This Act allows mayors to impose a 10-day restraining order if it appears from facts or circumstances that an individual’s presence at a residential property seriously and immediately endangers the safety of one or more people who live there. Courts can review the restraining order within three days after its commencement date. After the 10 days, the mayor may decide to extend the restraining order by another four weeks. During the 10-day period, the people involved will receive professional and governmental assistance.
Netherlands
Legislation
Wet tijdelijk huisverbod (Temporary restraining order act) (2008)
Abortion is legal in the Netherlands when performed by a doctor in an appropriate medical setting as described in the Law on the Termination of Pregnancy. Abortion is criminalized outside these circumstances, and violations carry a penalty of up to four years and six months imprisonment or a fine. A criminal abortion that kills the woman carries a penalty of up to six years in prison or a fine. A criminal abortion performed without the woman's consent carries a penalty of up to 12 years in prison or a fine. A criminal abortion that both kills the woman and is performed without her consent is punishable by up to 15 years imprisonment or a fine. (Unofficial English translation of the Criminal Code as of 2012 available here: https://wetten.overheid.nl/BWBR0024649/2020-07-01)
Wet afbreking zwangerschap (Law on the termination of pregnancy) (1981)
Abortions may be performed up to the 24th week of pregnancy, “the point at which the fetus becomes viable outside the mother’s womb.” The procedure must be carried out by a physician in a hospital or a specially licensed clinic and cannot occur earlier than six days after the woman has consulted the physician. The physician must inform the woman within five days of the consultation whether s/he will perform the requested procedure. The operating doctor must also advise the woman “on the different options available” and “inform her of the medical risks.” Minors (persons under 18 years of age) must have parental consent. The Act does not apply to late-term abortions (i.e., after 24 weeks). The Criminal Code penalizes the killing of a viable fetus. New regulations on late-term abortions were adopted in 2015, clarifying the circumstances, medical and legal, that must be considered before performing a late-term abortion. Late-term abortions are only authorized if they fall under one of two categories: 1) a fetus not expected to survive outside the mother’s body or 2) one with such serious conditions that, even with medical interventions, its chances of survival are small. The fetuses will be reported to a medical committee, which will determine whether the doctor acted with due care and, dependent on the category, send their findings to either the Healthcare Inspectorate (Category 1) or the Board of Procurators General of the Dutch Public Prosecution Service (Category 2) to see whether further investigation is needed. (Unofficial English translation available here: https://cyber.harvard.edu/population/abortion/Nether.abo.htm)
Female genital mutilation is punishable as a form of child abuse under sections 300-304, 307, and 308 of the Criminal Code. Such abuse carries a maximum sentence of 12 years or a maximum fine of 76,000 euros. Parents who perform the circumcision themselves on their own daughter or on a child over whom they exercise parental authority or whom they care for or raise, may serve a one-third increase in their prison sentence, per section 304(1). Parents and custodians are also punishable if they allow and/or support the procedure to be performed, order it, pay for it, provide the means for it and/or assist the circumciser during the circumcision, as these acts are considered soliciting, abetting or co-perpetration under Dutch criminal law. Though FGM is not specifically mentioned in these sections, the General Provisions Section 5(3°) explicitly includes FGM in these Title XX-XXI provisions. (Unofficial English translation of the Criminal Code as of 2012 available here: http://www.ejtn.eu/PageFiles/6533/2014%20seminars/Omsenie/WetboekvanStra...)
Several sections of the Criminal Code (in particular, sections 242-243) penalize rape, including spousal rape, and domestic violence. Penalties include imprisonment not exceeding 12 years, a fine not exceeding 78,000 euros ($93,600), or both. For cases involving violence against a spouse, the penalty for various forms of abuse can be increased by one-third. Section 244 and 245 of the Criminal Code penalize statutory rape. Under section 244, in cases where the victim is younger than 12, the term of imprisonment shall not exceed 12 years. In cases where the victim is 12-16 years of age, under section 245, the term of imprisonment shall not exceed eight years. (Unofficial English translation of the Criminal Code as of 2012 available here: http://www.ejtn.eu/PageFiles/6533/2014%20seminars/Omsenie/WetboekvanStra...)
