Constitution of The Netherlands - Content - Chapters - Chapter 1: Basic Rights

Chapter 1: Basic Rights

Chapter 1 is mainly a bill of rights. There is no normative hierarchy indicated by the constitution: all basic rights are principally equal in value and importance. Some rights are absolute, most can be limited by parliamentary or "formal" law, many can be limited by delegation of limiting powers. They include:

  • Equality before the law and prohibition of discrimination (Article 1). This article forbids any discrimination on any grounds but allows affirmative action. This right can only be limited by law, if there is an objective, reasonable justification for restricting it. In that case, the court will decide if the law is suitable, necessary and in proportion to reach the purpose of the law. Article 3 stipulates that any citizen is eligible to any public function. Nationality itself is based on article 2.
  • The right to vote (Article 4). The right can be limited by formal law; no delegation is allowed.
  • The right of (written) petition (Article 5). This ancient right is absolute and cannot be limited by law. The right of petition has a long tradition in the Netherlands; indeed the Dutch War of Independence started after a petition had been rejected by the Habsburg authorities, the noble petitioners having been contemptuously treated as "beggars" (Geuzen). The constitution of 1815 limited the ancient right to written petitions, hoping to curtail the typical disorder created by large groups of delegates. Nevertheless such public mass petitioning has always remained very popular. The right of petition does not imply an accompanying right to be answered, but in practice all public bodies have special commissions to do just that. Often petitions are directed to the King, although the system of ministerial responsibility makes it impossible for him to take action by himself; his secretarial cabinet relegates such petitions to the relevant ministries.
  • Freedom of religion (Article 6). This right can be limited by formal law; delegation is possible.
  • Freedom of speech (Article 7). This article has only been partially changed in the 1983 revision, as it was linked to very complicated case law. Sub article 1 contains the classic freedom of the press. Any censorship is absolutely forbidden. However, formal law can otherwise limit this freedom, e.g. by making a certain content punishable under penal law. Such limiting powers cannot be delegated to lower administrative bodies such as municipalities; the related right of distribution of printed materials can similarly only be limited by formal law. However, the Supreme Court has nevertheless ruled since 1950 that such bodies may in fact limit the distribution of materials, if such a limitation is not based on the content of those materials and does not imply a complete impediment to any separate means of distribution. They may for instance limit the spreading of pamphlets to certain hours for reasons of public order. Sub article 2 has the same arrangement for television and radio broadcasts. Sub article 3, added in 1983, gives a general right of expression, for those cases where neither printed nor broadcast information is involved; this includes the freedom of speech. Again, no censorship is ever allowed, but the right can otherwise be limited by formal law; explicitly mentioned in sub article 3 is the possibility to limit the viewing of movies by minors under the age of sixteen. Although no delegation is possible, lower bodies may limit the exercise of the right for reasons of public order if such limitations are not based on the content of the expressed views. Sub article 4 states that commercial advertising is not protected by article 7. The Dutch constitution does not contain a freedom of gathering of information.
  • Freedom of association (Article 8). This right can be limited by formal law, but only to safeguard public order. No delegation is allowed. Almost any organization posing any conceivable danger to public order in the broadest sense is forbidden by the still extant Wet vereniging en vergadering ("Law of association and assembly") of 1855, but this law only very rarely leads to an official disbandment of an organization as a legal entity under the civil code. Dutch legal doctrine holds that the freedom of association does not protect against forced membership of organizations, e.g. when such membership is a condition for being active in a certain profession.
  • Freedom of assembly and freedom of demonstration (Article 9). The revision of 1983 split the old combination of "freedom of assembly and association" and added the former to a new freedom of demonstration. The right can be limited by formal law. Delegation is allowed but only to protect public health, for traffic concerns and to prevent public disorder.
  • Right to privacy (Article 10). This right, introduced by the revision of 1983, is a general right to be protected whenever the personal integrity is threatened. The right can be limited by formal law. Delegation is allowed, but only in relation to databases. The article imposes a duty on the government to protect against a threat to privacy posed by a possible abuse of databases (subarticle 2); and to regulate the right of persons to be informed about the content of such databases concerning their person and the right to improve possible mistakes in such content (subarticle 3).
  • Inviolance of the (human) body (Article 11). This right, introduced by the revision of 1983, can be limited by formal law; delegation is allowed. The right is a subspecies of the general right to personal integrity expressed in article 10, so no dichotomy is intended between the two concepts. It protects against violations like forced medical experiments, corporal punishment, torture and mutilation. It does not end with death and thus demands a legal basis for organ donation.
  • Prohibition of unlawful entry of the home when no permission of the inhabitant has been obtained (Article 12). Although often presented as a general "right of the home", this article is in fact more based on the principle that the authorities do have a fundamental right to enter homes, but that this must be given a legal basis. The law has to indicate in which case and by which persons entry is legal. Delegation is allowed. Dutch courts tend to give precedence to the practicality of police investigation, so this article has had little protective value.
  • Secrecy of communication (Article 13). Subarticle 1 contains the privacy of correspondence. This can only be violated on order of a judge and only in those cases indicated by formal law. No delegation is allowed. The judge in question is rarely a court but in practice the investigative judge (rechter-commissaris). The Dutch penal code offers a further protection of this right as several types of violating it are punishable as crimes. Subarticle 2 contains the privacy of communication by telephone and telegraph. This right can be limited by law; such law has to indicate which persons have the authority to allow a violation. No delegation is allowed. For most cases again the investigative judge has the competent authority. Since the nineties there is doctrinal consensus that the right extends to cell phone communication, but earlier this was contended. In practice the Dutch police taps any telephone communication at will, irrespective of authorisation and with full cooperation of the telephone companies. Although this situation is embarrassing from a constitutional point of view, authorities and courts are hesitant to act against it, for reasons of practicality. However it has often been ruled that information thus gained cannot be admissible as evidence in court.
  • Prohibition of unlawful expropriation (Article 14). The Dutch constitution contains no general right to property. This has been defended by successive governments with the argument that such right is so fundamental to Dutch society that it is redundant to explicitly mention it. Expropriation is only allowed to serve the public interest and on the condition that prior formal assurance is given of (full) indemnity, meaning that some exact sum has to be determined. It has to be based on law; delegation is allowed, but only as regards the indemnity determination procedure, not the expropriation as such. Subarticle 2 states however that in an emergency situation the prior assurance has not to be given — in those cases the amount of compensation will be determined later. Subarticle 3 extends this arrangement to cases of destruction, partial damage, total loss and limitations of the right to property, caused by the competent authority to serve the public interest. Normal cases of damage are ruled by the civil code.
  • Right to liberty (Article 15). This right can be limited by formal law. Delegation is allowed since the revision of 1983. Subarticle 2 safeguards access to the competent judge for anyone detained; this judge has the power to order the release of the detainee, like in the common law habeas corpus doctrine. In fact all relevant laws order the authorities to obtain approval from the judge within a certain time limit, but deny to the detainee access by his own initiative until that limit has been reached. Subarticle 3 contains the penal law obligation of the authorities to ensure that a trial takes place and is finished within a reasonable period of time. This right cannot be limited by law. In fact the Dutch penal code contains loopholes making it possible to delay trials indefinitely. Subarticle 4 states that all basic rights of a detainee can be limited in the interest of his detention.
  • Nulla poena sine praevia lege (Article 16). This fundamental principle of legality, already present in the penal code and introduced to the constitution in the revision of 1983, is absolute and cannot be limited by law. However at the same time the additional article IX was added to the constitution making an exception for war crimes and crimes against humanity.
  • Ius de non evocando (Article 17). This ancient right states that no one can against his will be kept from the competent court. It cannot be limited by law — but law decides which court is competent.

