4.1. Achievements and best practices
4.1.1. Independent scrutiny of the actions of public authorities
69. There are a number of independent bodies in the Netherlands that can scrutinise the actions of public authorities. The National Ombudsman investigates, on request or of his own accord, actions taken by administrative authorities of the State and other administrative authorities designated by or pursuant to Act of Parliament. The Ombudsman’s decisions are not legally enforceable. He therefore has to rely on the authority he has built up, mainly through the quality of his work, consisting of a careful investigation of the facts, a well-argued and cogent assessment and a readable report. The office of National Ombudsman has been enshrined in the Constitution since 1999.
70. Another independent body is the Equal Treatment Commission (also mentioned in sections 3.1.1 and 3.1.2), which monitors observance of the Equal Treatment Act. The Data Protection Authority monitors observance of the Personal Data Protection Act, the Data Protection (Police Files) Act and the Municipal Database (Personal Records) Act, and checks that personal data is used and protected carefully and that ordinary people’s privacy will continue to be safeguarded in the future. The use of personal data must be reported to the Data Protection Authority, unless it has granted an exemption.
4.1.2. Tightening provisions in criminal law to combat discrimination 71. On 1 February 2004 legislation on discrimination came into force, making systematic discrimination a separate offence and doubling the penalty in comparison to that imposed for other types of discrimination. The legislation defines systematic discrimination as follows:
discrimination on the part of a person who makes an occupation or habit of such
discrimination; or discrimination on the part of two or more persons acting in concert. The legislation thus emphasises the gravity of more serious forms of discrimination. The introduction of legislation criminalising discrimination on the grounds of disability was accompanied by a comprehensive information campaign targeting office culture and individual professions and trades, conducted mainly through specialist publications. The campaign also made specific information available to the disabled.
72. Since 1 January 2006, discriminating against a person because of that person’s functional or other impairment has been a criminal offence. The incitement of hatred or violence against such people may also result in criminal proceedings. The legislation concerns discrimination against people with a physical, mental or intellectual impairment.
Criminal proceedings may be brought against businesses or services that, for no good reason, are inaccessible to people with a functional or other impairment. People with a functional or other impairment may report such cases to the police. Under the ban on discrimination, certain businesses may be compelled to put in place the facilities that they lack. However, it must be ‘reasonable’ to expect the business to provide the facilities, and they must not place a
‘disproportionate burden’ on it. These questions are decided by the courts.
4.1.3. Open invitation to all UN Special Procedures mandate holders 73. The Netherlands will continue to cooperate unreservedly with the treaty organisations as it has in the past and confirms that its open invitation to all Special Procedures mandate holders to visit the Netherlands will continue to stand without restrictions. The Netherlands cooperates constructively with such visits from special human rights rapporteurs and does not place any obstacles in their way. The most recent example is the visit of the Special
Rapporteur on violence against women, Yakın Ertürk, who had talks with representatives of parliament, the opposition, NGOs etc. in 2006. We place great value on these visits, since they are an excellent instrument for ensuring and monitoring the implementation of human rights standards, in the Netherlands as elsewhere. The government studies the
recommendations of the special rapporteurs – and those of the treaty bodies – with great interest. They are often translated into Dutch and, partly thanks to the efforts of NGOs, widely disseminated.
4.1.4. Forging coalitions with civil society
74. The Dutch government is open to input from society at large. The social issues we face today are too complex to yield to ready-made government solutions. We think that policies arrived at through dialogue are more workable and more effective than those conceived on the government's drawing board. This approach is about more than just garnering support for measures. In our view, it results in better policy. This is why the government endeavours where possible to forge alliances with civil society organisations so that societal ambitions can become common projects. This also holds true in the area of human rights. For example, in setting up the human rights education platform, the Ministry of the Interior and Kingdom Relations consulted a large number of NGOs. Another example is the National Action Plan against Racism 2003-2007, which was drawn up in consultation with NGOs.
4.1.5. International commitment
75. Every year the Netherlands spends 0.8% of its GNP on global poverty reduction and is therefore one of the very few countries that meets the applicable UN target. This
contribution enjoys broad backing from the Dutch public and demonstrates the great willingness of the Netherlands to support development for the benefit of the very poorest people in the world. Part of the contribution is used specifically to protect and promote human rights. The Netherlands seeks in this way to enhance freedom, justice and human dignity for every individual. Our new human rights strategy, ‘Human dignity for all’, includes 102 specific proposals that set out how we intend to achieve this aim. The Netherlands has had a Human Rights Ambassador since 1999. The Ambassador’s core duties are conducting foreign missions, strengthening the dialogue on human rights with the Dutch public and integrating human rights in all the activities of the Ministry of Foreign Affairs.
