Racism in the Netherlands: criminal law, equal treatment and your options

Dutch law tackles racism along two separate tracks: criminal law punishes public group insult, incitement to hatred and their distribution (Articles 137c to 137e of the Dutch Criminal Code), while equal treatment law prohibits distinction on grounds of race in work, education, housing and services. Racist opinions as such are not punishable; what counts is specific conduct, and each track has its own threshold, procedure and outcome.

What does the Dutch Constitution say about discrimination?

Article 1 of the Dutch Constitution requires equal treatment in equal circumstances and prohibits discrimination on grounds such as race, religion, belief, political opinion and sex. The Constitution binds the legislature and public authorities, but does not by itself give you a claim against a private party.

Two further layers apply directly in the Netherlands. Article 14 of the European Convention on Human Rights (ECHR), read with the other rights in that convention, and Protocol No. 12 to the ECHR prohibit discrimination by public authorities. European Union law prohibits discrimination on grounds of racial or ethnic origin in employment and beyond, and the Dutch equal treatment legislation implements those EU directives.

What does race mean in this context?

The term race is not read narrowly in Dutch law. In line with the International Convention on the Elimination of All Forms of Racial Discrimination, it also covers colour, descent and national or ethnic origin.

That has practical consequences. A case does not fail because a distinction was described as being based on origin, appearance, accent or nationality rather than on race in a biological sense. Nationality is, moreover, a separate protected ground under the General Equal Treatment Act.

Direct and indirect distinction

The law distinguishes two forms of distinction. Direct distinction occurs when a person is treated less favourably than another person in a comparable situation, on a protected ground. Indirect distinction occurs when an apparently neutral rule, criterion or practice puts people of a particular race at a particular disadvantage.

The difference matters. Direct distinction on grounds of race can only be justified in the narrow cases the statute itself allows. Indirect distinction is permitted only if it is objectively justified by a legitimate aim and the means used to achieve that aim are appropriate and necessary. Intent is not required for either form: an employer who did not mean to discriminate can still have made a prohibited distinction.

When is racism a criminal offence?

Racism is a criminal offence when it takes the form of specific public conduct: intentionally insulting a group, inciting hatred, discrimination or violence, or distributing such statements. Articles 137c to 137g of the Dutch Criminal Code (Sr) set out the elements.

Dutch criminal law does not punish racist opinions as such. Each of the three main provisions has its own elements:

• Article 137c Sr makes it an offence to make an intentionally insulting statement in public, orally, in writing or by image, about a group of people because of, among other grounds, their race or their religion or belief. The statement must concern a group rather than an individual, and it must be made in public.
• Article 137d Sr makes it an offence to incite hatred of, discrimination against or violence towards people because of, among other grounds, their race. The statement does not need to be insulting; the focus is on the effect the speaker seeks to produce.
• Article 137e Sr makes it an offence to publish or distribute such a statement, other than for factual reporting, while knowing or having serious reason to suspect its nature, or to hold such material in stock for that purpose. This provision targets distribution rather than authorship.

Two further provisions belong here. Article 137f Sr penalises participation in, or support for, activities aimed at discrimination on grounds of race. Article 137g Sr makes intentional discrimination in the exercise of an office, profession or business a separate offence. The Criminal Code has its own definition of discrimination, in Article 90quater Sr, which is the yardstick the courts apply.

Insulting one person: a complaint offence

If an insult is directed at one identifiable person rather than a group, the relevant provision is simple insult (eenvoudige belediging) under Article 266 Sr. That offence is prosecuted only if the person concerned files a complaint (klacht). The complaint must be filed within three months of the moment the person became aware of the offence.

The group offences in Articles 137c to 137e Sr are not complaint offences. The Public Prosecution Service (Openbaar Ministerie, OM) can prosecute them on its own initiative.

How high is the criminal threshold?

The threshold is high, and deliberately so. Freedom of expression under Article 10 ECHR also protects statements that shock, offend or disturb. Dutch courts assess a statement in its context: what was said, to whom, in what setting, and whether it contributed to a public debate.

A statement that is needlessly hurtful outside any such context is treated differently from a sharply worded contribution to a debate on a matter of public interest. That is why many offensive remarks, however painful, do not lead to a conviction.

If a racist motive lies behind another offence, such as assault, threats or damage to property, that motive is not an element of the offence. Under its published prosecution guidelines, the OM does treat it as an aggravating factor when it decides what sentence to demand. It is therefore important to mention the motive when you report the underlying offence.

How do you report racism to the police?

You file a report (aangifte) at a police station or, for some offences, online, and state explicitly that a discriminatory motive played a part. The OM then decides whether to prosecute.

Report the underlying offence and say clearly that discrimination was a motive. That determines how the file is registered and assessed. Ask for a copy of your report and keep it.

Every municipality must by law provide access to an anti-discrimination service (antidiscriminatievoorziening). These services give free advice and support, help you formulate a complaint and can act as an intermediary. They also register reports, which matters at a collective level even if your individual case goes no further. Statements published online can also be reported to the national reporting point for discrimination on the internet.

What if the OM decides not to prosecute?

