Legal Projects
We want to know what our rights are, down to the nitty gritty details. We work with legal professionals to identify discrimination experienced by Asians and investigate how they can be remedied from a legal perspective.
Please note:
The questions and answers below have been drafted within the context of Dutch law.
* How the law defines ‘racism’ and how the law enforcement agencies interpret and execute the laws differ by country.
We were fortunate to have been offered legal counsel in the Netherlands, and this will be our starting point. We hope to expand the scope of our project in the future, resources allowing.
All content below has been reviewed by van Benthem & Keulen, a full-service law firm based in the Netherlands.
Defining ‘Racism’
-
The legal framework for defining discrimination can be found in the Dutch Constitution (‘Grondwet’), the General Act on Equal Treatment (‘Algemene Wet Gelijke Behandeling’), as well as the Dutch Criminal Code (‘Wetboek van Strafrecht’). In summary, Dutch law prohibits and in some circumstances criminalizes discrimination based on race.
The Dutch Constitution:
• Article 1 – “All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race or sex or any other grounds whatsoever shall not be permitted.”
• Article 1(a) “[…] behaviour relating to the circumstances or acts referred to in article 1 paragraph 1 sub b and which has as its goal or consequence that the dignity of the person is compromised and that a threatening, hostile, insulting, humiliating or hurtful environment is created [translation, VBK]” (prohibition of intimidation)
The General Act on Equal Treatment:
• Article 1(1)(b) “…direct distinction: if a person is treated in a different way than another person in a comparable situation was, is or would be treated on the basis of religion, life philosophy, political point of view, race, sex, nationality, hetero or homosexual orientation or civil status [translation, VBK]”
• The abovementioned distinctions are prohibited under certain circumstances, such as when offering a job, in school situations, and promotions, etc.
The Dutch Criminal Code:
• Article 90quarter “Discrimination or the act of discriminating entails every form of distinction, every exclusion, limitation or preference, which has as its goal or can have as its consequence that the recognition, the use or the exercise on an equal footing of the rights of man and the fundamental freedoms on political, economic, social or cultural terrain or other terrains of societal life, are negated or compromised. [translation, VBK]”
• Articles 137(c)-137(h) criminalize the following situations:
• Intentionally insulting in public, either orally or in writing/pictorially[1] , a group of persons on the basis of their race or other discriminatory characteristics
• Intentionally and publicly inciting hatred towards aforementioned groups
• Participating or financially supporting activities aimed at such discrimination
• Intentionally discriminating, in the capacity of a public official, persons on the basis of their race
• Article 266 criminalizes consciously insulting individuals (‘belediging’). Physical use of force, assault, and intimidation are of course penalized in the criminal code.
Naming/Shaming
-
It is possible to call out someone for exhibiting racist behaviour. But calling out someone’s ‘racist behaviour’ is different to calling someone a ‘racist’. Why? There is a risk of being prosecuted when calling someone a ‘racist’. This can be the case if your action in calling someone a ‘racist’ is meant in an insulting fashion, as described in Article 266 of the Dutch Criminal Code. So, calling someone a ‘racist’ is only justified if they serve to comment on the safeguarding of public interests, and when they do not aim to be more grieving than is necessary to achieve that goal. The likelihood of being prosecuted for calling someone a ‘racist’ is very slim. But when in doubt, it may be better to call out someone’s ‘racist behaviour’ rather than calling them a ‘racist’.
-
Under Dutch law, self-defence can only be in equal measure to the attack (i.e. if someone hits you, you can only hit back in equal measure, not more). Defending oneself from (physical) attacks is allowed under the Dutch criminal code, as long as such defence is not ‘excessive’. Measuring whether an act is ‘excessive’ is context dependent. Excessive self-defence can only be justified when it is the result of a very strong emotional or psychological response to being attacked. Video recording and calling the ‘attacker’ a racist would not strictly fall under self- defence.
-
‘Social media shaming’ is limited by prohibitions on libel in Dutch law*. It is therefore prohibited to intentionally and publicly tarnish someone’s good reputation. Calling someone (or a legal entity) ‘racist’ on a broadly accessible social media platform or account will most likely fall under prohibitions on libel in Dutch law. That said, in practice, the risks of social media shaming are context specific. Ask yourself how specific and serious the allegations of racism are? Is there a less invasive way to bring these allegations, and what public interest does such accusation serve?
*These are codified in Art. 261 & 262 of the Dutch Criminal Code. Libel is written defamation (the act of damaging someone’s good reputation), and slander is oral defamation (the act or crime of making a false spoken statement damaging someone’s reputation) -
Taking photos and videos of people is criminalized if the photo or video was made secretively with a stationary technical apparatus such as a camera. This means, in principle, that taking a photo or video of people in public places with a phone camera is allowed, but only when it is done with the consent or knowledge of the people involved. Article 21 of the Dutch Copyright Law (‘Auteurswet’) adds that filming or photographing can be criminalized when it is publicized without the consent of the person(s) depicted in the video or photo. The person who appears in the video or photo can bring a civil case against you if they have a reasonable interest in not being depicted in that video or photo. That said, if the attacker (of whom you took a photo or video of) is not recognizable on the photo or video, there would be no infringement of privacy. Please exercise with caution when publicizing any material, as it may lead to legal proceedings when infringing the above-mentioned points.