This section of the Criminal Code penalizes the recruitment, transportation, harboring, or reception of another person with the intention of exploiting them. The scope of trafficking is broad and encompasses “exploitation of another person in prostitution, other forms of sexual exploitation, forced or compulsory labor or services, slavery or practices similar to slavery or servitude.” Penalties dependent on the circumstances of the offense and range from 8-18 years imprisonment and/or a fifth category fine. (Unofficial English translation of the Criminal Code as of 2012 available here: http://www.ejtn.eu/PageFiles/6533/2014%20seminars/Omsenie/WetboekvanStra...)
Wet tegengaan huwelijksdwang (Forced Marriage Prevention Act) (2015)
Article 1:31 of the Civil Code sets the legal age for marriage at 18 years for both women and men. This Act address instances child and/or forced marriage in the Netherlands. It removed a previous provision that allowed for marriage at the age of 16 under exceptional circumstances. The Act also provides for criminal prosecution in cases of forced marriage involving Dutch nationals and/or non-Dutch national-permanent residents. Dutch nationals and non-Dutch national permanent residents can be prosecuted for a forced marriage abroad even if forced marriage is not a criminal offence in the country where the marriage took place. (English summary of the Act available here: https://www.government.nl/topics/forced-marriage/tackling-forced-marriage)
Algemene wet gelijke behandeling (Equal Treatment Act) (2005)
This Act prohibits both direct and indirect discrimination between men and women. Direct discrimination includes discrimination based on pregnancy, childbirth, or motherhood, and indirect discrimination is based other characteristics that result in sex discrimination. The Act covers discrimination in employment, equal pay and pension schemes, and excludes discrimination aimed at placing women in a privileged position or occupations in which sex is a determining factor because of the nature of the occupation in question.
This Act prohibits both direct and indirect discrimination between men and women. Direct discrimination includes discrimination based on pregnancy, childbirth, or motherhood, and indirect discrimination is based other characteristics that result in sex discrimination. The Act covers discrimination in employment, equal pay and pension schemes, and excludes discrimination aimed at placing women in a privileged position or occupations in which sex is a determining factor because of the nature of the occupation in question. Sections 5(2)-(3) list the conditions in which sex may be considered. (English translation available here: https://mensenrechten.nl/sites/default/files/2013-05-08.Legislation%20Eq...)
Grondwet voor het Koninkrijk der Nederlanden (Constitution of the Kingdom of the Netherlands) (2008)
Article 1 of the 2008 Constitution provides for the equal treatment of all people in the Netherlands. It further prohibits discrimination based on “religion, belief, political opinion, race or sex or on any other grounds whatsoever.” Article 11 of the 2008 Constitution holds that “Everyone shall have the right to inviolability of his person, without prejudice to restrictions laid down by or pursuant to Act of Parliament.” (English translation available through External Link.)
