By Dominique Mollet, University of Groningen, s.d.mollet student.rug.nl

The events of Tuesday 16 February 2021 taking place in the Netherlands may make you feel as if you are watching a series on Netflix on a Sunday afternoon – it all seems very unreal. As of 23 January 2021, a rule imposing a temporary curfew in the Netherlands was imposed: between 21.00h and 4.30h only persons with legitimate reasons are allowed to go outside. Such reasons include going to work (with an employer’s statement), walking a dog and being a guest at a live programme. This measure had been met with considerable opposition. It therefore does not come as a surprise that Viruswaarheid, an organization critical of the measures taken in response to the covid-19 pandemic since the beginning, challenged this measure.

In the morning of Tuesday, the The Hague Court declared the curfew, an important measure in the Dutch corona-policy, immediately inoperative (until the main proceedings) in summary proceedings (kort geding) instituted by an organization called Viruswaarheid (‘Virustruth’) against the Dutch State. The State immediately appealed to the judgment through a rapid procedure. In the appeal proceedings taking place on the same day, the process was delayed, as Viruswaarheid challenged the Court. The organization had lost faith after, among other reasons, the Court had mistakenly referred to the organization as Viruswaanzin (‘Virus insanity’ – which was the original name of the organization). The challenge was rejected and finally, less than twelve hours after the initial summary judgment (uitspraak in kort geding), the appeals court suspended the earlier verdict, bringing the curfew (temporarily) back into effect again. This suspension is not indefinite, however. Due to the fact that the appeal was dealt with in a rapid appeals procedure, the Court will have to decide upon the appeal based on a full assessment, which will take place on Friday morning.

This blog reflects upon the events and the initial judgment of Tuesday morning (i.e. the summary judgment declaring the curfew measures immediately inoperative). Here, some notable aspects of the Court’s judgment are pointed out. It must be emphasized that this case note is written from a health law-perspective, rather than from a general human rights- or legal perspective. I submit that this judgment can certainly be regarded as a victory of the rule of law – something that certainly deserves to and shall be celebrated – but at the same time presents a problematic disintegration of health protection in the pandemic.

Background to the ‘morning judgment’ – the use of a problematic legal basis is punished

The proceedings on Tuesday started off with the summary proceedings challenging the legal basis on which the curfew measure was based. The measure had been based on the ‘Wet buitengewone bevoegdheden burgerlijk gezag’ (‘law on exceptional competences civil authority’, hereinafter Wbbbg). The Wbbbg provides two procedures based on which measures can be adopted: a general procedure and an emergency procedure in which the Minister of Justice and Safety may limit individuals’ freedom of movement in the outside air in cases of extreme emergencies. The government had based the temporary curfew measure on the emergency procedure provided in the Wbbbg.[1] The Court ruled that a measure as intrusive as a curfew should not have been implemented through the Wbbbg, and that the use of the emergency procedure under the Wbbbg is insufficiently substantiated.[2] The government argued that the ‘super urgency’ of the present circumstances could justify relying on the Wbbbg and that the urgency of the pandemic did not allow for a normal procedure. The Court deemed this argument insufficiently substantiated, as Parliament had discussed the measure prior to its institution. Therefore, the Court ruled that the conditions required for under the emergency procedure of the Wbbbg were not fulfilled: this procedure may only be used in ‘situations that literally cannot permit any delay’,[3] because of an ‘acute emergency’,[4] which the Court did not deem to be the case in the present circumstances (as an example of such an acute emergency, the Court mentioned the breaking of dikes). As the government had relied upon an unsatisfactory legal basis, the Court declared the curfew measure to be immediately inoperable (until the main proceedings).

As stated above, the summary judgment naturally presents a victory of the rule of law and democratic safeguards. As a Dutch citizen, it feels good to know that as soon as the State acts beyond its competences or beyond the legal room for manoeuvre that it is given, the judicial branch is there to correct it and to protect citizens from potential illegitimate acts. Nevertheless, at the same time, it scares me how a court of law can declare (temporarily) inoperable a measure based on points of procedure in the decision-making process, effectively disregarding substantive expert opinions of medical doctors and other scientists that have advised the government on the urgency of the measures in an ongoing pandemic in which almost 2.5 million persons have died globally.

Inconsistency and appeal

A point that struck me in the reasoning of the Court is that, effectively, it declared a measure to be immediately inoperable, because the State failed to take the appropriate procedural path to decision-making and insufficiently substantiated its actions in order to legitimately adopt the measure. At the same time, however, the Court declared this measure, for which it recognized that the State had a wide degree of discretion and for which it recognized the severity of the public health conditions existent within the Netherlands, temporarily inoperable without making a complete and well-substantiated assessment of the different rights at play. Naturally, this does not come as a surprise and legally makes sense, as this kind of decisions constitute the very nature of summary proceedings, and the main proceedings will follow at a later point. Nonetheless, the question arises whether the decision to immediately make inoperable the measure (until the main proceedings take place) is not in and of itself disproportionate as well.

