The Netherlands

   

Quality of Democracy

#20
Key Findings
With free and transparent electoral procedures, the Netherlands falls into the middle of the pack (rank 20) with respect to democratic quality. Its score on this measure has declined by 0.4 points relative to 2014.

Political parties are largely funded through membership contributions and government subsidies. Oversight rules contain some loopholes. Non-binding referendums are allowed, and a new municipal movement is integrating citizen voices into “citizen pacts” that guide policymaking. A new media law reorganizing and changing the mandate of public-media broadcasters remains controversial.

Civil rights are generally protected, but privacy concerns have emerged, and the treatment of asylum seekers has been criticized. Public hostility toward Muslims is an increasing concern. Politicians’ growing tendency to prioritize political decision-making over judicial oversight has raised concerns regarding declining respect for the rule of law.

Though corruption is not perceived as a significant problem, scandals involving top public-sector executives have emerged with increasing frequency. A new law protecting whistleblowers is considered largely symbolic by experts. A measure threatening journalists’ rights to protect sources has drawn criticism.

Electoral Processes

#23

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
9
With a score of 79 out of 100 points the Netherlands ranked 9 out of 158 countries in the mid-2017 Perceptions of Electoral Integrity Index, after Denmark (score 86), Finland, Norway, Sweden, Iceland, Costa Rica, Germany and Estonia. Its highest scores are in the areas of electoral laws and electoral procedures; somewhat lower scores are in the areas of voter registration and party and candidacy registration. The country’s electoral law and articles 53 through 56 of the constitution detail the basic procedures for free elections at the European, national, provincial and municipal levels. The independence of the Election Council (Kiesraad) responsible for supervising elections is stipulated by law. All Dutch citizens residing in the Netherlands are equally entitled to run for election, although some restrictions apply in cases where the candidate suffers from a mental disorder, a court order has deprived the individual of eligibility for election, or a candidate’s party name is believed to endanger public order. Anyone possessing citizenship – even minors – can start a political party with minimal legal but considerable financial constraints. Some argue that party-membership and party-caucus rules strongly diminish formal equality with regard to electoral-system accessibility. Political parties with elected members receive state money (subsidies and other benefits), while qualifying as a new party necessitates payment of a considerable entry fee. The country tolerates one political party, the Party for Freedom, which is blatantly un-democratic in its internal organization, with only one member - the leader of the party.

Citations:
Perception of Electoral Integrity Index, 2017 (poseidon01.ssrn.com, sites.google.com, consulted September 2017)

Eerlijke verkiezingen (eerlijke verkiezingen.nl, consulted 26 October 2015)

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
9
The Media Law (Article 39g) requires that political parties with one or more seats in either chamber of the States General be allotted time on the national broadcasting stations during the parliamentary term, provided that they participate in nationwide elections. The Commission for the Media ensures that political parties are given equal media access free from government influence or interference (Article 11.3). The commission is also responsible for allotting national broadcasting time to political parties participating in European elections. Broadcasting time is denied only to parties that have been fined for breaches of Dutch anti-discrimination legislation. The public prosecutor is bringing discrimination charges against Geert Wilders, the leading member of parliament representing the Party for Freedom. However, individual media outlets decide themselves how much attention to pay to political parties and candidates. Since 2004, state subsidies for participating in elections have been granted only to parties already represented in the States General. Whether this practice constitutes a form of unequal treatment for newcomers is currently a matter of discussion.

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
10
Contrary to other civil rights, the right to vote in national, provincial or water board elections is restricted to citizens with Dutch nationality of 18 years and older (as of election day). For local elections, voting rights apply to all registered as legal residents for at least five years and to all EU nationals residing in the Netherlands. Convicts have the right to vote by authorization only; as part of their conviction, some may be denied voting rights for two to five years over and above their prison terms. Since the elections in 2010, each voter is obliged to show a legally approved ID in addition to a voting card. Legally approved IDs are a (non-expired) passport or drivers’ license.