International Case Law
Elisabeth de Blok et al. v. The Netherlands CEDAW Committee (2014)
Elisabeth de Blok and five other nationals of the Netherlands are self-employed women who gave birth between 2005 and 2006. Until 31 July 2004, self-employed persons were compulsorily insured against the risk of loss of income as a result of incapacity for work under the Incapacity Insurance Act. Under the Work and Care Act, self-employed women were also entitled to a State maternity benefits. On August 1, 2004, the Discontinuation of Access to Incapacity Insurance Act entered into force, ending the entitlement of self-employed women to maternity benefits. The six self-employed women complained to the District Court of The Hague, claiming that the State should have ensured an adequate maternity benefit scheme in keeping with article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination against Women. The District Court declared the claim unfounded. The Court of Appeal of The Hague upheld the judgment. The Supreme Court dismissed the appeal, ruling that the provisions of article 11(2)(b) of the Convention were insufficiently precise, thus making them unsuitable for direct application by national courts. In their complaint to the Committee on the Elimination of Discrimination Against Women, the six women argued that the State party violated their rights under article 11(2)(b) of the Convention on the Elimination of All forms of Discrimination Against Women by removing the existing maternity leave scheme applicable to self-employed women up to 2004. The Committee held that article 11(2)(b) is applicable also to self-employed women and not to female employees exclusively. Further, the Committee held that, contrary to the State party’s view, the provision was directly applicable. The Committee concluded that the State party’s failure to provide maternity benefits affected pregnant women adversely and therefore constituted direct sex and gender-based discrimination against women. The Committee recommended that the State party provide reparation, including monetary compensation, for the loss of maternity benefits to the six women. The Committee noted that the Sate party amended its legislation in June 2008 to ensure that a maternity leave scheme is available also to self-employed women. However, the Committee invited the State party to address and redress the situation of women similarly situated to the authors, who are self-employed and gave birth between 1 August 2004 and 4 June 2008, when no compensation scheme for self-employed women was in place.
Dekker v. Stichting VJV Supreme Court of the Netherlands (1990)
D, when pregnant, applied for employment as an instructor in a youth training centre with Stichting Vormingscentrum voor Jong Volwassenen (VJV). VJV considered D to be the best candidate for job, however, as the selection committee had been informed by D that she was pregnant VJV declined to offer her employment. The ECJ held that an employer who acts in the manner VJV did was in breach of the Equal Treatment Directive, and in direct contravention of the principle of equal treatment embodied in Articles 2(1) and 3(1) of Council Directive 76/207/EEC if he refuses to employ a female candidate based solely on the possible adverse consequences of her pregnancy, owing to rules on unfitness for work adopted by the public authorities, which assimilate inability to work on account of pregnancy and confinement to inability to work on account of illness. Further, the ECJ held that the application of the Equal Treatment Directive would not differ where in the circumstances described above no male applied for a post. If a woman is refused employment due to matters relating to her sex, for example pregnancy, it is always discriminatory
X and Y v. The Netherlands European Court of Human Rights (1985)
A mentally handicapped girl was raped but had no legal capacity to appeal against the prosecution’s decision not to press charges. The ECtHR found that positive obligations under Article 8 could arise requiring the State to adopt measures even in the sphere of the relations of individuals between themselves. Local legislation therefore suffered from a deficiency regarding the victim, which disclosed a failure to provide adequate protection.
Zwaan-de Vries v. The Netherlands Human Rights Committee (1987)
F.H. Zwaan-de Vries is a Netherlands national who worked for several years before becoming unemployed. Zwaan-de Vries qualified for unemployment benefits under the Unemployment Act until 1979, at which time she applied for continued support through the Unemployment Benefits Act (WWV). The Municipality of Amsterdam rejected her application in accordance with section 13 subsection 1 of WWV (the “breadwinner” clause) because she was a married woman. The WWV provision that required applicants to prove that they are the family’s “breadwinner” in order to qualify for benefits did not apply to married men. On appeal, the Municipality of Amsterdam affirmed the rejection, after which the author appealed to the Board of Appeal in Amsterdam. The Board of Appeals held that Zwaan-de Vries’ complaint was invalid, and the Central Board of Appeal affirmed this holding. In her complaint to the Committee, Zwaan-de Vries argued that the Netherlands violated article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In interpreting the scope of article 26, the Committee took into account the “ordinary meaning” of each element of the article in its context and in light of its object and purpose, noting that article 26 derives from the principle of equal protection of the law without discrimination as contained in article 7 of the Universal Declaration of Human Rights. Thus, article 26 is concerned with the obligations imposed on States in regard to their legislation and its application. The Committee cited Hendrika Vos v. The Netherlands for the principle that differentiation based on reasonable and objective criteria does not amount to prohibited discrimination within the meaning of article 26. However, since the WWV required only women to prove their status as “breadwinner”, the differentiation was not reasonable. Therefore, the Netherlands violated article 26 of the Convention when it denied Zwaan de Vries a social security benefit on an equal footing with men.
