In January 2021, a curfew was adopted in the Netherlands, prohibiting people from going outside between 21:00 and 04:30. The curfew affects a range of human rights, including, inter alia, the freedom of movement, the right to private and family life and the freedom of assembly. The legality and necessity of this measure were challenged before the Dutch courts by a local foundation. On 16 February, the Hague Regional Court (Rechtbank) found that the curfew could not be based on the law that was invoked by the Government and that such a measure was unnecessary. In its judgment of 26 February, the Court of Appeal (Gerechtshof) rejected the findings of the Hague Regional Court and ruled in favour of the Government. This blog argues that the courts’ findings on the legality and necessity of the curfew were largely based on the (mis)conception of what an emergency means, and what form and intensity of judicial review is required in such situations. In doing so, however, the Dutch courts omitted the crucial question regarding the use of emergency measures in the situation of normalised and entrenched emergencies.
Legality of the Dutch Curfew
The Dutch courts addressed two core issues related to the legality of the measure. The first concerns the legal avenue that was initially chosen by the Government to adopt the curfew. The second raises the more general question whether emergency measures can only be adopted once a formal state of emergency has been declared.
Regarding the first issue, the curfew was established by a Government regulation and not by the adoption of a new formal law on the curfew. This Government regulation was based on the Wet buitengewone bevoegdheden burgerlijk gezag (the ‘Wbbbg’), an existing Dutch law that enables the Government to adopt emergency measures when this is necessary in the light of extraordinary circumstances. One of these emergency measures, according to Article 8(1) of the Wbbbg, is the adoption of a curfew.
In summary proceedings (kort geding), the Regional Court found that the Wbbbg can only be applied in such urgent situations (para. 4.2.) that cannot wait for the adoption of new formal laws. It stressed that the Wbbbg is “intended only for situations that literally cannot tolerate any delay, because there is an acute emergency situation” (para. 4.7. translated by authors). An example of such an urgent situation is, according to the Regional Court, the collapse of a dike. Therefore, the Regional Court concluded that the Wbbbg could not be used as a legal basis for the curfew (para. 4.10.). The Regional Court further referred to the fact that the Government had consulted the parliament before the adoption of the curfew and held that the fact that there was time to consult the parliament before the adoption of the curfew proves that the situation was in fact not urgent (para. 4.7.).
The Court of Appeal concluded that the Wbbbg could be used as a legal basis for the curfew and held that “it would be undesirable and illogical to be able to use this emergency power only after a dike breach and not already in the event of an imminent dike breach” (para 6.11. translated by authors). The Court of Appeal’s engagement with the intriguing example of the collapse of a dike somehow shifted the focus from the real question whether in the present case the Government had a genuine opportunity to avoid the use of the Wbbbg and instead follow a standard parliamentary procedure of law making. This question ultimately concerns checks and balances in a democratic society, which renders it particularly relevant in the present situation of a normalised and entrenched emergency. Hence, the burning question that remains is how long a government may use emergency measures to fight COVID-19, when this pandemic has become the new normal. It is interesting to note that shortly after the Regional Court ruled on the curfew, it took the Dutch Government and parliament just two working days to adopt a new law on the curfew. In a post factum assessment, one could observe that the parliament was able to decide rather promptly on the curfew, and thus the Government should not have used the Wbbbg.
The second question, whether the Netherlands should have declared a state of emergency and derogated from Article 15 of the European Convention on Human Rights (ECHR) in order to adopt the curfew, was addressed only by the Court of Appeal (paras. 6.17.-6.19.). The Court of Appeal clarified that a State may restrict human rights, like the Government did in the present case, without the need to formally declare a state of emergency and derogate from the ECHR. The Court of Appeal was right in stating this. While there is an ongoing academic discussion on the desirability of the use of derogations from the ECHR in response to COVID-19 (see e.g. here and here), as long as the curfew affects only the ECHR rights that can be restricted, the Netherlands is under no obligation to derogate from the ECHR.
