Abstract
A description is given of the genesis and general character of the system of the protection of fundamental rights by the Dutch courts, as far as this system has been developed on the basis of Articles 94 and 120 of the Constitution and of case law. The way in which Dutch courts have dealt with the power that is codified in Article 94 of the Constitution is emphasised. Subsequently, attention is paid to the way in which the ECtHR has influenced the Dutch legal order, and more specifically the Dutch system of the protection of fundamental rights. This influence is dealt with by a discussion of some key rulings of the ECtHR. Next some recent developments which might challenge the open character of the Dutch system of the protection of fundamental rights are discussed. Proposals to change Article 94 of the Constitution, and discussions on the curtailment of the competence of the ECtHR are considered and analysed. The analysis focuses on the consequences which the proposals and discussions might have for the system of the protection of fundamental rights by the Dutch courts.
Highlights
As regards the role of the courts in the protection of fundamental rights, Dutch constitutional law is characterized by two contradictory elements
Acts of Parliament cannot be reviewed in the light of the fundamental rights found in the Dutch Constitution
Article 94 of the Dutch Constitution states that statutory regulations – including Acts of Parliament – in force within the Kingdom shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons
Summary
As regards the role of the courts in the protection of fundamental rights, Dutch constitutional law is characterized by two contradictory elements. The period in which openness to the extension of international law to the national legal order as a self-evident aspect of the Dutch constitutional system seems to belong to the past, as especially the last proposal shows To illustrate this development, mention could be made of the coalition agreement of the first Rutte Cabinet (2010-2012), stating that the Cabinet will not by definition adjust its policy if this contradicts international law, but will investigate whether a treaty alteration, not excepting the ECHR, is possible.[67]
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