In addition to these classic rights the revision of 1983 introduced a number of social rights. The distinction between the two categories is not strictly based on any legal doctrine and in fact the social right articles contain many freedom rights. The social rights are:

  • Right to counsel (Article 18). Subarticle 1 contains a freedom right: anyone has the right to be legally assisted or represented in court or during administrative appeal. This right is absolute and cannot be limited by law. Nevertheless the law may impose qualification requirements on legal representatives so that e.g. only attorneys are allowed to represent. Subarticle 2 contains the right to legal aid for the destitute. The right can be limited by formal law; delegation is allowed. However doctrine holds that the State has an absolute duty to provide a minimum of legal aid.
  • Labour rights (Article 19). Subarticle 1 imposes a duty on the government to ensure sufficient employment. This does not imply a right to be employed for the individual. Subarticle 2 demands that laws are made regarding the legal position of workers, including the protection of workers against accidents and workers' participation. Subarticle 3 contains a general freedom right to labour. This right can be limited by formal law; delegation is allowed. The right is limited to those of Dutch nationality, so in principle foreign nationals can be denied access to the labour market. The law in fact denies such access to illegal immigrants and asylum seekers.
  • Welfare of the people (Article 20). Subarticle 1 imposes a duty upon the government to ensure the subsistence of the population and an adequate distribution of wealth. Subarticle 2 demands that laws are made concerning the entitlements to social welfare. Delegation is allowed. Subarticle 3 contains a right to welfare for the destitute. The right can be limited by formal law; delegation is allowed. The government has a duty to make a law implementing the right. The right is limited to those Dutch nationals living in the Netherlands.
  • Environmental protection (Article 21) This article imposes a duty on government to ensure the habitability of the land — including the general infrastructure and especially the vital sea-defences — and the protection and improvement of the environment. Doctrinal consensus holds that "improvement" implies that government is not allowed to make environmental laws much less strict.
  • Health, housing, culture and recreation (Article 22). This is a wastebasket article combining rights that were too important to remain unmentioned, but too unimportant to warrant a separate article status. Subarticle 1 imposes a duty upon government to improve public health. Subarticle 2 does the same for living conditions and subarticle 3 for "cultural self-realisation" and recreational activities.

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