not only protect the right to work, but it also protects rights people have at their work, such as the non-discrimination principle. This means that people can organise their own life, without encountering barriers such as discrimination or poverty. Because of the fact that work is very important for people, arrangements have been made about work on an international and national level, for example in the form of conventions and recommendations. However,

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‘Behind my clothes and make-up I still am the same person’ Samantha (54) is a transgender person. She was born as a man and later discovered that she was a woman. She will soon undergo a sex-changing operation. The decision to change her sex meant that she lost her job. ‘It’s something I have felt throughout my life, but I always wanted to hide it’, she says about her gender identity. ‘I did not know what was happening and thought that I was the only person who had this problem.’ Samantha hid her transgender personality especially by working very hard. First as a truck driver, later as a transport planner. She also married (she was still a man then) a woman and had children. She was very sad about the fact that her contract was not renewed because she announced that she would be operated: ‘The operation would not change very many things’, she explained, ‘I already had long hair, but I started to wear clothes which were slightly more female. However, I did not have high heels or short skirts: I wanted to be a woman, but I am not effeminate.’ For the first few months after she announced her operation she still had a good contact with her colleagues. Then Samantha heard that her contract would not be renewed. A letter from her boss explained that the problem was her operation. She still can’t believe it: ‘I am a normal person, behind my clothes and make-up I am still the same person.’

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Developments in 2012 With regard to labour the Institute monitors the observation of the equal treatment legislation in different situations. In one of the Institute opinions in 2012, a transport company committed prohibited discrimination on the ground of sex. With regard to the participation of women in labour / work?, the Netherlands explicitly stated that it is very important that women who do not work should do so. The government states that a combination of care tasks with work is possible. The social partners will have to discuss this in detail. In any case the government focuses on flexible working hours to make the combination of work and care tasks possible. The Institute stresses that the role of both partners is essential when it concerns the division of work and care tasks.

The employment agreement of an employee had not been renewed after this employee had announced that he wanted to undergo a sex-changing operation from man to woman. In a different case a youth care centre was not allowed to place a new male employee in a higher pay scale than the female employee who performed the same work. Recommendations of the Human Rights Council In 2012 the human rights situation in the Netherlands was discussed in the so-called Universal Periodic Review (UPR) of the UN Human Rights Council. During the UPR the access to employment and maintenance of one’s job was also discussed. The Netherlands accepted several recommendations of the Human Rights Council to guarantee the equal treatment of various groups and in this way create opportunities for autonomy and give shape to one’s life.

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Home help The subdistrict court judge in Zutphen delivered a judgement about the legal position of home help workers in January 2012. Home help workers carry out domestic tasks for long-term sick and elderly persons who cannot do this themselves anymore. The social and labour law only apply to home help workers to a certain degree. The subdistrict court judge stated that there was no employment agreement between the home care ››

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Exploitation Another court judgement was delivered in the case concerning an asparagus grower from Someren. Her employees had to work between ten to twelve hours a day, seven days a week. For this they received less than the minimum wage. Their living conditions did not comply with fire safety requirements, some rooms did not have any windows and they only had hot water during a limited part of the day. Sometimes they had to hand in their identity card temporarily. In 2011 the court of ‘s-Hertogenbosch convicted the asparagus grower of exploiting foreign employees in her company. She was sentenced again on appeal by the Court of Appeal on 6 July 2012. Her penalty was increased because of the seriousness of the case. Part of the penalty was a compensation to four employees. They received exactly the sum that they should have earned for the services they provided for the asparagus grower.

agency and home help workers, but that there was an agreement between private persons and home help workers (that is to say, an employment agreement for carrying out domestic work). This means that a private person also has to continue paying a home help worker during the first six weeks of sickness. If the home help worker is employed through a home care agency, he can hold this agency responsible for the continued payment of the wage, also when there is no employment agreement. As a result of this judgment the role of home care agencies in the continued payment of sick home help workers is clear. This also applies to the legal position of home help workers. However, the reason that the home help workers conducted legal proceedings was that the court would decide that a home help worker has an employment agreement with the home care agency. Now that the subdistrict court judge decided otherwise the home help agencies have lodged an appeal. A judgement is expected in the course of 2013.

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Exploitation with regard to labour involves a specific form of human trafficking. The chapter on Labour will discuss this theme in greater detail. ■

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Only 10% of the women who are discriminated because of their pregnancy or maternity report this discrimination, while complaining may contribute to eliminating this specific kind of discrimination. Furthermore, women can report discrimination by an employer to the police. Pregnancy or maternity discrimination has been made an offence in article 429quater of the Criminal Code.

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Points requiring attention Access to employment and maintaining one’s job Labour position The labour position of transgenders, elderly persons, youths, ethnic minorities, persons with disabilities and women is less good than average in the Netherlands. There are three factors that play a role in this respect: institutional factors, which refer to the formal structure of society and the labour market; individual factors, such as differences in education between various groups; and negative stereotypes and discrimination. It is well known, for example, that some employers think that older employees are inflexible and not so productive, ethnic minorities are lazy, persons with disabilities are often sick and (pregnant) women are less involved and committed. With transgenders there is a fear, amongst others, that they do not assume the ‘right’ gender role and that others feel uneasy with this.

non-western job seekers (28%) than among native job seekers (46%), when they contact a temporary employment agency with a comparable cv. A study of the Federation of Private Employment Agencies (ABU) shows that stereotyping plays a role in the mediation of labour. In that year 83% of the affiliated temporary employment agencies received requests from clients with regard to specific personal features. A study from 2011 already showed that temporary employment agencies comply with these requests. Pregnancy and maternity Pregnancy and maternity may have consequences for the equal treatment of women. After a large study the Institute published the report ‘Discrimination because of pregnancy’ (‘Hoe is het bevallen?’), which shows that almost half (45%) of the women who had a child a in the period between 2007 and 2011 and worked and/ or applied for a job had a concrete experience which should be characterised as discrimination because of pregnancy, young maternity or a wish to have a child. With more than one third (38%) of the pregnant women who were about to sign an employment contract, the contract was changed or discontinued ››

Various reports show that classifying according to stereotypes may have far-reaching consequences for the equal treatment in labour and the possibility to earn one’s own income. For example, the report ‘At a disadvantage’ (‘Op achterstand’) (2012) of the Netherlands Institute for Social Research (SCP) shows that the chance of being offered a job is lower among

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Only 10% of the women who are discriminated against because of their pregnancy or maternity report this discrimination, while complaining may contribute to eliminating this prohibited discrimination. Furthermore, women can report discrimination by an employer to the police. Pregnancy or maternity discrimination has been made an offence in article 429quater of the Criminal Code.

when the pregnancy became clear. Among low educated women this percentage is much higher (67%). Women must be informed more adequately about being able to recognise discrimination. Only some women recognise these experiences as discrimination. In total 70% of the women with an experience that can be referred to as discrimination had hardly or not studied their rights and duties. In particular women with a lower professional level and women with a labour contract for a limited number of hours had examined their rights and duties less often.

