Netherlands

Constitutional Provisions

The 2008 Constitution of The Netherlands protects "fundamental rights", though surprisingly not the right to life. According to Article 11, however, everyone has "the right to inviolability of his person, without prejudice to restrictions laid down by or pursuant to Act of Parliament".

According to Article 9:

1. The right of assembly and demonstration shall be recognised, without prejudice to the responsibility of everyone under the law.

2. Rules to protect health, in the interest of traffic and to combat or prevent disorders may be laid down by Act of Parliament.

The Constitution does not refer to the police service or the prison service.

Treaty Adherence

Global

Regional

National Legislation

Police Use of Force

The use of force by the Dutch police is governed by both national legislation and administrative regulation. The 2012 Police Act authorises police officers to use force when necessary for a legitimate purpose as long as the force used is reasonable and restrained. The use of force will, if possible, be preceded by a warning.Art. 7, 2012 Police Act.A 1994 Official Instruction (as amended through 2014) provides more detail on the legitimate use of force by law enforcement officials. Article 4 confirms that weapons must be used for a legitimate law enforcement purpose and the official must be instructed in their lawful use. 

Firearms may be used to effect an arrest "a person in respect of whom it can reasonably be assumed that he has a firearm ready for immediate use and will use it against persons" or to arrest a person suspected or convicted of committing a crime for which a prison sentence of four years or more has been imposed and which seriously affects physical integrity or privacy, or can be threatening to society. Firearms may also be used to stop a riot. These scenarios are broader than international law allows.Art. 7, 1994 Official Instruction for the police, the Royal Netherlands Marechaussee and other investigating officers.The use of a firearm capable of automatic fire is only permitted against persons where an imminent threat of unlawful assault exists.Art. 8(1), 1994 Official Instruction for the police, the Royal Netherlands Marechaussee and other investigating officers.

The use of pepper spray is only permitted to arrest a person who, it can reasonably be assumed, has a weapon ready for immediate use and that he will use it against a person or to arrest a person who is escaping arrest or other lawful deprivation of liberty.Art. 12(a)(1), 1994 Official Instruction for the police, the Royal Netherlands Marechaussee and other investigating officers.Pepper spray is not to be used against people who are visibly younger than 12 or older than 65; women who are visibly pregnant; or people who may suffer disproportionate harm as a result of respiratory or other serious health disorders that are visible to the official; or groups of people.Art. 12(a)(2), 1994 Official Instruction for the police, the Royal Netherlands Marechaussee and other investigating officers.Pepper spray may be used against a person twice for no more than about one second at a time and at a distance of at least one metre.

Use of Force in Custodial Settings

The 1998 Decree on Use of Force in Prisons stipulates that use of a firearm is only permitted to detain a suspect who imay reasonably be assumed to have a (firearm) weapon with intent to use it; to detain a prisoner who is seeking to escape from custody; or to avert an imminent threat to people's lives.Art. 5, 1998 Decree on Use of Force in Prisons.

The use of tear gas is only permitted in confined spaces to detain a detainee if it can reasonably be assumed that he has a firearm and will use it against persons or use other serious violence against persons; or in other spaces to disperse crowds of detainees who pose a serious and immediate threat to the maintenance of order or safety in the establishment.Art. 5, 1998 Decree on Use of Force in Prisons.Pepper spray is not to be used against people who are visibly younger than 12 or older than 65; women who are visibly pregnant; or people who may suffer disproportionate harm as a result of respiratory or other serious health disorders that are visible to the official; or groups of people.Art. 8(3), 1998 Decree on Use of Force in Prisons.Pepper spray should not be used in the vicinity of babies.Art. 8(4), 1998 Decree on Use of Force in Prisons.The official or employee who has used pepper spray is responsible for providing aftercare.Art. 8(5), 1998 Decree on Use of Force in Prisons.

Police Oversight

The national Ombudsman is an independent public authority that receives complaints from citizens regarding actions by the state. On the basis of such complaints, or on its own initiative, the Ombudsman is empowered to start an investigation, including into use of force by the police or prison service.The Ombudsman system in the Netherlands was established by the 1981 National Ombudsman Act and is now constitutionally guaranteed.

Under the direct authority and control of the Board of Procurators General, the Rijksrecherche (Dutch National Police Internal Investigation Department) investigates all cases of serious injury or death involving the use of firearms by police officers.

Caselaw

Global

Views and Concluding Observations of United Nations Treaty Bodies

In its 2019 Concluding Observations on the Netherlands, the Human Rights Committee expressed its concern 

that the criteria and thresholds for the use of force provided in the new draft guidance on the use of force and firearms by law enforcement officials (ambtsinstructie) are not compliant with the international standards of necessity and proportionality and the requirements about when firearms may be used....

While noting that authorities intend to introduce tasers into day-to-day policing in the Netherlands and that pilot testing was conducted in 2017–2018, the Committee was concerned that the official evaluation of the pilot testing indicates that the guidance and training provided to the participating officers on their use was not sufficient.

In 2013, the Committee against Torture had expressed its concern about a pilot plan to "distribute electrical discharge weapons [Tasers] to the entire Dutch police force, without due safeguards against misuse and proper training for the personnel." The Committee was concerned "that this may lead to excessive use of force". The Committee recommended to The Netherlands

to refrain from flat distribution and use of electrical discharge weapons by police officers. It also recommends adopting safeguards against misuse and providing proper training for the personnel to avoid excessive use of force. In addition, the Committee recommends that electrical discharge weapons should be used exclusively in extreme limited situations where there is a real and immediate threat to life or risk of serious injury, as a substitute for lethal weapons.Committee against Torture, Concluding Observations on The Netherlands, UN doc. CAT/C/NLD/CO/5-6, 20 June 2013, §27.

Regional

Ramsahai v. The Netherlands

In its 2007 judgment, the Grand Chamber of the European Court of Human Rights confirmed the earlier finding of the Court's Third Section that there had been no violation of the right to life by The Netherlands for the decision to open fire on Moravia Ramsahai, resulting in his death. Mr Ramsahai, who had stolen a scooter at gunpoint, was said to have raised his weapon and pointed it in the direction of a police officer, who drew his gun and fired. The victim was struck in the neck and died upon the arrival of the ambulance. Moravia Ramsahai’s pistol was found loaded and ready to fire. A violation of the right to life was, though, found on the basis of an inadequate investigation conducted afterwards.

National

National caselaw on police use of force might be perceived to be inconsistent, but that is not in fact so. In a case at the District Court of Limburg  adjudged in 2015, the Court  convicted a police officer for shooting at the suspect’s vehicle in the mistaken belief that he and his colleagues were in danger. The victim was suspected of having committed a crime the night before. One of the passengers in the suspect’s vehicle was seriously – but not fatally – injured.Rb. Limburg 17 July 2015 ECLI: NL: RBLIM: 2015: 6059.In a case decided the same year at the District Court of Rotterdam, the Court this time acquitted two police officers for fatally shooting a person whom the officers mistakenly, but – according to the court, justifiably – believed to be a serious threat to the local community.Rb. Rotterdam 5 August 2015, ECLI: NL: RBROT: 2015: 6175.In the Limburg case, the Court did not believe the police officer's allegation that when he opened fire, it was in genuine fear for the life or well-being of his colleagues: "[T]he court is of the opinion that there was no question of an immediate, unlawful assault against the accused or one of his colleagues prior to the moment the suspect [was] shot." In the Rotterdam case, the Court had also taken into account the fact that the police had used warning shots before aiming at the suspects.

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