-
In principle, the prohibitions on discrimination as discussed above apply equally to everyone (including shops and restaurant owners). * This means that in cases where there is discrimination in the offering of goods and services, a complaint can be lodged with the College for Human Rights [‘College voor de Rechten van de Mens’]. If you encounter yourself in such a situation, file a report with the police. It is then up to the police to investigate, on the basis of the lodged report, the possible crime and evidence. When it comes to evidence, usually a witness statement and taped recording (video or audio) suffice. Please note that a victim statement will not be enough. If the police do not gather convincing evidence, it is most likely that the public prosecutor will drop the case.
*Art. 7 of the General Act on Equal Treatment – explicitly prohibits discrimination in the offering of goods and services
Defending
-
Physical self-defence is justifiable as long as it is not excessive. Please refer to the answer of “If the discrimination occurs in a public space, what are the owner’s responsibilities?” regarding self-defence.
-
Please refer to the answer of “What is the definition of racism in the Netherlands?” regarding defining racism.
-
Threatening someone is criminalized under Dutch law.* Therefore, if you are threatened, it is best to gather as much evidence as possible (rather than only filing a report) to the police. The public prosecutor’s office will determine whether to investigate further on the basis of the evidence you have given them. Considerations such as whether such prosecution is opportune and whether there is enough evidence for a conviction will be made. If the public prosecutor’s office decides not to investigate further, or decides against your case, it is possible to ask the court of appeal (‘Gerechtshof’) to investigate whether the decision was legitimate. ** If the court decides that the public prosecutor’s decision was not legitimate, the court can order the prosecutor’s office to prosecute after all.
* Art. 285 of the Dutch Criminal Code**Art. 12 of the Act on Criminal Prosecution (‘Wetboek van Strafvordering’)
-
Racism in the workplace is prohibited under Dutch law. * Employers are obliged to offer a workplace free of racism and discrimination. If racism nevertheless takes place, it would be wise to first discuss this with your employer or a trusted person or advisory body within the organization. Employers often have a complaint registry for issues such as discrimination. Discussing the issue in hand with your employer first would be best if you wish to maintain or restore a good working relationship at your workplace. If discussing the matter with your employer does not work, it is possible to lodge an official complaint with the College for Human Rights. The College can give a (non-binding) ruling on the complaint. What this means is that if the complaint is found to be legitimate, it can be used in a court (civil) proceeding against the employer. The result of such proceedings can be to be awarded damages.
*Art. xx of the General Act on Equal Treatment, and Art. 7:646 of the DCC (Dutch Civil Code) (‘Burgerlijk Wetboek’) -
It is of course possible to report an incident to the police directly by reporting a crime after the act. You can report an incident online.* Please keep in mind that the online form is only available in Dutch. If there is a language barrier, it may make more sense to go directly to a police station as they should be able to lodge a report in English. It is worthwhile to also flag an incident with discriminatie.nl. ** This is a national organization which aims to combat racism. Reporting an incident with them would ensure that the national statistics on racism are accurate and updated, which has the potential in having a more far-reaching political response to racism.
* https://www.politie.nl/aangifte-of-melding-doen/meldpunten/meldformulier-discriminatie.html?sid=1fbdefbf-2d89-4493-a1c3-100d31a943f2 -
Yes, you have a right to a free translator (‘tolk’). When in need, you should ask for a translator when reporting an incident to the police. This can also be done through the public prosecutor (‘officier van justitie’) or with an organization called Slachtofferhulp Nederland.
*https://www.slachtofferhulp.nl/strafproces/rechten-slachtoffers-en-nabestaanden/tolk/ -
While it is prohibited to publicize photos or videos against a person’s consent (given that there is a reasonable interest in not having this material publicized), if such recordings are made in a public space, it is difficult to take legal action. The public space is seen as a place where a lot is permitted in terms of filming people. That said, if you are being filmed in the context of a private place of business such as a restaurant, it would make sense to talk to the manager of that private place to ask the people filming or photographing you to stop doing so or to leave the premises. This might be more effective than to address this directly yourself.
-
Self-defence is permitted within reasonable boundaries. Moreover, when someone is forced to attack their harassers because of severe psychological distress (e.g. harassment, threats or insults) this can be exempt from criminal prosecution. However, the bar for such an exemption is set high. Actively confronting harassers as a strategy is therefore not advisable. That said, the assailants themselves can of course be prosecuted if they actively incited the violent behaviour through their harassments or threats. * Please also refer to the question “What are the limits of “self-defence” regarding self-defence.
* Art. 47(2) of the Dutch criminal code -
The first course of action when a child is being discriminated against in school is to address the teachers, so they can act on this information. If this does not happen, it is possible to escalate the situation by contacting the school board or the counselor/ombudsman at the school. If the school does not act on this, it is possible to lodge a complaint with the complaint committee every school is legally obligated to have. This committee has to respond within four weeks with a judgment on whether the complaint was valid and whether measures need to be taken. You can also go around the school and contact the confidential advisor of the national education inspectorate. * However, the advisor will not inspect the complaint, but can only advise you on how to proceed in lodging a complaint or even a police report.
*https://www.onderwijsinspectie.nl/onderwerpen/vertrouwensinspecteurs