Discriminating public servant

Court: discriminating officer is not necessarily immune from prosecutionNews Court of The Hague Unlike the Public Prosecutor, the court does not consider the immunity of officials to be taken for granted. This is evident from a still unpublished decision concerning a procedure brought by Allowance Parents. “This ruling is an important signal.” AuthorsCamil Driessen March 4, 2024

Exterior of the tax office in The Hague.Photo: Laurens Van Putten/ANP/ Hollandse HoogtOfficials are not automatically immune from criminal prosecution for discrimination. This is evident from a recent unpublished decision by the Court of Appeal of The Hague in a procedure brought by two Benefit parents. In 2022, the Allowance parents filed a report for (professional) discrimination by tax authorities. They would have deliberately and manually introduced ethnicity and nationality as fraud risk signals into the tax authorities' anti-fraud system. The Public Prosecutor's Office refused to prosecute the officials because they would enjoy criminal immunity. The allowance parents then filed an article 12 procedure in the Hague Court — which can still be enforced to prosecute. The court states for the first time that officials who discriminate can be prosecuted. Anis Boumanjal — lawyer for benefits parents. The central question in that case was whether officials, like the tax authorities themselves, enjoy criminal immunity. Indeed, the Dutch state — and therefore also an implementing institution such as the tax authorities — cannot be criminally prosecuted. After a report by three top officials of the Ministry of Finance proposed the Hague Public Prosecutor in 2021 that this immunity also applies to officials who implement policy and when they did not act out of their own profit or interest. That conclusion is at odds with a research memorandum that law firm Allen & Overy set up for the Department of Finance in 2020. According to the office, whether an official is entitled to immunity can only be determined after “specific investigation [into] the actions of an individual official” .Read alsoLives were shattered in the Allowance scandal: “My children, your children: they should stop suffering from this”

Left: Dulce Gonçalves. On the right, Janet Ramesar. The complaint made by the two Allowance parents with the help of lawyers Anis Boumanjal and Yasmine Finani in 2022 was dismissed by the Public Prosecutor because the officials carried out assigned administrative tasks. According to the Public Prosecution Service, even if it turned out that they did not act on behalf of superiors, they would enjoy immunity, as they did not act out of their own profit or interest — the exception when officials can be prosecuted. The court rejects that legal reading from the Public Prosecutor and states for the first time that it “does not rule out in advance that individual officials can be guilty of criminal offences, even if they have not acted for their own benefit.”. Whether there has been a criminal act can only be determined after further investigation. However, this does not have to take place by the court because the crime of (professional) discrimination has expired: what was reported took place in 2008, 2013 and 2014. Attorney Boumanjal is nevertheless satisfied. “For the first time, the court says in so many words that individual officials who discriminate can be punishable and prosecuted.” He points to an earlier disposal by the court in 2021, when it still seemed to use the line that the punishability of officials required acting out of their own profit. During the procedure, Boumanjal emphasized that personal gain is not necessary and that, under the European Convention on Human Rights, discrimination can also waive official immunity. Important that the court no (longer) rule out prosecution for discrimination is an important development, because it facilitates the approach to discriminating officials. “Our aim was to convince the court that discriminating officials can indeed be prosecuted under certain circumstances.” Boumanjal believes it is important that this was successful, because the Public Prosecution Service can now criminally tackle discriminating officials. “Unfortunately, it is too late for my clients, but for the future, this ruling is an important signal. From now on, the discriminating officer is a warned person.” Read also“The government made me someone I didn't want to become,” says one of the victims of the Benefits affair, who reports to the officials.

Toeriya (40) from Oosterhout, North Brabant, wants compensation for what was done to her through the criminal courts. A version of this article also appeared in the newspaper of March 5, 2024.