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Terms of employment and conditions Unequal treatment with regard to the access to employment and maintaining one’s job as a result of stereotype images and discrimination has consequences for having work, one’s career ››

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unemployment, as well as not being able to support oneself anymore and a loss of autonomy. In order to counter this, the government appointed a new ambassador for youth unemployment in 2013. She has a budget of fifty million euros to tackle growing unemployment among young people. Part of this approach is supporting municipalities in working out concrete plans. She also wants to focus on connecting education and the business sector in order to create workplaces for unemployed youths. ■

development and therefore for one’s economic independence. This also creates a barrier for the autonomy and free fulfilment of one’s life. Because work is so important for all groups, rules have been drawn up on an international level that ban discrimination at work. Discrimination is not only forbidden with regard to the access to employment, but also in the terms of employment and conditions. The Dutch government tries to improve the labour market position for some groups, for example for women, youths, elderly persons and persons with disabilities. There is no target-group policy for ethnic minorities. This makes it more difficult to improve their labour market position. Measures to improve the labour market position In the coalition agreement ‘Building Bridges’ (Bruggen slaan) a number of measures have been announced that may have consequences for the labour position of various groups and the degree in which they can support themselves. In order to reduce the unemployment among older employees, the government agreed with the social partners to introduce mobility bonuses, work on bonuses and reintegration procedures.

The Netherlands Institute for Human Rights urges the government to tackle and eliminate the disadvantaged position of vulnerable groups, in particular that of elderly persons, youths, persons with disabilities, ethnic minorities, women and transgenders on the labour market. In this framework pregnancy discrimination can be tackled through: ■ making a greater effort to inform employers and (female) employees about the rights and duties regarding pregnancy and maternity on the labour market; ■ informing women about how and where they can report complaints about discrimination on the ground of pregnancy and maternity on the labour market, including the possibility to report this to the police.

Measures are also taken that affect young people, such as changes in the funding of study costs. This may have as effect that young people will rather seek a job than follow a (second) study. Whether they will actually find a job is another thing. The labour market is already so tight. Moreover, it is even more difficult to find a job without a proper education. This may result in

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Working 18 hours a day for 400 euros in the month Ati (30) and Kemala (35) are two women from an Asian country. They went to the Netherlands to work for a diplomat and his family. They kept the house and took care of the children. They have been living in a shelter now since eight months because they were seriously exploited. ‘We lived in the house of the diplomat and were not allowed to go outside’, Ati says. ‘We worked every day between 7.00 o’clock in the morning and 1.00 or 2.00 o’clock at night, also in the weekend.’ Before Ati and Kemala came to the Netherlands, they signed a contract in which it was stated that they would work eight hours a day and would be free in the weekend. It was stated that their salary would be 1,400 euros. In reality they only received 400 euros a month. Ati: ‘The diplomat said that he withheld salary for our rooms, food, drink, clothing and taxi. However, the clothes we received were second-hand clothes, and we were not allowed to go outside.’ The women had worked there for more than half a year: ‘We were so tired. We could not even take time to eat our meals. If we wanted to watch television, they immediately told us: ‘do this, do that!’. Kemala had even been touched indecently by the diplomat, but she managed to escape. One day there was no one was at home. Ati and Kemala escaped. Through the police they found a place in a shelter. Now they are awaiting the court proceedings to get their withheld salary back. The names of Ati and Kemala have been made up in this interview.

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Rights of domestic workers Domestic workers In the Netherlands between 290,000 and 500,000 persons are employed by private citizens as domestic workers. Only a part of the social and labour law applies to domestic workers when they are employed for less than four days a week by the same private citizen. The Service at Home Scheme (2007) stipulates the minimum rights of domestic workers, such as minimum wage, holiday allowance and the period of continued payment in the event of sickness.

already been carrying out cleaning work for more than a few hours a week for a long time. Domestic workers often work fulltime, depend on the income they derive from this work and are therefore also very vulnerable for the consequences of invalidity. Moreover, domestic workers as well as private employers usually do not know about their rights and duties. They in particular do not know about the statutory minimum wage and holiday allowance, continued payment of a holiday for a number of weeks and the obligation to offer sound and safe working conditions

Nevertheless, domestic workers are not insured on account of the compulsory employee insurance schemes, but domestic workers can take out voluntary insurances for sickness, unemployment and invalidity. However, the employer does not pay any contribution, so the costs are high. This means that this group is treated unequally in a systematic way in comparison with other employees. This affects the prohibition of discrimination, as laid down in article 26 of the International Convention on Civil Rights and Political Rights, article 2 of the International Convention on Economic, Social and Cultural Rights and article 14 of the European Convention on Human Rights, because the Service at Home Scheme mainly affects women.

Improvement legal position In 2012 there was a discussion about the ratification of Convention 189 on Decent Work for Domestic Workers of the International Labour Organisation (ILO). This Convention reinforced the legal position of domestic workers. It states, amongst others, that domestic workers are entitled to a minimum wage, regulation of working hours, access to social security and protection against discrimination and abuse. In 2011 the Netherlands agreed with the Convention, but the government explicitly stated that the Service at Home Scheme will be continued and that the Convention will not be ratified. Various parties, such as the Association Women and Law (Vereniging voor Vrouw en Recht) and the Netherlands Trade Union Confederation (FNV) urged the government to ratify the Convention. ››

These restrictions in labour protection and social security cannot be justified. It is a group that has

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However, it is positive that the Minister for Social Affairs and Employment set up a temporary committee in May 2013. The committee advises about the possible improvement of the position of domestic workers and the consequences of ratifying the Convention. On the basis of this the government will determine its position on ratification. Hereby the Institute notes that:

■■ it

involves the social and economic security and economic independence of many women; ■■ the wish to not spend too much cannot be transferred to this group; ■■ broad information about rights and duties is required in all cases. A start with the latter aspect should be made. ■

Position of EU migrant workers In December 2011 the Netherlands had more than 165,000 migrants from Middle and Eastern Europe with a job. Migrant workers have the same labour rights as their Dutch colleagues. In practice, however, it is often the case that the situation of migrant workers is negative compared to that of their Dutch colleagues. The report of the Institute regarding Polish migrant workers in a human rights perspective shows that employers and temporary employment agencies: ■■ offer unequal payment to migrant workers; ■■ let migrant workers work to many hours a day in unsafe working conditions; ■■ treat migrant workers in a discriminatory way on the workfloor; ■■ offer incomprehensible contracts; ■■ demand too high rents for housing linked to the employment agreement.