Citations:
art J24 Kieswet: http://wetten.overheid.nl/BWBR0004627/AfdelingII/HoofdstukJ/6/ArtikelJ24/geldigheidsdatum_24-05-2013

art 1 Wet op Indentificatieplicht:
http://wetten.overheid.nl/BWBR0006297/geldigheidsdatum_24-05-2013#HoofdstukI_Artikel1

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
4
Until about a decade ago, political-party finances were not a contested issue in Dutch politics. Financing of political parties comes largely from membership contributions (40-50%), “party tax” of elected members’ salaries and acquisitions (festivities, bazaars, dinners) and government subsidies (30-35%, or €16.5 billion in 2016). However, newcomer parties like the Pim Fortuyn List (Lijst Pim Fortuyn, LPF), and later the Party for Freedom (Partij voor de Vrijheid, PVV) received substantial gifts from businesses and/or foreign sources, while the Socialist Party (Socialistische Partij, SP) made its parliamentarians completely financially dependent on the party leadership by demanding that their salaries be donated in full to the party.

As government transparency became a political issue, these glaring opacities in the Dutch “non-system” of party financing were flagged by the Council of Europe and the Group of Countries against Corruption (GRECO) – resulting in increasing pressures to change the law. Political expediency caused many delays, but the Rutte I Council of Ministers introduced a bill on the financing of political parties in 2011.

This new law eradicates many – but not all – of the earlier loopholes. Political parties are obliged to register gifts starting at €1,000, and at €4,500 they are obliged to publish the name and address of the donor. This rule has been opposed by the PVV as an infringement of the right to anonymously support a political party. Direct provision of services and facilities to political parties is also regulated. Non-compliance will be better monitored, and an advisory commission on party finances will counsel the minister on politically sensitive issues. The scope of the law does not yet extend to provincial or local political parties. The law’s possible discrimination against newcomer political parties remains an unresolved issue.

Citations:
Wet financiering politiek partijen: einde in zicht - maar wat een gaten! (montesquieu-instituut.nl, consulted 5 november 2014)

Parlement & Politiek, Partijfinanciering, 2016 (parlement.com, consulted November 9 2016

Ontvangen politieke partijen giften en subsidies?, 2016 (rijksoverheid.nl, consulted 9 November 2016)

NRC.nl, “Laksheid partijen met regels eigen financiering blijft zorgelijk,” 17 May 2017

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
4
Binding popular initiatives and referendums are unlawful both nationally and subnationally, as they are considered to be incompatible with the representative system. At the municipal level, many experimental referendum ordinances have been approved since the 1990s, but the national government has prohibited several ordinances that gave citizens too much binding influence on either the political agenda or the outcome of political decision-making. In 2016, a large number of municipal government mayors, aldermen, councilors, scientists and businessmen initiated “Code Orange” for “civocracy,” (“citizen power”) which aims to involve citizens more in local governance through “citizen pacts” (“burgerakkoord”). The citizen pacts are intended to replace and/or complement the traditional “coalition pacts” between local political parties, which normally are the basis for policymaking. The idea is that after the 2018 elections experiments in more participatory and deliberate local democracy will be legally possible.

At national level, the issue has been on the political agenda since the 1980s. Under pressure from new populist political parties, the Dutch government organized a consultative referendum on the new European Constitution in 2005, using an ad hoc temporary law. With turnout of 63.3% of the eligible electorate, this constitution was rejected by a clear majority of 61.5%, sending shockwaves through all EU member states and institutions. In September 2014, a bill for an advisory referendum on laws and treaties passed the Senate, and was implemented on 1 July 2015. This bill allows for non-binding referendums on petitions that gain 10,000 signatories within a four-week period. Subsequently, another 300,000 citizens are needed to sign up in support of the initial request within a six weeks period.

Geen Peil, an ad hoc anti-EU organization, successfully mobilized enough votes for an advisory referendum on the provisional EU association treaty with Ukraine, which was signed by the Dutch government. With a mere 32.3% voter turnout, the no-vote (61%) was valid nevertheless, and the government was obliged to renegotiate the deal at EU level. The unpleasant referendum campaign and its contested outcome has reopened the political debate about national referendums in the Netherlands.

Citations:
Verhulst, J. and A. Nijeboer, 2007. Directe Democratie. Feiten, argumenten en ervaringen omtrent het referendum, Democracy International, Brussels, pp. 86-90

Referendum Platform, Dossier Raaddgevend Referendum, www.referendum/platform.nl/index.php?action=printpage&item=1411, consulted 5 November, 2014.

