Proof in Dutch Administrative Law

Abstract

The law of proof and evidence in Dutch administrative law is founded on a theory of free evidence. Over the years, evidential standards have been derived from general principles of sound administration, such as the duty of due care and the duty to give reasons. A flexible system of proof is the result, aptly tailored to the circumstances of the case. This article focuses on the dynamics of the law of proof and evidence in the Netherlands and aims to offer a perspective on future challenges and expected developments. It is argued that evidential norms have become more explicit and precise on the one hand, while at the same time being deformalised. Dutch administrative law courts are increasingly focusing on standards that offer citizens safeguards in fact finding. Evidential norms should increase the quality of fact finding, protect citizens from an over-intrusive administrative state and compensate for an inequality of arms. Over the past few years, courts have worked on effective options for litigants to adduce evidence in appeal. Most recently, the government has published a bill strengthening this evidentiary position by introducing a specific procedural instrument known as the ‘citizen loop’. These developments are bolstered by European case law, which asks for enhanced human rights protection and effective legal protection.