The Dutch debate on the European Court of Human Rights

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The Dutch debate on the European Court of Human Rights

Myrthe Rijken 5603668

Master thesis Sara Kendall

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Introduction

For decades the position of the European Court of Human Rights (ECtHR) was hardly contested in the Netherlands. Established in 1959 the Court was tasked with observing the engagements undertaken by its member states with regard to the European Convention of Human Rights (ECHR), ensuring both its enforcement and implementation. With an average of 1.48 annual violations between 1960 and 2000 and 5.06 annual violations between 1996 and 2006 the Court never attracted that much attention in the Netherlands (Greer,

2008:692). This in stark contrast to other countries, like Italy, that saw its average annual violations soar into the triple digits between 1996 and 2006. Although the Netherlands has never been a big recipient of unfavourable judgements made by the ECtHR against the country itself, judgements of the ECtHR resonated in numerous national decisions

considering human rights. The Strasbourg jurisprudence has become an immense source of inspiration for national judges on the European continent, with Dutch judges not being an exception. The Council of State, which is both the constitutionally established advisory body to the Dutch government and the highest court of appeal for citizens against executive branch decisions, refers even more to the Articles in the European Convention of Human Rights than to the Dutch Constitution (Gerards et al, 2011: 29). This is in accordance with the traditionally important role that international treaty law has in the Dutch legal order.

Historically, the Kingdom of the Netherlands has always been welcoming of forging international alliances and strengthening the bond between the Dutch state and allies through diplomacy and treaties. Considering the small size of the country and its reliance on a strong export sector, this is hardly a surprise. The important position of international law is prevalent in the Dutch Constitution, with Article 90 stating that it is a task of the

Government to promote the international rule of law. The atrocities of World War II intensified the wish of the Dutch Government and many other European Governments of the time to increase international cooperation and strive for a European legal frame. As a result many European initiatives were started and the number of international organizations and treaties, resolutions, etc. grew rapidly. For instance, in the early 1950’s the

predecessors of the European Union, the European Coal and Steel Community and the European Economic Community were formed by six European countries, including the

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4 Netherlands. These organisations were initially founded to increase the level of economic cooperation and eventually grew to be the current European Union, which focuses on not only economic cooperation but also political cooperation between its 28 member states. In the same period the Council of Europe was also established and on the 3rd_{of September}

1953 the European Convention on Human Rights came into force. Unlike the predecessors of the EU the Council of Europe encompasses all European countries and strives to promote cooperation in legal standards, human rights and the rule of law. This rapid growth asked for a different approach towards international law and therefore in 1950 a special Commission was created to research if the Constitution should be revised and in what way the Dutch parliament should be involved in international relations. This Commission recommended the government that, considering the recent abundance of international treaties, the

Government should tacitly agree to treaties, unless one-fifth of the parliamentarians wanted to debate the treaty in question. During the period the Commission was supposed to make its recommendation considering the Constitution a potential problem presented itself. French Prime Minister Rene Pleven wanted to establish a European defence force. According to some members of the Dutch Parliament this was not in accordance with the Constitution, which stated that defence was a solely national affair. The Commission was asked to find an appropriate balance between the Dutch Constitution and international treaties. Eventually they proposed that the Netherlands may become a party of treaties that are inconsistent with the Constitution, provided such treaties have been approved by both Houses of Parliament with a majority of at least two-thirds of the votes cast. This proposal of the Commission led to an amendment of Articles 93 and 94 of the Dutch Constitution, that from 1956 and onwards, stated that law of domestic origin, including the Constitution, is

subordinate to international treaty law and customary international law (Fleuren and Gerards, 2013: 227).

In short, international treaty law has a very prominent, some people might even say dominant, role in the Dutch legal order. A choice that has been deliberately made in the 1950’s and went almost uncontested for almost 60 years. One international treaty has been particularly influential with regard to Dutch law and policies, the European Convention of Human Rights. Ever since its establishment the Dutch state has been a strong supporter of the ECtHR and the protection of human rights in the international domain in general (Fleuren and Gerards, 2013: 20). In 2010 the Court even won the International Four

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5 Freedoms Award, in an event that was hosted in the Netherlands, for offering ‘citizens an accessible tool to strengthen an effective democracy and reinforce a constitutional state’.1

In November of the same year that the ECtHR won the International Four Freedoms Award an article from a young academic, Thierry Baudet, called ‘The European Court of Human Rights severely undermines our democracy’ was placed in a newspaper. Baudet questioned the universality of the human rights mentioned in the ECHR, the legitimacy of the Court and stated that the current implementation of the European Convention of Human Rights undermines the sovereignty of the Netherlands and other member states . These unusually harsh criticisms addressed towards the Court surprisingly sparked a heated debate

concerning the performance of the Court specifically and the role of international law in the Dutch legal order in general. While these type of criticisms might be considered as a ‘part of the game’ in countries that traditionally have been wary of foreign influence in national affairs, like for instance Italy and the United Kingdom, in the Dutch context these criticisms are unique and a strictly recent phenomenon. The article of Baudet prompted the Ministry of Safety and Justice to ask the Scientific Research and Documentation Centre to investigate whether there was any judicial merit in his and other critics’ claim. Although their research acknowledged that the ECtHR has a profound influence on the Dutch legal order, the authors Gerards and Fleuren state that Baudets claims are completely unfounded. The principles by which the Court operates have been consistent since its establishment, the Court has always had a steady influence on Dutch law and politics and the position of international law in the Dutch legal order has always been strong. In short, Gerards and Fleuren state that the Court didn’t change, the position of international law didn’t change and the level of influence of the ECtHR didn’t change. Which begs the question: ‘What did change?’

Since the rise of the populist right-wing party Lijst Pim Fortuyn (LPF) in 2002 the Dutch political arena changed significantly. As the first political party running on a platform to reduce immigration and to reduce the influence the European Union has on the

Netherlands. The LPF shook the established political parties and Dutch society to its core. Its leader Pim Fortuyn was called an Untermensch by the leader of the Labour Party, his ideas were frequently called fascist and a couple of days before the 2002 election Pim Fortuyn was

1_See_{www.fourfreedoms.nl}

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6 murdered because of his ideas. Despite the portrayal of the LPF in the media and the fierce criticism of the party the LPF still won 26 of the 150 available seats in Parliament. Although the LPF has ceased to exist, the party’s ideas have served as an inspiration for both

established parties as political newcomers. The Dutch political arena has become more focused on attributing certain traits to the Dutch identity and expressing a want and a need for maintaining this identity. The identity and the sovereignty of the Dutch people, as stated by populist and right-wing politicians, are being threatened by two separate but intertwined issues. The first being mass immigration of primarily Muslim immigrants and the second is interference from the European Union in national affairs. Both have supposedly detrimental results for the Dutch State. Since the rise of the LPF Euro-scepticism and perceived ethnic threat have become more prevalent among Dutch politician and the Dutch population. Euro-scepticism and perceived ethnic threat before 2002 were only issues of small fringe political parties and criticisms of European integration or the multicultural society were met by contempt, outrage or even lawsuits. In 2014 both Euro-sceptic remarks and criticisms against the multicultural society are made by members of the House of Representatives of both large left- and right-wing parties. Like the criticisms made against the ECtHR these notions of perceived ethnic threat and a fear of losing sovereignty to the European Union are relatively new. This thesis aims to explore whether Euro-sceptic perceptions and perceived ethnic threat are at the root of the current dislike for the ECtHR. The research question of this thesis therefore is:

To what degree is the European Court of Human Rights perceived as a legitimate institution in the Netherlands and can a decline of perceived legitimacy be explained by a rise of Euro-scepticism and perceived ethnic threat?