Dung Thi Thuy Nguyen v. The Netherlands CEDAW Committee (2006)
Dung Thi Thuy Nguyen worked part-time as a salaried employment agency worker as well as together with her husband as a co-working spouse in his enterprise. For her salaried employment, Nguyen was insured under the Sickness Benefits Act (ZW), and for work at her husband’s enterprise she was insured under the Invalidity Insurance (Self-Employed Person) Act (WAZ). When Nguyen applied for maternity leave in 1999, she received benefits from her ZW insurance, but her WAZ insurance denied her coverage because of an “anti-accumulation clause” which allowed payment of benefits only insofar as they exceed benefits payable under the ZW policy. Nguyen objected to the withholding of her benefits and applied for review with the Breda District Court, who dismissed the complaint. The Central Appeals Tribunal upheld the lower judgment on appeal, stating that the WAZ insurance policy did not result in unfavorable treatment of women as compared to men. Nguyen’s complaint to the Committee cited a violation of article 11, paragraph 2 (b) of the Convention on the Elimination of All Forms of Discrimination against Women under which the State party is obligated to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority, or social allowance. The Committee held that it is state’s discretion to determine the appropriate maternity benefits within the meaning of article 11 for employed women, and separate rules for self-employed women accounting for fluctuated income and related contributions did not amount to a violation. The dissent, however, argued that the law of the Netherlands which provides for a financially compensated maternity leave for women who are both salaried and self-employed does not take into account the situation of these women who work more hours per week than a full-time salaried employee entitled to full maternity benefits. The anti-accumulation clause, therefore, constitutes indirect sex-discrimination because the policy assumes that mainly women work as part-time salaried employees in addition to working as family helpers in their husband’s enterprises.
Zhen Zhen Zheng v. The Netherlands CEDAW Committee (2007)
Petitioner was trafficked into the Netherlands and request for asylum was denied because she could not give details about her trip from China and did not have identity documents. Although the Committee held complaint to be inadmissible for non-exhaustion of domestic remedies, the dissent found that due to vulnerable situation of victims of trafficking, the complaint should be admissible and that the State did not act with due diligence in failing to recognize that Ms. Zheng may have been victim of trafficking.
S.W.M. Broeks v. The Netherlands Human Rights Committee (1987)
S.W.M. Broeks, a married Netherlands national, worked as a nurse for several years before her employer dismissed her for reasons of disability. Broeks received benefits under the Netherlands social security system for five years before her unemployment payments were terminated under Netherlands law. Broeks contested the termination in domestic courts, but the Central Board of Appeal confirmed the decision of a lower municipal court not to continue unemployment payments to Broeks. In her complaint to the Committee, Broeks claimed that the Netherland’s Unemployment Benefits Act (WWV) made an unacceptable distinction on the grounds of sex and status, and discriminated against her as a woman in violation of article 26 of the International Covenant on Civil and Political Rights under which all persons are equal before the law and are entitled without any discrimination to its protections. Broeks argued that because she was a married woman at the time of the dispute, the law excluded her from continued unemployment benefits. Under section 13 subsection 1 of the Unemployment Benefits Act (WWV), a married women, in order to receive WWV benefits, had to prove that she was a “breadwinner” – a condition that did not apply to married men. The Committee concluded that the differentiation that appears to be one of status is actually one of sex, placing married women at a disadvantage compared with married men, amounting to a violation of article 26 of the Covenant.
Vos v. The Netherlands Human Rights Committee (1986)
The Committee held that differences of treatment based on reasonable and objective criteria do not amount to prohibited discrimination.
