Identification troubles (in Holland), a historical and
procedural perspective
Part 2Identification troubles (in Holland), a historical and procedural perspective Part 1
Identification troubles (in Holland), a historical and procedural perspective Part 2
In the first year of the campaign the emphasis is clearly on spreading information and starting the discussion about the relation between the identification duty and the hunt for foreigners. In this context a leaflet, poster and one extra newsletter were produced. The evening of may 31 1995 is sort of a break with our earlier intention. After 31 may 1995 we take on a more active role in the campaign.One of the biggest problems from the start of the campaign was finding lawyers who were interested in supporting the legal procedures. After nearly a year we found two lawyers to be prepared to represent those refusing. Up until that time a lot of the work had been done by the Autonoom Centrum, something which was not really our work and cost us a lot of time. After the summer of 1995 the first procedures can start.
The evening of 31 may 1995 is not very uplifting either, especially since only 30 people show up (a little while before there were 200 people on an evening about the WID in Paradiso, Amsterdam). The most inspiring thing of the whole evening is the fact that the people in the room and on stage conclude that they will start legal procedures either against their employers or against the state.
The months after the meeting, a discussion takes place about the possibility to create more unity in the resistance against the WID. It seems as if this is impossible. It is comparative- ly easy to broaden the discussion about the WID though. Many refusers have motives about privacy, the second world war and others but the main motive seems to be the exclusion of a certain group of people (illegal foreigners). They want to make their refusal a collective one. The WID-campaign jumps in to the vacuum that is left behind by older comites like the Foundation Vigilance Personal Registration and the attitude of the LBR (national bureau combatting racism) and the Anne Frank foundation.
Autumn 1995 we organised two meetings for WID-refusers. We wanted to see if people were interested in more unity. We were also looking for further possibilities for the campaign. Both meeting were visited by a lot of people. Since that time we have been directed to the legal procedures mostly, although we actually wanted something else.
A group of lawyers came into existence, which was short lived, but was a source of argumentation against the WID and the procedures to start, which are still being used. Next to the legal procedures the active involvement of many is transferred from the WID to the Linking Act. The WID-campaign limits itself to the coordination of the legal procedures and inci- dental actions around these procedures.
In first instance the group of people refusing is quite heterogenous, it is striking that almost everybody gives as motive for their refusal, repulsion about the policy towards foreigners; they don't want to cooperate in the hunt for illegals. It also becomes clear that everybody's refusal is out of principle. On the one hand that is something to be glad about, on the other hand it makes the possibilities for legal procedures more limited. Because it concerns people refusing totally, refusing to give a copy but also to show their pass- port, only procedures on the basis of the European Treaty of Human Rights, EVRM, seem possible. Nothing wrong with that, but it could mean that the first positive results could take years, which would mean the death-blow to the campaign. It becomes clear that people who do not want give a copy but show their passport, have a big chance of winning their pro- cedure on short term. Nowhere it is laid down that this is required.
March 22 1996 the time is there. The Tax Chamber of the Court of The Hague judges that an employee is not required to give a copy or to enable the employer to make a copy. This means an end to the obligation for employers to keep a copy in their administration. How can you keep something when the person concerned refuses to give it? With this decision an important element of control in the WID, in relation to work, has been deleted.
That the government also realises that this is not just a silly game with words is shown by the fact that they go into cassation at the Hoge Raad (appeal at the highest court in the Netherlands), and the announcement of the Ministry of Finance that if they lose the case there, they will propose to change the law. If the Ministry of Finance, in march, had the hope that with a change of the law everything would end up fine, this is proven false half a year later.