NOS, Nee-stem in Oekraïne-referendum blijft zonder gevolgen, 2 October 2016 (nog.nl, consulted 9 November 2016)

VNG, Code Oranje voor verandering politieke democratie, 26 October 2016 (eng.nl, consulted 9 November 2016)

NOS, Lessen voor het komende referendum en ‘niet afschaffen zonder alternatief’ (https://nos.nl/l/2200876, consulted 3 November 2017)

Access to Information

#13

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/ market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
7
The freedoms of the press/media and of expression are formally guaranteed by the constitution (Article 7). The Reporters Without Borders Press Freedom Index 2017 ranked the Netherlands 5 out of 180 countries, below Norway, Sweden, Finland, and Denmark. The somewhat lower score (compared to previous years) is due to legislative initiatives to expand the Intelligence and Security Act, which threatens journalists’ rights to protect their sources. Additionally, Dutch journalists continue to practice “self-censorship” on sensitive issues such as immigration and religion, but not on the royal family.

Public-broadcast programming is produced by a variety of organizations, some reflecting political and/or religious denominations, others representing interest groups. These independent organizations get allocated TV and radio time that is relative to their membership numbers. However, broadcasting corporations are required to comply with government regulations laid down in the new Media Law. This new law abolished the monopoly of the incumbent public-broadcasting corporations and aims to boost competition by giving access to program providers from outside the official broadcasting corporations. A directing (not just coordinating) National Public Broadcasting Organization (NPO) was established, with a two-member government-nominated supervisory board, which tests and allocates broadcasting time. The new law states that public broadcasting should concern information, culture and education, while pure entertainment should be left to private broadcasters. In practice this leads to controversy around television celebrities’ salaries in public broadcasting, and blurred boundaries between “information” and “infotainment.” The bill has been criticized for its lack of budgetary considerations. Broadcasting is both privately funded through advertisements and publicly funded, with budget cuts for struggling regional broadcasters who will need to collaborate to survive. Critics have argued that younger people and non-Dutch population groups will no longer be served by the public broadcasters.

The problem in all this is that “public” media have become increasingly indistinguishable from the private media; moreover, traditional or conventional media have become increasingly less important due to market shifts and increasing internationalization. People under the age of 32 consume (paper) media at ever-shrinking rates, while their use of YouTube channels rises quickly. International media enterprises increasingly follow multichannel strategies. Although media policy still formally distinguishes between the written press and broadcasting organizations, this distinction appears outmoded.

Citations:
“Dit verandert er door de nieuwe mediawet,” Business Insider Nederland, 15 March 2016

Boekmanstichting, “Mediawet aangenomen in Tweede Kamer” (boekman.nl, consulted 26 October 2015)

Mediawet aangenomen door Eerste Kamer, 15 March 2016 (rijksoverheid.nl, consulted 8 November 2016)

Freedom of the Press 2017, Dutch Country Report, Freedom House

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
7
The Dutch media landscape is very pluralistic but nonetheless subject to a gradual narrowing of media ownership, internationalization and rapid commercialization. On the other hand, availability of (foreign and national) web-based TV and radio has increased tremendously. The Dutch media landscape is still characterized by one of the world’s highest newspaper-readership rates. Innovations in newspaper media include tabloids, Sunday editions, and new-media editions (online, mobile phone, etc.). On a regional level, the one-paper-city model is now dominant; there are even several cities lacking local papers altogether.

The degree of ownership concentration in the print media is high. Three publishers control 90% of the paid newspapers circulated, and foreign ownership of print media outlets is growing. As the circulation of traditional magazines decreases, publishers are launching new titles to attract readers. There are currently at least 8,000 different magazine titles available for Dutch readers. Print outlets – both newspapers and magazines – carry a high share of advertising, but this is declining. There are several public and private television and radio stations at the national, regional and local levels. The three public channels continue to lose viewers. The Netherlands also shows one of Europe’s highest rates of cable TV penetration (about 95%). Internet usage rates in the Netherlands are high, and many people are connected through broadband (almost 50% of Dutch households). Ten million Dutch use the internet on a regular basis, amounting to almost 95.5% of the population over six years old.

