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Netherlands: Three New Laws Adopted to Further Counterterrorism Efforts

(Mar. 14, 2017) On February 7, 2017, the Dutch Senate (Eerste Kamer) adopted three laws related to combatting terrorism as part of the fulfillment of the country’s Integral Approach Jihadism Action Programme. The program’s aim “is to protect democracy based on the rule of law, to combat and weaken the jihadist movement in the Netherlands, and remove the breeding ground for radicalization.”  According to the Ministry of Justice and Security, the laws’ adoption “means that an important part of the legislation from the action programme has been realised.”  (Senate Has Adopted Laws from the Integral Approach Jihadism Action Programme, Ministry of Security and Justice website (Feb. 7, 2017); THE NETHERLANDS COMPREHENSIVE ACTION PROGRAMME TO COMBAT JIHADISM: OVERVIEW OF MEASURES AND ACTIONS, National Coordinator for Security and Terrorism website (Aug. 29, 2014); Wendy Zeldin, Netherlands: Integrated Approach to Combatting Jihadism, GLOBAL LEGAL MONITOR (Nov. 7, 2014).)

Revocation or Withdrawal of Dutch Citizenship

One of the new laws provides for the Dutch citizenship of jihadists who join a terrorist organization abroad to be withdrawn and for the jihadists to be declared undesirable foreign nationals under the Aliens Act 2000. (Senate Has Adopted Laws from the Integral Approach Jihadism Action Programme, supra; Statute Law of February 10, 2017, Amending the Dutch Nationality Act  in Connection with the Withdrawal of Dutch Citizenship in the Interest of National Security (Nationality Act Amendment Law), STAATSBLAD  No. 52 (Feb. 22, 2017), OVERHEID.NL (in Dutch); Rijkswet op het Nederlanderschap [Statute Law on Dutch Nationality] (Dec. 19, 1984, as last amended Mar. 1, 2017), OVERHEID.NL; Netherlands Nationality Act (as in force Feb. 8, 2015), European Union Democracy Observatory on  Citizenship website; Vreemdelingenwet [Aliens Act] (Nov. 23, 2000, as last amended Jan. 1, 2017), OVERHEID.NL.)

More specifically, two new provisions inserted in article 14 of the Dutch Nationality Act state: 1) that the Minister of Justice may revoke the Dutch citizenship of a person 16 years of age or older who voluntarily enters the armed services of a state involved in combat operations against the Kingdom or against an alliance of which the Kingdom is a member; and 2) that, in the interest of national security, the Minister may withdraw the Dutch citizenship of a person who has attained 16 years of age and who is outside the Kingdom, if it appears that he has joined an organization that is on a list of organizations participating in a national or international armed conflict and that poses a threat to national security. (Nationality Act Amendment Law, art. IB (inserting new ¶¶ 3 & 4 in art. 14 of the Act and renumbering the paragraphs; the provisions entered into force on Mar. 1, 2017, according to a Decree of Feb. 10, 2017, art. II, OVERHEID.NL.)

According to one news report, “[t]he measure does not require definitive proof that an individual has joined a terrorist organization, only evidence that the person has made plans to become a member,” and “[b]ecause it is illegal to leave a person stateless, it can only be used on people who have dual citizenship in the Netherlands and another country.” (Terrorism Suspects Could Lose Citizenship Under New Dutch Law, EBL NEWS (Feb. 7, 2017).)  The changes also make “it easier to ban entry to the Netherlands and to require terrorism suspects to register with authorities.” (Id.)

However, the Amendment Law also inserts in the Nationality Act a new section 7A, comprising articles 22A-22C, on legal protection for those persons whose citizenship has been revoked under article 14 of the Law. (Chapter 7 of the Aliens Act has some similar provisions on redress.)  For example, a person may directly lodge an appeal with the district court of the Hague to challenge the revocation order; if the person resides in Aruba, Curacao, St. Maarten, or the public entities Bonaire, Sint Eustatius, and Saba, the person may challenge the decision at the court of first instance of the Joint Court of Justice of those jurisdictions (Amendment Law, art. 22A ¶ 1.)  The deadline for submitting an appeal is four weeks. (Id. art. 22A ¶ 2.)  The court decision is itself appealable.  (Id. art. 22A ¶ 4.)  The interested party is entitled to choose one or more advisors.  To that end, the interested party is also entitled to the appointment of a legal representative or special agent, and if the interested party does not take action and has no legal representative or special agent, his or her spouse or relative may make that choice; once the interested party chooses a lawyer, however, the legal counsel so appointed will resign. (Id. art. 22B ¶¶ 1-4.)

Reportedly, it was right-wing and center-right parties who pushed for adoption of the amendments to the Nationality Act, despite opposition from the center-left and left-wing parties, who contended that the new provisions violate legal principles. As a result, passage was by a narrow margin. (Terrorism Suspects Could Lose Citizenship Under New Dutch Law, supra.)

