CYIL vol. 14 (2023)

LENKA SCHEU – VIOLETA VASILIAUSKIENĖ CYIL 14 (2023) In 2021, the Dutch District Court in The Hague ruled that the police can use ethnicity as one of the criteria for selecting people for border checks. The lawsuit against the government was brought by two Dutch citizens, supported by human rights activist groups, who claimed that they had been selected for body checks by Marechaussee police officers because of their skin colour. The plaintiff, Mr Mpanzu Bamenga, a Congolese-born councillor from Eindhoven, said he was singled out for a check when he was returning to the Netherlands on a flight from Rome, partly because he “did not look Dutch”. He claimed that he was stopped for screening at the airport because of his ethnicity. The reason given for the checks was the fight against illegal migration and illegal residence in the Netherlands. Mr Bamenga turned to social media and, after his story went viral, learned that the police was looking for a well-dressed Nigerian smuggler who did not look like a Dutchman. 20 The District court ruled that ethnicity can be one of the criteria for singling out passengers, but not the only one. The checks carried out by the relevant border police force did not violate the prohibition of discrimination, according to the court. The applicant’s lawyer described the decision as incomprehensible, adding that the decision left the door open to ethnic profiling. Dagmar Oudshoorn, then Director of Amnesty International Netherlands, also commented on the case, describing the decision as unconstitutional as it was contrary to Article 1 of the Dutch Constitution, which states that discrimination on the grounds of “religion, belief, political opinion, race or sex or on any other grounds” is prohibited. 21 The applicant decided to appeal against that decision. The appeal was decided by the Court of Appeal in The Hague on 14 February 2023, which banned the Dutch military police from using racial profiling to select people for identity checks at the border, marking a victory for the two plaintiffs and rights groups who had sued the government. The ruling overturned the original 2021 decision. The appeals court said in a statement that it found that the police department in question had discriminated against people on the basis of race. In view of the serious consequences of discrimination on the basis of race. The judgment held that such discrimination should only be carried out where there were particularly compelling reasons to do so. And, according to the court, the state had failed to prove such compelling reasons. Thus, in its decision, the Court of Appeal prohibited the state from making selection decisions at border controls that are (partly) based on race. The police department in question said after the first instance ruling that it would change the way it worked during border checks, but the appeals court said it found no or limited change in the way it worked. Immediately after the judgment, Robert van Kapel, a spokesman for the department, said the organisation would study the judgment carefully and see what its implications were for the time being. 22 An interesting point in the judgment is the court’s statement that the police committed ethnic profiling and that this in itself cannot be used as a reason for border controls in the future. The use of race “without objective and reasonable justification” is a particularly serious form of discrimination, according to the judges. In response to the ruling, the Dutch government has told Parliament that profiling will no longer be used in 20 KIRBY, P., ‘Dutch border police told to stop ethnic profiling’ (BBC, 15 February 2023). accessed 22 June 2023. 21 ‘Border police can ethnically profile people, Dutch court rules’ (Aljazeera, 20 September 2021) accessed 22 June 2023. 22 CORDER, M., ‘Dutch appeals court prohibits border police ethnic profiling’ (Apnews, 14 February 2023) accessed 22 June 2023.

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