In the European Union’s Media Pluralism Monitor 2017, the Netherlands was characterized low risk in the domains of basic protection, political independence and social inclusiveness. However, the country was characterized medium risk in market plurality and high risk for concentration of cross-media ownership, as there are no legal restrictions at all and transparency of ownership is low. Consequently, a typical person’s media sources are likely to be controlled by the same, one owner. This requires better regulation of media mergers.

Citations:
Media Monitor:
http://www.mediamonitor.nl/

P. Bakker, 30 jaar kranten in Nederland: consolidatie en monopolievorming, in mediamonitor.nl., consulted 5 November 2014

Media Pluralism Monitor 2017 - Results, Netherlands, October 2017 (monitor.cmpf.eui.eu, consulted 13 October 2017)

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
7
The Government Information (Public Access) Act (WOB) 1991 governs both active and passive public access to information. Under the WOB, any person can demand information related to an “administrative matter” if it is contained in “documents” held by public authorities or companies carrying out work for a public authority. Information must be withheld, however, if it would endanger the unity of the Crown, damage the security of the state, or particularly if it relates to information on companies and manufacturing processes that were provided in confidence. Information can also be withheld “if its importance does not outweigh” the imperatives of international relations and the economic or financial interest of the state.

Between 2010 and 2012, access to government information became a politically contested issue. In practice, the law was used more and more to justify withholding of information to citizens and journalists in the name of “state interest,” which usually referred the desire to retain the confidentiality of intra-government consultation. On the other hand, local governments accused citizens of improper use of the WOB at the expense of public monies and time. Although there has been new legislation to counteract improper use, which removed the penalty local governments had to pay for not responding in time to a request, civil servants at the national level and in municipal governments continue to strongly oppose the new government transparency bill. The new bill still awaits approval from the Senate.

Citations:
Aanpak oneigenlijk gebruik WOB, in vng.nl. consulted 5 November 2014

“Einde misbruik WOB nog niet in zicht,” Binnenlands Bestuur, 13 April 2015

VNG, Behandeling Wet open Overheid in Tweede Kamer, 11 April 2016 (vng.nl, consulted 9 November 2016)

NRC-Handelsblad, “De moeizame weg naar open overheid,” 6 October 2017

Civil Rights and Political Liberties

#12

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
7
The Netherlands guarantees and protects individual liberties, and all state institutions respect and – most of the time – effectively protect civil rights. The Netherlands publicly exposes abuses and reports them to the U.N. Human Rights Council or the European Union. It cooperates with the monitoring organizations of all international laws and treaties concerning civil liberties signed by the Dutch government.

However, there are developments worthy of concern. The right to privacy of every citizen tops the list of preoccupations. Dutch citizens are more at risk than ever of having their personal data abused or improperly used. In addition, current policies regarding rightful government infringement of civil rights are shifting from legally well-delineated areas like anti-crime and terrorism measures toward less clearly defined areas involving the prevention of risky behavior (in personal health, education, child care, etc.) and travel behavior. There is an urgent need to rethink privacy rights and the broad use of policy instruments within the context of the information revolution.

Human Rights Watch has criticized recent Dutch legislation restricting the rights of asylum-seekers (especially long waits for asylum decisions and family reunion procedures), and efforts to only offer shelter, clothes and food to irregular migrants in the five largest cities (and nowhere else). Recently, the government has expanded its list of safe third countries for asylum-seekers (including, surprisingly, Afghanistan) and the Council of State was criticized for failing to uphold the rights of asylum-seekers in appeals to government decisions. On the other hand, the Dutch government withdrew a bill that would have criminalized illegal residence, allowing authorities to put those lacking residence permits in jail. There were concerns about racial profiling by police officers and white Dutch citizens interfering in protests against the traditional “Black Pete” (“Zwarte Piet”) figure in traditional Santa Claus festivities.

Citations:
Human Rights Watch in Nederland (hrw.org., consulted 8 October, 2017))

NRC Handelsblad, Rechters bij Raad van State kiezen ‘zelden de kant van de vluchteling,’, dd. 21 October 2014 (nrc.nl., consulted 23 October 2014)

“Bestaande technologieën met totalitaire trekken,” NRC-Handelsblad, 11 March 2017

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
9
All the usual political liberties (of assembly, association, movement, religion, speech, press, thought, unreasonable searches/seizures and suffrage) are guaranteed by the constitution. The Netherlands is a signatory to all pertinent major international treaties (Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, European Convention on Human Rights). All relevant ranking institutions, such as The Economist’s Intelligence Unit Democracy Index and the Freedom House ranking of political liberties, consistently list the Netherlands as one of the leading countries in the world.