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In the worst cases an employer or temporary employment agency exploits migrant workers. They recruit persons and place them in a dependency relationship. The employer or a temporary employment agency can do this by taking advantage of the vulnerable situation of the migrant worker, who often lives in poverty. Living conditions The problems with which migrant workers are confronted in the Netherlands has been discussed extensively in 2012. The Party for Freedom (PVV) set up a site on the internet to report on Polish workers. It generated more attention, perhaps unintended, about the living conditions of East European labour migrants. The Netherlands has also been called to account on an international level, both for the above-mentioned site, which had a stigmatising effect, and for their working ››

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agreements they concluded. It concerns agreements about the prohibition of discrimination, the enjoyment of just and favourable terms of employment and conditions of employment, an adequate standard of living, social security, privacy and the prohibition on exploitation, which also apply to EU migrant workers.

conditions. For example, the International Labour Organisation (ILO) wanted to have information from the Netherlands about the activities of the Social Affairs and Employment Inspectorate to monitor the working conditions of migrant workers. In the debate on the housing of migrant workers aldermen from The Hague concluded that the situation was not tenable anymore. EU migrant workers who encounter the abovementioned problems are treated as second-class employees who are not equal to their Dutch colleagues. They are also affected in their autonomy and, in the worst cases, in their freedom. The Netherlands is not allowed to tolerate this on account of the international

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Housing In 2012 the government developed a number of initiatives to tackle the current problems of migrant workers from Middle and Eastern Europe. One initiative is the participation in the National Declaration for (temporary) housing of EU migrant workers. For the government this participation is limited to a ››

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directive role. Employers, municipalities and housing corporations are responsible for its implementation. The focus in this declaration is more on creating alternative housing and less on disconnecting working and living. However, this connection makes the labour migrant dependent and vulnerable, because the loss of work implies a loss of his house, and vice versa. Battling fake constructions’ action plan In April 2013 the Minister of Social Affairs and Employment introduced a comprehensive approach towards combating fake arrangements, unfair competition and exploitation. The action plan ‘Combating Fake Arrangements’ contains an extensive package of legally and policy measures which can help to realise the human rights of EU migrant workers. Examples of measures that contribute to this include: ■■ obliging companies to pay additional hours on a proportional basis; ■■ supervising the registration of working hours; ■■ informing migrant workers about their rights, for example about the legal presumption of the existence of an employment agreement and about the possibility to claim underpaid wages. The Institute urges the Minister for Housing and Civil Service to stimulate the disconnection between living and working as much as possible. Agreements about this can be laid down, for example, in the National Declaration on (temporary) housing of EU migrant workers or in a comparable instrument. ■

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Human rights education

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Education

Developments in 2012  › Points requiring attention  ›

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All children in the Netherlands must be able to go to school. Education plays an important role in the development of children. Knowledge and skills create opportunities for children to develop themselves in a way that is suitable for them. Society also profits from this development. Moreover, education stimulates the autonomy of persons. After all, education is the prelude to labour and income and therefore to participation in society. The education situation in the Caribbean part of the Netherlands will be discussed in the chapter ‘Caribbean part of the Netherlands’. ■

Parents and children have a great freedom to choose which school the children will go to. Education is not free of obligation: compulsory education applies to all children between the age of five and eighteen. In article 23 of the Constitution the freedom of denomination has also been laid down for education: the freedom to organise a school on a religious or ideological basis under the same conditions that apply to public education. Article 28 of the International Convention on the Rights of the Child (ICRC) and article 2 of the First Protocol with the European Convention on Human Rights (ECHR) have laid down the right to education.

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‘Each child is different, so offering help is really tailor-made work’ Winny van Rij (50) has three children, of which two have disabilities. Her son Wilco (15) and daughter Leonie (13) have autism and a personal budget. They both follow regular pre-vocational secondary education (vmbo). The Inclusive Education Act will become effective in 2014. Schools will have to offer a suitable place themselves to children with disabilities. Winny hopes that her children will continue to receive sufficient support to follow education, despite their disability. ‘Concentrating is very difficult for Wilco and Leonie’, Winny says, ‘and they also find it difficult to distinguish what is important and what is not. You can notice this, for example, when they are working on a project. They need help with this.’ In addition, they have more problems in the social-emotional field than others. ‘When somebody, for example, uses a metaphor they often think that it is meant literally.’ Each week Wilco and Leonie have a meeting with a mentor who supervises them. ‘Each child is different, so offering help is really tailor-made work’, Winny says. ‘My children have been lucky with their teachers. However, I also hear other stories at the Autism Info Centrum (AIC).’ Winny set up an AIC in Woerden, where people can turn to with their questions and stories about autism: ‘An autistic boy who went with his school to London for a project week was given much freedom, just like the other boys, but it was actually rather frightening for him.’ According to Winny, it is important that teachers know how they should deal with autistic children. ‘Because they cannot express their own feeling very well, autistic people often say ‘things are quite well’, but that is a great pitfall.’

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Developments in 2012 Sexual diversity The core targets in primary and secondary education were adapted in 2012. As a result of this discussion of sexuality and sexual diversity is compulsorily at schools. The objective of the scheme is to increase acceptance of sexual diversity and increase the sexual assertiveness of youths.

why children do not attend school. Sometimes it involves psychological problems, behavioural problems or problems at home, while other children sometimes cannot be placed in special education at once. The government takes measures to monitor the number of children who do not attend school. It stimulates that children go to school. For example, the registration of absence has been improved, school attendance officers have received better training, the Inspectorate for Education has improved its supervision and the cooperation between schools and other involved parties has also improved. The Child Ombudsman investigated the reasons why children do not attend school and possible solutions in greater detail. The results were published in May 2013. The most important recommendation is that tailormade education must be made possible. For example, education should not automatically have to take place at school if this is not possible for the child. Education must be based on study entitlements and not on compulsory education.

