The Dutch House of Representatives quietly approved an amendment, offering lower penalties for officers who commit police violence
The House of Representatives has quietly passed a law that offers less severe penalties for police officers who commit police violence. The law is now awaiting the Senate’s approval. Richard Korver, lawyer of the family of Mitch Henriquez – the Dutch-Aruban man who died in 2016 at the hands of a police officer due to a choke hold – reported this on NPO Radio 1 on Monday June 1st. Lilith co-founder Hasna El Maroudi listened to the interview with Korver and decided to further investigate. We talked to Dionne Abdoelhafiezkhan from Controle Alt Delete, who monitors police brutality. Abdoelhafiezkhan was shocked by these recent developments. “We immediately contacted our partners at Amnesty.”
In 2016, minister Van der Steur (Security and Justice) submitted a proposal to no longer automatically treat police officers as suspects when they commit a violent crime. They should be given a different status. When a civilian dies due to the actions of a police officer, the officer will not automatically be treated as a suspect, as would be the case with a civilian. The officer will be suspected of “violating the official instruction". The maximum sentence for this offence is three years as opposed to the maximum sentence of fifteen years for manslaughter for example. The point is that conviction rarely, if ever, happens when judging police brutality, which means that an extension of the law is not just unnecessary; it also makes it easier for officers to abuse their power. In recent days, the whole world has been horrified by the police brutality in the United States. Following George Floyd's death, millions of people have taken to the streets to protest against police violence. In the Netherlands too, thousands of people have demonstrated and continue to demonstrate against institutional racism and police brutality, which is a widespread problem, according to Abdoelhafiezkhan.
What do you think of this amendment?
"We are shocked. We have been aware of the amendment for some time and we already warned people about it when it was first introduced last December, including on EenVandaag. We are astonished that the law is already in the Senate. Upon hearing this, we immediately contacted our partners at Amnesty, who were also unaware that the amendment had already been approved by the House of Representatives.”
Under the new law, official police instruction will become the criminal law standard for what officers may and may not do. The official instruction for police officers is quite general. As a result, it does not provide officers with clear guidelines. Police chief Frank Pauw told NOS at the time that police officers should be treated differently, "because they are being asked to use violence on behalf of society if necessary." More lenient rules would therefore make sense, according to Pauw. Completely irresponsible, according to Abdoelhafiezkhan.
"It just does not make sense. The police almost never has to answer in court for the use of excessive violence. And in cases in the past 4.5 years where people have died during or shortly after being arrested - and where police violence may have contributed to a person’s death - this was zero times. Suddenly there is a rush to pass this amendment, whilst much remains unclear.”
How many people are actually killed by the police in the Netherlands?
"The National Criminal Investigation Service only publishes the number of people killed by police violence when a firearm was used. These numbers do not include the people who have, for example, been killed due to a choke hold, as was the case with Mitch Henriquez. We have kept track of all numbers that have been published since 2016. Between 2016 and the end of 2019, 33 people were killed at the hands of police officers. That is an average of 8 per year. Eight people have already died between January 2020 and June 2020, which is an increase. Please note: in total 41 people have died. he Public Prosecution Service has not forwarded any of these cases to the court.”
If they are not prosecuted, then what does this amendment do?
"The police is fighting a war on two different fronts. On the one hand, there are organizations such as Controle Alt Delete and our partner organisation Amnesty that demand a more humane policy. On the other hand, there are the unions that pressure the police to look out for their personnel. The unions believe that officers should not be brought to justice like ordinary citizens, because they are just doing their jobs. The police officers in The Hague, for example, who called themselves "Moroccan exterminators": they were eventually moved to another desk. The officers in question really felt that they had been punished, but in fact they had not been prosecuted at all."
Abdoelhafiezkhan refers to the police force in The Hague that has been widely discredited because of discriminatory practices, machismo, and abuse of power. Well-known whistleblowers such as Fatima Aboulouafa and Carel Boers have raised these issues with the team management, but to no avail. Aboulouafa recently left de force after police officers who were guilty of police brutality were only lightly punished.
Richard Korver, the family member's lawyer in the Mitch Henriquez case, also expressed his concern on NPO Radio 1: “Politicians intend to pass a law through the Senate, which actually states that police officers can no longer commit manslaughter, but instead will receive a much lower penalty in case they do. And there will be a separate court. As if our judges aren’t already capable of judging police action. And yes, one would think: officers are not people who should be treated differently when it comes to settling a violent crime involving foul play, such as in the case of Mitch Henriquez. "
The government finds the current law satisfactory, but it still wants to introduce this change because of the vulnerable position of police officers. It is important to report that the official instruction has not yet been reviewed by the Council of State and that the amendment to the law has been adopted almost unanimously, also by left-wing parties. Many of whom vehemently spoke out against police brutality in the United States this week. And some of whom were also present at the protests in the Netherlands. Only Denk voted against the amendment. Here you can view the result of the voting in the House of Representatives.