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Research approach

Objectives

The main objective of this thesis is to research to what degree the ECtHR is perceived as a legitimate institution in the Netherlands and if a decline of perceived legitimacy can be explained by a rise of Euro-scepticism and perceived ethnic threat. Before it is possible to research possible explanations for a decline of perceived legitimacy first it must be explored whether the ECtHR has lost its perceived legitimacy and to what extent. The first part of the thesis will therefore focus on presenting and dissecting the debate on the ECtHR that has taken place since 2010. The types of arguments made that contest the legitimacy of the ECtHR can give great insight into where the problems with the ECtHR lie and originate from. Furthermore the number of participants in the debate and more importantly the stature of the critics combined with possible proposed reform to restrict the influence of the ECtHR on the Dutch legal order can help to establish the severity of the perceived lack of legitimacy. A deliberate choice was made to focus on perceptions of legitimacy. The European Court of Human Rights is very much depended on its own reputation. These negative perceptions of legitimacy , if carried by a large part of the domestic elite, are problematic. As stated by Cali et al ‘legitimacy can be no more important to any other institution than it is for the

European Court of Human Rights. As a supranational human rights court, it does not have enforcement or sanctioning powers. Furthermore, its main task is to judge the actions of exactly those state authorities upon whose support it relies to enforce its judgments. Thus, it primarily relies on its legitimacy to gain respect and deference from domestic judges and politicians. Individual applicants turn to the Court because they trust that domestic actors perceive it as a legitimate institution and will therefore enforce and respect its judgments. (Cali et al, 2011: 5)’

The second objective of this thesis is to explain why the perception towards the ECtHR have changed. It seems unlikely that a newspaper article of a then virtually unknown, recently graduated law scholar sparked such a heated debate all by itself. It is to be expected that there were already lingering feelings of disapproval before Baudets November 2010 article. The second part of this thesis will therefore be dedicated to the origins of the debate and particular to origins of negative perceptions of the Court. A quick scan of the debate about

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8 the ECtHR gave three possible explanations for these changing perceptions. First, the notion that the Court is overstepping its judicial boundaries, ‘turning everything it touches in human rights’2_{. However, this thesis doesn’t aim to conclude whether the ECtHR is in fact ‘guilty’ of}

these accusations. The perceptions of domestic actors towards the performance of the Court will be evaluated, but these perceptions will not be checked for their truthfulness. In order to come to meaningful conclusions about the functioning of the ECtHR one would have to study numerous randomly selected cases in order to avoid a biased study. Secondly, one would have to have a vast knowledge of both Dutch law and of the European Convention of Human Rights case law. Researching whether these claims are true or unfounded, or at least partially, is an interesting subject that calls for further investigation, but is unsuited as a subject for a political science master thesis. The fact that this reason for changing

perceptions of the ECtHR is not explored, is the biggest disadvantage of this thesis, since it is unable to explain whether negative perceptions are a result of the performance of the Court, without any underlying notions. There are, however, two other, intertwined factors that might be able to explain the changing perceptions of the ECtHR. As stated in the introduction the political climate in the Netherlands has changed drastically in the last twelve years. In their 2011 research ‘A longitudinal study of Euro-scepticism in the Netherlands: 2008 versus 1990’ Lubbers and Jaspers show that the level of Euro-scepticism amongst the Dutch

population has skyrocketed since 1998. With the Court being a European institution it is possible that increasing levels of Euro-scepticism have had a negative effect on the

perceptions of the ECtHR, even though the ECtHR is not an EU institution. In the section on the theoretical framework the notion of how Euro-scepticism could damage the perception of a non-EU, but nevertheless European, institution will be explored. Furthermore, the main predictor of Euro-scepticism in 2008 was perceived ethnic threat as a result of (mass-) immigration. As an European institution that makes judgements on human rights cases based on the ECHR of which a large amount of the cases have to do with minority rights, the ECtHR is an excellent example of where notions of Euro-scepticism and perceived ethnic threat meet and strengthen each other.

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9 It will be intriguing to see whether a link can be established between Euro-scepticism,

perceived ethnic threat and criticisms towards the European Court of Human Rights. Therefore there will be a section in the thesis canvassing the political climate since the rise of the first mainstream anti-European and anti-immigration party LPF making an assessment of whether the criticisms against the ECtHR can be derived from a changing political climate.

Social and Scientific Relevance

Because of the fact that disapproval of the Court is such a new phenomenon in the

Netherlands the subject has hardly been researched. The articles that do exist are written by legal scholars, focussing on whether certain legal principles have been properly used by the Strasbourg judges. The aforementioned 2013 study that was commissioned by the Ministry of Safety and Justice by Gerards and Fleuren is a rather thorough example of such a research. They explored the implementation of the ECHR in Sweden, the Netherlands, the United Kingdom, France, Belgium and Germany. In their work, Fleuren and Gerards state ‘the study focuses on the interrelationship between, on the one hand, constitutional systems for the implementation of international law in the domestic legal order and, on the other hand, the way in which and the extent to which national courts apply (or otherwise take account of) the ECHR and the case-law of the ECtHR’ (Fleuren and Gerards, Executive

Summary, 2013: 1). Fleuren and Gerards came to the conclusion that there is no factual basis for the debate, saying that ‘in the Netherlands, criticism is only rarely expressly voiced in judgments and the criticism raised is often only summarily reasoned’ and ‘because of the ban on reviewing the constitutionality of acts of parliament, the ECtHR is exposed to the criticism that it is imposing its own values on Dutch law. A substantive debate on the question of the extent to which this is actually the case is rare’. In an earlier article Gerards dismissed the critics as ‘unscientific, selective and biased’ while its defenders were called ‘professorial’3_{. Their remarks, combined with statements of both proponents and}

3_{See Gerards, J.H. (2011) ’Waar gaat het debat over het Europees Hof voor de Rechten van de Mens nu}

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10 opponents, sparked an interest to research perceptions of legitimacy of the ECtHR, since there seems to be a gap between what the defenders and critics perceive as acts of the Court imposing its own values on Dutch law.