Domestic Case Law
Claimant (on her own behalf and on behalf of her minor children) v. the Minister for Immigration and Asylum District Court of the Hague (2010)
The claimant, of Tajik descent, had a high school diploma, was an active member of a left-leaning political organization, and was a volunteer teacher for girls while she lived in Afghanistan. The Taliban arrested a friend of the claimant who worked for UNICEF and had also pressured the claimant’s family to provide details about her whereabouts. Once the Taliban occupied her village, she and her husband hid with a relative before traveling to the Netherlands. In 2008, the claimant filed an application on behalf of herself and her minor children (two daughters and a son) under the Aliens Act 2000, citing Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The claimant argued that they were subject to inhumane treatment if they were forced to return to Afghanistan. The District Court noted that the policy relied upon did not take into account the situation of Westernized women in Afghanistan, who were at risk just having lived in Westernized society. The District Court noted that the evidence showed that not only was security a risk to all in Afghanistan, but that treatment of women and girls had deteriorated even further since the rejection of the 2003 application. Finally, the District Court referred to reports submitted in the case, noting that women returning to Afghanistan from Europe or Iran are perceived as having violated religious and social norms and, as a result, are subject to honor crimes, domestic violence, isolation and other forms of punishment. The District Court found the claimant’s appeal to be well-founded, destroyed the contested decision, and ordered the government to issue a decision taking the District Court’s findings into consideration.
Claimant v. the Minister of Justice District Court of the Hague (2010)
The claimant was born in Somalia and left the country when her home was destroyed and four men attempted to rape her. The claimant sought residence in the Netherlands as a refugee under Immigration Act 2000. She argued that women in Central and Southern Somalia were systematically exposed to inhuman treatment. The claimant submitted reports that abuse and rape of women, by civilians and armed groups, was frequent, and that displaced women were particularly vulnerable during their flight. Gang rape was widespread, and victims (including young girls and boys) were selected at random. Further, rape is almost never prosecuted and the victims are discriminated against because they are seen as “unclean.” The report further stated that women in Somalia do not have access to justice and receive no protection from authorities. Human Rights Watch and UN reports also described women as suffering the brunt of abuse and repression cultivated by al-Shabaab’s decrees, including forced marriage, female genital mutilation (“FGM”) and gender-based violence. The District Court opined that women are in a vulnerable position in Central and Southern Somalia and, therefore, run the risk of suffering violence and human rights violations, and cannot obtain effective protection. They are therefore a group worthy of protection from inhuman treatment and torture.
Claimants (on their own behalf and on behalf of their minor children) v. the Secretary of State for Justice, Immigration and Naturalization Service District Court of the Hague (2010)
The claimants, on behalf of themselves and their two minor daughters, sought residence permits under the Aliens Act 2000. The claimants stated that if they returned to Afghanistan, the mother and daughters would be subjected to inhuman treatment under Article 3 European Convention on Human Rights. The claimants noted that women were systematically disadvantaged and discriminated against in Afghanistan. Women were subject to violence throughout the country, including the claimants’ area of origin, and had no protection from the government (if they even had the opportunity of access to the courts). Women suffer domestic violence, sexual violence, honor crimes, and arranged marriage. Women do not have the same rights as men (even though the constitution states that men and women are equal), are seen as property, and have little to no access to education or health care. The District Court found the mother’s and daughters’ appeals well-founded and ordered the government to consider the applications.
Claimant (on her own behalf and on behalf of her minor children) v. the State Secretary of Justice District Court of the Hague (2008)
The government had denied three of the claimant’s applications for residence under the Aliens Act 2000. The appeal stemmed from the dispute about whether the claimant’s minor daughter was at risk for inhuman treatment (specifically, FGM) in Chad under the European Convention on Human Rights. The claimant argued that her daughter was, as a Hadjarai woman, “very strongly” at risk of FGM, and she herself had been circumcised. The government denied that FGM is a matter of tradition, ethnicity, and religion and claimed that the claimant’s story was inconsistent with what was known about FGM in Chad. The District Court found that the government’s decision was subject to review referring to a U.S. Department of State report that stated that though violence against women and FGM were prohibited by law in Chad, FGM was widespread, deeply rooted in tradition and rarely prosecuted. Further, 93% of Hadjarari women were circumcised. The District Court ordered the government to decide the claimant’s application in light of the Court’s findings.