Update june 4th 9:15 am
Meanwhile GroenLinks has written a statement in which they explain why the party has voted in favor. According to GroenLinks, the amendment will, on the one hand, protect police officers because of their special position, but, on the other hand, it will also punish them more severely if they violate the “official instruction”:
“Like most other parties in the House of Representatives, GroenLinks has voted in favor of this bill: if we ask police officers to take a step forward where others (and therefore also us) take a step back, we should not place them under suspicion in advance in these sensitive incidents. This will of course change as soon as it is clear that the police officer has been guilty of disproportionate violence.”
If there is proof of foul play and an officer has acted outside of the official instruction, the officer can be prosecuted and punished more severely outside of the instruction in this bill, like is currently the case. GroenLinks believes that this bill offers the right balance between protecting the citizens and securing the officers’ legal position, and has therefore voted in favor of this bill.* This means that the police has the authority to use force. However, the use of force must meet a number of rules and requirements. For example, violence should only be used as a last resort.”
In response to GroenLinks' explanation, human rights organization Controle Alt Delete explains their concerns again. According to the organisation, the substantiation of the new bill concerning police brutality is incorrect:
“The Netherlands Bar [red: De Nederlandse orde van Advocaten] and Amnesty International Nederland have already previously criticized the official instruction. They were critical of the extension of the power to shoot and of the extension of the use of pepper spray and tasers. According to The Netherlands Bar it will not be long before pepper spray and tasers will be used during every arrest, whether it is a robbery or whether it is a case of urinating in public. In short, the Senate might soon adopt a law, the consequences of which have not yet been substantively assessed by the Council of State and there is definitely cause for concern. There is work to be done to make this clear to the Senate.”
Update 6:30pm
The reactions on social media show that there is some confusion about the possibility whether officers can be prosecuted or not. It is not the case that police officers can no longer be prosecuted by the Public Prosecutor. They will, however, be given a different status, which means they will not automatically be treated as suspects when a person dies due to police brutality.
What we want to draw attention to is the fact that this amendment gives police officers a special status, whilst they are already rarely prosecuted for the use of excessive violence. We fear that - given the reports of police brutality, abuse of power and ethnic profiling - this amendment will sooner lead to more facts of violence that will go unpunished, rather than that it will be institutionally eliminated. We would furthermore like to point out here that 41 people have been killed whilst in police custody since 2016 and none of the police officers involved have been brought to justice by the Public Prosecutor. There is the possibility that officers will be punished more severely if it is concluded that they are acting outside of their mandate. However, the Council of State still has to advise on the official instruction, whilst the law has already been passed in the House of Representatives. The law is now currently in the Senate and it might have also been passed there without it being publicized. That’s why this is extremely worrying.
Perhaps this sentence, which we have now adjusted, has caused some confusion:
“When a civilian dies due to the actions of a police officer, the officer can no longer be prosecuted for manslaughter (a maximum sentence of fifteen years). Instead they will be prosecuted for "violating the official instruction" (a maximum sentence of three years).”
We have changed it to:
“When a civilian dies due to the actions of a police officer, the officer will not automatically be treated as a suspect, as would be the case with a civilian. The officer will be suspected of “violating the official instruction". The maximum sentence for this offense is three years as opposed to the maximum sentence of fifteen years for manslaughter for example. The point is that this rarely, if ever, happens when judging police brutality, which means that an extension of the law is not just unnecessary; it also makes it easier for officers to abuse their power.”
Update 4:30 pm
Controle Alt Delete explains in this blogpost why this news is so alarming and what the change of law entails. “Simply put: what is stated in the official instruction will soon become the criminal law standard for the application of violence.” Particularly the fact that the bill that amends the Criminal Code is now being dealt with urgently in the Senate, whilst the official instruction is still before the Council of State for advice and which is expected at the earliest in the summer of 2020, is alarming according to Controle Alt Delete: "the Senate will adopt a law, the consequences of which have not yet been assessed in terms of content by the Council of State."
Editorial note (update 4:50pm)
According to Controle Alt Delete and Amnesty, the government and the police could possibly be in violation of human rights with this amendment. The Public Prosecution Service have also never seen a reason to prosecute the 41 people who have died since 2016.
As a socially engaged, feminist online medium, we believe that it is our job to bring this matter to light and to speak out about it. Especially given the recent protests against police brutality and institutional racism in the United States and worldwide. That is why we would like to appeal to the Minister of Justice and Security and MPs to continue to hold the principle of equality in high esteem. And you can help too.
We encourage you to share this article and to send an email to as many different MPs, city councilors, and political parties as possible. We recommend that you primarily address the members of the Senate’s Committee for Justice and Security (Justitie en Veiligheid). This committee is responsible for preparing the debate on the amendment of the law. If necessary, we have prepared a sample letter for you that has also been reviewed by a lawyer. But feel free to write your own letter.
Below there are some suggestions. Clicking on the name will take you to the MP's personal page. There you can contact them via an online form, but it is best to send an email to postbus@eerstekamer.nl, where the mails will be archived as well.