However, considering the status of the ECHR as a living document, combined with an applied margin of appreciation on each case, judgments of the ECtHR will always possess a ‘grey area’ which will prompt certain scholars to say that the Court overstepped its boundaries, while others will claim that the judgement is perfectly in line with the Convention. However, as stated earlier, this grey area, has only existed for a mere three years. Regardless of whether the statements of Fleuren and Gerards are true, it begs the question why the debate on the ECtHR has arisen in 2010. Probably because of the novelty of the disapproval underlying notions of the criticisms expressed have not been researched at all. This is a great oversight and could be problematic for understanding a decline of the perceived legitimacy of the Court. The critics voicing their concerns are no longer just members of radical fringe political parties, but are judges, scholars and members of large political parties. Simply dismissing their critiques and implying a lack of legal knowledge on their part does a disservice to the debate and to the future of the Convention and the Court in the Netherlands.

The reason for the Dutch government to commission an article exploring a factual basis for the debate was not just the debate itself, but also a bill that was submitted by a member of the House of Representatives in 2012. In September 2012 parliamentarian Joost Taverne of the largest Dutch political party (VVD) proposed a bill to amend Articles 93 and 94 of the Constitution. If passed, the bill would render it impossible for national judges to impose self-executing provisions of treaty law when those are in conflict with the Dutch Constitution or acts of Parliament. The aim of Taverne is to reinstate the primacy of the legislature with this bill. According to Gerards and Fleuren ‘This bill should be understood against the background of the dynamic interpretation of the ECHR by the ECtHR and the willingness of the Dutch courts to apply the Convention as construed by the ECtHR, even if this implies that they have to thwart one or more provisions of an act of parliament which the Government and the majority in both houses of Parliament did not consider to be incompatible with the

Convention. (Gerards and Fleuren, 2013: 244). Gerards and Fleuren also claim that the bill should be viewed as a warning shot, instead of a serious attempt to change the Constitution.

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11 Their assessment of the intentions of Taverne turned out to be wrong. During the 2013 November 27th_{domestic budget debate he stated that he will submit the bill for a debate in}

the House of Representatives. As stated earlier, for an institution like the ECtHR it is very important that it is perceived as a legitimate institution. A negative attitude from politicians poses a problem. Individual applicants turn to the Court because they trust that domestic actors perceive it as a legitimate institution and will therefore enforce and respect its

judgments (Cali et al, 2013: 5). When prominent politicians state they wouldn’t mind leaving the Convention, or severely altering the implementation of judgments made by the ECtHR, it could lessen the appeal for people to apply cases to Strasbourg. If these type of remarks of domestic actors creates unwillingness from people to submit cases, they’ve effectively succeeded in rendering the Court useless.

Theoretical framework

Now that the topic has been introduced, the objectives of the thesis have been made clear and the social and scientific relevance have been explained it is time to revisit the research question: To what degree is the European Court of Human Rights perceived as a legitimate institution in the Netherlands and can a decline of perceived legitimacy be explained by a rise of Euro-scepticism and perceived ethnic threat? Before trying to answer the research

question, the main concepts of this thesis, legitimacy, Euro-scepticism and perceived ethnic threat need to be defined. Building on different subsets of theories the section beneath will try to clarify these concepts.

Legitimacy

A substantial part of this thesis is on whether the perceptions of the legitimacy of the

European Court have changed and to what extent. The 2011 research done by Dr. Başak Cali, Anne Koch and Nicola Bruch called ‘The legitimacy of the European Court of Human Rights: the View from the ground’ focused on the perceptions several domestic elites had of the legitimacy of the Court. Over the course of three years they interviewed 107 politicians,

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12 judges and lawyers from the UK, Ireland, Germany, Turkey and Bulgaria. In their research they present a clear definition of legitimacy, in which they make a distinction between

different types of legitimacy which domestic actors employ in their perception of the Court. As Cali et al. aptly state ‘The ECtHR’s main task is to judge the actions of exactly those state authorities upon whose support it relies to enforce its judgments. Thus, it primarily relies on its legitimacy to gain respect and deference from domestic judges and politicians’ (Cali et al. 2011: 5). But what constitutes as legitimacy in this context ? Legitimacy can be used ‘to assess whether an institution has a right to exist and demand obedience from others. If an institution does not meet pre-determined legitimacy criteria, people talk about a ‘legitimacy deficit’ and either demand major alterations to the constitutive foundations of an institution or withdraw support from the institution altogether.’ (Cali et al, 2011: 4). This is a rather black and white approach to legitimacy, in which an institution is either completely

legitimate or illegitimate. A more useful way to assess whether an institution is legitimate is to check if an institution is perceived to ‘live up to the reasons for its existence through its everyday practices. If an institution does not ‘live up’ to its purposes, actors criticise its decisions and propose reforms to modify the institution’s decision-making processes. According to this understanding, legitimacy is a question of degree’ (Cali et al, 2011:4). In the latter definition a lot of the terms used are debatable. There isn’t a clear cut, universally agreed upon idea of how the Court should live up to its purposes and what those purposes are. Therefore it must be explored what kind of criteria of legitimacy domestic actors employ when assessing the performance of the Court. After Cali et al. had analysed the accounts provided by their interviewees, there were three different categories, or as they call it dimensions, where the criteria of legitimacy could be placed in: the constitutive dimension, the performance dimension and the social dimension. Considering the ample amount of research that Cali et al. performed on the subject, their three dimensions seemed like a good place to start when assessing Dutch domestic actors perceptions of the Court. In the chapter on the Dutch debate on the ECtHR these dimensions will be used when presenting the criticisms voiced against the Court. But first the three dimensions need to be clarified.

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13 Constitutive dimension

The first dimension Cali et al. identified is the constitutive dimension. On this dimension arguments are being placed that argue whether or not there are good reasons for an institution to exist at all and whether these reasons are significant enough for continued support of the institution. When assessing whether the ECtHR has constitutive legitimacy domestic actors refer to two different concepts. The first being international legality, which is understood as the consent of states to be bound by the jurisdiction of the Court, thus endowing it with legitimacy. According to Cali et al. ‘it points to the voluntary nature of the obligations domestic actors have taken on in respect of this Court, and recognises the participation of domestic authorities in international decision-making as a legitimacy standard’(Cali et al. 2011: 8). The second overarching concept they named political normative standards, referring to the principle that domestic actors agree that there is a necessity for an institution upholding certain values and aiming to fulfil certain objectives without coming to a conclusion whether they are successful in doing so. They have identified five political normative standards which the actors frequently use in their perception of the Court. The ‘protection’ standard, in which the Court’s general contribution to the protection of human rights is seen as a useful or useless; the ‘democracy’ standard, in which human rights are either seen as adding or detracting from pluralist democracy; the ‘common

standards’ standard, in which actors view harmonizing judicial human right standards across Europe as good or bad; the ‘external corrective’ standard, in which the Court is regarded as a necessary or unnecessary outside body to check on domestic decisions and the ‘civilian empowerment’ standard, in which the Court is seen as either the right or wrong institution to empower marginalized individuals who face hostility or indifference from majorities.

