Factsheet: Access to effective remedies

Link naar geluidsfragment van minister Bussemaker:

@ CEDAW-Members, CEDAW Session 65, 10 November 2016

We would like to thank you for your question.
We also would like to correct and add to the answer of the minister this morning.

Rather than being part of the Dutch “constitutional organisation/framework”, as stated by the minister, it was a decision of the Supreme Court – on instigation of the Ministry of Internal Affairs in cases of the NGO Privacy First on fingerprints/Passport law., In July 2010 in regard to group actions and in May 2015 in regard to public interest cases (case Privacy First on fingerprints/Passport law). As a result very few possibilities for NGOs to effectively litigate remain.

Before the judgement of the Supreme Court it was possible to instigate parallel civil and administrative proceedings. Since then the law has not changed; the only change is the interpretation and application of the law by the Supreme Court, in coordination with the Council of State (the highest administrative court) through the special Chamber for the Unity of Law.

When introducing Art. 3:305a Civil Code in the nineties, the aim of the Dutch legislator was to create civil law possibilities for NGOs for public interest litigation, also when individual stakeholders could turn to the administrative court. In this light, the judgment of the Supreme Court – instigated by the government, in casu the Ministry of Internal Affairs – is in violation of the original intent of the Dutch legislator.

Moreover, a so-called ‘declaration before law’ (about unlawful legislation or policy) can only be obtained through civil proceedings and not through administrative proceedings. Also, it is not possible to directly litigate against legislation or policies through administrative proceedings (see Art. 8:3 Awb (General Administrative Law)), but only indirect by means of so-called ‘exceptieve toetsing – some exceptional check”.

It was precisely for procedures against certain legislation or policy that art. 3:305a Civil Code was introduced.

For additional information we include below the para on the lack of effective remedies as recently submitted by the NGO Privacy First in the framework of shadow reporting for the UPR (September 2016).

Lack of effective legal remedies
Since the Dutch Supreme Court judgment in the civil law case of Privacy First et al. vs. the Dutch government in May 2015, it has become highly difficult for non-governmental organisations (NGOs) to institute legal proceedings in the general interest in order to fight human rights violations (including privacy violations) in the Netherlands. This is due to the Supreme Court finding that, if individual legal remedies in the administrative courts exist, civil public interest litigation by an NGO regarding the same (or similar) legal question(s) will be inadmissible. This places a very heavy burden on individuals and leaves NGOs virtually powerless to have relevant Dutch legislation or policy declared unlawful by the judiciary.[1] This undesirable situation is reinforced by the fact that Dutch administrative judges are not allowed to test the compatibility of Dutch legislation and policy with international or European human rights law directly.[2] Until May 2015, this could only be done directly through civil litigation. Since then, it can only be done indirectly in administrative lawsuits brought by individuals, through so-called “exceptional scrutiny” (exceptieve toetsing) under Dutch administrative law. In addition, the Dutch judiciary (both civil and administrative) has never been allowed to test the compatibilty of Dutch national legislation with the Dutch Constitution; this is strictly forbidden under Article 120 of the Dutch Constitution itself,[3] making the Netherlands a rare exception in the sense that it virtually has no national constitutional jurisprudence and no effective constitutional protection.

This leads us to our first and most urgent recommendation:
We hereby recommend the Human Rights Council to urge the Netherlands 1) to reinstate the right of NGOs to conduct public interest litigation, 2) to withdraw current legal obstacles to test the compatibility of Dutch legislation and policy with international and European law and 3) to introduce procedures for constitutional review by the courts.

[1] See https://www.privacyfirst.eu/court-cases/639-dutch-supreme-court-passes-on-passport-trial-to-council-of-state.html.
[2] See Dutch General Administrative Law Act (Algemene Wet Bestuursrecht), Article 8:3: ‘No appeal lies against a decision laying down a generally binding regulation or policy rule.’
[3] Article 120 of the Dutch Constitution reads as follows: ‘The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.’