On september 26 1996 the Tax Chamber of the Court in Amsterdam takes sentence in another case. The court sentences in this case that a woman who had refused for some time to show her passport had, according to the WID, legally been named an 'anonymous employee', but that placing her in the taxing tariff for anonymous was in defiance of article 8 of the EVRM treaty. The Court decided that, when the identity of the employee is already known to the employer in another way and the employer does not doubt the identity, to 'produce for inspection' the identity papers and application of the anony- mous tariff are a violation of the personal walk of life which is not justifiable. Against this sentence the state has also pleaded for cassation. This sentence makes an end to the copying of information from the identity paper, against the wish of the employee. It is also a sentence that is not easily replaced by a change in law. Finally it is a sentence which gave a firm stimulus to the people refusing.
In the legal battle against the WID there have not only been successes, though. The Tax Chamber of the court in Leeuwarden has decided on 18 september that applying the tariff for anonymous employees is not in violation with EVRM. This pro- duced the strange situation that an anonymous employee in Leeuwarden will stay in the anonymous tariff, while the same person in Amsterdam would be placed in the normal tariff group.
This is also unlucky for people living and working in other arrondissements, since the employers there, can appeal to both court decisions. For all these cases, the people concerned will have to direct themselves to the Tax office in their arrondissement and then the Tax Chamber.
This is not to say that all people in Amsterdam will be taken out of the anonymous tariff. If this will happen is dependent on the employer. There will, without doubt, be employers who, in consultation with the Tax office, persevere in keeping the people refusing, in the anonymous tariff. Employees who are victim of this can only direct themselves to the Tax Chamber. Until now we have chosen in the campaign to take legal pro- cedures in only a number of cases, for practical, strategic and financial reasons. We want to call upon the people who have not started legal procedures, for what ever reason, to do so now. Until now there have been 17 appeals at the Tax Office, while a multitude is stricken by the anonymous tariff. It is our intention with this call, to increase the pressure on the Ministry of Finance, that they stop forcing tax offices and employers to use the anonymous tariff. The more people take legal action, the bigger will be the workload for the Tax Chamber. This section of the court will see itself confronted with dozens of superfluous and therefor nonsensical pro- cedures, compliments of the Ministry of Finance.
People who show their identity paper and let sort and number be copied.
The developments in the case Derks after the victory on march 22 1996 have not been spectacular. The Ministry of Finance announced to appeal for cassation and that they, in case the Hoge Raad confirmed the ruling of the Tax Chamber, would consider to change the Law. From an unexpected group there came support in the struggle against the WID. Sergej Katus, secretary of information-policy of the association VNO-NCW (the two major organisations of employers in the Netherlands) wrote in their magazine Forum that: "the cassation-ruling can be looked upon with confidence. The decision of the court seems to be a balanced decision between administrative inter- ests and constitutionally protected individual interests". Apparently at the Ministry of Finance they came to the same conclusion and have decided not to wait on the hearing behind closed doors by the Hoge Raad. In a proposal of october 10 1996, concerning adaptation of the Law on Income Tax, it is suggested to change article 26, so that, as of january 1 1997, employees are obliged to let a copy of their identity paper be taken in the income administration.People who will identify themselves, but will not let sort and number of identity paper be registrated
On june 13 the case of Penny Henshaw served at the Tax Chamber in Amsterdam. She is prepared to show her passport, but does not want that a copy of her passport is made or information is copied by hand. On 26 september sentence was passed (see above).From may 1996 there are problems at Maatwerk, the organisation which is responsible for the banenpoolers (jobpoolers), these are additional jobs for long term unemployed, usually at non- profit organisations. For some time Maatwerk demanded of her employees that a copy would be provided. At first there were so many banenpoolers refusing, that the then a.i.director van Erp decided to have an arrangement for objectors as of june 1995. The arrangement meant that people who did not want to provide a copy did not have to, but instead they had to write a letter in which they had to make their objections known. 72 banenpoolers used this arrangement.
