Digital welfare fraud detection and the Dutch SyRI judgment

In 2020, a Dutch court passed judgment in a case about a digital welfare fraud detection system called Systeem Risico Indicatie (SyRI). The court ruled that the SyRI legislation is unlawful because it does not comply with the right to privacy under the European Convention of Human Rights. In this article we analyse the judgment and its implications. This ruling is one of first in which a court has invalidated a welfare fraud detection system for breaching the right to privacy. We show that the immediate effects of the judgment are limited. The judgment does not say much about automated fraud detection systems in general, because it is limited to the circumstances of the case. Still, the judgment is important. The judgment reminds policymakers that fraud detection must happen in a way that respects data protection principles and the right to privacy. The judgment also confirms the importance of transparency if personal data are used.

Claims-making in court cases on children: Religion, ethnicity, and culture in cases of Dutch minority families against the state

This paper focuses on claims made by family members in court cases against state institutions. Taking a socio-legal, empirical approach, I aim to explore claims-making in different types of cases from various fields of law, with a particular focus on issues regarding children from minority families. I will analyse in what cases these claims are made and how courts react to such claims. The paper is based on an analysis of Dutch court judgements, as well as an ongoing study including interviews with judges and court personnel; lawyers; welfare professionals; and NGOs and a study of child protection files at the courts of The Hague, Rotterdam, Utrecht, and Amsterdam. When making religious, ethnic, or cultural claims in court cases concerning their children, minority families may demand to be treated differently based on their religious, ethnic or cultural background. I will demonstrate how such claims can be shaped by the legal and institutional context as well as by litigants themselves. Although religious, ethnic, or cultural claims are relatively rare, they force courts to explicitly reflect on representations of culture, ethnicity, or religion. Therefore, studying such exceptional cases provide an interesting opportunity to study how Dutch courts deal with these representations.

Ziada v. Gantz and Eshel

Civilians who bring claims against powerful states or their officials, for harm resulting from the conduct of war, face challenges that no single legal procedure can possibly overcome. Certain codified international laws outline specific protections for civilians, but this protective infrastructure stands in the shadow of two creatures of uncodified international customary law: state sovereignty and the immunity of states and their officials. The subject of this case note is a civil claim before a Dutch domestic court, against powerful officials of the state of Israel. The claimant, a Palestinian Dutch national, is attempting to sue the officials for the unlawful killing of six members of his family in the intentional bombing of their home in Gaza in 2014. In January 2020, he set out to establish the Dutch court’s jurisdiction based on an exceptional provision of the Dutch Code of Civil Procedure. This contribution argues that the Dutch court erred in allowing the asserted ‘functional immunity’ of the foreign officials to counter its own jurisdiction.

Exploring mutual trust through the lens of an executing judicial authority: The practice of the Court of Amsterdam in EAW proceedings

In the groundbreaking decision Aranyosi and Căldăraru, the Court of Justice of the European Union (CJEU) recognised that in exceptional circumstances, the risk of a possible breach of the right not to suffer inhuman or degrading treatments may qualify as a ground to suspend a European arrest warrant (EAW) and, ultimately, bring the surrender procedure to an end. In this judgment (and in the subsequent decision in LM, dealing with the right to a fair trial), the Court has devised a two-tier test to assess the real risk of a violation of fundamental rights after surrender. Yet the Court has left significant discretion to executing authorities in conducting their assessment of risk, thus raising questions as to how the two-tier test would be implemented at the national level. To address some of these questions, this article examines the practice of the executing authority for the Netherlands (the District Court of Amsterdam) concerning decisions on EAWs that may entail a real risk for fundamental rights. To do so, we analyse the judicial reasoning of decisions issued between June 2016 and June 2020 which implement the tests designed by the CJEU in Aranyosi and LM. The results of this analysis indicate that the Court of Amsterdam has gradually shifted the emphasis from mutual trust to fundamental rights. However, the Dutch court resists automaticity and scrutinises the relevance of any information attentively. This attitude indicates a readiness to engage in a dialogue with the issuing authorities together with resistance to indulge in ‘blind trust’.

State Liability for Failure to Protect Others. Srebrenica Cases

Over recent years, a number of legal decisions have been taken that represent real novelties in the field. They address state liability towards foreigners in a realm where immunity has long prevailed. Dutch courts have condemned the Dutch state for failure to protect Bosniacs after the fall of the enclave of Srebrenica in 1995. The novelty of these court decisions is most apparent when they are compared to the previous investigations and reports on the fall of the Srebrenica enclave, which had the intended or de facto effect of leaving aside state liability. This article focuses on this comparison. The decisions of the Dutch court represent a change with regard to a trend in which collective responsibility was reduced to a scarecrow argument, where state liability for genocide was limited to the obligation to address criminal responsibility, and where co-agency was a shield preventing the attribution of state responsibility. Not only do these court decisions sanction state liability, they also address the victims and even grant them reparations.

Balancing Energy Development and Environmental Rights: From Foreign Litigation to International Insurance?

This article examines the use of foreign direct liability suits, including the ones currently in the Dutch court system by Nigerian plaintiffs against Shell Petroleum, to protect environmental and economic interests in oil-producing communities. The paper suggests that while these suits are a valuable tool in advancing the cause of a clean environment, they fall short in accomplishing the goal. Additional tools, such as an international insurance scheme, may need to be introduced to create a more effective framework.