Single-fact construction In the coalition agreement ‘Building Bridges’ (‘Bruggen slaan’) it has been agreed to delete the so-called ­ single-fact construction in the Equal Treatment Act (AWGB). In 2012 a few groups in the Lower House drew up a private member’s bill, with the aim to amend a few articles from the AWGB. The intention of the proposal is to reduce the possibility that institutions on a religious, ideological or political basis (including schools) make a distinction when appointing staff and admitting pupils. The bill was introduced in the Lower House in 2013. Children who do not attend school In 2012 there was a debate on children who do not attend school. These are children of school age who do not go to school for a shorter or longer period for various reasons. These children, hundreds per year, do not fulfill their right to education. A study by the national branch organisation for compulsory education Ingrado from 2010 shows that there are more reasons

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Aliens Children of illegal aliens are entitled to education. Compulsory education up to the age of eighteen also applies to them. Adults who started to follow a course when they were still minors are allowed ››

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work placements would be allowed under certain conditions, but only with regard to senior secondary vocational education (mbo) which pupils had already started to follow before they reached the age of eighteen. ■

to complete this course. When following senior secondary vocational education (mbo), the university of applied sciences degree programme (hbo) or an academic study is often compulsory to do work placements or internships. Without this work experience it is often not possible to obtain a diploma. In 2012 the former Minister of Social Affairs and Employment stated that students without a lawful residence were not allowed to do a work placement anymore, because he regarded this as work. After all, aliens without a residence permit are not allowed to work in the Netherlands. After extensive discussions the new government decided in December 2012 that

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The International Convention on the Rights of Persons with Disabilities stipulates that persons with disabilities are not allowed to be excluded from the educational system on account of their disability and that they should receive support within regular education that is required for an effective participation in education.

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Points requiring attention Inclusive Education Act In 2012 the Inclusive Education Act was passed. As from 1 August 2014 schools will be obliged to offer an appropriate place for education to pupils who need extra support. This can be either at the school of registration or at a different school within a partnership of schools. The standards from the Equal Treatment Disability and Chronic Illness Act (WGBH/CZ), which apply since 2009, are important for the access to education for children with a chronic illness or disability. This Act obliges primary and secondary schools to make reasonable accommodations for persons with disabilities or chronic illness, if requested by (the parents of) the child. However, this is not necessary if the adaptations are a disproportionate burden for the school. On the basis of this standard schools are obliged to investigate whether a disabled student can be placed with them through a reasonable accommodation.

often do not know that they must make a reasonable accommodation for the individual party, if requested. The judgements of the Institute in 2012 show that some schools do well in practice, but that other schools do better. For example, simple accommodations are possible for pupils who have dyslexia or dyscalculia. In the event of a mathematics disorder it may be effective for a pupil to use formula cards. Once a school prohibited the use of formula cards at the central written examination, although the pupil was allowed to use them with the school examination. In this case the refusal to permit the use of formula cards resulted in a distinction that was based on a disability or chronic illness. ››

In the communication regarding the obligations of schools according to the Inclusive Education Act not much attention is paid to the standards of the Equal Treatment Disability and Chronic Illness Act (WBGH/ CZ). Schools often do not know that they are obliged to investigate whether a child can be placed. They also

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When it concerns education for persons with disabilities, article 24, second paragraph, subparagraphs a and d of the International Convention on Rights of Persons with Disabilities is also important: ‘Persons with disabilities may not be excluded from the system of education on the basis of their disability and must receive support within regular education in order to participate in education effectively.’ The Netherlands still has to ratify this Convention, but the standardisation referred to in the above-mentioned treaty article about inclusive education should be a guiding principle when reflecting on the access to education for pupils with disabilities.

The Netherlands Institute for Human Rights recommends the government to inform schools and partnerships of primary and secondary schools about the Equal Treatment Disability and Chronic Illness Act and the Inclusive Education Act in such a specific way that schools meet their obligations to carry out reasonable accommodation when they implement the Inclusive Education Act. This obligation is also coloured by the Equal Treatment Disability and Chronic Illness Act.

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Roma and education Between 60 and 80% of the Roma girls has not managed to obtain a basic qualification in secondary education in recent years. This is shown in a study by the Trimbos Institute on school absence and the dropout rate in a few municipalities (2012). However, there are differences between municipalities. Whereas in some municipalities more than 90% of the Roma girls between the age of 12 and 18 does not attend school, there is a stable, relatively low absence percentage or even a reduction in the nonattendance in other municipalities. Factors that play a role ››

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situations should be considered and that measures are taken to tackle their disadvantaged position. The State and municipalities recognise the problems of the Roma population and are committed to promote the participation of Roma in education. The Council of Europe recommends the national government to also enquire about examples of success and not only leave this to the municipalities themselves. The Institute also recommends evaluating policy efforts. In this way the developments in the participation of the Roma will be known. This is also necessary for the government reports to supervisory UN bodies, such as the Committee on the Elimination of Racial Discrimination and the Committee on the Elimination of Discrimination against Women. ■

are the involvement of parents in school, contacts with non-Roma persons, a low social-economic status and poor future prospects. The study shows that there is a small, but growing group of parents who think that is very important that their daughter goes to school, obtains a diploma and becomes self-supporting. Until the end of the 1990s Roma were a target group of policy on eliminating educational disadvantages. The starting-point of the current government is that it does not have a specific policy for minorities, also not for Roma. Municipalities are primarily responsible for dealing with problems of the local Roma population. Nevertheless, the national government recognises the urgency and seriousness of the problems with Roma. This is evident from the policy measures regarding social inclusion of Roma, with regard to which the national government reports to the European Union. In 2010 the former government made € 600.000 available to municipalities to promote the school attendance among this target group, in particular that of girls. As a result the number of Roma files that has to be dealt with by school attendance officers has increased significantly. The reporting and monitoring has increased and action is taken in a more consistent way, so that the chance of dropping out of school is smaller in the future. Nonetheless, the figures from the Trimbos study show that it is essential to continue to focus on the problems of the Roma population and on the way in which the right to education can be guaranteed for the Roma children. International treaties stipulate that groups in disadvantaged