The Requirements of Proportionality and Necessity
The Regional Court concluded that the State had not provided sufficient reasons for the proportionality and necessity of the curfew, for four reasons. First, the availability of healthcare facilities was deemed to be sufficiently high. Second, the conclusion that new mutations of the COVID-19 virus would result in an untenable break-out was not deemed to be sufficiently supported by conclusive research as opposed to speculation. Third, the comparison of the situation in the Netherlands with other countries that have positively reported on the effect of a curfew on their infection rates is insufficiently applicable and convincing. Fourth and last, in the prognoses the Outbreak Management Team had failed to distinguish between the curfew and other implemented measures, therefore insufficiently indicating the necessity of the curfew as an additional measure (paras. 4.11. – 4.14.).
The Court of Appeal came to a radically opposing conclusion, overthrowing the Regional Court’s judgement. It stated that the curfew was not only lawful but also pursued a legitimate aim and was necessary in a democratic society (paras. 6.12. – 6.16.). In the context of the COVID-19 pandemic, the curfew served the purpose of the protection of public health and, as discussed above, had a legal basis in the Wbbbg. Regarding the requirement of necessity and proportionality, the Court of Appeal concluded that less stringent measures would not have sufficed and the decision for a curfew from 21:00 till 04:30 took into account the fact that most movements take place between 17:00 and 20:00, and furthermore allows for all sorts of exceptions.
At a fundamental level the opposing conclusions of the two courts boil down to a disagreement regarding the level of scrutiny courts ought to apply when assessing the proportionality and necessity of emergency measures adopted by the State in the case of a public health emergency. According to the Court of Appeal, the Regional Court has assessed the curfew measures with a high level of scrutiny and has not allowed the State to exercise a necessary level of discretionary power (beoordelingsvrijheid and beleidsvrijheid). The Court of Appeal considered that in such emergency situations the choice for the adoption of particular measures primarily requires a political consideration. It appears that the Court of Appeal asked the Regional Court to apply a form of judicial distancing that is akin to social distancing in response to COVID-19. While some form of judicial self-restraint is at times understandable, judicial supervision is a necessary process to maintain a fair balance of powers. This contributes to a healthy form of checks and balances in a democratic society, particularly in times of entrenched and normalised emergencies when governments gain enhanced executive powers while the role of parliaments is reduced.
Interestingly, the Court of Appeal referred to the wide margin of appreciation that the Government has in the present case (para. 6.13.). It appears that the Court of Appeal applied the margin of appreciation, which is an ECHR method, to establish a lower intensity of judicial review of the Government measures. The ECtHR has explained in A. and others v. the UK that
“The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of State at the domestic level.” (para. 184)
Domestic courts ought to be careful to avoid the use of the ECHR margin of appreciation since it creates the impression that national courts must establish a lower intensity of review and practice judicial deference in order to comply with ECHR standards. That is certainly not what the ECtHR asks for.
The COVID-19 pandemic has held the Netherlands in its grip for over a year and does not seem eager to let go any time soon. This extraordinary situation clearly changes the long-established dichotomy between normal and emergency times and challenges the assumption that emergencies are short-lived. COVID-19 is a clear example of a normalised and entrenched emergency.
In this current reality, where a time of emergency has become the new normal, governments must in principle aim to avoid the use of emergency measures. There is no reason to assume that parliaments cannot be prompt and will not take into account the urgency of a situation when adopting legislation in times of a normalised emergency.
Neither the Regional Court nor the Court of Appeal engaged more conceptually with the emergence of the peculiar aspect of normalised emergencies. Hence, the burning questions remain for how long a government may resort to emergency measures to fight COVID-19, when this pandemic has become the new normal, and how such government measures affect checks and balances in a democratic society. This question will certainly haunt other domestic courts in current or future cases pertaining to COVID-19 measures.
This blog was co-written by Kushtrim Istrefi, Matilda Radoš and Wietske Merison. Matilda Radoš and Wietske Merison are students in the Public International Law LLM programme.