Oral Statement of the Dutch CEDAW Network

To the Committee for the Elimination of All Forms of Discrimination against Women on the Fifth Periodic Report from the Government of the Netherlands by Leontine Bijleveld, Hellen Felter and Linda Mans

25 January 2010

Thank you Madam Chair, members of the Committee,

My name is Linda Mans. To my left is Hellen Felter and to my right Leontine Bijleveld.
We all represent the 54 Dutch NGOs on behalf of which the Dutch CEDAW Network submitted this Shadow report, which is one more than in the printed report.
We are happy to share that the Older Women’s Network has notified their agreement to this report.
Other NGOs have also ascribed to the report even after the passing of the deadline.

As an example of the diversity of NGOs representing a broad civil society support: both organisations of prostitutes and organisations engaged in the trafficking issue are amongst the 54.

During a public consultation representatives of the 54 NGOs selected the issues of this short statement.

Status of CEDAW

The NGOs remain concerned about the government’s view on the status of the Convention in the domestic legal order – the issue of direct applicability in the legal order, see Q&A 4.
The concerns include the views about the status of the CEDAW-Committee, its views regarding communications under the Optional Protocol and its concluding observations.
During the court proceedings about the reinstatement of the maternity allowance for entrepreneurs the State Solicitor referred to the Views adopted by the CEDAW-Committee with regard to Communication No. 3/2004 as, and I quote, “merely a view of a committee”.
The State claimed it has discretionary power to limit the obligations following Art. 11 paragraph 2 (b) to female workers (employees), notwithstanding the Committee’s explicit views in the Communication and in the previous Concluding Comments about the applicability for all women working in gainful employment.
The State Solicitor moreover suggested that the views of the Committee in this Communication about the State Party’s margin of discretion to determine the appropriate maternity benefits allowed for the interpretation of no maternity benefits at all for certain categories of working women.
NGO’s concern is also about the answer to the Committee’s question 4: “The Netherlands recognises the competence of the Committee to receive communications from persons claiming to be victims of a violation.”
Recognition of the competence of a mailbox: is that all the Optional Protocol means for the Dutch government?

Not to be read out: Recommendations Status of CEDAW

• The Dutch NGOs remain concerned about the government’s view with respect to the status of the Convention in the domestic legal order, including the status of the CEDAW- Committee, its views regarding communications under the Optional Protocol and its concluding observations.
• The NGOs urge the Committee to ask the Dutch government why it instructed the state solicitor to hold that the Convention has no direct effect and why the state solicitor quoted CEDAW Communication No.3/2004 selectively.
• The NGOs urge the Committee to ask the government whether it is willing to make a legal provision requesting full explanations when the judiciary disagrees with the view of the CEDAW-Committee.
• The NGOs wonder whether an obligation for judges to justify the (non) applicability of international legislation would help. The Committee could ask the government’s view about this.
• The NGOs suggest the Committee asks the government to justify its lack of reference to the Convention in legislation and in correspondence with Parliament.
• The NGOs suggest the Committee requests the government to clarify its position regarding General Recommendations of CEDAW.
• The NGOs suggest the Committee addresses the possibility of once more promoting the Convention via in-depth assessments in conjunction with the next item.
• The NGOs regret that the Dutch government has abandoned its daring and unique strategy of inviting independent critical observations about its implementation of the CEDAW-Convention. They urge the Committee to request the rehabilitation of the national reports and in-depth assessments, or at least one of those.

Dutch Shadowreport pp. 15-17 and 40 provides background information.

No recognition for the obligation to combat stereotypes

The NGOs are concerned about the seeming negation by the government of the obligation following from art. 5 to combat actively gender stereotypes.
The government seems to limit its analysis of the causes of inequality between women and men and combating these to the social-economic terrain.
In the meanwhile the government hardly pays any attention to the racial discrimination on the labour market causing hardship for black and migrant women.
Another phenomenon the government seems to negate is the intersection of various forms of discrimination causing multiple discrimination.
What else could explain that the government report does not pay any attention to older women or to disabled women?
Or the silence about the fact that the unemployment among women from migrant origin and non-dominant groups is 2.5 times higher than women from Dutch origin, and about the fact that in every age group unemployment of women is higher than of men?
Instead of addressing forms of multiple-discrimination, the government is even reinforcing stereotypes by portraying men of migrant origin as having traditional views about women, and ethnic minority women as mainly not participating in society, disregarding the role they play at community level.