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Human rights education

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‘I saw stereotype images ­disappear between people’ Benjamin Asante (18) participated in the project Free2choose-Create of the Anne Frank Foundation. In this project youths make films in groups about various forms of human rights. Benjamin selected a film in which the conflict between the freedom of expression and non-discrimination was explained, followed by a discussion. Benjamin also helped in discussions after showing Free2choose-films during an international youth summer camp for youths between the age of 16 and 25. ‘I thought it was very interesting to have a discussion with other children of my age with different backgrounds’, Benjamin said. ‘My own generation has quite different opinions about human rights. Through discussions you get to know each other and also understand society better.’ Benjamin also thought that the project was confronting: ‘It removes people from their comfort zone, which helps them to evaluate their own opinion.’ Benjamin explained that the important thing in this project is not only that pupils are free to choose between two rights, but also that they are aware of the opinion of other persons: ‘If everybody would understand the opinion of each other, we could prevent conflicts.’ He thinks that it is important that people are already taught human rights education at an early age, as is the case in the Free2choose project: ‘You learn to deal with the opinions of other people who you would normally not meet, but with whom you share society’, according to Benjamin. ‘For example, a girl from Blaricum who plays hockey will never come in contact with someone from De Bijlmer in Amsterdam. ‘However, they can meet each other in this project. I saw stereotype images disappear between people. You remember this for the rest of your life.’

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Developments in 2012 Improving education The Netherlands must considerably increase its efforts in the field of human rights education. Dutch youths know relatively little about human rights. In the Netherlands only 39% of the youths ever heard about children’s rights. This is the lowest score within the entire EU, where the average figure is 65%. The lack of knowledge among youths hardly differs from what adults know about this issue. Dutch citizens usually know little about human rights and also do not know how they can contribute to protecting human rights. When asked about the meaning of ‘democracy’, many people in particular related it to freedoms and hardly ever to rights and duties. Human rights education therefore requires much more attention, both at schools and for (professional) adults.

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regarding democratic citizenship includes the educational practice and activities with the aim to teach knowledge and skills to pupils and increase their understanding of the subject and develop their attitude and behaviour, so that they are able to exercise and defend their democratic rights and responsibilities, to appreciate diversity and actively participate in democratic society, with the aim to promote and protect the democratic state under the rule of law. ■■ The aim of human rights education is to enable pupils to make a contribution to building and defending a Universal Declaration of Human Rights culture in society, with the aim to promote and protect human rights and the fundamental freedoms. In this Charter these subjects have been combined intentionally as distinctive but strongly related subjects. However, active citizenship in the Netherlands is often regarded in a more limited context. The Platform on Human Rights Education points out that it seems that active citizenship in the Netherlands focuses on a sense of community and standards and values, while the international arrangements in this field deal with rights, responsibilities and democratisation. In the attainment targets for education there is only explicit reference to human rights (attainment target 47 for secondary education). In other attainment targets ››

Citizenship education and comparing human rights education Human rights education does not have a statutory basis in Dutch law. In the past decade the so-called citizenship education obtained a place in legislation and the educational practice. After all, education regarding citizenship and human rights is related to each other. The Committee of Ministers of the Council of Europe has laid this down in the Charter for Democratic Citizenship and Human Rights Education in the following way:

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human persons rights are mentioned implicitly, that is to say, when it concerns knowledge about political science and in relation to socialising elements in attitude and skills that apply to citizenship. These elements also fit in excellently with human rights. Restrictions for human rights education in the Netherlands In the Netherlands three restrictions usually play a role when human rights education is not embedded (more solidly) in primary and secondary education. First of all, there is a great restraint in imposing extra obligations on schools with regard to discussing social themes such as obesity, learning to deal with money or human rights. Schools must in particular teach languages and arithmetic and cannot be obliged to deal with all social problems. It is a popular view in this respect. This attitude is understandable, but knowing about one’s own human rights and that of others is essential for participating in a democratic society. Secondly, there are many schools in the Netherlands for special education that are based on a certain ideological basis. Article 23, paragraph 2 of the Constitution, is often quoted as an argument that schools cannot be obliged to include human rights in the curriculum. At schools where citizenship education is linked to Philosophy they can decide about the educational content of the subject themselves. This freedom should not be restricted by attainment targets that have been laid down compulsorily. However, based on human dignity, human rights are general and sustainable standards, which apply to everyone,

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irrespective of their denomination, and should be known by everybody. A third restriction for human rights education is the conviction that citizenship education covers human rights sufficiently and that extra efforts in this field are not necessary. However, citizenship education has not been worked out very clearly. Schools often do not know what is expected of them and what place they should give to citizenship in their education. In 2012 the Education Council published the advice ‘Taking citizenship in education further’ at the request of the Minister of Education, Culture and Science. In this advice the Education Council concludes that schools have problems to implement citizenship education. According to the Institute, the explicit inclusion of human rights in the attainment targets for the curriculum can offer extra support for schools to implement this. ››

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Human right straining for professionals The training of professionals focuses on those professional groups who are responsible for realising human rights in their daily work. In various international conventions, statements and recommendations the importance of training of professional groups is being emphasised, such as training to the police, the judiciary, parliamentarians, education staff, executive civil servants and medical care providers. In addition, private actors such as companies, employers and provides of goods and services must know about human rights. Human rights also apply across the full width of society: citizens must also respect each other’s human rights.

Opportunities for human rights education Why is human rights education relevant and why are stricter and more unambiguous requirements regarding the knowledge of pupils important in all forms of education? Important considerations are: ■■ State

under the rule of law, democracy and human rights are sustainable principles for the organisation of society and the association between persons. Human rights hereby offer obligatory rules of play that shape the democratic state under the rule of law. They are based on values such as dignity, justice, equality, respect, autonomy and integrity of each person. ■■ The view on citizenship is diverse and subject to changes. The state under the rule of law, democracy and human rights offer schools a substantive compass to implement citizenship education. ■■ The explicit reference to human rights – in educational attainment targets and in the teaching practice – clarifies the key issue for all school parties, irrespective of their background and own views. This makes evasive behaviour impossible. ■■ The obligation for states to also focus education on human rights has been laid down in many international treaty provisions. The Netherlands has frequently committed itself to this (politics and through the ratification of conventions). ■■ Subjects that require special attention, for example emancipation and bullying of gay people, can be integrated in education better when they are linked to human rights.