If the OM decides not to prosecute, you can file a complaint with the court of appeal (gerechtshof) under Article 12 of the Dutch Code of Criminal Procedure (Sv), provided you are a directly interested party. The complaint must be filed within three months of the day you learned of the decision not to prosecute.

The court of appeal can order the OM to prosecute. The procedure is in writing and takes time. It is the only route to challenge a decision not to prosecute.

Can you claim compensation in the criminal case?

As a victim of a criminal offence, you can join the criminal proceedings as an injured party (benadeelde partij) and claim compensation there. The condition is that the claim does not place a disproportionate burden on the criminal case. If the claim is complex, the criminal court will declare it inadmissible and you will have to go to the civil court. That is one of several reasons why the civil track is often more productive.

What does the General Equal Treatment Act prohibit?

The General Equal Treatment Act (Algemene wet gelijke behandeling, AWGB) prohibits distinction on grounds including race and nationality in work, education, the professions and the supply of goods and services, including housing. It is the instrument that applies to most everyday situations.

The scope of the Act is defined by area rather than by conduct. It covers:

• employment in the broad sense: recruitment and selection, terms of employment, promotion, training, working conditions and termination, for employees, civil servants and, in some respects, self-employed people engaged to do work;
• education, membership of professional associations and trade unions, and the practice of a liberal profession;
• the offering of goods and services and the conclusion of contracts about them, in the course of a business or profession or by the public sector. Housing falls within this category, which is why refusing a tenant because of their origin is covered.

The exceptions are limited and narrow. Direct distinction on grounds of race can only be justified where the Act itself allows it. The general justification test is available for indirect distinction only.

Contract terms that conflict with the Act are void. The Act also protects anyone who has complained or given evidence against being disadvantaged for doing so. In an employment relationship this means that a dismissal in response to a discrimination complaint is itself unlawful.

Alongside the AWGB, the Dutch Civil Code (BW) contains equal treatment provisions for specific situations. Separate statutes cover distinction on grounds of age, disability or chronic illness, and between fixed-term and permanent or full-time and part-time work. One set of facts often touches more than one of these rules, and the choice of instrument affects both the forum and the remedy.

What can the Netherlands Institute for Human Rights do?

The Netherlands Institute for Human Rights (College voor de Rechten van de Mens) assesses complaints of unequal treatment and issues a reasoned opinion. The procedure is free and you do not need a lawyer, but the opinion is not binding and the Institute cannot award damages.

A complaint can be submitted in writing by the person concerned, by an organisation that wants to know whether its own conduct complies with the law, by a works council or by an interest group. The Institute can also investigate systematic distinction on its own initiative. More information is available on the website of the Netherlands Institute for Human Rights.

The Institute holds a hearing and then issues its opinion (oordeel). That opinion cannot be enforced, and the Institute cannot annul a decision. Its practical value lies elsewhere. Opinions are published and are often followed. An opinion that finds prohibited distinction is also strong evidence if the matter later goes to the civil court. The court is free to reach its own conclusion, but will rarely do so without addressing the Institute’s reasoning.

The Institute is therefore best seen as a low-threshold route to an authoritative finding. It is not an alternative to litigation where you want compensation or an enforceable order. Where speed and enforceability matter, for example when a dismissal must be challenged within a statutory period, you must start court proceedings regardless of what the Institute may later decide.

How does the civil route work, and who must prove what?

The civil court can award damages, declare a decision void, order a party to stop certain conduct on pain of a penalty payment, and restore an employment contract. You must present facts that suggest discrimination; the other party must then prove it did not discriminate.

The claim is usually based on a wrongful act (onrechtmatige daad) under Article 6:162 BW, on a breach of the equal treatment legislation or, in an employment context, on a breach of the employer’s duty to act as a good employer (goed werkgeverschap, Article 7:611 BW).

The decisive feature of this track is the shifted burden of proof. Under Article 10(1) AWGB, a person who claims to have suffered prohibited distinction must first present facts that give rise to a presumption of such distinction. If you succeed, the burden moves to the other party. It must then prove that it did not act in breach of the Act. The same rule applies before the Institute and under the equal treatment provisions of the Civil Code.

This is often misunderstood on both sides. You do not have to prove discrimination; you have to make it plausible enough to require an explanation. A rejection immediately after your origin became apparent, a statement in an email, a pattern in the treatment of comparable cases, or an unexplained departure from the employer’s own procedure can each be enough.

Once the presumption is raised, the other party must show a non-discriminatory reason. Vague statements about fit or about a better candidate rarely meet that burden. What decides these cases is documentation of the actual reason, made at the time of the decision.

What must an employer do about discrimination at work?

An employer must not only refrain from discrimination, but also actively prevent it. Under the Working Conditions Act (Arbeidsomstandighedenwet), discrimination is part of the psychosocial workload the employer must address in its risk assessment and policy.

The Working Conditions Act names discrimination expressly, alongside sexual harassment, aggression and violence, bullying and work pressure. The risk inventory and evaluation must address it. Where the risk exists, the employer must take measures and record them in a plan of action.