The government seems to deploy two strategies to neglect or even deny gender inequalities and forms of multiple-discrimination.
The first is the systematic non-providing and non-use of data disaggregated to gender, ethnicity, age, and other relevant indicators.
The other is the use of gender-neutral language: like domestic violence instead of violence against women.

Not to be read out: Recommendations Obligation addressing stereotypes

• The NGOs urge the Committee to elaborate about the obligations following article 5.
• The NGOs suggest that the Committee asks the government why it dropped the concrete target of 40 per cent share in care tasks of the previous policy plans for gender equality, and how it understands article 5 of the Convention.
• The NGOs suggest that the Committee asks the government to spell out its policy response to ‘Plan of the Man’, and how it intends to change its stereotyped approach to care obligations.
• The NGOs hope that the Committee can convince the government it should put more efforts into addressing stereotypes to meet its obligations under article 5.
• The NGOs suggest that the Committee addresses the subject of promoting diversity as a strategy in addressing stereotypes.
• The NGOs suggest that the Committee asks the government for facts and figures that would confirm the government’s view of ‘incompetent import-brides’.
• The NGOs suggest that the Committee asks the government to elaborate during the constructive dialogue on the ESF-Equal Project ‘The Glass Wall’ and what follow-up it intends.
• The NGOs are interested to know whether, according to the government, the Talent to the Top Charter is promising real progress or has turned out to be window-dressing?
• The NGOs think the government would be more successful in combating and eliminating stereotyped roles for men and women and changing socio-cultural behaviour patterns in the field of education if it focused on the integration of gender in teacher training. The NGOs suggest that the Committee addresses this need for anchoring gender awareness

Dutch Shadowreport pp. 44 – 47 provides background information.

No social rights for domestic workers

Another gender neutral wording is the Services at Home Scheme.
It is very questionable whether the long existing exclusion from the labour legislation and from social security of domestic workers employed by a family on less than three days a week was ever in accordance with the Convention.
Indisputable, the overwhelming majority of domestic workers are women, as the Committee rightfully states in General Recommendation 26.
This applies as well to the100.000 homecare workers, who via regulations are “equalised” with domestic workers.
Without any assessment of compliance with international legislation such as CEDAW, ILO or EC-Directives the number of days was extended to less than four, increasing the number of domestic and homecare workers deprived from social protection considerably.
The government covers the persistence of these unequal rights by describing this Services at Home Scheme in its report as, and I quote, “a dual benefit”.
The NGO’s cannot see how deprivation of social rights can be could a benefit.
By answering (Q&A 15) that the scheme applies to men and women, the government is disguising that almost only women are affected by the exemption from social rights. Moreover it seems to negate that the Convention is not only about de jure equality but also about de facto equality of women.

Not to be read out: Recommendations Domestic Workers

• In the opinion of NGOs the exceptions Dutch social law makes for domestic workers are not in accordance with the CEDAW. The NGOs would be interested to learn the opinion of the Committee as to whether the ‘Services at home Scheme’ constitutes a violation of the Convention (Art. 1, 2 and 11).
• The NGOs consider it worrying that another category of predominantly women workers, childminders, has to work under a disguised employment relationship and would like to know how the government assesses compliance with the Convention.

Dutch Shadowreport pp. 36-37 provides background information.