However, the protection of privacy rights is in practice increasingly subject to political attention and public debate. The Expert Body on the Protection of Privacy Data (College Bescherming Persoonsgegevens) has identified a growing number of deliberate or unintended infringements of the constitutional right to privacy. Since January 2016, its powers have been broadened and it can now impose fines. There is also an obligation for large data-processing private and public companies to immediately report any data leaks. Nevertheless, there is a widespread perception that the big data revolution poses a considerable threat to privacy rights and the government’s response has been too weak.

Citations:
Freedom House, Freedom in the world 2016, Netherlands (freedom house.org, consulted November 2016)

Autoriteit Persoonsgegevens, Agenda 2016 (autoriteitpersoonsgegevens.nl, consulted 9 November 2016)

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
8
The Netherlands is party to all the important international anti-discrimination agreements. A non-discrimination clause addressing religion, worldviews, political convictions, race, sex and “any other grounds for discrimination” is contained in Article 1 of the Dutch constitution. An individual can invoke Article 1 in relation to acts carried out by the government, private institutions or another individual. The constitutional framework has been specified by several acts that also refer to the EC Directives on equal treatment. In total, there is a high degree of protection, even though the definition of indirect discrimination provided by the European Commission has not been adopted by the Dutch legislature, and many regulations avoid the term “discrimination” in favor of “distinction” (with less negative connotations in a religiously and culturally diverse society like the Netherlands). A recent expert report criticized Dutch anti-discrimination sanctions as “ineffective,” and as neither “dissuasive” nor “proportionate.” In 2013, the U.N. Human Rights Commission got involved in contentious political debates about the discriminatory character of “Black Pete” that appears in traditional Santa Claus celebrations.

In other respects, Dutch legislation has gone beyond what is required by EU directives. In terms of policy, the Dutch government does not pursue affirmative action to tackle inequality and facilitate non-discrimination. Generally, the government relies on “soft law” measures as a preferred policy instrument to curb discrimination. There are more and more doubts about state policies’ effectiveness. Depending on significant (international) events (e.g., Israeli-Palestinian conflicts, terrorist attacks and public debates about Black Pete) discriminatory actions, internet-based threats and insults targeting Jews, Muslims and Afro-Dutch citizens increase. Especially worrisome is the broad-based negative climate of opinion and stereotyping of Muslims.

Citations:
European Commission. European equality law review. European network of legal experts in gender equality and non-discrimination, 2015/1, Netherlands (equality law.eu, consulted 2 November 2015)

Zwarte Piet heeft zijn glans verloren (trouw.nl, consulted 5 November 2014)

Mens en Samenleving, Voor- en tegenstanders over Zwarte Piet (+ oplossingen) (mens-en-samenleving.infonu.nl., consulted 9 November 2016)

I. van der Valk, Veiligheid en discriminatie anno 2017 - waar staan we?, Achtergronden, 2 October 2017 (republic allochthonië.nl)

SCP, Nederlanders dubbel over discriminatie, Burgerperspectieven 2017|2 (sep.nl)

NRC.nl, “Moslems in Nederland ervaren discriminatie meer dan elders in Europa,” 20 september 2017

Rule of Law

#26

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
7
Dutch governments and administrative authorities have to a great extent internalized legality and legal certainty on all levels in their decisions and actions in civil, penal and administrative law. In the World Justice Project, the Netherlands ranked 5 out of 113 countries in the 2016 rule of law index. However, experts have warned that the situation is deteriorating.

In a recent “stress test” examining the state’s performance on rule-of-law issues, former ombudsman Alex Brenninkmeijer argued after a comprehensive review that particularly in legislation, but also within the administrative and judicial systems, safeguards for compliance with rule-of-law requirements are no longer sufficiently in place. In legislative politics, no appeal to the Constitutional Court is possible, making the Netherlands (along with the United Kingdom) an exception in Europe. The trend is to bypass new legislative measures’ rule-of-law implications with an appeal to the “primacy of politics” or simply “democracy,” and instead await possible appeals to European and other international during policy implementation.