After the sentence in the case Jos Derks, Maatwerk decided that they wanted to see the identity paper to copy out the information. Part of the objectors have refused to allow information be taken into the administration. These objectors have been put in the anonymous tariff as of 1 may 1996. Against this step of Maatwerk there was an immediate court- case on 15 may 1996 at the court of Amsterdam. It was demanded that Maatwerk would not apply the sanction of the anonymous tariff, because you are not obliged, as employee, to allow information to be copied, and because the repeal of the arran- gement for objectors without reasonable argumentation is bad management. The court decided however that the steps of Maat- werk were reasonable since there was no way of knowing if the employee concerned would win the case at the Tax Chamber. In other words, the judge did not feel like burning his fingers, gave no sentence about the contents of the case and directed the case to another court. This special chamber of the court will hopefully take a decision about the use of the anonymous tariff, later this year. Maatwerk has announced, with refer- ence to the courts ruling in the case Henshaw, that they will stick with the policy, but that in individual cases exceptions can be made. It seems that soon 6 banenpoolers will be placed out of the anonymous tariff.
People who do not want to identify themselves
Since june 1 1995 Rob has been placed in the anonymous tariff group, because he does not want to identify himself and ref- uses to provide his employer with a copy of his passport. On may 24 1996 the case of Rob is in court at the Tax Chamber of The Hague. The ruling of the taxjudge dismissed the case, not on the contents of the case but because the rights for the clerk were paid too late. Rob will have to object anew and go into appeal at the Tax Chamber again. February 8 1996, Anjo van Wely appears before the taxjudge. In the plea his attorney also calls upon articles 6,7 and 8 of the European Treaty for Human Rights. On all points the court ruling puts Anjo van Wely in the wrong, without even consider- ing the ruling in the case Derks. Lawyers have reacted amazed, because the court gives no motivation at all for its verdict. Van Wely appeals for cassation. The case of Arno van Deuzen, employee of the labour union FNV, has been remanded at the request of the tax inspector until there would be a ruling in the case Henshaw. With this the inspector indirectly acknowledged that he would follow that ruling.At the Governmental Chambers of the Courts in The Hague and Amsterdam there are three cases with respect to the WID. A group of objectors of the University of Amsterdam, an employee of the city of Amsterdam and an employee of a Ministry in The Hague have started procedures against their employers.
Employers
Emmaus Netherlands has gone into appeal against the claim that the Tax service has put on Emmaus. This claim was the result of the open announcement of Emmaus that they would not place their employees in the tariff for anonymous. Against this claim Emmaus has gone into appeal. Until now there is no further progress in this case.people entitled to unemployment benefits and the WID
A person entitled to unemployment benefit has started a case about the fact that he was obliged to buy an identity paper, while there was no compensation for it. In the context of the WID and the Public Assistance Act it is demanded that he identifies himself by means of an identity paper. He asked the Social Security Service to give him the required funds to procure that identity paper. The social security service has refused.There are more people in conflict with the social security service about the Law on the Identification Duty. In some cases the public assistance has been cancelled, because of refusing to identify or to render a copy of the identity paper. It is clear that people who will not let a copy be made will not get deductions of their benefit.
The WID and continuation of employment
Judith de Lang has lost a procedure against her former employer the Government University Utrecht. The judge found that the employer had followed the directions of the law. The court rejected her claim to dismiss the University, both on legal grounds of Labour relations and the WID. The refusal of the Ministry of Home Affairs to treat her request for an unem- ployment pay regulation, argument being that she did not wish to identify herself, was dismissed by the Board of Appeal, because there is no obligation to identify for the unemploy- ment pay regulation.wage settlement and the WID
Besides all this someone is trying to get a settlement with her employer about her wage. She was placed in the anonymous tariff because of her refusal. She got the tax back she had paid to much the previous year, through the Income tax. If a settlement will be possible it will decrease the effect of the anonymous tariff for people refusing.Latest news
In another case against Maatwerk (january 1997) from a worker from the Autonoom Centrum was in court. The judge said that Maatwerk was not allowed to put the worker in the 60 % tax tarif.He said that for Maatwerk there was no doubt about the the identy from the worker. So he said that the 60% was in conflict with article 8 off the European Act of Human Rights.