Income, poverty, economic independence

In the opinion of the NGOs the government demonstrates taking neither the Convention nor the Committee as seriously as it should by not providing any information about developments regarding women’s income.
The government dropped the targets with respect to economic independence of women.
Even though the level of income a woman has to earn to be qualified as economic independent means is not enough to escape poverty.
Meaning the majority of women still has to rely on the income of a partner, or be doomed to poverty.
This is not ensuring the full development and advancement of women, to quote Art. 3.
Women are overrepresented among the poor. As well the working poor as the people dependent on a benefit or a pension – other categories of women who have been completely left out the government’s report.
The NGOs hope that the Committee requests the government to supply a complete picture of developments in women’s income, from gainful employment, social security benefit and pension even before the next regular report is due.

Not to be read out: Recommendations Income of & Poverty among Women

• The NGOs suggest that the Committee requests more specific information in all future reports about developments regarding income, and more specifically about poverty.
• The NGOs suggest the Committee requests that the government reports on the number of women in different age groups and ethnicities earning (at least) an income of 70-80% of the net minimum wage from wages or entrepreneurial income as well as via social security benefits, (pre-)pension-schemes etc. These figures should be included in the research about economic independence and in the 6th report as in addition to general information about developments in the individual income of women.
• The NGOs think the government should develop gender-sensitive policies in improving perspectives of the working poor F/M.
• The NGOs take the view that the government’s slack approach, disadvantaging single mothers in social assistance and their (18+) children, is in contradiction with article 3 and article 5b of the Convention. The Committee could consider asking the government for an explanation.
• The NGOs would like to know how the government assesses the poverty-consequences of measures, including those already embedded in legislation – like the abolition of the spouse benefit in the statutory state pension (AOW) in 2015. The development of the number of men and women without a full statutory state pension is relevant as well.

Dutch Shadowreport pp. 30-36 provides background information.

Madam Chair, members of the committee, thank you.
We look forward to answer your questions.
We cordially invite you for an informal lunch-briefing tomorrow.

Aan de leden van de Vaste Commissie voor Binnenlandse Zaken en Koninkrijksrelaties
van de Tweede Kamer der Staten-Generaal
p/a G.F.C. van Leiden, griffier
Postbus 20018
2500 EA Den Haag

cc. Vaste Commissie voor Justitie van de
Tweede Kamer der Staten-Generaal
p/a dhr. D. Nava, griffier

                                                                                Leiden, 1 december 2009 

Betreft: Wetsvoorstel Regulering prostitutie en bestrijding misstanden seksbranche
(kamerstuknr. 32 211) en Rondetafelgesprek

Geachte dames en heren,

Op 15 december aanstaande houdt uw Commissie – ter voorbereiding van uw inbreng voor het Verslag – een hoorzitting/rondetafelgesprek over het Wetsvoorstel Regulering prostitutie en bestrijding misstanden seksbranche (Kamerstuknr. 32 211).

De Vereniging voor Vrouw en Recht Clara Wichmann (opvolger van het in 2004 opgeheven Clara Wichmann Instituut dat zich bezig hield met de rechtspositie van vrouwen) maakt zich grote zorgen over de niet bedoelde effecten van genoemd wetsvoorstel. Zij ondersteunt zeer de keuze voor het houden van een rondetafelgesprek om zicht te krijgen op en inzicht in de gevolgen van de registratie. Zij zou graag als juridisch deskundige, naast experts en ervaringsdeskundige vrouwen, een uitnodiging te krijgen voor deelname aan dit gesprek.

Vooruitlopend hierop wil de Vereniging u alvast deelgenoot maken van haar zorgen omtrent de gevolgen van genoemd wetsvoorstel en aandringen op een kritische inbreng van uw fractie in het Verslag.