The country’s major political party, the conservative-liberal People’s Party for Freedom and Democracy (VVD), has proposed to abolish the upper house of the States General, and with it the legal assessment of Dutch bills on the basis of the legal obligations assumed under international treaties. Within the state administration, the departmental bureaucracy too often prioritizes managerial feasibility over political and legal requirements. Paradoxically, fiscal and social-security agencies have become exceptionally punitive toward ordinary citizens, not just in cases of fraud, but also in cases of forgetfulness or error. There is evidence that the accumulation of so-called administrative sanctions has driven people into poverty.

Within the judicial system, the lack of system-level support for normal application of the rule of law is apparent in the increase in court-registry fees for citizens seeking legal-dispute settlements, the considerable financial cutbacks and incoherent reforms throughout the entire judicial infrastructure, and the weak application of administrative-law criteria in areas where administrative agencies have discretionary power. The High Court has been accused of systematically disregarding cases of complaints by individual citizens.

All in all, there are strong tendencies in the House of Representatives and within the political parties toward seeking to override, in the name of the primacy of politics and democracy, judges’ right to veto or annul political decisions on the basis of rule-of-law principles.

Citations:
A. Brenninkmeijer, Stresstest rechtsstaat Nederland, in Nederlands Juristenblad, 16, 24 April 2015, pp. 1046-1055

NRC-Handelsblad, “De rechtsstaat is doof, blind, en ‘alles zit vast’,” 28 March 2017

NRC-Handelsblad, “De strafrechtspraak staat er niet goed voor,” 21 April, 2017

NRC-Handleblad, “Vooral de VVD zet de grootste stap achteruit,” 12 March 2017

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
7
Judicial review for civil and criminal law in the Netherlands involves a closed system of appeals with the Supreme Court as the final authority. Unlike the U.S. and German Supreme Court, the Dutch Supreme Court is barred from judging parliamentary laws in terms of their conformity with the constitution. A further constraint is that the Supreme Court must practice cassation justice – that is, its mandate extends only to ensuring the procedural quality of lower-court practices. Should it find the conduct of a case (as carried out by the defense and/or prosecution, but not the judge him/herself) wanting, it can only order the lower court to conduct a retrial. It ignores the substance of lower courts’ verdicts, since this would violate their judges’ independence.

Public doubts over the quality of justice in the Netherlands have been raised as a result of several glaring miscarriages of justice. This has led to renewed opportunities to reopen tried cases in which questionable convictions have been delivered. In 2017, new concerns emerged. A deputy minister of legal affairs openly admitted that he cut back state-supported legal assistance to ordinary citizens to achieve higher court sentences. And in the drugs- and crime-ridden province of Brabant, police, mayors and fiscal authorities directly “harass” suspects rather than pursue legal procedures, which they perceive as a time-consuming nuisance.

Whereas the Supreme Court is part of the judiciary and highly independent of politics, administrative appeals and review are allocated to three high councils of state (Hoge Colleges van Staat), which are subsumed under the executive, and thus not independent of politics: the Council of State (serves as an advisor to the government on all legislative affairs and is the highest court of appeal in matters of administrative law); the General Audit Chamber (reviews legality of government spending and its policy effectiveness and efficiency); and the ombudsman for research into the conduct of administration regarding individual citizens in particular. Members are nominated by the Council of Ministers and appointed for life (excepting the ombudsman, who serves only six years) by the States General. Appointments are never politically contentious. In international comparison, the Council of State holds a rather unique position. It advises government in its legislative capacity, and it also acts as an administrative judge of last appeal involving the same laws. This situation is only partly remedied by a division of labor between an advisory chamber and a judiciary chamber.

Citations:
Andeweg, R.B. and G.A. Irwin (2014), Governance and Politics of the Netherlands. Houdmills, Basingstoke: Palgrave Macmillan (pages 203-2011).