4.1.6. International law
76. The Netherlands is one of the few countries in the world whose Constitution enjoins the government to promote the development of the international legal order.14 This has long been a cornerstone of Dutch foreign policy. It is partly for this reason that the Netherlands has been willing to host international organisations, especially international courts and tribunals. The International Court of Justice is based at the Peace Palace in The Hague, as is the Permanent Court of Arbitration. The Hague also hosts the International Criminal Tribunal
14 ‘The Government shall promote the development of the international legal order’ (Article 90).
for the former Yugoslavia, the Appeals Chamber of the International Criminal Tribunal for Rwanda, and – since 2002 – the International Criminal Court. Moreover, it was decided in 2007 that the Special Tribunal for Lebanon would have its seat in The Hague. The presence of these courts and tribunals prompted former UN Secretary-General Boutros Boutros-Ghali in the mid-1990s to dub The Hague ‘the legal capital of the world’.
4.2. Challenges and constraints
4.2.1. Security and classic fundamental rights
77. The terrorist threat has thrown up new dilemmas in recent years, not just in the Netherlands but also in many other countries. It is incumbent on states to take all reasonable steps to protect their citizens from life-threatening situations. Protecting the public from security threats has traditionally been a core duty of government, but measures to ensure security can conflict with fundamental rights. Dutch NGOs have expressed concern about this conflict on several occasions.
78. The government is mindful of these concerns and, when taking counterterrorism measures, tries to strike a fair balance with the classic fundamental rights of individuals that may be curtailed by these measures. It proceeds from the principle that, in seeking to protect ourselves and our values, we should avoid compromising those values. They include the right to privacy, personal freedom, safety, the right to a fair trial, and freedom of expression. The treaty provisions in which these fundamental rights are laid down are not formulated in absolute terms and leave room for such a balance to be struck.
79. As explained in section 2.4, a number of checks are built into the legislative process at various stages to assess the compatibility of new legislation with fundamental rights, and particular attention is paid to this question in the explanatory memorandum to new pieces of legislation, as in the explanatory memorandum to the bill to amend the Criminal Code, the Code of Criminal Procedure and certain other pieces of legislation with a view to extending powers to investigate and prosecute terrorist offences. It specifically addresses the
relationship between the powers which the bill would extend and the consequences thereof for suspects’ right to the privacy of the home, family life, and correspondence. After these checks and balances in the legislative process, it is the task of an independent court in specific cases to assess the application of legislation in the context of counterterrorism activities.
4.2.2. Human rights education
80. The treaty bodies created under the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Racial Discrimination have in the past noted that human rights could be given more attention in Dutch education. Some participants at the consultative meetings with civil society organisations that preceded the drafting of this report also commented that there was little knowledge or discussion of human rights in the
Netherlands. The government takes this criticism seriously and organised a conference on human rights education in March 2007 in conjunction with a number of human rights NGOs and others. The conference looked in particular at the place that human rights should be accorded in education, public information and the training of professionals.
81. One of the conclusions was that while there was a lot going on in the Netherlands in the area of human rights education, the implementation of these initiatives was not effective
or permanent. The government therefore devised an action plan together with the relevant stakeholders to consolidate and more clearly define the place of human rights education in society. It should be noted that schools cannot be given explicit instructions on how they should teach pupils about human rights. Human rights are not taught as a subject in their own right, but are placed in a broader context.
82. On 1 February 2006, an act came into force that obliges schools primary and secondary schools to devote attention to active citizenship and social integration in their curricula. By coming into contact with pupils from different backgrounds at school, children learn about different customs and cultures and are prepared for participation in a diverse society.
4.2.3. Reports to treaty bodies
83. The Netherlands considers it very important that reports are thorough, accurate and submitted on time. A great deal of time and energy is devoted to ensuring reports are drafted carefully and coherently and are very informative, e.g. with regard to the implementation of recommendations made by treaty bodies on previous occasions. Since relevant data on a given reporting period, including statistical data, often only becomes available after the deadline, processing the data can cause delays. Sometimes reports are merged.
84. Reporting requirements place heavy demands on the institutional capacity of states parties. The reporting burden has increased sharply in recent decades. As a result, countries face considerable time pressure when trying to meet the deadlines for reporting to the various treaty bodies. This problem is generally recognised internationally, and is part of a broader debate about reforms to the UN treaty body system in the area of human rights. The Netherlands plays an active role in this debate.
85. The Netherlands takes the recommendations of UN treaty bodies seriously. For example, the Dutch parliament devoted a separate session to the most recent
recommendations of the CEDAW committee and political parties sometimes invoke recommendations in seeking changes to government policy.
4.2.4. Internet
86. The explosive increase in the use of the internet, and the opportunities it offers as a relatively anonymous forum for disseminating information, pose new challenges for
governments in terms of the protection of human rights. Child pornography, racism and other forms of discrimination demand a specific and targeted approach. The Netherlands has already taken a number of steps in this direction with the establishment of the National Cybercrime Centre, a hotline for discrimination on the internet and the ratification of the Convention on Cybercrime of the Council of Europe.
87. The rapid developments and increase in the use of the internet demand additional efforts if everyone’s rights are to be protected properly. In this regard the government is also seeking to promote media literacy, i.e. the knowledge, skills and mentality that people should possess to be able to consciously and critically navigate a media landscape that pervades all areas of society. The Dutch approach will include the setting up of a centre for media education and expertise.