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A first broad assessment of the degree of attention for human rights within professional groups in the Netherlands offers a mixed picture. For example, statements of the European Court of Human Rights have been discussed in courses for the police, judges, civil servants or legislation legislative draftsmen. At the Police Academy there are thematic modules, for example about discrimination, human trafficking or privacy. However, there does not seem to be a comprehensive approach towards continuous training and extra training for professionals with regard to the broad field of human rights. ››

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State under the rule of law, democracy and human rights are sustainable principles for the organisation of society and the association between persons. Human rights hereby offer obligatory rules of play that shape the democratic state under the rule of law. They are based on values such as dignity, justice, equality, respect, autonomy and integrity of each person. This is why human rights are important in education.

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Developments and points requiring attention The UN Declaration on Human Rights Education and Training, which was adopted in December 2011, describes human rights education and training as ‘all education, training, information, awareness and knowledge activities aimed at promoting universal respect and with due observation of human rights’. Member states are urged to shape this education and training actively.

trafficking. It is also important on various levels: in the event of prosecution and criminal proceedings, but also in the training of professional groups who receive reports of sexual exploitation of children. Instruments are provided for this on an international level. The Organisation for Security and Cooperation in Europe (OSCE) published guidelines for the human rights education of law enforcement officials in 2012. The declaration mentions possibilities to work out a training, points of reference for the curriculum of this training and competences that have to be learned. ■

On an international level the Netherlands was called to account by the UN Human Rights Council within the Universal Periodic Review (UPR) of the Netherlands in 2012 to intensify its human rights education and adopt a National Action Plan about human rights education.

The Netherlands Institute for Human Rights advises to explicitly refer to human rights in the attainment targets for primary and secondary education.

The Institute is of the opinion that the Netherlands should be aware of the obligations from an international human rights perspective to take human rights education seriously and that it should do more than merely offer citizenship education. With the UN Declaration on Human Rights Education and Training and the Charter Democratic Citizenship and Human Rights Education of the Council of Europe a clear framework is provided why human rights education merits and own place in Dutch education. In addition, the Netherlands was urged by the international community at the UPR to train professionals in human rights. This includes specific training for lawyers and law enforcement officials. This is in particular relevant for promoting expertise in the field of hate crimes, discrimination and human

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Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Caribbean part of the Netherlands

Points requiring attention  ›

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Introduction

Summary

Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

Migration and human rights

Privacy and personal data

Health and access to care

Physical and mental integrity

Human trafficking Participation and non-discrimination Labour

Education

Human rights education

Caribbean part of the Netherlands

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Transition On 10 October 2010 the islands of Bonaire, St. Eustatius and Saba (BES) became part of the Netherlands as a so-called public body. As a result, the Caribbean part of the Netherlands had to undergo a large-scale transition process. The transition was severely criticised and there was much opposition. The Perception study among the population in 2011 showed that the population is positive in general about this transition, but that there also is dissatisfaction, in particular because of the strong inflation. Some of the population thinks that the Netherlands focuses more on reinforcement and supervision than on improving the living conditions of the island population.

authorities to put their finances and administration in order. In the beginning of 2012 a delegation of the Netherlands Institute for Human Rights visited the Caribbean part of the Netherlands. On the three islands they spoke with more than twenty residents and employees of local organisations, local administration and national government. These discussions gave the Institute an overview of recent developments and the fields where human rights might be at stake. The Institute calls attention for ensuring a proper standard of living and the rights of suspects and prisoners. Furthermore, the Institute wishes to underline the importance of a proper motivation in legislative and policy proposals why equal treatment may not be applied in concrete cases. ■

The Dutch government has placed a great emphasis on improving education, healthcare and the environmental policy. It also supports the local

Social-economic developments in the Caribbean part of the Netherlands Exploratory Study on Poverty in the Caribbean part of the Netherlands. Compared with the European part of the Netherlands, the incomes and social benefits in the Caribbean part are much lower, but the prices are (minimally) on the same level. Poor residents ››

Thorough studies have been carried out on the instructions of, amongst others, the Ministry of the Interior and Kingdom Relations. These studies include the Purchasing Power Study, the Perception Study in the Caribbean part of the Netherlands 2012 and the

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Human rights education

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inflation was the price increase for electricity and transport, such as airline tickets, maintenance of cars and petrol. The price increase of food products and non-alcoholic drinks also plays a role. The islands have to import many things, there are few fresh vegetables and fruit in the shops. In 2012 1.5 litre of milk cost $ 12. Some schools have introduced a breakfast programme for all children. Furthermore, medicines that used to be compensated, such as paracetamol and cough syrups, have to be paid by the users themselves now. The increase in the number of retired Dutch citizens who move from Europe to the Caribbean islands ››

cannot rely on special assistance or the annual invalidity supplement. The social security benefits on the islands are not the same as in the Netherlands. There are less benefits and they are lower. The ‘onderstand’(= social assistance benefit) is at most $ 500 per month. Inflation Inflation on the islands was very high in 2011. In the second quarter it was 10.5% for St. Eustatius, 6.95% for Saba and 5% for Bonaire. In 2012 the inflation decreased. The most important reason for the high

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ends meet, for example, by hardly buying any vegetables and fruit, by living with family, sending children to school without a breakfast and having several jobs. And people help each other; there are only a few beggars. The vulnerable persons on the islands are the elderly persons, in particular persons who are 75 years and older who only have an old-age pension (AOV), single mothers, work-disabled persons, addicted persons and immigrants who have been living less than five years on the island.

as well as of civil servants from the Netherlands also resulted in higher prices on the market of rented accommodation and owner-occupied housing. Furthermore, there is a price-increasing effect as a result of the conversion of the Dutch Antillean currency into American dollars as from 10 October 2010. Poverty The consequence of these developments is that the local population has to work harder, although people already have several jobs. Poverty has increased and there is less supervision on youth. More poverty and less purchasing power create further negative effects, such as an increase in prostitution and crime. This means that the sense of safety has decreased. On the three islands there are great differences between the rich and the poor, both within the Caribbean population and between the local population and the Dutch citizens who live there. In the Perception Study of the Caribbean part of the Netherlands of 2012 67% of the citizens stated that the net family income and purchasing power had decreased on average very substantially as a result of the political changes. The study shows a slight improvement compared to 2011, when 81% stated that they had experienced a decrease in purchasing power.