• 1 Geen opvolging aan aanbevelingen van het CEDAW-Comité

In zijn Concluding Comments op de vierde regeringsrapportage VN-Vrouwenverdrag februari 2007 sprak het toezichthoudende CEDAW-Comité zijn zorgen uit over de onvolledige evaluatie van de opheffing van het bordeelverbod. Het Comité was daarenboven zeer bezorgd over het feit dat de gevolgen van de wetswijziging op de positie van (ongedocumenteerde) migrantenvrouwen volstrekt onvoldoende in kaart waren gebracht. Daarom pleitte het CEDAW-Comité voor een onafhankelijke evaluatie waarbij expliciet aandacht geschonken zou moeten worden aan geweldsrisico’s en aan gezondheidsrisico’s.
Deze onderwerpen zijn echter niet aan de orde geweest in de tweede evaluatie van de opheffing van het bordeelverbod in 2007. Ook is er geen onderzoek geweest naar de effecten van de wetswijziging en de handhaving van het verbod op de afgifte van tewerkstellingsvergunningen op de kwetsbaarheid van migrantenprostituees voor dwang en uitbuiting. Wel blijkt uit de evaluatie dat er nauwelijks is geïnvesteerd in de verbetering van de (sociale) positie van prostituees.
Het Comité vroeg tevens aandacht voor de onbedoelde impact van voorgestelde maatregelen voor (on)gedocumenteerde prostituees.
De Vereniging voor Vrouw en Recht (hierna: de VVR) stelt vast dat in de Memorie van Toelichting op het voorliggende wetsontwerp op geen enkele wijze aandacht is besteed aan het CEDAW-Comité, noch aan zijn aanbevelingen. Dat is teleurstellend, te meer daar de regering elders zegt hoge prioriteit toe te kennen aan mensenrechten en mensenrechtenverdragen.
De Vereniging stelt u dan ook voor de regering hierop te bevragen.

• 2 Schaduwrapportge bij de 5de regeringsrapportage VN-Vrouwenverdrag (art. 6, P.50-53)

De VVR heeft meegewerkt en is één van de ondertekenaars van de Schaduwrapportage bij de 5de regeringsrapportage VN-Vrouwenverdrag. De VVR wijst u op de vragen over de voorgestelde wetgeving in het hoofdstuk over Artikel 6 van de schaduwrapportage p. 49 -53, met name het gestelde onder 2. (Bijlage 1). Het Netwerk VN-Vrouwenverdrag schreef u daarover namens de ondertekenende NGO’s.
De Vereniging dringt er bovendien bij u op aan om bij uw uiteindelijke oordeelsvorming over het wetsontwerp de – in februari/maart 2010 te verwachten – Concluding Observations inzake de 5de regeringsrapportage zwaar te laten wegen. Wij zullen u deze te zijner tijd sturen.

• 3 Strafbaarheid/controle plicht reeds nu

Voorts wil de VVR u attenderen op het feit dat de indieners van het wetsvoorstel inzake de strafbaarstelling van klanten wijzen op de nu al bestaande strafbaarheid/controleplicht van en door klanten i.v.m. minderjarigen (MvT p. 34 e.v.). De ervaring hiermee en met name de vraag hoeveel klanten op basis hiervan jaarlijks zijn geverbaliseerd is ons niet bekend en kan duiden op het effect van een dergelijke regeling. De minister zou hierop te bevragen zijn.

• 4 Verwijzing naar het uitvoerig commentaar en de vragen van ervaringsdeskundigen en expertisecentra
  Verder verwijst de VVR naar het uitvoerige commentaar en de concrete vragen die andere expertisecentra en ervaringsdeskundigen op dit terrein u onlangs hebben doen toekomen. De belangrijkste bezwaren komen in het kort neer op het volgende:
  • Registratie van een prostituee garandeert op geen enkele wijze dat zij niet langer wordt uitgebuit of anderszins slachtoffer is of wordt van dwang of geweld
  • Uit onderzoek blijkt dat, naast het gebrek aan lange termijn bescherming en perspectief voor slachtoffers, een van de grootste obstakels om mensenhandel te beschrijden niet het gebrek aan signalen is, maar het gebrek aan opvolging daarvan. Beide problemen worden niet opgelost met een registratieplicht.
  • De instelling en handhaving van een registratieplicht vereisen het optuigen van een kostbaar bureaucratisch apparaat. Dit zal ten koste gaan van het onderzoeken van daadwerkelijke gevallen van mensenhandel.
  • De registratieplicht zal een drempel opwerpen voor vrouwen die legaal in de prostitutie willen werken uit angst voor verlies van anonimiteit en stigmatisering, waardoor het gevaar bestaat dat zij kiezen voor het illegale circuit en uit het oog van de hulpverlening en de gezondheidszorg verdwijnen. Het gevaar dat de maatregel contraproductief zal zijn en zal leiden tot een groter illegaal circuit is niet denkbeeldig.
  • Criminalisering van klanten van niet geregistreerde prostituees zal de bereidheid van klanten om misstanden te melden (een belangrijke bron van signalering) doen afnemen.

