Minorities in law. Legal protection of cultural and religious minorities

Gerard Alexander Suraj Maduro

Research output: PhD ThesisPhD-Thesis - Research and graduation internal

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Abstract

The reliance on religion in religion-related criminal cases leads to different outcomes compared to reliance on culture in culture-related criminal cases. This is because the reliance on religion enjoys stronger protection than the reliance on culture. Freedom of religion can be relied on directly (Article 94 of the Dutch Constitution in conjunction with Article 9 of the ECHR). The freedom of culture does not have this possibility. However, in the event of both culture-related offences and religion-related offences, there appears to be little chance of success in violent offences, because the freedom of culture or religion is automatically restricted. There is a difference, though, in non-violent offences. Reliance on religion is more readily accepted than on culture because, as noted earlier, religion enjoys stronger protection. The court must nevertheless be reticent with regard to the (interpretation of the) religion of the suspect and does also in practice. In civil cases, reliance on culture or religion prompts the court to take this into account, or not, depending on the circumstances. If the act conflicts with the Dutch legal system, the Dutch legal system prevails, according to case law. Despite processes of secularization and anti-immigration movements, courts appear to be able to withstand the pressure from society and politicians to take no or less account of culture or religion in the courtroom. Both literature and case law do show that in the event of a clash between the norms and values of the culture or religion of the minority with those of the dominant society, the latter takes precedence. Courts use the Dutch legal system to consider whether or not culture or religion is admissible. A multiform society requires that the government must continue to maintain a dialogue with minorities in our society, because they too are part of the Dutch society. This could mean that minority-specific provisions are included. In addition, the judiciary (within the context of uniformity and transparency in the judiciary) should contemplate formulating guidelines on how to deal with minorities relying on culture or religion. One guideline could, for example, be the involvement of culture or religion experts in a court case who can advise the court whether the act is indeed culture-related or religion-related. It is also recommended that further research should be carried out if more judges with an ethnic background can form a part of the judiciary so that citizens with an ethnic background can identify themselves in the judiciary. This can enhance the trust and legitimacy of the judiciary.
Original languageEnglish
QualificationDr.
Awarding Institution
  • Vrije Universiteit Amsterdam
Supervisors/Advisors
  • van der Borght, EAJG, Supervisor
  • Sap, JW, Supervisor
  • van den Broeke, C, Co-supervisor
Award date18 Nov 2021
Place of Publications.l.
Publisher
Publication statusPublished - 18 Nov 2021

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