Education A report of UNICEF from May 2013 shows how limited the possibilities are to follow education. For example, there is only one primary school and one secondary school on Saba. The three islands have different problems in education. For example, language is a serious problem on St. Eustatius, because teachers at the primary school teach in English, but later on the children will be taught in Dutch. This may cause educational disadvantages which are difficult to catch up on later. UNICEF concludes that education currently does not meet all requirements of the UN Convention on the Rights of the Child. It requires an extra focus, for example, on the quality of education, the possibilities for children to develop their talents, on special education and on the cultural identity and language of the child. However, UNICEF has observed that great progress has been made. ■

The Exploratory Study on Poverty that was carried out in the Caribbean part of the Netherlands leads to a greater understanding of the situation. Persons with a minimum income can hardly manage and about 50% of the incomes are on the level of a minimum wage or just above. People have to improvise in order to make

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Human rights in the Netherlands Administration of Justice, Remedies and Deprivation of Liberty

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Education

Human rights education

Caribbean part of the Netherlands

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Every person is entitled to a proper standard of living. A person cannot lead a free life without sufficient food and clothes and a roof above his head. Treaties on human rights oblige the Netherlands to take appropriate measures to increasingly guarantee a better standard of living. These provisions also apply to the Caribbean part of the Netherlands.

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Points requiring attention Differentiation provision The legislation and regulations in the Caribbean part of the Netherlands differ from the legislation and regulations in the European part in many aspects. This is because of the arrangements that have been made between the Netherlands and the governing council of Bonaire, St. Eustatius and Saba. The Charter of the Kingdom of the Netherlands includes the so-called differentiation provision, which expresses that there are fundamental differences between the three Caribbean islands and the Netherlands. Both territories are essentially distinctive and differ, for instance, in their economic and social conditions, the insular nature of the islands, the small surface area, population size, geographic conditions and the climate.

concern residents on an individual basis this can cause a great lack of understanding. Three residents of the Caribbean part of the Netherlands have brought test cases to get their old-age pension (AOV) on the same level as the old-age pension (AOW) in the Netherlands. For the administrators of the Caribbean part of the Netherlands it is also not always clear which subjects are appropriate for equality and which subjects are appropriate for inequality. The Island government of St. Eustatius even referred to this as apparent arbitrariness. Equality principle The Caribbean part of the Netherlands has become an integral part of the Netherlands and the fundamental rights from the Constitution also apply there. Article 1 of the Constitution stipulates that all persons who live in the Netherlands must be treated equally in the event of equal cases. The equality principle implies that everyone who is on Dutch territory can make an equal claim to protection of person or property, is equal to the law and must be treated equally in the event of equal cases. That is to say, that legislation and policy apply to all residents in an equal way. This does not mean that the same rules have to apply everywhere in the Netherlands, or that it is not allowed to conduct a different policy for certain (groups of) residents. ››

The legislation that is based on that of the Dutch Antilles would be gradually replaced by Dutch legislation, with due observance of five years of legislative restraint. Despite this arrangement much new legislation and many regulations have been introduced on the Caribbean part of the Netherlands after 10 October 2010. For residents of the Caribbean part of the Netherlands this had as a consequence that sometimes specific rules apply and that sometimes regulations apply which are applicable throughout the Netherlands. In particular when these regulations

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However, it is only allowed to make a distinction if it actually does not concern equal cases or when there is an objective justification for unequal treatment. From the perspective of human rights it also applies that the essential level of social-economic human rights must be realised in both regions. Different regulations or a different implementation policy for one or both regions to achieve this objective is possible and sometimes even necessary.

The Netherlands Institute for Human Rights urges the government, when it draws up or adopts regulations, to always carefully assess which consequences this may have for the residents of Bonaire, St. Eustatius and Saba. If regulations are drawn up for the Caribbean part of the Netherlands that differ for those in the European part, the so-called comparability and justification test must be applied to motivate carefully why this would be justified. This test has been developed by the ECHR in its non-discrimination jurisprudence. Moreover, the government must always investigate in such cases whether the required level of protection of human rights is also guaranteed in the Caribbean part of the Netherlands.

Comparability and justification test The Dutch government must motivate different rules in both regions on the basis of a comparability test and a justification test. This will reinforce the legal notion and the acceptance of differences. The government does appreciate the assessment within the framework of the equality principle. This is evident, amongst others, from the Instructions for the legislation no. 212, part h. These instructions make it compulsory to always explicitly consider the position of Bonaire, St. Eustatius and Saba in the Explanatory Memorandum and the way in which the essential differences between the islands and the Netherlands have been taken into account.

Rights of suspects and prisoners On Saba and St. Eustatius there are no detention facilities. There are only approved police cells on St. Eustatius. It is the intention that the police cells on Saba will be restored in agreement with human rights standards. Until then suspects who are arrested on Saba are taken to a police cell on St. Eustatius within 24 hours. The examining judge on St. Eustatius will then carry out the judicial review regarding the lawfulness of a decision of the detention. Every suspect has the right of access to a lawyer. ››

In its Advice of October 2012 the Institute stresses that it must be possible to recognise the comparability test and justification test when considering the position of Bonaire, St. Eustatius and Saba. Moreover, it is not only necessary to examine the justified objective of the scheme, but also its foreseeable practical effects. In its motivation the government must also offer a realistic picture of the extra costs of social-economic measures for residents who are affected individually.

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This also implies the right to speak to a lawyer prior to an interrogation. Because of the small-scale nature of the islands in the Caribbean part of the Netherlands, the practical implementation of this right differs from that in the European part of the Netherlands. However, it is necessary that this difference can be justified in a fair and objective way.

In practice it is difficult for the lawyer to communicate with his client from a distance. Moreover, the privacy is also not always guaranteed between the lawyer and client in the event of a long-distance contact, because the police or examining judge can sometimes listen in on telephone and video conversations. The legal profession is cautious in promoting the interests of these clients from a long distance. The current situation raises the question whether the right of free access to a lawyer is guaranteed sufficiently in the Caribbean part of the Netherlands.

Right to lawyer There are four lawyers on Bonaire, three of which also accept criminal trials. On St. Eustatius and Saba there are no lawyers. Suspects on the latter two islands usually consult lawyers on Sint Maarten through telephone and video conferencing. A lawyer will receive a compensation for a limited number of return tickets to the islands: once in the preliminary investigation and once for the case itself. However, the accommodation costs of a lawyer will not be refunded. Suspects who are detained on St. Eustatius are informed about their right to speak to a lawyer prior to the first police interrogation and their right to have a lawyer during the police interrogation. They usually sign a waiver of this right. Minors are usually not interrogated until one of their parents is present or before their lawyer is present at the police interrogation by telephone.