Mr.drs. M.M. de Boer (GL)
Overige leden J&V:
Mr.drs. M.A.M. Adriaansens (VVD)
A.L.E. Arbouw (VVD)
Mr. M.H.H. Baay-Timmerman (50PLUS)
Jhr.mr. J.P. Backer (D66)
Mr. M.H. Bikker (CU)
Mr. M.A. de Blécourt-Wouterse (VVD)
Mr. B.O. Dittrich (D66)
Mr.drs. H. Doornhof (OSF)
Mr. R.A. Janssen (SP)
F. Karimi (GL)
Prof.mr. P. Nicolaï (PvdD)
Drs. J.E.A.M. Nooren (PvdA)
Mr. J. Recourt (PvdA)
Drs. Th.W. Rietkerk (CDA)
Mr.dr. A.G.J.M. Rombouts (CDA)
Mr. G.V.M. Veldhoen (GL)
You can also directly contact the various political groups in the Senate:
groenlinks@eerstekamer.nl
vvd@eerstekamer.nl
cda@eerstekamer.nl
D66@eerstekamer.nl
pvda@eerstekamer.nl
sp@eerstekamer.nl
50PLUS@eerstekamer.nl
partijvoordedieren@eerstekamer.nl
osf@eerstekamer.nl
christenunie@eerstekamer.nl
Sample letter
Dear Minister of Justice and Security. Dear MPs. Dear Senators,
I have heard that the House of Representatives has accepted a legislative amendment that eases the punishment of violence used against by officers against civilians. And that the amendment is now going to be assessed by the Senate. I am horrified and deeply concerned about these developments that could lead to deadly police brutality, with only mild punishments for the guilty officers. I ask you how you intend to protect your citizens' rights and how you will fight ethnic profiling.
Problems within the police force
By no way do I state that all police officers are guilty of police brutality. However, research points at serious abuse by and within the police force. According to NRC, the internal investigation bureau of the police (VIK) states that at the Hoefkade bureau “there are cases of serious discrimination, violence, undesirable behavior and group culture amongst police officers".Whistleblowers like Fatima Aboulouafa and Carel Boers have raised the question of this internal culture with team leaders, unit leaders and other leaders of the police force. NOS: "Despite signals from employees, managers did not intervene." NRC reports that Aboulouafa felt forced to leave after police officers who were guilty of police brutality were more only mildly punished.
Inadmissible language
Problematic language use among officers is a persistent phenomenon. According to Carel Boers (2019), civilians are referred to by citizens as "kankermongolen, kankerlijers, pauper-allochtonen, kankervolk, kutvolk en kutafrikanen.” This is not a new phenomenon, because investigator Wouter Landman already wrote in 2016 that the police speaks of "(foute) gasten, eencelligen, zigeuners, junks, tokkies, kampers, plot’n volk en kakkerlakken”. And in 2012 researcher Sinan Cankaya wrote that the police speaks often speaks of 'negroes' and that they refer to Moroccan-Dutch as NAGOS: North African Gardeners On Sneakers.
The quality of the constitutional state is threatened when police officers are guilty of serious discrimination, violence, undesirable behavior and abuse of power. It does not serve society and its citizens when those who are supposed to protect them can also be a threat.
Protection against abuse of power by the police is enshrined in Article 3 of the ECHR and in Article 11 of the Constitution; the protection of physical integrity. You can read about this, amongst other things, in the report of the Nationale Ombudsman from 2013 on responsible use of violence by the police. Additionally, there is Article 1 of the Constitution that protects against discrimination and Art. 14 from the ECHR, which should also be paid attention to, but which does not seem to be the case now.
And the separation of powers (trias politica) is jeopardized if the judicial power is not always given the opportunity to test whether police officers have acted lawfully.
Background of the amendment
This concerns a legislative amendment to the Criminal Code in connection with the inclusion of a specific ground for criminal exclusion for investigating officers who have used violence in the lawful performance of their duties and a criminalization of violation of the instruction of violence and amendment of the Code of Criminal Procedure by including a basis for conducting a criminal investigation into the use of force by investigative officers (use of force by investigative officers).
Request
With the amendment of the law, what is stated in the official instruction will soon become the criminal law standard for the application of violence. However, the official instruction is now before the Council of State (the most important advisory body in our country regarding legislation and regulations). Their advice is expected this summer. So, if the law is passed in the Senate, there will be a new criminal standard for agents, which has not yet been assessed by the Council of State. This is undesirable and a reason to postpone the consideration of the bill.
If this amendment is passed, it means that the police - who already have a monopoly on power - can get away with brutal violence. You have undoubtedly followed protests in the United States following the murder of George Floyd by police officer Derek Chauvin. And the protests that followed worldwide to raise awareness about institutional racism and police brutality.
Although the situation in the US and the Netherlands are not the same, there are also cases here, in which black people and people of color are ethnically profiled and treated with disproportionate violence. Also, people with disabilities are more often treated brutally by the police. I hope you do not want to wait for the situation to escalate to the point that it is comparable to the United States before intervening to make institutional changes.
As a concerned citizens, I hope you take my signal to heart and reconsider the amendment. The Senate is still able to vote against. In any case, I expect you to be accountable to the public because, in my view, possible discrimination and abuse of power are not taken seriously enough when this amendment gets adopted.
I look forward to your response.
Sincerely,