Police Stalking in the Netherlands: Persoonsgericht Verstoren and other Disturbance Methods

by Reidar Visser

On 10 September 2004, the Dutch minister of justice and internal affairs for the first time told parliament about a new anti-terror method called persoonsgericht verstoren, or “targeted disturbance of an individual”. According to the minister, the goal of the new method was to make the targeted individual, as well as his social environment, aware that s/he was being watched by the government. This, it was suggested, would make the person unusable for terrorist activities.

The Netherlands is just one of many countries that practice police-led disturbance methods or police stalking. However, the Netherlands is perhaps unique in its attempt to create a formal cloak of legality to methods that violate the most basic human rights of Dutch citizens, as defined both by the Dutch constitution as well as by the European convention on human rights. Having initially been justified as a weapon against terrorism, disturbance methods have since been employed against other perceived enemies of the Dutch police – including such diverse groups as football hooligans, dissident academics, the Occupy movement and convicted paedophiles. There has even been talk about expanding the use of disturbance methods further.

Thanks to the Dutch move to formalise certain variants of police stalking, at least some aspects of them are better known than the situation in countries that practice these methods more informally. Dutch police stalking typically involves police cars coming to the house of the stalking victim periodically throughout the day, including at night. In some versions the police also make phone calls or send text messages to the stalking victim repeatedly. A deliberate attempt is made to make family, neighbours and local community aware that the targeted person is being watched by the police. Sometimes “report crime” leaflets are deliberately distributed in the area where the stalking victim lives. A junior variant known since 2006 (and officially called “very irritating police” or “the VIP scheme”) reportedly involves 24/7 stalking of minority youths in big cities like Rotterdam, some of them complaining of being followed “even into MacDonald’s.” Terms like “disturbance project leader” (projectleider verstoren) and “director of disturbances” (verstoringsregisseur) occur in the literature on these operations.

Dutch police stalking methods involve all the usual human rights infractions associated with this policing method more generally. A particularly interesting aspect of the Dutch variant is that high officials from the ministry of justice openly defend the rather blunt infractions on the presumption of innocence that come with the involvement of society at large. This is perhaps inevitable since originally the whole point of the approach is to render the targeted person useless as a potential terrorist, but it does raise some serious privacy issues on top of all the other problems involved in stalking methods. Perhaps unsurprisingly, comments from Dutch judicial experts on the attempt to legalise police stalking have been sharp and unforgiving. In Van nachtbrakers tot terroristen (2006), Jan Brouwer specifically pointed out that there is no legal cover for persoonsgericht verstoren or similar methods, neither in the Dutch municipalities law nor in the police law (where systematic undercover surveillance must refer to a suspected criminal offense and can only be ordered for 3 months at a time, renewable once by the local representative of the judiciar). Van Kempen and Van de Voort have emphasised problems in relation to European human rights jurisprudence and the very real prospect that the European court of human rights may rule against Dutch practices on persoonsgericht verstoren. Cees Nierop and Jacco Snoeijer go even further and say that disturbance actions by the police directly violate the Dutch anti-stalking law (article 285b of the Dutch penal code). Article 285 b emphasises regular and deliberate disturbance of another person’s life. In fact, the discussion by MP Dittrich of D66 during the introduction of the anti-stalking law to the Dutch parliament on 1 September 1999 captures perfectly the actual modalities of police stalking: Continued persecution no matter where the stalking victim chooses to live and work and regardless of what means of transport he or she is using. Of course, to some extent the responsibility of implementing the stalking is spread on a larger number of people in police stalking, and not everyone in society at large may satisfy the criterion of regular participation (although repeat offenders probably will). However, in practice the stalking has been organised by a limited number of police officers who may legally be considered the stalkers-in-chief.  In cases of police stalking that are officially recognised as persoonsgericht verstoren the mayor also has a specific responsibility. Dutch law stipulates a maximum jail penalty of 3 years for stalking; according to Nierop, Snoeijer and others, police stalking is just as illegal, criminal and prosecutable as other offenses under the Dutch penal code.

Further problems can be identified by looking in greater detail at what exactly Dutch police stalking methods involve.

According to the theory presented by the justice minister to parliament, enhanced and conspicuous “observation” of an individual was the central aim (in de gaten houden). Lots of police cars and uniforms on the street where the targeted person lives can of course achieve this. But details from court cases on police stalking divulge more details about what is going on. In one case involving a suspected female Islamist in Amsterdam, it was revealed that police cars would stop outside the house of the stalking victim for several minutes, including during the night. It was emphasised in the court case that the police cars repeatedly stopped but kept their engines running for a long time so that they made a lot of noise. Why would it be necessary for the police to keep their motors running if the aim of police stalking was primarily to “observe”?

Possibly, the correct answer was given not by the justice minister to the parliament, but by a Dutch police officer in an interview with a Norwegian police student in 2009. In the resultant thesis, the Norwegian police student – who was clearly not aware that Norwegian police themselves use police stalking – described his conversation with the Dutch police officer as follows:

“One of the Dutch police departments described a controversial disturbance project… This was directed at people… who could not be prosecuted. These were subjected to continuous, and, at least to the targeted individuals, conspicuous surveillance… The goal of the police was to be “a pain in the ass” according to one of the officers”… This preventative method is described in the Dutch action plan as a grey-zone tool that can be employed against people who engage in socially unacceptable behaviour that does not lend itself to prosecution”.