De VVR dringt er bij u op aan dit laatstgenoemde commentaar en voorgaande punten te betrekken bij uw inbreng en vragen voor het Verslag.

Wij zijn gaarne bereid de genoemde aspecten nader toe te lichten en deel te nemen aan de rondetafelconferentie van uw Commissie op 15 december as.

Hoogachtend,

Mr. M.M. van der Burg
Voorzitter VVR

Bijlage : p. 49 – 53 Shadow report by Dutch NGO´s; an examination of the Fifth report by the
Government of the Netherlands
Article 6 Combating trafficking in women and forced prostitution

Bijlage 1

Shadow report by Dutch NGO´s; an examination of the Fifth report bij Government of the Netherlands p. 49 – 53

Article 6 Combating trafficking in women and forced prostitution

• 1. Criminal approach barrier to protection of trafficking victims

The NGOs are disappointed that the government refuses to acknowledge the shortcomings in the B9-regulation in its answer to Q 27. The major shortcoming is that it makes access to assistance and protection dependent on cooperation of the victim with the criminal justice
system, thus failing to provide adequate protection to all victims of trafficking. In the view of the NGOs, the protection of the human rights of victims ought to prevail above the state interest of prosecution. This would be in line with the governments’ recognition of trafficking in
human beings as a serious human rights violation,104 and the Council of Europe Convention on Action against Trafficking in Human Beings, to which the Netherlands is in the process of becoming a party. It would also be in line with the recent advice of the Dutch Advisory Board
on Immigration Affairs (ACVZ), which proposes to de-link access to protection & assistance and cooperation with the authorities.105

NGOs would like to know if the government is willing to provide access to assistance & protection for victims of trafficking who are not able or willing to cooperate with the criminal justice system.

Residence permit on humanitarian grounds restricted to limited group of victims

Under the present B9-procedure victims of trafficking are entitled to a reflection period if there is the slightest indication that they are victims of trafficking.106 During this period expulsion is suspended. If the victim decides to cooperate with the authorities, she/he is entitled to a
temporary residence permit for the duration of the criminal proceedings. Following this temporary residence permit, the victim may apply for continued residence on humanitarian grounds.
The answer of the government to Q 27 suggests that victims who decide not to cooperate (e.g. for fear of the traffickers) can apply for a residence permit on humanitarian grounds. This is not correct. According to the Aliens Act Implementation Guidelines107, an application for
residence on humanitarian grounds can only be submitted after having been granted a temporary residence permit. The only possibility open to this group of victims is to apply for a permit, calling upon the discretionary power of the Deputy Minister of Justice.108 It is then up
to the Deputy Minister to decide upon the application on a case-to-case basis.

‘Discretionary power’ is not an official policy

In the view of the NGOs presenting the option of ‘discretionary power’ as a ‘policy’ contradicts the very meaning of the concept of ‘discretionary power’, that is: exceptions to the rule, e.g. aimed at cases that are not covered by the policy and based on personal (humanitarian) considerations. Since the introduction of the Linkage Act in 1998 (deputy) ministers of Justice have used their ‘discretionary power’ rather often.109 NGOs perceive this as utterly problematic as it is unclear and unverifiable on what criteria decisions are based, thus risking creating inequality before for the law. NGOs are of the opinion that the government should change its official policy and provide all victims of trafficking adequate protection and assistance, independent of their capacity or willingness to cooperate with the authorities in
the prosecution of the traffickers.