In practice this means an accessible and confidential complaints procedure, a confidential adviser (vertrouwenspersoon) or equivalent point of contact, and a demonstrable response when a complaint is made. An employer that receives a complaint and does nothing is exposed on two fronts: for the underlying distinction, and for failing in its duty to provide a safe working environment. Our article on workplace harassment explains how those complaint procedures should work.

Dismissed after a complaint?

An employee who is dismissed after raising a complaint is often in a stronger position than they realise. The equal treatment legislation protects against disadvantage for having complained, and a dismissal that follows a complaint is difficult for an employer to justify on other grounds.

The statutory deadline is strict. A petition to the subdistrict court (kantonrechter) contesting the termination must be filed within two months of the day the employment contract ended (Article 7:686a BW). Our overviews of employment discrimination law in the Netherlands and of employee rights cover the surrounding rules.

Recruitment: what applies now?

The law on recruitment is often misstated. A bill that would have required employers and intermediaries to operate a documented, non-discriminatory recruitment procedure, under supervision of the Labour Inspectorate, was rejected by the Senate on 26 March 2024. A new initiative bill on the subject has since been introduced in the House of Representatives.

Until such a law is passed and in force, there is no general supervisory regime for recruitment procedures. What does apply is the prohibition itself. A rejection on grounds of race is unlawful, whether or not the procedure was documented. The Netherlands Labour Authority also supervises the employer’s working conditions policy, which includes discrimination.

Which deadlines apply, and how do you secure evidence?

Three deadlines are easy to miss: three months for a complaint about insulting an individual, two months to contest a dismissal, and five years for a civil damages claim. Evidence fades quickly, so record what happened straight away.

• A complaint for the offence of insult against an individual must be filed within three months of becoming aware of it. The group offences have no complaint period, but the ordinary limitation periods for prosecution apply.
• A request contesting a dismissal must reach the subdistrict court within two months of the end of the employment contract. This period cannot be extended.
• A civil claim for damages becomes time-barred five years after the day following the moment you became aware of both the damage and the person liable, and in any event twenty years after the event (Article 3:310 BW).

Evidence is usually the weak point. Write down what was said, by whom, when, where and in whose presence, preferably on the same day. Keep original emails, messages and letters rather than summaries. Note the names of witnesses.

If a decision was taken, ask for the reason in writing and keep the answer. The reason given at the time is the one the other party will later have to stand behind. Do not record conversations secretly without taking advice first. The rules on such recordings are more complicated than they seem, and your choice can affect the whole case.

Which route should you choose?

The criminal route suits public statements and offences with a discriminatory motive. The Institute suits a quick, authoritative finding. The civil route is the one for compensation, annulment or an enforceable order.

The routes can be combined. Where a dismissal is involved, the two-month deadline of Article 7:686a BW decides the order: start court proceedings first and consider the Institute in parallel, not the other way round. Our overview of civil litigation in the Netherlands explains the procedure, and our article on claims for damages covers what can be recovered.

What should you check if you are affected?

The deadlines start running from the incident or the decision, so check these points straight away:

• Have you written down what was said, by whom, when and in whose presence, on the same day?
• Have you kept the original emails, messages and letters, and asked for the reason for a decision in writing?
• Is a deadline already running: three months for a complaint of insult (Article 66 Sr), two months to contest a dismissal (Article 7:686a BW)?
• Which outcome do you want: prosecution, a finding by the Institute, compensation or reversal of a decision?
• Have you contacted the municipal anti-discrimination service or the confidential adviser at work?

What should you check as an employer or organisation?

Because of the shifted burden of proof in Article 10 AWGB, your records decide the case. Check:

• Does your risk inventory and evaluation under the Working Conditions Act address discrimination, with a plan of action?
• Do you have a written policy that names the protected grounds and explains how to complain?
• Is the reason for every rejection, promotion, refusal of service or termination documented when the decision is taken?
• Is there a confidential adviser (vertrouwenspersoon) and a complaints procedure with a set timeline and a written outcome?
• Do you prevent any form of retaliation against a person who complained or gave evidence?

What can we do for you with racism or discrimination?

Our employment law team and civil litigators act for individuals and organisations:

• We assess which route fits your facts: a police report, the Netherlands Institute for Human Rights or the civil court.
• We build the file that raises the presumption of discrimination under Article 10 AWGB.
• We file the petition contesting a dismissal with the subdistrict court within the two-month deadline.
• We file an Article 12 Sv complaint with the court of appeal if the OM decides not to prosecute.
• We claim damages under Article 6:162 BW in the civil court or as an injured party in the criminal case.
• We review an organisation’s policy, complaints procedure and decision records.

Summary

• Dutch criminal law punishes public group insult, incitement and distribution of racist statements (Articles 137c to 137g Sr), not opinions as such.
• The General Equal Treatment Act prohibits distinction on grounds of race and nationality in work, education, housing and services.
• The Netherlands Institute for Human Rights gives a free, non-binding opinion; only the civil court can award damages or give an enforceable order.
• You must present facts suggesting discrimination; the other party must then prove it did not discriminate.
• Watch the deadlines: three months for a complaint of insult, two months to contest a dismissal, five years for damages.

Frequently asked questions