The Royal Netherlands Marechaussee (KMar) is responsible for Mobile Security Supervision (MTV). This case concerns the inspection by the KMar of residence status after border crossing within the Schengen zone. The KMar can stop people who have just crossed the Dutch border to ask them about their identity, nationality and residence status. The KMar selects the persons it subjects to such an inspection on the basis of a number of variable indicators. In certain cases, the KMar also uses personality characteristics based on race (such as skin color) as an indicator. According to the KMar, it always does this in combination with other indicators and only if necessary. The KMar believes that external characteristics derived from race do not have to say anything, but can say something about the nationality or origin of the person being checked. According to the KMar, it is therefore necessary that such characteristics can be used for an effective implementation of the MTV.
Amnesty International and a number of other persons and interest groups (hereafter: Amnesty) are of the opinion that by acting in this way the KMar is guilty of ethnic profiling and racial discrimination. Amnesty believes that the actions of the KMar are unlawful because they violate various human rights treaties. Amnesty is demanding that the court impose a prohibition on the State, under which the KMar falls, to continue using characteristics derived from race in the context of MTV inspections.
The District Court of The Hague has rejected Amnesty’s claims, but the Court of Appeal of The Hague has ruled in favor of Amnesty on appeal. The Court of Appeal is of the opinion that the KMar makes a distinction on the basis of race. Given the serious consequences of discrimination on grounds of race, such discrimination should only be made if there are particularly compelling reasons for doing so. The State has not demonstrated such compelling reasons. This means that the KMar is guilty of discrimination on the basis of race and that is prohibited. The Court of Appeal therefore prohibits the State from making selection decisions that are (partly) based on race when conducting MTV checks.