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Dutch court blocks ethnic profiling by border guards

The lawsuit was brought by a coalition of human rights groups, including Amnesty International, as well as two Dutch citizens who claimed to be repeated victims of racism.

THE HAGUE, Netherlands (CN) — Before the judge had even finished reading the ruling prohibiting ethnic profiling by Dutch border guards, human rights lawyer Jelle Klaas had tears in his eyes. 

The Hague Court of Appeal held on Tuesday that the use of race as a factor in selecting people for extra screening at border checkpoints is discriminatory, overturning a lower court ruling that upheld the practice in 2021.

Emotions ran high in courtroom, which was full of supporters of the lawsuit brought by a coalition of anti-racism groups and two Dutch citizens who claimed to be the repeated victims of racial profiling. 

“This is discrimination based on race,” Presiding Judge Bas Boele said while reading out the verdict, which is only available in Dutch. After the hearing was over, a man from the audience walked up to the judges and said they had made history. 

“It’s a historic day,” Klaas told reporters after the hearing.

Supporters of the lawsuit gathered outside of the courtroom, crying and hugging one another. Lawyers for the Dutch government left without commenting. 

One of the plaintiffs, Mpanzu Bamenga, was returning to his hometown of Eindhoven, Netherlands, where he sits on the City Council, after attending an anti-discrimination conference in Italy. Border guards in the southern Dutch city pulled Bamenga, who was born in Congo, aside for an extra search. Later he found out that he was suspected of being a “Nigerian money smuggler.” 

The Dutch national military police, the Koninklijke Marechaussee, argued that race and ethnicity can be an indication of smuggling and human trafficking and were only considered in conjunction with other factors. 

In 2021, The Hague District Court found that the practice was legal so long as it wasn’t the only criterion. The groups backing the plaintiffs – Amnesty International, Dutch Jurists Committee for Human Rights and two anti-discrimination advocacy groups, RADAR and Control Alt Delete – immediately vowed to appeal, saying the decision threw human rights out the window.

A month later, after public outcry, the Koninklijke Marechaussee announced it would stop using race as a factor in border checks. 

In Tuesday's ruling, the three-judge panel extensively cited the European Court of Human Rights in its decision, pointing to the Strasbourg court’s “but for” test in determining if something is discriminatory. If, in this case, a security screening would not have taken place but for the person’s race, then it is discrimination and illegal under the European Convention of Human Rights, the Dutch appeals court found.

Judge Boele noted while reading the ruling that the impact of ethnic profiling goes beyond being stopped in the airport.

“This form of discrimination leads to stigmatization and feelings of pain and frustration among the people selected,” he said. In the ruling, the court held that this is harmful to society as a whole. 

A 2021 report by Amnesty International pointed to a number of issues relating to discrimination in the Netherlands, including the ongoing child care subsidy scandal in which thousands of parents were wrongly accused of benefits fraud, in part based on their ethnic backgrounds. Families with dual nationality were more likely to be suspected. 

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