Performance dimension

When assessing the ECtHR Cali et al. identified two standards that are being used by

domestic actors to establish whether its performance is seen as contributing or taking away from its legitimacy: normative performance and managerial performance. The normative performance is the extent in which the Court is perceived to fulfil its constitutive legitimacy through its decisions and the interpretive principles that guide its decision making

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14 interviewees. ‘The appropriateness of the ‘Living instrument’ doctrine that enables the Court to interpret the Convention as a dynamic text in the light of present day conditions; the degree of intervention in the domestic legal, political and social context; the balance between law and politics, specifically whether the Court’s decisions have been too strongly influenced by domestic or international political considerations; the transformative quality of Strasbourg case-law, or whether the Court through its case law can lead to change of mind-sets about what human rights are, what they entail and what they demand from the public power and the Court as effective resource for human rights protection(Cali et al. 2011:9). The second standard they named the managerial performance, which refers to the way domestic actors regard the Court’s ability to handle its judicial activities. This standard encompasses issues like the case-law coherence, the admissibility procedure and the selection procedure with regard to the judges.

Social dimension

The final dimension is identified as the one of social legitimacy. On this dimension legitimacy is viewed as the general public’s perception of the Court’s legitimacy, the extent to which people are using the Court and also the number of people that are within the Court’s jurisdiction.

Euro-scepticism and perceived ethnic threat

Besides assessing whether or not domestic actors perceive the European Court of Human Rights as legitimate and to what extent this thesis also aims to explore the reasons for why the Court is perceived the way as it is. As stated, the hypothesis is that an increased level of Euro-scepticism and perceived ethnic threat have brought forth the debate on the ECtHR. Defining Euro-scepticism is tricky, especially with regard to the ECtHR. It is an elusive term that has assumed many different meanings across time and space. Euro-scepticism is mostly defined as ‘opposition to core EU policies or core EU projects’, ‘outright rejection of the entire project of European political and economic integration and opposition to their country joining or remaining members of the EU’ or ‘NOT a principled objection to European

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15 leads to the expression of qualified opposition to the EU’ (Szczerbiak and Taggart 2008c: 2). Most of the terms describing and most of the research on Euro-scepticism focus on negative attitudes towards the European Union and its plethora of institutions. This is hardly

surprising since most initiatives that focus on further promoting European integration are EU institutions. But European integration isn’t an objective that is solely confined to the

European Union. There are other organizations that also strive for European integration or at least cooperation between European states that are completely separated from the EU, like the Council of Europe. ‘The Council of Europe is the continent’s leading human rights organization. It includes 47 member states, 28 of which are members of the European Union. All Council of Europe member states have signed up to the European Convention on Human Rights, a treaty designed to protect human rights, democracy and the rule of law. The European Court of Human Rights oversees the implementation of the Convention in the member states. Individuals can bring complaints of human rights violations to the Strasbourg Court once all possibilities of appeal have been exhausted in the member state concerned. The European Union is preparing to sign the European Convention on Human Rights, creating a common European legal space for over 820 million citizens’4_{. In comparison, the}

European Union has 28 member states that have delegated some of their sovereignty in order to make decisions on certain matters on a European level. The European Union is tasked with creating policy from development aid to environment and can subsequently make binding laws in order to enforce those policies. The Council of Europe cannot make any binding laws. Both The Council of Europe and the European Union strive for some form of European integration. However, the EU has far more instruments at its disposal to enforce integration, also the type of integration the EU wants to establish goes way beyond

establishing a shared understanding of human rights, democracy and rule of law in which the national context of a state still is taken into account. The differences between the two

institutions complicate the definition of Euro-scepticism as stated in the research question ‘can a decline of perceived legitimacy of the ECtHR be explained by a rise of Euro-scepticism and perceived ethnic threat?’. One of the most used definitions of Euro-scepticism,

‘opposition to core EU policies or core EU projects’ cannot be applied directly to the ECtHR since this is not a core EU policy or EU project. The same problem arises with nearly all

4_See_{www.echr.coe.int/}

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16 definitions of Euro-scepticism. However, since this thesis aims to explain the origins of the debate it is still very much possible that negative attitudes towards the EU have had a negative impact on the perception of European institutions that are not a part of the

European Union. An increasing amount of criticism directed at the EU is likely to have made Dutch domestic actors more aware of the existence and performance of other European institutions like the ECtHR, which in turn has led to more critical approach of these types of institutions. The ECtHR has then become another place where dislike of the European Union has manifested itself. This seems like a viable option considering the sudden appearance of the critiques aimed at the ECtHR, only a couple of years after the role of the European Union in Dutch politics and law became heavily debated.

When defining Euro- scepticism it still would be wise to narrow down the definition from a ‘opposition to core EU policies or core EU projects’ to a more specific definition. Although a general dislike of the EU, or any form of European integration, could be a reason for

disapproval of the Court it seems more likely that there are certain aspects of Euro-scepticism that are better able to explain this disapproval. A recent article of Leconte identified a new form of Euro-scepticism that might shed some light on this matter. According to Leconte a new form of Euro-scepticism is on the rise within parts of domestic elites in EU Member States, the so called value-based Euro-scepticism. This is ‘the

perception that the EU via its fundamental rights policy, unduly interferes in matters where value systems and core domestic preferences on ethical issues are at stake. This happens in a context where the EU is resented, by some segments of political elites, for allegedly

empowering diverse groups (such as ethnic minorities, immigrants' associations, judges, and so on) at the expense of popular sovereignty’. (Leconte, 2013: 1) Once again it has to be noted that this definition focuses on a policy of the European Union, more specifically the fundamental rights policy. Unlike the European Convention of Human Rights the Charter of Fundamental Rights also includes economic and social rights contained in the Council of Europe Social Charter and the Community Charter of Fundamental Social Rights of Workers. But although the Charter of Fundamental Rights is not exactly the same as the European Convention on Human Rights there are some striking similarities. Considering the fact that the Charter was based on the general principles that were set out in the Convention this might not be surprising. Like the Convention the Charter includes articles on for instance the

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17 prohibition of torture, the right to a fair trial, freedom of religion and respect for private and family life. The similarities between the Convention an Charter make it possible to alter the definition of Leconte slightly to a more applicable concept in this context. Value-based Euro-scepticism is than defined as ‘the perception that the ECtHR via its judgments, unduly interferes in matters where value systems and core domestic preferences on ethical issues are at stake. This happens in a context where the ECtHR and/or the EU is/are resented, by some segments of political elites, for allegedly empowering diverse groups (such as ethnic minorities, immigrants' associations, judges, and so on) at the expense of popular

sovereignty’. If the EU can be disliked for its fundamental rights policy it’s not that unlikely that the ECtHR can be disliked for basing their judgments on a Convention that bears great resemblance to the Charter of Fundamental Rights. Furthermore, the definition of Leconte touches upon another important issue with regard to Euro-scepticism, namely perceived ethnic threat.

