De handhaving van discriminatiewetgeving in de politiepraktijk

Abstract

In the Dutch criminal justice system distinction is made between two types of discrimination: specific discrimination and common discrimination. The former constitutes of offences criminalized in the Dutch Criminal Code (Articles 137c - 137h and Article 429quater), such as public defamatory statements about a group of persons on grounds of race, religion, hetero- or homosexual orientation or handicap and incitement to hatred or discrimination. The latter term is used for all types of common crimes, i.e. insults, threats, damage of property and assault and battery, committed out of a discriminatory background. Under the Discrimination Directive the police and prosecution service are allowed little to no discretion when dealing with both types of discriminatory offences. The police are obliged to file a criminal complaint at a victims’ request, start up a criminal investigation and forward the case file to the prosecutors office. When a conviction is feasible a discriminatory offence then in principal must be prosecuted. There is only a small possibility to waive prosecution for reasons of public interest in exceptional cases. The Discrimination Directive causes a shift in competences for both the prosecution service and the police, since it has done away with the discretionary powers or latitude normally enjoyed by the Dutch prosecution service and police. Several studies have already shown that the police claim more latitude in practice than allowed by law and in the Discrimination Directive. So far, this has been predominantly explained through reference to unwillingness and ignorance of police officers to combat discrimination. That the police, in spite of various efforts made, to date, seem to be unable to operate in accordance with the Discrimination Directive however, raises questions concerning its causes. This study offers a different, qualitative perspective on the policing of discriminatory offences. In an effort to elucidate inconsistencies between law, policy and practice, the way discriminatory offences are dealt with by the Dutch police is closely examined. As is shown by this study the police indeed claim more latitude in practice than allowed under the Discrimination Directive. However, the inconsistencies between law, policy and practice do not appear to be primarily caused through unwillingness and ignorance of police officers. There are two main reasons for the police to deviate from the legal guidelines in cases of discrimination. Firstly, both the law and the Discrimination Directive lack a comprehensive definition of the concept of discrimination, causing confusion in police practice. Both in registering, classifying and handling cases of discrimination some police officers adopt a narrow definition of discrimination, enclosing only specific discrimination, while others adopt a broader definition which also includes common discrimination. Secondly, police officers appear to deviate from the mandatory operating procedure prescribed in the Discrimination Directive when questioning the effectiveness of criminal justice. Officers sometimes rather offer long-term solutions for the problems underlying discriminatory offences than to enforce the law