The right to a fair trial before an independent and impartial judge is of fundamental importance in a democratic constitutional state. The judge offers legal protection in disputes between citizens and the government and between citizens themselves. Such a general fundamental right is not enshrined in the Dutch Constitution.

In November 2010, the Constitution Government Committee issued a report (in Dutch) in which it unanimously advised the Dutch government to add the right to a fair trial and the right to access to justice to the Constitution. In the opinion of the committee, there is a shortcoming in the guarantee of legal protection of individual citizens and legal entities at a Constitutional level. Furthermore, there is insufficient protection of any binding treaty provisions. The legal protection against government action, in particular, isn’t as complete as is desirable. Following the report, the Senate adopted a motion whereby the government was requested to prepare a proposal for constitutional reform, aimed at introducing an article that includes the general right to a fair trial before an independent and impartial judge.

In August 2014, the government came up with a legislative proposal aimed at including these rights in the Constitution within a reasonable period of time and guaranteeing the inherent right to justice – and thus to safeguard the individual legal protection at a constitutional level.

It has been decided to include this right in Chapter 1 of the Constitution, where fundamental rights are discussed, and to word it as a subjective (fundamental) right that enables citizens to make claims against the legislator and the judge. The following provision has been included in Article 17 of the Dutch Constitution: "Everyone has the right to a fair trial within a reasonable period of time before an independent and impartial judge."

Consultation by the Netherlands Committee of Jurists for Human Rights

The Netherlands Committee of Jurists for Human Rights (NJCM) has been requested to provide advice about the legislative proposal. Together with the government, the NJCM is of the opinion that the right to a fair trial as part of the Constitution is an added value alongside international provisions that safeguard such a right (Article 6 of the European Convention on Human Rights (ECHR) and Article 47 of the EU Charter of Fundamental Rights), among other things because this right is now being established for all jurisdictions. The right to a fair trial, and the inherent right of access to justice, is a necessary prerequisite to effectively protect other fundamental and human rights. The NJCM firmly supports this initiative. It has, however, a number of questions and remarks about the proposal and the explanatory memorandum.

Remarks about the legislative proposal

The provision has been worded in such a way that certain key elements of the right to a fair trial are explicitly mentioned, while other aspects are not literally referred to. This is to the benefit of the clarity of the provision. However, a possible disadvantage could be that it offers a less solid foundation and proves less effective in providing legal protection to individuals. The NJCM is not entirely convinced of the argument that such an enumeration is less suited to the sober character of the Constitution.

A number of specific aspects of the right to a fair trial – independence, impartiality, being held within a reasonable period – are in the provision while other important aspects, such as equality of arms, the right to appeal and the right to legal aid, have not been included. The choice not to include these aspects deserves further consideration and justification, especially considering the importance that the European Court of Human Rights (ECtHR) attaches to them.

In relation to the right to legal aid and the right to appeal among others, the explanatory memorandum emphasizes possible restrictions to the right to a fair trial. In this area, it’s as if the proposal determines that existing or pending legislation with regard to this right is sufficient. For the NJCM, it’s important to stress that it’s always possible that the ECtHR may think differently about this in a given situation. In actual fact, arrangements for appeal in penal cases, which are being defended in the memorandum, may already be judged to be in breach of the ECHR.

Moreover, the ECHR only provides minimum standards while the European Court gives the member states a lot of freedom in some areas; the constitutional right to a fair trial needn’t remain at this minimum level. The NJCM finds that the strong emphasis in some areas on possible restrictions, especially in conjunction with implicitly or explicitly protecting the current government policy, detracts from the normative power of the proposal, which should in fact transcend the present time.

In the current proposal, the right to a fair trial is not limited to certain types of legal relationships. The State Commission deemed such a limitation advisable, because it then becomes clearer which safeguards of the right to a fair trial are in force. The commission proposed to limit the right to ‘‘everyone whose interests, which are protected by the right, are affected.’’ The NJCM advises the government to make clear why this wording has not been adopted.

Judicial review of the constitutionality of laws

Lastly, the NJCM would like to point out that this constitutional provision can play an important role in reinforcing the normative role of the Constitution, but to this end it is also crucial to abolish the prohibition of judicial review of Article 120 of the Constitution. The NJCM takes this opportunity to express its support of the draft initiative by member of the House of Representatives Liesbeth van Tongeren to amend the Constitution in relation to judicial review of the constitutionality of laws.