Perceived ethnic threat is defined as an unfavourable view towards other ethnic groups based on two different, but complementary theories: realistic conflict theory and social identity theory. The realistic conflict theory states that when other ethnic groups, also called out-groups, are perceived as a socio-economic threat to the dominant ethnic group, also called in-group, this might induce hostile, unfavourable stance towards out-groups. In a situation where resources are scarce, these hostile stances usually intensify. (Scheepers et al. 2002: 18) Next to economic reasons there is a different reason why in-groups perceive out-groups as a threat, in-group favouritism. This phenomenon is referred to as the social identity theory. According to this theory in-groups have a fundamental need to perceive their group as superior to ethnic out-groups. They, via a process called social identification apply positive attributes to the in-group while they value out-groups negatively via social contra-identification. Like Euro-scepticism perceived ethnic threat had also skyrocketed in comparison to 1990. Economic factors kept playing a stable and significant role when

explaining Euro-scepticism, especially amongst citizens with a low educational level and/or a low income, but so called identity factors had gained ground. In their 2012 article ‘Going Soft or Staying Soft: Have Identity Factors Become More Important Than Economic Rationale when Explaining Euro-scepticism?’ Van Klingeren et al. acknowledge that these identity factors, above all national identities, for example ethnic vs. civic or exclusive vs. inclusive

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18 terms, are of the utmost importance when assessing factors that constrain support for European integration (Van Klingeren et al. 2012: 1). Lubbers and Jaspers state in their 2011 study ‘A longitudinal study of Euro-scepticism in the Netherlands: 2008 versus 1990’ identity factors were the main predictor to explain Euro-scepticism and that these factors were better able to explain changes towards European integration than economic factors. One of these identity factors, perceived ethnic threat, is particularly able to predict Euro-scepticism. ‘Euro-scepticism in 1990 was only modestly associated with perceptions of ethnic threat. This changed in 2008, making perceived ethnic threat the strongest predictor of Euro-scepticism in our model. We anticipate that EU enlargements have led the Dutch to associate the EU with an increase in cheap labour, affecting their perceptions of ethnic threat. Moreover, the rhetoric of far right politicians, who have increased their share of the vote in the Dutch political landscape, has contributed to the association of anti-EU sentiment and ethnic threat. The finding that the perception of cultural threat turned out to be related to other measures of Euro-scepticism in 2008 but not in 1990 is another indication of this change.’(Lubbers and Jaspers, 2011:36). It has to be noted that Lubbers and Jaspers are talking about EU enlargements, a process in which the ECtHR was in no way, shape or form involved in. However, through their judgments the Court is able to shape immigration- and integration policy. Furthermore they have the authority, in extreme cases, to prohibit governments from expelling asylum seekers. These abilities of the ECtHR propose an interesting notion, namely that the Court, via its judgments has contributed to the association of anti-ECtHR sentiments and perceived ethnic threat.

Methodology

In an earlier stage of the research process, plans were made to conduct a survey under the Dutch population asking them about their perceptions of the European Court of Human Rights. Because of the lack of research done about this particular subject a widespread survey could have given great insight into the perceived legitimacy of the Court and why the Court was perceived as a legitimate institution or not. However holding a survey on this subject turned out to be problematic. First and foremost, the ECtHR is not a very well-known

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19 institution. Many people are not aware of the existence of the Court and therefore don’t know what the objectives and tasks of the Court are. As a result of this lack of knowledge a survey would have to include a vast amount of background information. Presenting this information and the questions raised in the debate in a neutral and understandable fashion turned out to be very challenging. Secondly, when attempting to come to meaningful

conclusions about the Dutch populations perceptions of the Court, many people of different backgrounds have to be found and be willing to participate in the survey. Considering the lack of time and resources to find enough participants and the issue of objectively presenting such a complex issue , the survey amongst the Dutch population was not included in this thesis.

Without any data resulting out of a survey, the focus of the thesis shifted to perceptions of domestic actors that participated in the debate on the European Court of Human Rights. Cali et al. when researching perceptions of the Court identified three types of actors whose perceptions carried a special weight. Domestic politicians belonging to government and opposition parties, apex court judges and lawyers litigating cases at the Court. In a timespan of a couple of years Cali et al. interviewed many judges, politicians and lawyers. The luxury of having multiple years to explore this issue and having fellow scholars helping with the research was not available with regard to this thesis. However, as stated before a section of this thesis aims to answer the question: To what degree is the European Court of Human Rights perceived as a legitimate institution in the Netherlands? Since neither the survey nor interviewing a large and varied group of judges, lawyers and politicians was an option, the choice was made to focus on solely the domestic actors that have participated in the debate. By presenting and dissecting their arguments, identifying the actors that have participated in the debate and giving an overview of proposed reform to restrict the influence of the ECtHR on Dutch law it is possible to make an assessment to what extend the ECtHR is viewed as a legitimate institution or at least to help establish the severity of the perceived lack of legitimacy. However, it has to be noted that since this thesis focuses on the perceptions of those that participated in the debate and explaining the origins of primarily the negative perceptions towards the Court not all of the aforementioned categories are represented equally. The participants in the Dutch debate are legal scholars, professors, politicians and a judge. Lawyers that litigate cases at the Court are not represented and only one judge has

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20 participated in the debate. At first glance this might raise the concern that lawyers and judges are underrepresented while politicians who have a professional bias to be more worried about intervention in the spheres of democratic authority are overrepresented (Cali et al, 2011:6). Fortunately, there have been many legal scholars and professors, with a vast amount of knowledge of ECHR case-law, who have participated in the debate offering different perspectives. Not being able to represent all categories equally is a shortcoming of this thesis, but the aim of this thesis is not to give an all-encompassing overview of the perceptions of all the possible domestic actors involved, but rather of those that have participated in the debate on the ECtHR and thereby have contributed to the political discourse. Furthermore while the perceptions of judges and lawyers, like the ones that were interviewed by Cali et al., give greater insight into whether the Court is actually applying legal principles correctly, the objective of this thesis is not to assess who is right from a legal perspective. As such, all the articles, debates in the Houses of Parliament and

correspondence of involved ministers and parliamentarians on the European Court of Human Rights from November 2010 until January 2014 have been studied. The main arguments will be presented in the fashion of the 2011 article of Cali et al., placing the arguments on the dimensions they have formulated, with one possible exception. It could be that arguments will be presented that cannot be placed on the dimensions since their a unique Dutch phenomenon. In that case a different category in addition to the dimensions will be presented.

After presenting the main arguments in the debate, the second part of the thesis will look into whether notions of Euro-scepticism and perceived ethnic threat could have contributed to changing perceptions on the ECtHR. This will be done by mapping the political climate since 2002 and onwards, by looking at the cases that were presented in the debate, reviewing remarks that domestic actors made about the ECtHR and by reviewing electoral programmes.

