February 14: Court of Appeal ruling in case on ethnic profiling by the Royal Netherlands Marechaussee

On February 14, 2023, the Court of Appeal of The Hague will rule on the appeal in the case on ethnic profiling by the Royal Netherlands Marechaussee (KMar). The case was started by a coalition of citizens and civil society organizations. They want the use of ethnicity in risk profiles and selection decisions at border controls to be banned.

The appeal ruling can be watched on February 14 from 10:00 a.m. via a live stream.

What is the problem?
The KMar conducts border checks in which it selects travelers for a check partly on the basis of their appearance, skin color and (alleged) ethnicity. In these border controls, there is no individual suspicion against the people being checked. The KMar works with risk profiles here, such as the “Nigerian money smuggler”: fast walking, well dressed with a “non-Dutch appearance.” Mpanzu Bamenga, one of the plaintiffs in this case, was pulled out of line at Eindhoven Airport because of this profile. Bamenga: “The state also has to abide by the constitution, nobody should be judged based on his skin color.”

Court’s ruling
The court of first instance ruled earlier that these border controls lead to a difference in treatment between people based partly on ethnicity, which the court found justified. The court ruled that a person’s skin color “can be an objective indication of a person’s alleged nationality” and is therefore relevant to whether a person has a valid residence permit in the Netherlands.

Difference in treatment based on skin color should never be allowed.
The coalition has appealed this. Skin color cannot be an objective indication of someone’s origin or nationality, according to the coalition. Dionne Abdoelhafiezkhan of Control Alt Delete: “This is based on an outdated and incorrect view that there is a typical Dutchman and that that Dutchman is white. That has not been the case for decades”.

The court heard the appeal during a hearing on Dec. 8, 2022. The coalition explicitly asked the court to test the KMar’s policy against human rights and the rulings of the European Court of Human Rights. Merel Hendrickx, lawyer at PILP: “A difference in treatment based on someone’s ethnicity or skin color should never be allowed. The European Court of Human Rights has confirmed this in several rulings. The only exception is the use of ethnicity to help people and thereby correct factual inequality.”

About the plaintiffs
Acting as plaintiffs in this case are: Amnesty International, Control Alt Delete, the Dutch Legal Committee for Human Rights (NJCM), anti-discrimination service RADAR and two “non-white” citizens who have been repeatedly ethnically profiled by the Royal Netherlands Marechaussee. The proceedings are being coordinated by PILP-NJCM and the parties are also being assisted by lawyers from Houthoff.

Read more about the case here, the statement of objections here (in Dutch) and the appeal pleadings here (in Dutch).

Watch the live stream on February 14 at 10:00 a.m. here.