Non-existing article of law used to reassure ECRI

The government responded to ECRI in a letter by referring to a non-existent article of the law as a justification.

woensdag 5 februari 2020

In the summer of 2019 the ECRI, the human rights body of the Council of Europe, published an advisory report to the Netherlands. It contained a sharp recommendation on racial profiling. The government responded in a letter by referring to a non-existent article of the law as justification.

ECRI: checking only on the basis of objective criteria
The ECRI said that the police have broad discretionary powers, and that this broad power causes concerns about racial profiling. The ECRI recommended that the law should state that "powers of control, surveillance and investigation can only be exercised on the basis of a suspicion based on objective criteria".

Cabinet: objective criteria are always the starting point
According to the government, the starting point for the powers of the police is always that there are objective criteria. To this end, the government refers to Article 27 of the Code of Criminal Procedure (Sv). That article is about when someone is a suspect. This must indeed involve facts and circumstances.

The concern of the ECRI (and of us!) is mainly in the stops in which someone is not a suspect within the meaning of Article 27 of the Code of Criminal Procedure. Think of the proactive stops in the car or on the scooter.

Government refers to a non-existent article
In order to allay the ECRI's concerns about preventive controls, the government draws attention to Section 47a of the Police Act. According to the government, preventive controls should take place "on objectifiable grounds". But if you look up this article, it turns out that it does not say so at all. The article states that police officers are not obliged to work on days that are a public holiday on the grounds of their religion or belief.

Our vision
Next week, Parliament will discuss the government response to the ECRI report. The government response makes no sense in this context. The article isn’t about preventive or proactive controls and/or that they should be carried out on objective grounds. There are no other articles of law that make this clear. The House of Representatives may not be satisfied with this.