Unsurprisingly, the State immediately appealed against the verdict. In the rapid appeal proceedings that took place on Tuesday evening, the State Attorney (landsadvocaat) pointed out the absurdity of the legal consequences of the morning judgment in a perfect manner. He argued that – referring to the Court’s analogy in the morning judgment – in the case the dikes might break, the bags of sand on top of dikes to prevent waves from passing over the dikes should not be taken away just because the dikes have not broken yet.

Finally, in the appeal’s proceedings at night it was decided that the morning’s judgment was suspended, meaning that the curfew measure is not temporarily inoperable. The Court decided so for the reason that the interest of the State in this case (i.e. preventing a ‘yo-yo’ effect) is larger than the interest of Viruswaarheid (i.e. inoperability of the curfew measures for a few days): especially in light of the fact that a completer assessment will be made on Friday, consistency is more important than the inoperability of the measures until then. Thus, effectively, the curfew measure was inapplicable for a few hours during the day and the effects were not felt in practice: by 21.00 the Court had declared the inoperability decision suspended.

Further notable points

The above submits a critical note to the morning judgment. However, some elements of this judgment are of exceptional value, especially in light of the health-based approach presented here. First of all, the Court explicitly acknowledges and reiterates the fact that in pandemics, the State has a positive obligation to protect the safety and health of its citizens and that it has a wide degree of freedom in deciding upon a policy to carry out this obligation.[5] However, this freedom is not without limits: the correct decision-making procedures must be followed and proportionality and subsidiarity must be guiding principles in these procedures for measures to be legitimate. Furthermore, in the assessment of the proportionality of the measure, the Court referred to a noteworthy argument proposed by Viruswaarheid.[6] Arguing that there would have been a less restrictive means available to reach the policy objective, the organization questions why providing the public with information combined with an urgent recommendation to stay inside at night did not suffice. Compliance with this advice in combination with information provision could then be monitored. In the case of insufficient compliance, the State could ultimately decide to impose a curfew as it currently stands. Although I disagree with this argument in the sense that this ‘testing’ stage for voluntary compliance with recommendations should precede the adoption of an intrusive measure such as a curfew, this argument does point out an important deficiency of the Dutch policy response so far. The provision of information has been insufficient to ensure compliance. Prime Minister Rutte keeps on emphasizing that we need to ‘use our common sense’, while the government fails to sufficiently provide individuals with simple explanations of, for example, how the virus (and vaccination) work, how the virus spreads and how we can prevent this. It must be noted that the Dutch government has taken efforts to spread information (including this excellent video broadcasted before Christmas, in which the spread of the virus was visualized through sweaters turning red), but this could significantly be enhanced (see, for example, the WHO’s simple information videos on social media on a wide range of topics, including vaccination, new virus variants and the ins-and-outs of testing). This is thus a legitimate point made by Viruswaarheid, although initially intended in a different sense: the Dutch government still has considerable room for improvement in this regard.

To be continued…

What does the beginning of this ‘saga’ point out? First of all, it is of great importance for States to take into account the procedural safeguards provided under constitutional law and international human rights law in designing and implementing measures in response to the pandemic. Not doing so basically means that the State is providing opposition groups with a variety of procedural grounds to challenge measures that might substantively be sound. Similarly, the ‘inconsistency’ of the court decisions (i.e. making the curfew inoperable and declaring that verdict suspended less than 12 hours later) demonstrates that there is a need for an integrated perspective when dealing with measures affecting public health. The rule of law and democratic safeguards are not in opposition of the necessary health measures to be taken in the current pandemic. These two strands of approaches should rather be integrated in a common approach so they can complement each other – both to prevent inconsistency and to adopt appropriate measures in the first place. Lastly, on a positive note, the importance of Court’s recognition of the positive obligation of the State and its discretion in the execution of this obligation should not be underestimated. Similarly, in this regard, the Court and Viruswaarheid actually provided highly relevant insights based on which the Dutch response could significantly improve: increasing (if not initiating) the use of public information campaigns to create a higher level of compliance with the ‘urgent recommendations’ that it makes

This story is to be continued – be ready to tune in at a later point for the next episode filled with more legal insights worthy to be enjoyed alongside a bucket of (sodium- and sugar-free) popcorn.

[1] For a simple explanation on this, please consult the interview with Adriaan Wierenga (in Dutch) M van Dinther, ‘Vonnis Haagse rechter is geen verrassing voor staatsrechtgeleerde: ‘Niet zomaar shoppen in regelgeving’ (De Volkskrant, 16 February 2021) < https://www.volkskrant.nl/nieuws-achtergrond/vonnis-haagse-rechter-is-geen-verrassing-voor-staatsrechtgeleerde-niet-zomaar-shoppen-in-regelgeving~b6db0d89/?referrer=https%3A%2F%2Fwww.google.com%2F&utm_campaign=shared_earned&utm_medium=social&utm_source=copylink> accessed 16 February 2021.

[2] Rb. Den Haag (vzr.) 16 February 2021, ECLI:NL:RBDHA:2021:1100, 4.7

[3] Translation belongs to the author, ibid.

[4] Translation belongs to the author, ibid.

[5] ibid, 4.5.

[6] ibid, 4.13.