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21

The debate on the European Court of Human Rights

In the Netherlands, critical debate about the Court started in 2010 with an article of academic and journalist Thierry Baudet. Baudet is a noted Euro-sceptic, or rather a self-proclaimed EU- sceptic, and has written books like ‘Pro Europe and therefore against the EU’ and ‘Attack against the nation state’. In his 2010 article ‘The European Court of Human Rights severely undermines our democracy’ Baudet questioned the universality of the human rights, the legitimacy of the Court and stated that the current implementation of the European Convention of Human Rights undermines the sovereignty of the Netherlands and other member states. Baudets criticisms seem to echo earlier comments made by judges Lord Hoffmann and Marc Bossuyt in 2009 and 2010. Former Second Senior Lord of Appeal in Ordinance Hoffmann voiced his opinion on the ECtHR, one month before his retirement, in his 2009 Judges, Tribunals and Magistrates Annual Lecture on the Universality of Human Rights. He argued that the Court was “laying down a federal law of Europe" and has "been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states" (Hoffman, 2009: 12-15). Marc Bossuyt, president of the Dutch language group of the Constitutional Court of Belgium, made similar comments about the Court, being especially critical about asylum cases. He names the case Tabitha vs Belgium. In this case a mother of a child that resided in a closed centre for illegal immigrants for a couple of weeks, was awarded 10.000 euros because she had experienced a deep fear while her child had to stay in that centre. ‘Well, the child was treated hardly different than a child in a day-care facility would. Besides, her mother had previously made the decision to leave her three year old twins in Kinshasa5_{’. Bossuyt further stated that ‘Strasbourg is operating beyond its}

mandate’ and recollected a judgement made by the Court stating that people had ownership rights of unemployment benefits. ‘They have established something that Marx himself never established, a true social revolution’. Although Baudet was clearly inspired by these two judges, something he admits in a different article6_{, there was a more urgent matter that}

prompted him to write this article. On the 2nd of November in 2010 the Ministry of

Immigration and Asylum received a letter from The Court prohibiting Minister Gerd Leers to deport any Iraqi asylum seeker back to Iraq with regard to the ‘unsafe situation’ for a period

5_{See ‘Marc Bossuyt: Straatsburg gaat boekje te buiten’, Vandaag, 12-05-2010} 6_{See ‘Brits verzet tegen Europees hof is terecht’, NRC, 14-02-2011}

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22 of three weeks. This meant that the expulsion of the Iraqis, a course of action that was approved by the government in October 2010, would be postponed. The Cabinet at that time had just started its term that October and this minority Cabinet Rutte-Verhagen relied on support from the PVV, a party that is anti-immigration and anti-EU. Furthermore, even though the three political parties held a majority in the House of Representatives, they did not have a majority in the Senate. The upcoming March 2011 election and the continuation of support from the PVV were crucial for the further existence of the Cabinet, so it was ill-advised for the parties that took place in the government to remain silent on an issue that involves interference from an European institution on Dutch immigration policies. An emergency debate was held in the Parliament and showed a great divide between the Parliamentarians, with nearly half of the Parliament (70 members) being furious at the Minister for attempting to deport the asylum seekers and the other half (73 members) being furious at the Court for prohibiting the pending expulsion. This debate generated wide spread media coverage and while the European Union and immigration had been two of the main topics in the Dutch political arena for years, it put another topic on the map: the European Court of Human Rights.

The section below aims to present the arguments made in an orderly fashion. This will be done by making use of the three dimensions that Cali et al. identified as the dimensions being used when domestic actors assess the legitimacy of the Court. The arguments against the Court vary greatly. While some only have slight issues with a specific task of the Court others don’t even discuss the functions of the Court since they are fundamentally against the core principles of the ECtHR. The assessment of the debate will start out with the latter group and their ideological counterparts.

Perceived constitutive legitimacy

In this section an overview will be presented of whether the domestic actors in the debate agree on whether the European Court of Human Rights has a right to exist as an institution, without assessing its performance. Without exploring this one cannot make a distinction between critics who have a problem with the European Court of Human Rights or critics who are against any type of supranational human rights court. In the debate on the ECtHR a

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23 number of domestic actors have presented fundamental reasons for why the Court has a right to exist and that those reasons demand deference to that institution’s decisions in the future. However certain critics have also stated the exact opposite. In the debate three types of arguments have presented itself. The first being the issue of legality, or whether states should be bound by the jurisdiction of the Court. The first facet of legality is understood ‘as the consent of states to be bound by the jurisdiction of the Court, thus endowing it with legitimacy’(Cali et al, 2011: 8). A number of participants in the debate refer to this aspect. Thierry Baudet states in his 2010 article that a withdrawal of this consent should be a serious option if the Court doesn’t change ‘its direction’. The proposed change of direction of

Baudet would be that the Court from now on should only focus on extreme atrocities like the ones that took place in the Second World War. Immediately after this proposition, however, he adds that the Court would probably be powerless to do anything about these types of atrocities. Followed up by the statement that ‘the spread of moral principles via human rights diplomacy is fine, as long as we don’t make the mistake to legally codify and enforce these morals.7_{’ The legal codification and enforcement of these laws is the entire}

reason of existence of the Strasbourg Court. Therefore one could conclude that Baudet is fundamentally against the ECtHR and any supranational human rights court for that matter. Similar comments are made by Svetovar Dimitrov, a law professor at the American

University in Bulgaria, making the rather bold claim that ‘real criminals are usually able to manipulate the Court into convicting Eastern- and Middle European countries on

technicalities.’ These type of comments are only shared by the PVV, as evident in a speech made by parliamentarian Lilian Helder. In March 2013 she said in Parliament that while every self-respecting nation should watch over the human rights of its citizens, this should be a job of the nation itself and not of the ECtHR8_{. The PVV had been a vocal opponent of}

the Court for quite some time, so it wasn’t surprising that on 13 March 2013 Helder

proposed a motion that called for a withdrawal from the Convention. This motion was only supported by the PVV itself. The comments made by Helder and Baudet imply there

shouldn’t be a supranational human rights court at all. According to Baudet, there is no such thing as universal principles of human rights and therefore harmonisation of cultural values

7_{For this and the previous quotation see ‘Het Europees Hof voor de Rechten van de Mens vormt een ernstige}

inbreuk op de democratie’ NRC Handelsblad, 13-11-2010

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24 and norms by mean of the ECHR is a farce. He says that these rights are always connected to a certain time and space. ‘A right to live, for instance, what does that mean? Prohibiting abortion and euthanasia? The prohibition of discrimination. Shouldn’t this mean that we should abolish hereditary monarchies or gender specific sororities?9_{’ Former constitutional}

law professor Jit Peters disagrees with his former student. He rejects Baudet’s claim that there is no such thing as universal human rights. ‘Nowhere in the world does a human being wants to be tortured or denied the right to a fair trial.’10_{Furthermore, the Court, as stated}

by professor of European Law at the University of Leiden Rick Lawson, has a lot of good things to offer as it ‘enhances the capacities and duties that belong primarily to the domestic realm, it prevents state failures, protecting disempowered individuals from the domestic polity’. In Lawson’s 2011 article he claims that the ECtHR has a civilizing effect on its member states, with members keeping other members in line when they are breaching the Covenant. ‘No government likes to be condemned and no politician likes to see his room for

manoeuvre being restricted, but in the end every country benefits from a well-developed European legal protection.’ These benefits are also stressed by Peters. He states that the Court was established in order to protect minorities from the rule of the majority, like the Roma population in France. He names the Roma population as an example of a people that are not adequately represented in their national Parliament. ‘Democracy means more than 50 percent+1’. Justice and ECHR-EU law co-ordinator in the Amsterdam Court of Appeal Marc de Werd further adds the difference in cultural norms within the member states is a good thing because it enables all member states, not just the Eastern European ones, to learn from each other. Janneke Gerards underpins the importance of harmonisation, stating that many contemporary challenges aren’t limited to one particular country, but cut through borders, like climate change, immigration and terrorism. Advancement on these issues can only be accomplished by collaborating states.