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The Institute draws the attention to the fact that suspects who have been detained on St. Eustatius and on Saba or who are in preventive custody should have free access to a lawyer. In chapter 5 this will also be discussed for the European part of the Netherlands.

The Netherlands Institute for Human Rights urges the government to investigate which arrangements can be made in reason to respect the right for privacy and family life of prisoners of Saba and St. Eustatius who are in preventive custody on Bonaire or who have to serve their prison sentence there.

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Contact with family Another point that requires attention is the contact between family and relatives and suspects and prisoners. Everyone has the right to respect for his privacy and his family life. These rights have been laid down in the Constitution, the ECHR and ICCPR. Suspects who are arrested on Saba are taken to a police cell on St. Eustatius within 24 hours. Suspects of both islands are taken to the detention centre on Bonaire under surveillance after eighteen days of pre-trial detention. After their conviction they will serve their sentence in the prison on Bonaire.

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The discussions held by the Institute show that family and relatives are actually restricted to visit prisoners on Bonaire, in view of the costs of a flight from Saba or St. Eustatius to Bonaire. As a result prisoners do not receive many visitors, while they are already in a strange environment where there often also is a language barrier. Persons from Saba and St. Eustatius usually do not speak Papiamento. Apart from this, a few prisoners serving a long sentence have been transported from Bonaire to prisons in the Netherlands.

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Entitled to a proper standard of living Every person is entitled to a proper standard of living. A person cannot lead a free life without sufficient food and clothes and a roof above his head. Treaties on human rights oblige the Netherlands to take appropriate measures to increasingly guarantee a better standard of living. These provisions also apply to the Caribbean part of the Netherlands.

In the report ‘National Government and the Caribbean part of the Netherlands: Observing Arrangements’ (2012), the Netherlands Court of Audit notes that these arrangements have been observed for education and care, but not yet for other fields. The Netherlands Court of Audit thinks that it is important that the required level of facilities is assessed as adequately as possible for all policy fields, also in view of the evaluation of the political position of the islands in 2015. The Minister of the Interior and Kingdom Relations can agree with this idea.

The starting-point in the transition is that the well-being and prosperity of citizens on the islands must increase to ‘a level of facilities that is acceptable in the Netherlands’. However, as the administrators on the Caribbean part of the Netherlands explicitly endorsed, specific conditions must be taken into account in order to prevent that society will be disrupted in a social and economic sense.

The question of what is an acceptable level in a concrete sense must be answered formally by the government. Only then will it be possible to monitor social-economic developments specifically. The Institute recommends conducting a focused policy in order to offer a proper standard of living to residents of the Caribbean part of the Netherlands, with the purpose to improve their well-being and prosperity. ■

In 2008 arrangements were made between the administrators of the islands and the national government about the required level of facilities on the islands. Standards would be drawn up for a level of facilities that would be acceptable in the Netherlands, in particular in the fields of education, public health, social security and security.

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Appendix 1 Abbreviations

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AMvB

Order in Council

AWBZ

Exceptional Medical Expenses Act

AWGB

Equal Treatment Act

BES

Bonaire, St. Eustatius and Saba (Caribbean part of the Netherlands)

CAT

Convention against Torture and Other Cruel, Inhuman and Degrading Treatment orPunishment

CBP

Dutch Data Protection Authority

CoE

Council of Europe

CPT

Committee for the Prevention of Torture

CRPD

International Convention on the Rights of Persons with Disabilities

CRvB

Central Appeals Tribunal

ECHR

European Convention on Human Rights

ECRI

European Committee against Racism and Intolerance

ECtHR

European Court of Human Rights

EU

European Union

Gw

Constitution

HR

Supreme Court

ICCPR

International Convention on Civil and Political Rights

ICESCR

International Convention on Economic, Social and Cultural Rights

ICRC

International Convention on the Rights of the Child

IGZ

Healthcare Inspectorate

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Education

Human rights education

Caribbean part of the Netherlands

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ILO

International Labour Organisation

IND

Immigration and Naturalisation Service

NFI

Netherlands Forensic Institute

ngo

non-governmental organisation

OM

Public Prosecutor

OSCE

Organisation for Security and Cooperation in Europe

RSJ

Council for the Administration of Criminal Justice and Protection of Juveniles

SCP

Netherlands Institute for Social Research

UDHR

Universal Declaration of Human Rights

UN

United Nations

UPR

Universal Periodic Review

Wbp

Personal Data Protection Act

WGBH/CZ Equal Treatment Disability and Chronic Illness Act

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WODC

Scientific Research and Documentation Centre

zzp

care intensity packages

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Appendix 2 Stakeholders internet consultation, dated February 2013 The following organisations responded after the internet consultation:

■■ Prof.

mr. T. Liefaard, ProfessorChildren’s Rights (UNICEF chair), University of Leiden ■■ Prof. dr. A.P.M. Coomans, Endowed Professor UNESCO Chair in Human Rights and Peace, University of Maastricht ■■ Council of State ■■ SIGNAAL ■■ SOMO, Centre for Research on Multinational Corporations ■■ Foundation National Support Centre for Undocumented Persons ■■ Stichting Moviera, tackling domestic violence ■■ Stichting Privacy First ■■ Stichting Transman ■■ Foundation for Refugee Children ■■ Foundation for RefugeeStudents(UAF) ■■ Tiye International ■■ Transgender Network Netherlands ■■ Transvisie Zorg ■■ Dutch Council for Refugees ■■ Vreerwerk ■■ Association for Women and Law

■■ Amnesty

International Netherlands ■■ ANBO, General Dutch Association for the Elderly ■■ ATD Vierde Wereld ■■ Atria ■■ Burgerrechtenvereniging Vrijbit ■■ Defence for Children ■■ Gaasbeek & Gaasbeek Lawyers ■■ Dutch Humanist League ■■ Jebbink Soeteman lawyers ■■ Johannes Wier Stichting ■■ Kennedy Van der Laan ■■ Lesquillier Advocatenkantoor ■■ National Rapporteur on Trafficking in Human Beings ■■ National Ombudsman ■■ Dutch Association forWomen’s Interests ■■ Network UN Women’s’ Treaty ■■ Patient organisation Transvisie ■■ Per Saldo ■■ Perspectief, Centre for Expertisefor Inclusion and Participation ■■ Platform Protection Civil rights

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In addition, the Institute also received 10 reactions from private citizens.

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