On February 14, 2023, the Court of Appeals of The Hague (Gerechtshof Den Haag) held that the Royal Netherlands Marechaussee (Koninklijke Marechaussee, KMar), the police branch of the Dutch armed forces, had discriminated on the basis of race when performing border checks. It stated that the government had not shown a compelling reason to justify the discrimination and therefore prohibited it from using race or ethnicity as a factor in making decisions about whom to stop at border checks.
Facts of the Case
The applicants in the case were Amnesty International, acting as a representative for other human rights organizations, and two individuals who regularly cross the Dutch border and believe that their selection for border checks involved racial profiling. (Decision paras. 3.2, 3.3, 3.7.) The defendant KMar is the police branch of the Dutch armed forces and is part of the Ministry of Defense. KMar is responsible, among other things, for border checks, and is authorized to stop persons who have just crossed the Dutch border to determine their identity, nationality, and residence status to combat illegal residence. (Politiewet 2012, art. 4; Vreemdelingenwet 2000, art. 50, para. 1; Vreemdelingenbesluit 2000, art. 4.17a.)
The plaintiffs alleged that the KMar uses race (the lower court decision uses the term “ethnicity”) as a factor in selecting people for border checks in violation of article 1 of the Twelfth Protocol to the European Convention on Human Rights (ECHR) and article 14 of the ECHR. The defendant contended that race or ethnicity is never used as a sole factor in making selection decisions, but only in combination with other indicators, such as certain migration phenomena, and only if necessary. (Decision paras. 6.1., 6.2.)
The district court found in favor of the defendant. The plaintiffs appealed the judgment to the Court of Appeals of the Hague.
The Court of Appeals of The Hague found in favor of the plaintiffs and overturned the lower court’s decision.
Article 1 of the Twelfth Protocol of the ECHR provides that “[n]o one shall be discriminated against by any public authority on any ground,” such as “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” The court explained that the concept of discrimination in article 1 of the protocol is the same one as in article 14 of the ECHR. Article 14 of the ECHR is violated if there is unequal treatment of persons in equal situations and there is no objective and reasonable justification for the unequal treatment. (Decision paras. 8.3, 8.4.) The European Court of Human Rights (ECtHR) applies the “but for” test to determine whether the person concerned would have been treated in this manner if they had not had a certain personal characteristic such as skin color. (Decision para. 8.5.) In established case law, the ECtHR assumes that a distinction based on grounds such as nationality, race, or ethnicity is justified only if there are “very weighty reasons” and that, in such a case, the notion of objective and reasonable justification must be interpreted “as strictly as possible.” (ECtHR, application no. 55707/00, para. 87; application nos. 27996/06 and 34836/06, para. 44.) Furthermore, the court explained that the ECtHR is of the opinion that if the distinction is based “exclusively or to a decisive extent” on ethnicity, there can be no objective justification for that distinction “in a contemporary democratic society built on the principles of pluralism and respect for different cultures.” (Decision para. 8.7.; ECtHR, application nos. 55762/00 and 55974/00, para. 58.)
In the case at issue, the court held that whenever the KMar used race or ethnicity to make a selection decision, the “but for” test had been met, because if it is necessary to take into account, it always influences the selection decision. The court pointed out that the government did not dispute this conclusion, as is apparent from the examples given, where the ethnic characteristic is the decisive factor for making the selection. (Decision paras. 8.15–8.17.)
The court also held that the state had not shown an objective and reasonable justification for the discrimination. If race or ethnicity is the exclusive or decisive factor in making the selection decision, there can be no justification. (Para. 8.20.) However, even if race or ethnicity is not the exclusive or decisive factor for making the decision, there must be very weighty reasons, which the state had not shown in the opinion of the court. The state had not demonstrated that race or ethnicity says something about a person’s nationality or origin, or that considering it is a proportionate means to combat illegal residence. (Para. 8.21.)
The court concluded that discrimination based on race leads to stigmatization of people selected for a border check on the basis of their race and that “Dutch people with a skin color other than white can therefore not feel accepted and feel like second-class citizens.” The court therefore prohibited the state from making selection decisions that are at least partly based on race when conducting border checks. (Paras. 8.24, 10.1.)Jenny Gesley, Law Library of Congress
March 7, 2023
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