NGOs are interested to know if, as suggested in its answer to Q 27, the government is willing to amend the Aliens Act to enable all victims of trafficking to apply for a residence permit on humanitarian grounds, independent of their (previous) cooperation with the criminal justice
system and the temporary residence permit granted then.

Role of NGOs not recognized in identification of victims of trafficking

In the Netherlands, many organisations play a role in the identification of victims of trafficking.110 The police, however, are the only body qualified to formally identify a victim and give access to the B9-regulation.111 Many victims of trafficking, however, are too afraid to
press charges or to testify because they don’t trust the police. They are afraid of retaliation by the traffickers or too traumatised to be able to speak about what happened to them. They remain silent, don’t have access to support and often end up in aliens’ custody.
NGOs suggest that, in order to prevent victims of trafficking from ending up in aliens’ detention and being deported, the role of NGOs in the (early) identification of victims of trafficking should be formally recognized. They recommend that, in order to assess whether or not a person is a victim of trafficking, apart from the police’s judgement, information from NGOs and other assistance providers should be taken into account.112 The government is in favour of cooperation between police and NGOs, but fails to describe how or when such
cooperation will be implemented.

The NGOs are interested to learn if the government is indeed willing to formally recognise the role of NGOs in the identification of victims of trafficking and what steps it intends to take to implement this.

Failure to identify victims in aliens’ detention

Recent research shows that the identification of victims in detention centres for aliens and refugee centres is insufficient.113 NGOs applaud the initiative of the deputy Minister to issue instructions to the staff of aliens’ detention centres and the Return and Departure Service to
watch for signs of trafficking and pass these on to police, so they may take steps to lift the detention.114 They also consider it a positive sign that the government is willing to improve access of NGOs to detention centres.
However, victims of trafficking in aliens’ detention are, contrary to the regular B9-procedure, only allowed a reflection period if both police and the Public Prosecution Service agree (VcB9/3.1). In other words, as stated by the government in its response, ‘if there is evidence of
trafficking’. This contradicts the character of the reflection period, which is precisely meant to precede the stage of ‘evidence’ by using a much lighter criterion, i.e. ‘the slightest indication that a person might be a victim of trafficking’ in order to prevent the deportation of victims oftrafficking.

*NGOs would like to know if the government is willing to apply the regular B9-procedure to victims in aliens’ detention, i.e. to entitle them to a reflection period on the slightest indication that they might be a victim of trafficking.

NGOs not represented in the anti-trafficking Task Force

In its answer to Q 29, the government explains the absence of NGOs in the Task Force by stating that this could compromise their independent position. The NGOs, of course, appreciate the concern of the government, but cannot understand how participation in the
taskforce would undermine their independence. They think it quite peculiar that both the National Rapporteur and the NGOs think participation of NGOs would enhance the work of the Task Force without fearing for loss of independence. The government states that the input of NGOs is sufficiently guaranteed by the bi-annual consultation, but fails to explain how the input of NGOs is taken into consideration.

NGOs suggest that the Committee asks the government to reconsider the role of NGOs in the taskforce or at least explain how the input of the bi-annual consultation relates to decisions of the Task Force.

No government response to recommendations of the National Rapporteur

The government has not yet given its opinion on the recommendations of the Fifth Report of the Dutch National Rapporteur on Trafficking in Human Beings (summer 2007), nor have these been debated in Parliament. Consequently, many of the 66 recommendations made in
the 5th report are not yet implemented, as the Rapporteur notes in her 6th report.115

NGOs would like to suggest that the Committee urges the government to provide a detailed response to the 5th and 6th reports of the National Rapporteur and to further implement their recommendations.