NRC-Handelsblad, “Een Hoge Raad die alles wegwuift is vrij nutteloos,” 22 October 2016

NRC-Handelsblad, “Teeven wilde strengere straffen via ‘afknijpen’ van rechtsbijstand,” 19 May 2017

NRC-Handelsblad, “Crisis in Brabant dreigt strafrechter in te halen,” 27 May 2017

Pieter Tops and Jan Tromp, 2016. De achterkant van Nederland.Leven onder de radar van de wet, Balans

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
7
Justices, both in civil/criminal and in administrative courts, are appointed by different, though primarily legal and political, bodies in formally cooperative selection processes without special majority requirements. In the case of criminal/civil courts, judges are de facto appointed through peer co-optation. According to the Council for Jurisprudence (Raad voorde Rechtspraak) “…in the Netherlands political appointments don’t exist. Selection of judges is a matter for judges themselves, of the courts and the Supreme Court, on the basis of expertise alone. You cannot even raise the issue of political or confessional convictions.” This is also true for lower administrative courts.

But its highest court, the Council of State, is under fairly strong political influence, mainly expressed through appointing former politicians ‘in good standing’, and through a considerable number of double appointments. Only state counselors working in the Administrative Jurisdiction Division (as opposed to the Legislative Advisory Division) are required to hold an academic degree in law. Appointments to the Supreme Court are for life (judges generally retire at 70). Appointments are generally determined by seniority and (partly) peer reputation. Formally, however, the Second Chamber (House of Representatives) of the States General selects the candidate from a shortlist presented by the Supreme Court. In selecting a candidate, the States General is said never to deviate from the top candidate.

Citations:
Andeweg, R.B. and G.A. Irwin (2014), Governance and Politics of the Netherlands. Houdmills, Basingstoke: Palgrave Macmillan (page 210).

De Volkskrant, “Worden in andere EU-landen ook rechters door politici benoemd, zoals Polen beweert? Nou nee,” 23 July 2017

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
7
The Netherlands is considered a corruption-free country. In Transparency International’s Corruption Perception Index 2016, the Netherlands ranked 8 out of 168 countries. This may well explain why its anti-corruption policy is relatively underdeveloped. The Dutch prefer to talk about “committing fraud” rather than “corrupt practices,” and about improving “integrity” and “transparency” rather than openly talking of fighting or preventing corruption, which appears to be a taboo issue.

Research on corruption is mostly focused on the public sector and much more on petty corruption by civil servants than on mega-corruption by mayors, aldermen, top-level provincial administrators, elected representatives or ministers. Almost all public-sector organizations now have an integrity code of conduct. However, the soft law approach to integrity means that “hard” rules and sanctions against fraud, corruption and inappropriate use of administrative power are underdeveloped. In at least three (out of 17) areas, the Netherlands does not meet the standards for effective integrity policy as identified by Transparency International, with all three areas failing to prevent and appropriately sanction corruption. A good example is the case against a former alderman of the city of Roermond who, convicted for corruption, electoral fraud and violating secrecy rules, was not given the two-year prison sentence demanded by the public prosecution, but a light community service penalty. (Both the public prosecutor and the accused have appealed the verdict, with the latter seeking an acquittal arguing that “Everybody acts the way I did.”)

There have been more and more frequent prosecutions in major corruption scandals in the public sector involving top-executives – particularly in (government-commissioned) construction of infrastructure and housing, but also in education, health care and transport. Transparency problems in the public sector also involve lower ranks, job nominations salaries for top-level administrators. Recently, police and customs officers have been prosecuted for assisting criminal organizations. One high-level police officer in a lecture for the Police Academy used the term “Netherlands Narcostate” to characterize the dire state of affairs.

In July 2016, a new law for the protection of whistle-blowers entered into force. Experts consider the law to be largely symbolic, with real legal protection remaining low and administrative costs high.

Citations:
Transparency International Nederland (2016), Nationaal Integriteitssysteem Landenstudie Nederland.

RTL Nieuws, “Groot onderzoek naar corruptie bij politiek en douane,” 28 February 2017

NRC-Handelsblad, “Niet alleen de agent screenen, maar óók zijn partner en Facebookprofiel,” 16 September 2017

NRC.nl, “Nederland Narcostaat is helaas ook een feit,” 30 September 2017

NRC-Handelsblad, “Jos van Rey veroordeeld tot een taakstraf van 240 uur,” 12 july 2017

Juridisch Actueel, Klokkenluiderswet is een feit, 15 March 2016 (juridischactueel.nl, consulted 9 November 2016)

Additional references:

Heuvel, J.H.J. van den, L.W.J.C. Huberts & E.R. Muller (Red.) 2012. Integriteit: Integriteit en integriteitsbeleid in Nederland. Deventer: Kluwer
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