The Dutch police officer in question, whose name was not given in the thesis, worked at a police unit in an unspecified big city with regional undercover tasks aimed at terrorism and organised crime. The city had already experienced Islamic terrorism, so presumably this refers to Amsterdam, The Hague or Rotterdam. The unit is likely a so-called criminele inlichtingen eenheid.

So, “pain in the ass” for those who commit actions that are legal “but socially unacceptable? Here the Dutch police are infringing on areas that in normal democracies are taken care of by penitentiary institutions and priests and philosophers respectively. In a modern rechtsstaat, it simply isn’t the job of the police to vindictively mete out punishments or to define criminality beyond the parameters of the laws on the books. But that is precisely what the Dutch police are doing through their stalking efforts. Details from a court case from 2005 even enumerates the fact that a Muslim woman began wearing hijab among the list of suspicions that eventually prompted the authorities to officially launch a stalking operation against her as a potential Islamic terrorist!

By 2012, minority groups ranging from football hooligans to Occupy Eindhoven were targeted by Dutch police stalkers. There is however perhaps one case where stalking methods have been employed where a degree of sympathy for the actions of the Dutch police is possible: A case from Amsterdam where a convicted paedophile was clearly trying to resume contact with young children. In this case, the preventative dimension seems acute, serious and relevant. Nonetheless, in a principled rechtsstaat it would be preferable to codify the stalking regime as part of the punishment instead, to be decided by the court as a possible added punishment, rather than letting police apply it arbitrarily and without reference to judicial authorities.

And thus police stalking appears to be spreading in the Netherlands. What was originally crafted as an anti-terrorism tool has evidently found other uses as well. Or maybe the politically approved label persoonsgericht verstoren is now being used to cover a wider range of informal stalking methods that were already in use? Perhaps we should not be so shocked though. Despite a reasonable reputation, Dutch police officers are frequently seen on YouTube videos beating up demonstrators that seem mostly peaceful. There is no independent police commission, and the special unit within the police dealing with police cases – the Rijksrecherche – is secretive it its proceedings, often unresponsive to the general public and exonerates the police in the majority of cases, including those leading to deaths.  Emblematic of the situation in the Netherlands, the police there has been more successful than others in defining “police violence” as violence by and against the police. Violence by the police is found to be “proportionate” more often than not.

Unconventional, societal punishment appears to sit well with some spokespeople of the Dutch police. By way of example, the police has asked that people who have shown aggression towards emergency personnel be “isolated socially”. Measures suggested by police union leader Jan Willem van de Pol include preventing offenders from buying KLM tickets and being members of sports clubs! Van de Pol openly admits that his proposal amounts to extra-judicial procedure since the idea apparently was that the measures would be applied retroactively to past offenders, and merrily refers to his initiative as a citizens rights protest (burgerrechtelijk protest, see  De Telegraaf, 6 December 2011.) For their part, in 2011 the police in Amsterdam celebrated the arrest of the thousandth pickpocket for the year by putting a 1,000 number sign on her jacket, whereupon she was photographed by the press (De Telegraaf, 18 October 2011). More generally, one senses a degree of police populism in the Netherlands through initiatives like Burgernet (citizens can sign up to be “the eyes and ears of the police) and the widespread presence on Twitter of individual police officers, tweeting in an official capacity.

Right-leaning elements within the Dutch government also play a certain role in this. The justice and security minister recently suggested preventive pre-trial action against potential repeat offenders while at the same time strenuously trying contend that the defendant was, in fact, treated as innocent until proven guilty (NRC 7 February 2012)! That contradiction sounds very reminiscent of the hollow discourse of previous government ministers in defence of the persoonsgericht verstoren variant of police stalking. Rightists in parliament, too, have at times gone out on an anti human rights limp (NRC 26 February 2012). And, to be fair, support for police methods verging on extra-legal punishment is not exclusively a right-wing affair in the Netherlands. Back in 2006, the Dutch Labour party publicly demanded more money to the police for the purpose of stalking (hinderlijk volgen) potential thiefs (NRC, 10 November 2006).

Similarly, the presumption of innocence often gets short shrift in Dutch media and culture more broadly. Suspects are identified in the media by first name and family name initial even at the pre-trial stage. Media often publishes full photos of suspects with only a thin pencil line drawn over the eyes. When specific information about occupation, business affiliation and place of living are also circulated, the chances of sentencing by media are considerable. The judicial vocabulary of the Dutch press also sometimes verges on the medieval, with concepts like “witch” (heks)  sometimes used about mere suspects (De Telegraaf, 16 December, 2011)..

Perhaps in line with these broader societal trends, the Dutch judiciary has yet to show the courage to strike down persoonsgericht verstoren as a concept. Instead, in at least one case from Amsterdam in 2005 it has ruled that the amount of stalking was disproportionate and that it should be discontinued for that reason. Conversely, though, in 2006 another police stalking operation in Amsterdam was ruled to be “proportional” by the court.

The Netherlands should however take heed of how other Europeans view their police stalking practices. In 2009, subsequent to his inspection visit in 2008, the European commissioner for human rights issued a strongly worded warning that the Dutch police stalking practices were problematic in light of European human rights standards. Maybe a defeat at the European court of human rights in Strasbourg is what the Netherlands needs to clean up its act on police stalking. There is an increasing number of cases to choose from.