Another important aspect that defenders of the Court bring up in its defence is the Dutch legal order and in particular the lack of a Constitutional Court. The Dutch legal system is largely monist, meaning that self-executing provisions of the Convention are directly

9_{See ‘Het Europees Hof voor de Rechten van de Mens vormt een ernstige inbreuk op de democratie’, NRC}

Handelsblad, 13-11-2010;

10_{See ‘Eurohof beschermt tegen overheid, maar Nederlandse rechters volgen EHRM veel te slaafs’, NRC}

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25 applicable in the Netherlands after publication, without any transformation or incorporation into national law being necessary. The Convention even takes precedence over any contrary provisions of municipal law, including the Constitution, regardless whether they have been enacted before or after the coming into force of the Convention. It has been argued by a number of scholars that this monist system and especially the lack of a Constitutional Court increases the influence and importance of the ECtHR in the Netherlands significantly. Former senior lecturer international law of the University of Leiden, Professor Van Emde Boas, addressed this issue already in 1966. ‘It can thus be said that the Dutch legal system, perhaps more than that of any other Party to the Convention allows those falling within its ambit to profit from the rights and freedoms which the Convention extends(Van Emde Boas, 1966:5)’. Circa 2011, a number of scholars agree with his statements. Jit Peters says in his article ‘Euro court protects against the state, but Dutch judges are too obedient’ that in there aren’t any national checks and balances in the Netherlands like in other member states. In an earlier article from 2009 Peters stated that it would be interesting to see why the transition of a country ruled by law to a country ruled by judges went so smoothly in the Netherlands . The impossibility to test acts of parliament against the Constitution, leads to a lack of discussion between ECtHR judges and Dutch national judges. This creates a different dynamic than between a British judge and an ECtHR judge, who are each other’s sparring partners. In the Netherlands, the ECtHR judges rule and the Dutch judges follow, according to Peters. Barbara Oomen, dean of the Roosevelt Academy and member of the

Constitutional Commission, states that the Court is of the utmost importance for civilians whose rights to privacy, to own property, to a fair trial, etc. are being denied or undermined by their government . The Court is especially important for the Netherlands and that

importance is derived from the weakness of the Dutch Constitution. The impossibility for Dutch judges to test an act of Parliament against the Constitution and the incompleteness of the Constitution should be the concerns of politicians and scholars, not the position of international law in general and the role of the ECtHR in particular.

Overall, calls for withdrawal from the Convention or a rejection of supranational human rights courts in general are scarce in the debate among the critics. Most actors, while critical, acknowledge that the Netherlands should be bound, to a more or less degree, to the

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26 Perceived performance legitimacy

Has the Court ‘fulfilled the promise of its constitutive legitimacy through its decisions, and through the interpretive principles that guide its decision-making processes’?(Cali et al. 2011: 9) A large part of the criticisms directed against the Court have to do, in some way or another with the perceived normative performance of the ECtHR.

Former chairman of the liberal party VVD, Stef Blok, and a member of the same party, Klaas Dijkhoff, wrote an article in a Dutch newspaper named ‘Bridle the European Court’. They find it remarkable that there has been little political discussion about the role of the Court. ‘When the ECRH was ratified in 1954, the Netherlands was a different country. There were no huge problems with regard to immigration and the concept welfare state was unheard of.11_{’ According to them the definition of what constitutes as human rights has}

changed beyond the intent of the members of parliament who signed the Convention in 1954. Blok and Dijkhoff accuse the judges in Strasbourg of being ‘politicians in robes’. Tom Zwart, professor of human rights at the University of Utrecht and a member of the Telders Foundation12_{agrees with the politicians that the Court is operating beyond its mandate. He}

compares the Court with king Midas ‘since everything the Court touches turns into human rights13_{’. In both articles the case Lautsi v. Italy is used to illustrate this supposed tendency.}

Lautsi v. Italy

In this particular case the applicant was an Italian woman, Ms Lautsi, who has two sons that attended a state school in 2002. In all of the classrooms of the school, a crucifix was placed on the wall. Ms. Lautsi found this to be contrary to the principle of secularism by which she wished to bring up her children. She complained to the school, but to no avail. On 23 July 2002 Lautsi complained to the Veneto Regional Administrative Court about the decision made by the school. This Court referred the case to the Constitutional Court in January 2004. The Constitutional Court, however, held that it did not have jurisdiction and the case was moved back to the Veneto Regional Administrative Court on the 15th_{of December in 2004.}

11_{See ‘Leg het Europees Hof aan banden’, Volkskrant, 07-04-2011}

12_{The Prof. mr. B.M. TeldersStichting (Telders Foundation) is a Dutch liberal think tank, affiliated to the political}

party VVD

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27 On 17 March 2005 the Court dismissed the complaint made by Ms Lautsi, stating that the crucifix ‘was both the symbol of Italian history and culture, and consequently of Italian identity, and the symbol of the principles of equality, liberty and tolerance, as well as of the State's secularism’. The appeal of Lautsi to the Consiglo di Stato was dismissed on the same grounds on 13 February 2006. This led Lautsi to the European Court of Human Rights. In 2009 the Court unanimously concluded that Italy was in violation of both Article 2 of

Protocol 114_{and of Article 9}15_{. First they rejected the judgment made by the Veneto Regional}

Administrative Court that a cross is a symbol of secularism, since this symbol could

reasonably be associated with Catholicism (the majority religion in Italy). The Court stated that a compulsory display of a symbol of a given confession, in this case the cross, in

classrooms ‘restricted the right of parents to educate their children in conformity with their convictions, and the right of children to believe or not to believe’16_{. Ms Lautsi was awarded}

5000 euros in respect of non-pecuniary damage.

