Coalition against ethnic profiling in appeal against KMar

A coalition of civil society organizations and two non-white citizens have appealed against the court’s ruling on ethnic profiling by the Royal Netherlands Marechaussee (KMar) during Mobile Surveillance Security (MTV) checks.

During these checks in the border area, the KMar selects people based on, among other things, their appearance, skin color, (presumed) ethnicity or nationality. There is no individual suspicion of the people being checked. The KMar uses risk profiles in these border checks in which ethnicity is a component, such as the profile of the ‘Nigerian money smuggler’: “Fast walking, well dressed with a ‘non-Dutch appearance’.” One of the claimants in the coalition was removed from the queue because of this profile.

Skin color “objective indicator” of nationality

The coalition disputes the court’s opinion that (alleged) “ethnicity is allowed to be part of risk profiles used by the KMar.” According to the court, ethnicity may even be a decisive criterion for detaining someone – again, the coalition appeals against this. The coalition also opposes the ruling that a person’s skin color “can be an objective indicator of a person’s alleged nationality.” These views, according to the coalition, are completely false. They are based on an outdated, problematic, and incorrect view of citizenship that boils down to the idea that there is one typical Dutch person and that this Dutch person is white. According to the coalition, the court therefore applied the discrimination test incorrectly.

KMar uses border control for other purpose

Another point that the coalition criticizes is about the way the KMar utilizes the MTV checks in practice. According to the Aliens Act 2000, article 4.17a, the MTV checks are aimed at countering illegal residency after border crossing. At border controls, the KMar is permitted to stop people and ask for their ID and nationality without any individual suspicion being required. However, the KMar also uses the same authority to tackle cross-border crime – a criminal law task. This is relevant because MTV checks are proactive; it is not required to have a reasonable suspicion of guilt of committing a criminal offense before the check may be carried out. According to the coalition, this is not how the MTV check is legally defined. Moreover, the KMar uses ethnically loaded risk profiles, think of the profile of the ‘Nigerian money smuggler’. According to the coalition, this is in violation of the discrimination ban.

KMar argues that ethnicity in risk profiles is legally permitted

At the end of 2021, Lieutenant General Hans Leijtens informed the House of Representatives that the KMar will stop ethnic profiling. The coalition responded positively, stating that this is an important first step towards equal treatment of people of color. Nevertheless, the KMar’s stated in the House of Representatives that using ethnicity as an indicator in profiles and selection decisions for the MTV is legally permissible. According to the KMar, such action is based on a “solid legal basis,” with the KMar feeling strengthened by the court’s ruling. In addition to the substantive legal objections to the ruling, the coalition also felt compelled to appeal for this reason.

Further proceedings

On May 17, 2022, the coalition filed the statement of appeal at the Hague Court of Appeals. This contains their substantive objections to the ruling. The State must submit the statement of reply by the end of July 2022. The Court of Appeal will then decide whether another written round is necessary, or whether an oral hearing will be scheduled. The coalition expects the oral hearing to be scheduled May 2023. The entire statement of appeal can be read here (in Dutch).

The case was brought by two Dutch citizens, together with Amnesty International, Controle Alt Delete, Dutch Section of the International Commission of Jurists (NJCM), and anti-discrimination agency RADAR.