• 2. Criminalisation of unregistered prostitutes does not improve their position
  In its report and its answers to Q 30, the government fails to mention that in the new Prostitution Bill it is not only proposed to criminalise clients of unregistered prostitutes, but also prostitutes who are not willing or able to register.116 This would be the first time in Dutch
  history since 1810 that prostitutes themselves are criminalised. Although presented as a measure to improve their position, prostitutes and NGOs do not feel that mandatory registration contributes to their empowerment. Nor will it help to combat trafficking and other
  forms of violence against sex workers. Rather than empowering prostitutes, NGOs fear that the new Bill will further stigmatise sex workers, create more obstacles for them to work legally, safely and independently, and lead to a further flight into the illegal and unprotected
  sex sector.
  In its answer to Q 30, the government states that after having registered as prostitutes selfemployed women may set up and work anywhere, as long as they work alone. However, City Planning Ordinances in a great number of municipalities forbid home- based prostitution.

NGOs would like to know whether, under the new Bill, municipalities would be obliged to repeal such ordinances.
If not, this will mean that if a home-based self-employed prostitute registers herself she will be ‘legal’, but not allowed to work. However, if she does not register, she will not only work ‘illegally’ but will also be criminally liable, as are her clients. Moreover, if self-employed prostitutes for reasons of safety prefer to work together with colleagues in one apartment this is considered to be a prostitution business. This means they must apply for a license, which they probably won’t get because most municipalities have maximised the number of licenses. Moreover, municipalities will have the possibility under the new Bill to forbid prostitution businesses.
The government continues with the statement that measures will be taken to protect the anonymity and privacy of registered prostitutes. However, NGOs are not convinced that these measures will be adequate. They fear that mandatory registration will lead to a further flight to
the illegal sex sector, not only of migrant but also of Dutch sex workers, as well as to the further stigmatisation and social exclusion of prostitutes. Rather than combating trafficking this will make them an easier prey for violence and abuse.

Mandatory registration of prostitutes does not help to combat trafficking

NGOs question whether mandatory registration is an effective means to combat trafficking. The most it probably will do is give the authorities a false feeling of security. The mere fact that a prostitute is registered does not mean that she cannot be or become a victim of
trafficking. Recent cases show that paper barriers are not effective in stopping criminals, and that trafficking also happens in the licensed and ‘controlled’ sector. Moreover, migrant women cannot register at all, as the present Migrant Labour Employment Act (Wav) prohibits the
issue of working permits for work in the sex sector. A major problem in combating trafficking is that, in many cases, there are plenty of indications but these are not followed up by law enforcement authorities. Another is the lack of long-term protection and perspectives for victims of trafficking. Both problems are not solved by mandatory registration of prostitutes. On the contrary, chances are high that precisely those women who work under duress will be duly registered. They will be forced to do so by their exploiters, whereas independent prostitutes will avoid registration. Moreover, experience shows that it is illusory to think that one interview is sufficient to identify victims of trafficking.
Identification above all requires expertise and patience to gain the trust of the victim. In addition, the implementation and enforcement of a system of mandatory registration will divert scarce police resources from investigating real cases of trafficking into maintaining a
bureaucratic system that mostly exists on paper. At present, the police already complains of lack of manpower to investigate (indications of) trafficking cases.

Criminalisation of clients will not protect prostitutes or combat trafficking

NGOs want to express their concern about the proposed criminalisation of clients of unregistered prostitutes. NGOs are not convinced that clients should be made responsible for verifying registration and residence permits of prostitutes, if even the police finds it difficult to
identify false papers. They are also concerned that clients will stop reporting indications of abuse and coercion to the police, because of fear of prosecution if a prostitute appears to be illegal and/or unregistered. Experience teaches that clients play an important role in reporting
abuse to the police or helping women to escape coercive situations. Moreover, criminalising clients will add to the stigmatisation of prostitutes, which has a negative impact on both those working on their own accord and those working under coercion. A more effective approach is awareness raising of clients and encouraging them to report abuses, as has been done in the successful ‘Report Crime Anonymously’ campaign.

NGOs are interested to learn what makes the government believe that mandatory registration of prostitutes and the criminalisation of unregistered prostitutes and their clients will improve the position of prostitutes. They would also like to know if, under the new Bill, cities will be obliged to repeal city planning ordinances that prohibit prostitutes to work at home. Given the serious concerns of both NGOs and sex workers about the possible negative impacts of the proposed measures on prostitutes, the NGOs would like to know if the government is willing to carry out a Gender Impact Assessment before introducing the proposed measures. They also want to know what measures the government proposes to secure the rights of prostitutes and to include their voice in the development and implementation of prostitution policies.

