Remedies and enforcement

AuthorKarin de Vries
Pages62-69
62
6 REMEDIES AND ENFORCEMENT
6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,
a) Available procedures for enforcing the principle of equal treatment
In the Netherlands, the following procedures exist for enforcing the principle of equal
treatment: judicial procedures (criminal, administrative and civil) and alternative dispute
resolution, namely the procedure before the equality body, the NIHR.
The principle of non-dis crimination can be enforced by means of crimin al law procedures.
Criminal law provisions may be applied in as far as the offences / discrimination fall under
the definition of discri mination in Article 90quater of the Criminal Code. In 2016, for
example, Geert Wilders MP, the leader of the right-wing Party for Freedom (Partij voo r de
Vrijheid, PVV) was convicted for insulting Moroccans. The District Court accepted the claim
that, under the circumstances, this constituted incitement to discrimination against a group
of people on the ground of their race, as prohibited by Article 137c of th e Criminal Code.
It rejected the claim of incitement to hatred. The Court did not impose a punishment,
considering that the most imp ortant question at issue was whethe r Wilders crossed a line
and that justice was done by means of the judgment itself.271 The appeal against the verdict
is still pending.
The following paragrap hs leav e aside criminal law off ences and concentrate on civil law
equal treatment norms and their enforcement.
The GETA, DDA and ADA do not entail compulsory judicial procedures. If discrimination
occurs in the sphere of private employment, civil (labour) law procedures apply. If it occurs
in public employment, t he procedures of administrative employment law apply. The civil
courts also have competence in cases in which discriminatory contractual agreements
(goods and services supplied by private parties or the Government) are concerned. Outside
the area of contract law, an instance of discrimination (e.g. harassment) can be considered
as to rt and be dealt with in a civil law court p rocedure. The administrative courts have
competence with respect to public employment contracts (civil servants) and
administrative decisions.272 Government actions can also be considered as tort
(onrechtmatige overheidsdaad) in which case a civil court is competent to hear the case.273
In addition to this, the equal treatment legislation provides for a special (non-compulsory)
procedure before the NIHR, which has a section that deals with complaints ab out
discrimination. The NIHR is a quasi-judicial body which i ssues non-binding Opinions. After
it has issued an Opinion, a complaint may still be lodged before a conventional civil/
administrative court if t he applicant wishes to obtain a binding judgment. The NIHR i s a
low-threshold body: no legal representation is required.
Moreover, the p rocedure before the NIHR is free of charge. As for civil law and
administrative law procedures in court, there is a system o f free legal aid for people on
very low incomes.
There are no specific legal rules requiring courts / the NIHR premises to be physically
accessible for people with disabilities; general rules about accessibility do apply to th ese
buildings. Neither is it specified anywhere that information must be provided in Braille.
271 District Court of The Hague 9 December 2016 (case Wilders) ECLI:NL:RBDHA:2016:15014 (in Dutch only)
https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2016:15014. Summary in English:
www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Rechtbanken/Rechtbank-Den-
Haag/Nieuws/Paginas/Wilders-found-guilty-of-insultment-of-a-group-and-incitement-to-discrimination.aspx.
272 However, it should be borne in mind that, in principle, ‘unitary legislative acts’ (eenzijdig
overheidshandelen) are not covered by the equal treatment legislation, see Section 3.2.1.
273 Such cases are based on Article 6:162 of the Civil Code.

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