The case led to massive indignation in Italy, with Former Prime Minister Silvio Berlusconi saying that this would be the type of case that would make someone think that Europe has lost its mind. His Minister of Defence, Ignazio la Russa, was less subtle when he said ‘However, we will not remove the crosses. They can die. The cross will stay in all the classrooms and other public spaces. They can die! They can die! They and those

international institutions that aren’t worth anything!’(Pierik, 2012: 1387). Tom Zwart stated in his article ‘Counterbalance that human rights court!’ that politicians generally are easily offended when the Court doesn’t rule in their favour, but that Berlusconi had a point. The Court based its ruling on the article of the Convention that provides ‘for the right not to be denied an education and the right for parents to have their children educated in accordance with their religious and other views17_{’. Zwart argues that since the far majority of Italy is}

Catholic having a cross in classrooms would actually be in accordance with this Article. While Zwart is concerned about the interpretation of the Convention, Baudet, as stated earlier rejects the notion that crucifixes in classroom have anything to do with human rights and accuses the Court of creating human rights. The case Lautsi concerns him because he thinks the judgment could be used to infringe upon other territories. ‘We could have a Muslim

14_{Religious Freedom education children} 15_{Freedom of Religion}

16_See_{http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-104040} 17_{See ‘Bied dat mensenrechtenhof weerwerk’, NRC Handelsblad 17-01-2011}

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28 interest group that will challenge the burqa ban on the same ‘right’, the so-called ‘freedom of religion’. Or the Swiss prohibition of minarets. What would the Court say? Perhaps that the prohibition of minarets and burqas is incompatible with human rights.18_{’ Another case}

that has been extensively discussed, and perhaps can be seen as the most controversial case, is the case M.S.S. v. Greece and Belgium.

M.S.S. v. Greece and Belgium

In this case the applicant was an Afghan national who entered the European Union through Greece in 2008. On 10 February 2009, he arrived in Belgium, where he applied for asylum. In accordance with the Dublin II Regulation Belgium officials asked Greek authorities to process the asylum application. During this time the Belgian Minister for Migration and Asylum Policy received a letter from the UNHCR recommending the suspension of expulsion of asylum seekers to Greece due to the dire circumstances of asylum seekers in the country. In May 2009, however, the applicant was ordered to go to Greece and apply for asylum there. He lodged an appeal with the Aliens Appeal Board, expressing fears that the would be detained in appalling circumstances and would be sent back to Afghanistan by Greece. This appeal was rejected and on 15 June 2009 he was deported to Greece. He was immediately detained and held for three days in what he describes as a ‘small space with 20 other

detainees, access to the toilets was restricted, detainees were not allowed out into the open air, were given very little to eat and had to sleep on dirty mattresses or on the bare floor’19_.

After his release he was homeless and tried, unsuccessfully, to leave the country numerous time on a false passport. One of these attempts led to an arrest, where the applicant claims he was beaten by police officers. Following his release he ended up and stayed on the streets again, although promises were made housing would be found for him. This led to the applicant lodging the following complaint against Greece and Belgium. ‘The applicant alleged that the conditions of his detention and his living conditions in Greece amounted to inhuman and degrading treatment in violation of Article 3, and that he had no effective remedy in Greek law in respect of his complaints under Articles 2 (right to life) and 3, in violation of

18_{See ‘Het Europees Hof voor de Rechten van de Mens vormt een ernstige inbreuk op de democratie’, NRC}

Handelsblad, 13-11-2010;

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29 Article 13. He further complained that Belgium had exposed him to the risks arising from the deficiencies in the asylum procedure in Greece, in violation of Articles 2 and 3, and to the poor detention and living conditions to which asylum seekers were subjected there, in violation of Article 3. He further maintained that there was no effective remedy under Belgian law in respect of those complaints, in violation of Article 13.20_{’ The Chamber referred}

the case to the Grand Chamber on 16 March 2010. Before the case was brought for the Grand Chamber a public hearing was held on the 1st_{of September. A number of Human}

Rights organizations and the governments of the United Kingdom and the Netherlands were allowed to participate in the oral proceedings as third parties. The Grand Chamber

presented their judgment on 21 January 2011. Both Belgium and Greece were held in violation of Articles 3 and 13 and were ordered to pay the applicant 32225 (Belgium) and 5725 (Greece) euros in respect of non-pecuniary damages and expenses.

Professor of European Law, Rick Lawson, was happy with the judgment of the ECtHR. For years, Lawson claims, there had been rumours that Greece had been treating its asylum seekers inhumanely. The other EU member states had turned a blind eye all this time, presumably not wanting to take care of these extra asylum seekers. The 2011 judgment however forced Belgium and other countries to better explore whether sending back asylum seekers to their country of entering the European Union would be a humane action.

Prohibiting members of the Convention to send back asylum seekers to Greece would force Greece to improve their treatment of asylum seekers. Otherwise Greece would be at risk of losing its reputation as a respectable country. Lawson considers judgments like the one made in the case M.S.S. vs. Belgium and Greece to have a civilizing effect on the member states forcing them to scrutinize their own and other members’ asylum policies21_{. The case}

should be viewed as an effective resource for human rights protection in which the Court successfully translated general principles to concrete entitlements and thereby makes rights real and tangible for applicants as well as for judges and politicians. Syp Wynia, a columnist for magazine Elsevier, has a very different take on the case M.S.S. vs Belgium and Greece. According to Wynia the decision from the Court not only undermines national sovereignty, but also negates the convention of Dublin, that states that asylum seekers can only seek

20_See_{http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-103050#{"itemid":["001-103050"]}} 21_{See ‘Het Mensenrechtenhof beschaaft Hongarije en Griekenland’, NRC Handelsblad, 25-01-2011}

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30 asylum in the first European country they enter. The 2011 ruling creates the possibility for immigrants to seek asylum in other member states, like the Netherlands, when Greece was their entry point. Only when Strasbourg decides that Greece is no longer treating its asylum seekers in an inhumane way, this possibility will no longer exist. Wynia asks himself why the ban would be lifted. ‘There is no incentive for Greece to start treating asylum seekers better, because this would mean that they will have to start accommodating more people seeking asylum’22_{. He, unlike Lawson, doesn’t view the judgement to be an incentive for better}

behaviour from the Greeks but rather as a reward for cruel behaviour. ‘North-European countries that are nice towards asylum seekers and illegals will be obligated to

accommodate these people, because they can’t be sent back to South-European countries that don’t treat there immigrants nicely. One could only imagine that these Strasbourg judgments will create a new uncontrollable flood of unfavourable immigrants for countries like the Netherlands. ’ Blok and Dijkhoff also are displeased with the judgment made by the ECtHR. They argue that it has only been a couple of years ago when the members of the European Union installed the Dublin System and that the ruling of the Court renders this system useless. ‘Without any democratic legitimacy the Court has interfered in European law on an issue that could not be viewed as a classical human right23_{’. A third controversial case}

is the case Salah Sheekh v. The Netherlands.

Salah Sheekh v. The Netherlands

Salah Sheekh left his native Somalia on the 12th_{of May 2003, arriving in Amsterdam the}

same day and applying for asylum. He did this on a false passport, claiming he was born in 1986. Salah Sheekh submitted the following account. As a member of the Ashraf minority his family fled from Mogadishu to Tuulo Nuh in 1991 due to the civil war. This village was ruled by the Abgal clan. Being members of the Ashraf minority the Sheekh family suffered from persecution from the Abgal clan. He stated that his father and one brother were killed by members of this clan. Other brothers were systematically beaten up and his sister was raped twice. The Minister for Immigration and Integration refused his request on the 25th_of

June 2003. His reasons were threefold. First, the false date of birth tainted the reliability of

22_{See ‘Losgezongen’, Elsevier 27-01- 2011;}

The Dutch debate on the European Court of Human Rights