Disproportionate quantity of funds for exit programmes prostitutes

The lifting of the ban on brothels served three major aims: the regulation of prostitution, the combating of trafficking and other abuses, and the improvement of the position of sex workers. A major failure in the implementation of the law has been the lack of measures to
improve the position of sex workers, as is shown in various evaluations. Significantly, the two expert organisations on prostitution and trafficking in women lost their funding in 2004 and had to stop their activities. The only remaining prostitutes’ rights organisation, the Red
Thread, has been struggling to survive and is on the verge of having to close its doors. Although the government report maintains that 90% of the prostitutes work as self-employed, this is mostly a paper construction, as is has been decided not to apply regular labour and
social security law to sex businesses. This means that sex workers are considered as self-employed even if they actually work for an employer.
In the light of this situation, NGOs feel that the government disproportionately focuses on the development of exit programmes for prostitutes who want to change profession. In addition to its information in the 5th report (p. 62 / p. 116 in CEDAW/C/NLD/5), the Ministry of Justice has allocated 15 million euro’s extra to fund these programmes. NGOs suggest that an active policy should be implemented on reducing the power of pimps, improving working conditions and enhancing the autonomy of prostitutes.117 This should be done in cooperation with relevant state agencies, (organisations of) sex workers, other parties directly involved, and NGOs working in the field to overcome the barriers for prostitutes to claim their (labour) rights.

NGOs are interested to learn if the government is willing to spend at least the same amount of money on empowerment activities for sex workers as on exit programmes.

• 3. Trafficking and exploitation in other sectors than the sex industry

Currently ‘labour exploitation’118 is not defined in the criminal law, despite a recommendation of the National Rapporteur in her third report that this should be done. Consequently, it is left to the judiciary to develop a definition through case law. Cases of trafficking for exploitation
outside the sex industry, for example in domestic work, seldom lead to a conviction. In general, the main focus is still on trafficking for the sex industry, leaving victims of other forms of exploitation unrecognised and unprotected. The NGOs subscribe to the recommendations
of the European Commissioner for Human Rights in his report of March 2009, in which he urges the government to follow the recommendation of the National Rapporteur speedily to end ambiguity, thereby enhancing protection for victims of exploitation outside the sex industry.119

NGOs suggest that the Committee asks the government why it has not yet implemented the recommendation to define ‘labour exploitation’.

Noten

104 See e.g. Aliens Act Implementation Guidelines (Vc), p. 263

105 ACVZ, 2009, p.31

106 In its answer to Q. 27-28 the government mistakenly states a number of times that there should be ‘evidence’ of trafficking for the police to allow a (possible) victim the reflection period. This is not correct: in order to qualify for the reflection period B9 holds that there should be ‘the slightest indication of the person being a victim of trafficking’, which is not the same as ‘evidence’.

107 Vc B16/7, resp Vb Art. 3.52

108 Art. 3.4 sub 3 Vb 2000.

109 Damen, 2004, pp. 292-298.

110 ‘Prostitution control teams’ of the Morals Police, Aliens Police, Royal Military Police at Amsterdam Airport, Labour Inspection / Social
Intelligence and Investigation (SIOD), IND staff in detention and refugee centres, lawyers, prostitution field workers, social workers and other
assistance providers.

111 BLinN, 2009, pp. 17-18.

112 BLinN, 2009, p. 52.

113 BLinN 2009; Van Vianen et al 2007

114 Parliamentary Papers II 2008/09, 28 638, nr. 39 p. 27.

115 National Rapporteur Mensenhandel 2008, p. 1

116 E.g. because they are undocumented or because they want to protect their privacy.

117 Wijers 2009, pp. 83-84.

118 In fact this is an inaccurate term as prostitution is also considered to be labour in the Netherlands.

119 Commissioner for Human Rights 2009 (a), p. 23, para 91