Travel Bans and Other Temporary Administrative Measures

The Senate also adopted a new law, effective March 1, 2017, on several administrative measures that the government can impose on the basis of practices that can be tied to terrorist activities or the support of such activities. (Senate Has Adopted Laws from the Integral Approach Jihadism Action Programme, supra; Law of February 10, 2017, on Interim Rules on the Imposition of Restraints on Persons Constituting a Threat to National Security or Intending to Join Terrorist Groups and on the Revocation and Withdrawal of Decisions at Serious Risk of Facilitating Terrorist Activities (Interim Act on Counterterrorism Administrative Measures) (due to expire Mar. 1, 2022) STAATSBLAD No. 51 (Feb. 22, 2017) (in Dutch); Decree of February 17, 2017 on Fixing the Interim Law’s Date of Entry into Force (in Dutch), Dutch Senate website.)

The Minister of Security and Justice is authorized under this new Law to restrict the freedom of movement of an individual for purposes of national security if the person’s conduct can be related to terrorist activities or the support thereof, by requiring the person to report to the police, by imposing a ban on the person’s being located in the vicinity of certain specific objects or in a certain part or parts of the Netherlands, or by prohibiting the individual from being in contact with one or more specific persons. (Interim Act on Counterterrorism Administrative Measures, art. 2.) If necessary to ensure compliance with the prohibition against a person’s being located in certain areas, the Minister may opt to apply a technological measure designed to monitor compliance with that prohibition.  (Id. art. 2a(1).)

In addition, provided that it is necessary to protect national security, the Minister may impose a ban on a person’s leaving the country when there are justifiable reasons for assuming that he or she wants to travel from the Schengen Area to join a terrorist organization. (Id. art. 3; Senate Has Adopted Laws from the Integral Approach Jihadism Action Programme, supra; Schengen Area Countries List, Schengen Visa Info website (last visited Mar. 9, 2017).)

The abovementioned measures are to be applied for a period not exceeding six months, “but not longer than is strictly necessary for the protection of national security.”  In each case, a measure may be extended by the Minister for a second period, which also may not exceed six months. (Interim Law on Counterterrorism Administrative Measures, art. 4(1).) If necessary in order to protect national security, the Minister may grant a temporary exemption from one or more of the obligations arising from an imposed measure, but may attach conditions to it. (Id. art. 4(2).)  The Minister may amend an applied measure in favor of, or to the detriment of, the person concerned if new facts or circumstances so dictate.  (Id. art. 4(3).)  A measure is repealed in any case as soon as it is no longer necessary for the protection of national security.  (Id. art. 4(4).)  If the situation is so urgent that the Minister’s decision to impose, amend, or renew a measure cannot be put in writing, the Minister makes the decision known to the person concerned in a manner to be determined, and without delay.  (Id. art. 4(5).)

A governing body may reject an application for, or revoke a decision concerning, a grant, license, exemption, or approval if: a) the applicant, beneficiary, or holder of the license, exemption, or approval may on account of his conduct be connected to terrorist activities or the support thereof; or b) there is a serious risk of the grant, license, exemption, or approval also being used for terrorist activities or the support thereof.  (Id. art. 6.)

Before taking a decision on the imposition, amendment, renewal, or withdrawal of a measure restricting freedom of movement, banning exit from the country, or allowing a temporary exemption, the Minister must consult with the mayor of the municipality where the person affected is domiciled or resides as well as with other mayors involved in the proposed decision, unless the urgency of the situation precludes such consultation, in which case the Minister must immediately notify the mayors to that effect. (Id. art. 7(1).)

Anyone who intentionally acts contrary to an obligation or prohibition imposed under the provisions on restriction of freedom of movement (arts. 2(1) & 3) or contrary to the provision on a temporary exemption, or who intentionally evades a technological means of control (art. 2a(1)) will be punishable with imprisonment for up to one year or a fine of €8,200 (about US$8,659).  (Id. 8(1) & (2).)  These offenses are considered under the Law to be minor offenses.  (Id. art. 8(3).)

The Law also includes a reporting requirement. Within three years after the Law’s entry into force, the Minister is to submit a report to the Parliament on its effectiveness and impact in practice.  (Id. art. 12.)

Amendment of the Passport Act

The third law adopted on February 7 amends the Dutch Passport Act in order to regulate matters related to the travel ban in the Interim Law on Counterterrorism Administrative Measures and to the Integral Approach Jihadism Action Programme. This third law provides that “passports and identity cards will expire automatically when a ban from leaving the country is imposed by the Minister of Security and Justice.  The aim is to prevent persons from leaving the country to travel to jihad areas.”  (Senate Has Adopted Laws from the Integral Approach Jihadism Action Programme, supra.)

Among other changes, the law also adds a new provision to the Passport Act whereby a travel document can be refused at the request of the Minister concerned if a ban has been imposed on the person concerned under article of the Interim Act on Administrative Measures Against Terrorism.  (Statute Law of February 10, 2017, Amending the Passport Act in Connection with the Law Canceling the Travel Documents of Persons on Whom a Ban Has Been Imposed, STAATSBLAD No. 53 (Feb. 22, 2017), (in Dutch); Paspoortwet [Passport Act] (Sept. 26, 1991, as last amended effective Mar. 1, 2017, in accordance with the Interim Law on Counterterrorism Administrative Measures), OVERHEID.NL.)

The Passport Law had already stipulated that the Minister concerned could request the refusal or withdrawal of travel documents upon reasonable suspicion that the person involved would carry out in the Kingdom acts that constitute a threat to the security and other vital interests of the Kingdom or of one or more countries of the Kingdom or to the security of powers friendly to the Kingdom. (Paspoortwet, art. 23.)