29 August 2016, The Netherlands

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Negative developments national implementation ESCR: general concerns

B.1. Decentralization in the Social Domain

Beginning in 2014 a comprehensive decentralization of the social domain was implemented. The government decided that social services were to be distributed through municipalities as they are better placed to provide these services in a more customised manner, assessing individual needs.52 This decentralisation project is known as ‘Participatiemaatschappij’ (participatory society), meaning citizens should take more responsibility to organize their own care through their social network. The other goal of the decentralisation project is cutting back budgets and making them manageable. Decentralisation is also at the core of the new educational framework (Wet Passend Onderwijs) where regional partnerships of school are responsible for the accessibility of education for pupils and students with disabilities.

Many governmental and civil societies warned of adversarial effects of decentralisation.53 It was feared that local diversity in policies and practice would undermine access to services and education, and different applications of youth protection measures depending on the municipality where one lives. Issues of equality before the law, legal certainty and adequate protection of privacy were raised. Unfortunately all these concerns proved to be right. The negative effects of the decentralisation will be discussed under the respective articles of the Covenant.
B.2. Access to Justice

With the decentralisation of social services communication between government and citizen has deformalized. The new laws have made it more difficult to obtain a written decision that can be challenged in a complaints procedures. 54 Few citizen are aware of this. Often a written decision denying an application for support is obtained only if explicitly asked for.

In addition budget cuts of legal aid have affected the access to justice and therefore the protection of ESC-rights as 60% of all legal aid is provided for litigation against state agencies amongst others because of an increase in legislation. Income related contribution for legal aid as well as legal fees have been substantially raised affecting legal protection of the most vulnerable in society.55 Currently a bill seeking more budget cuts to state funded legal aid. Some examples of the effects:

If victims of domestic violence want to divorce they are confronted with several legal procedures. However, due to cuts in state funded legal aid, the personal contribution to a lawyer’s service has more than tripled (per procedure). Proposed amendments to legal aid take the income of both partners into consideration when assessing the need for state funded legal aid, and increasing registry fees even more. If the government proceeds with these plans, victims of domestic violence who do not have any or only very low income will have no independent access to state funded legal aid anymore.

When it comes to youth protection measures, the current draft bill for budget cuts to legal aid intends to cut legal aid by 50%. This reduction is foreseen for procedures regarding supervision orders (OTS) and written instructions by the Youth Care Agency. Possibly the intended reduction also covers out of home placement procedures (UHP) and placement in freedom restricted youth facilities (gesloten jeugdzorg), the bill is not clear on that matter.56 These amendments affect the ability of children and parents to effective legal aid.

Specialized lawyers for no and low income groups will not be able to continue to offer good quality legal help or keep their legal practice afloat. These and other negative effects of past and proposed budget cuts to legal aid have been severely criticized by the national association of lawyers.57

Recommendation 11:

The submitting parties recommend the Committee to:

  • call upon the Dutch government to ensure that all decisions with regard to application of social services and support are put into writing to guarantee access to justice.

  • To urge the Dutch government to safeguard the link between no/low income and access to effective legal aid.

  1. Prohibition of Discrimination (art. 2 (2) ICESCR).

C.1. Lack of an intersectional approach in Discrimination Action Programs

The submitting parties welcome the Program of Action on Discrimination in the Labour Market and the National Program of Action to Combat Discrimination.58 In their view, however, programs tackling discrimination should have a permanent character. The submitting parties note that both programs include special measures to combat gender discrimination as well as other forms of discrimination59, but that the intersection of different forms of discrimination is hardly explored or addressed. For instance: in regard to the intersection of discrimination on gender and religion recent research shows that (young) women wearing a scarf are overrepresented in the reported incidents of outdoor violence as well as in the reported difficulties of finding a vocational training internship.60 The National Human Rights Institute recently carried out an extensive literature review of various ways of intersectional discrimination in labour participation in particular, and the insights in this study should inform further understanding and tackling of intersectional discrimination (eg between gender and disability (also see this report, Article 3 under D), or age and gender, or age and ethnicity. 61

Recommendation 12:

The submitting parties urge the Committee to question the government why it ignores intersectional discrimination and what will it undertake to eliminate that omission.

C.2. Continued Discrimination in area of ESCR for Certain Groups

In the Netherlands, many violations of ICESCR-rights are a matter of direct or indirect discrimination, i.e. in terms of groups being left out and not gaining sufficient protection in their equal enjoyment of ICESCR-rights either as a matter of law or practice.62 The contributing NGO’s have identified discriminatory treatment by law or practice with regard to several rights that are protected by the Convention (for example in respect of the right to work, right to health, right to education, right to adequate living standards, right to social security) and for a very many different groups in Dutch society, including women, ethnic minorities (with Dutch nationally, e.g. Turks, Moroccans, people from Dutch Antilles), irregular migrants, asylum seekers and refugees, LGTB-persons, disabled persons, minors, Travellers/Roma. To the extent that submitting parties have expertise on the discrimination suffered by such groups in the area of ICESCR-rights, these problems are discussed in the ‘article-by-article’ part of this report.

Nevertheless, because of certain structural concerns on discriminatory enjoyment of ESCR in relation to a broad range of rights, as a matter of recent legal reforms, there is one issue which warrants specific attention here, which is the topic of decentralization in the social domain – and access to justice in such situations.
C.3. Restricted access to ESCR for nationals from Aruba, Curacao and St. Maarten

The government, by its coalition agreement of 2012, intends to regulate migration of Dutch nationals born in Aruba, Curaçao and Sint Maarten to the Netherlands.63 Currently a bill is being initiated by a member of Dutch parliament64 that seeks to limit freedom of movement in fundamental ways by requiring settlement requirements such as sufficient funds, a clean criminal record and solid education and/or work experience. This proposal has been critized by the Council of State65 and academics66 for violating freedom of movement (i.a. article 12 CCPR) and equal treatment. No or insufficient attention has been given to the protection of vital social and economic rights stipulated in inter alia article 9, 10, 11 and 13 ICESCR of Dutch nationals born in Aruba, Curaçao and Sint Maarten, notably the most vulnerable.

Recommendation 13:

The submitting parties recommend the Committee to ask the Dutch government to inquire about its position on creating restrictions on access to socio-economic protection for Dutch nationals from Aruba, Curacao and St. Maarten, based on migratory politics?

The submitting parties recommend the Committee to call upon the Government to ensure that access to socio-economic rights is not constricted in a discriminatory manner, on the basis of migratory politics that impact disproportionally on the most vulnerable, and to ensure access to ESCR for all Dutch nationals equally.

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  • B.2. Access to Justice
  • Recommendation 11
  • Prohibition of Discrimination (art. 2 (2) ICESCR). C.1.
  • Recommendation 12
  • C.3. Restricted access to ESCR for nationals from Aruba, Curacao and St. Maarten
  • Recommendation 13

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