VAN EMPEL/DE JONG interpretation andstate liability 3 On the other hand, attention here will mainly focus on the noms which can be derived fom the European Convention on Human Rights(ECHR). As a matter of fact, it is submitted that this body of aw has by now been recognised as affecting legal positions in the Netherlands on a regular basis. 4 By contrast it has been found that the Intermational Covenant on Civil and Political Rights, with an exception for Article 26, does not pay a meaningful role in current developments in Netherlands case law on"horizontal effect"of fundamental human rights. It has been suggested that this can be explained by the fact that contrary to the EChr there is no international judiciary institution provided for, and that the Dutch courts apparently feel they can achieve accepta ble results a lready on the com bined basis of the ECHR, the Netherlands Constitution and generalprinciples of Dutch civil law. 6 1.2. 1 The European Convention for the Protection of Human Rights and Fundamental Freedoms(ECHR) Whilst for obvious rea sons focus here is still most frequently on"vertical"relations between private parties and public authority, also "horizontal"disputes between private parties inter se have come to be increasingly affected by those Convention-norms When considering now how the EChr (including of course the Protocols attached thereto)has come to condition contract aw and tort law between private parties in The Netherlands, it should be noted that we have chosen not to discuss here those provisions of the Convention which relate to family-relations, more particularly Articles 8 and 12. Indeed, whilst these are essentially private party-relations, the issues which arise in that context concem nevertheless involvement of public authorities(here also including the courts) with the public regulation of family relations. This being said the following cases may be mentioned, in a sequence accordingto the relevant ECHR-provisions Article 4: Prohibition of slavery and forced labour In a case brought by a professional football player who found him self hindered in a transfer by the rules of the national Netherlands football lea gue, the Hoge Raad was prepared to hear theargument based on Article 4, but rejected it on the See Netherlands Report for the XIX FIDE-Congress 2000, The Duties of Co-operation of National Authorities and Courts and the Communty Institutions under Article 10 EC, J.w. de Zwaan, The Netherlands(Judiciary and Authorities) and Articl 10 of the E Hels inki 2000,p.227-259 See L FM. Verhey, De horizontale werking van het EVRM, and P F. van der HeijdenG.J Heerma van Vos, Sociaal Recht en 40 par EVRM, both in: A W. Heringa(ed ) 40 iar Europees Verdrmg poor de rechten lan de Mens, Stchting NJOM-Boekerg Leden, 1990, p. 19-39 and p HR 2 February 1982, NJ1982, 424 and475. 6. L.F. M Verhey, ' De horizontale werking van het IVBPR', NCM Bulletin 19-7(1994), p 828-840
VAN EMPEL/DE JONG 6 interpretation and state liability3 . On the other hand, attention here will mainly focus on the norms which can be derived from the European Convention on Human Rights (ECHR). As a matter of fact, it is submitted that this body of law has by now been recognised as affecting legal positions in the Netherlands on a regular basis.4 By contrast it has been found that the International Covenant on Civil and Political Rights, with an exception for Article 26,5 does not play a meaningful role in current developments in Netherlands case law on “horizontal effect” of fundamental human rights. It has been suggested that this can be explained by the fact that contrary to the ECHR there is no international judiciary institution provided for, and that the Dutch courts apparently feel they can achieve acceptable results already on the combined basis of the ECHR, the Netherlands Constitution and general principles of Dutch civil law.6 1.2.1 The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Whilst for obvious reasons focus here is still most frequently on “vertical” relations between private parties and public authority, also “horizontal” disputes between private parties inter se have come to be increasingly affected by those Convention-norms. When considering now how the ECHR (including of course the Protocols attached thereto) has come to condition contract law and tort law between private parties in The Netherlands, it should be noted that we have chosen not to discuss here those provisions of the Convention which relate to family-relations, more particularly Articles 8 and 12. Indeed, whilst these are essentially private party-relations, the issues which arise in that context concern nevertheless involvement of public authorities (here also including the courts) with the public regulation of family relations. This being said the following cases may be mentioned, in a sequence according to the relevant ECHR-provisions. Article 4: Prohibition of slavery and forced labour - In a case brought by a professional football player who found himself hindered in a transfer by the rules of the national Netherlands football league, the Hoge Raad was prepared to hear the argument based on Article 4, but rejected it on the 3. See Netherlands Report for the XIX FIDE-Congress 2000, The Duties of Co-operation of National Authorities and Courts and the Community Institutions under Article 10 EC, J.W. de Zwaan, ‘The Netherlands (Judiciary and Authorities) and Article 10 of the EC Treaty’, Helsinki 2000, p. 227-259. 4. See L.F.M. Verhey, ‘De horizontale werking van het EVRM’, and P.F. van der Heijden/G.J.J. Heerma van Vos, ‘Sociaal Recht en 40 jaar EVRM’, both in: A.W. Heringa (ed.), 40 jaar Europees Verdrag voor de Rechten van de Mens, Stichting NJCM-Boekerij Leiden, 1990, p. 19-39 and p. 209-223. 5. HR 2 February 1982, NJ 1982, 424 and 475. 6. L.F.M. Verhey, ‘De horizontale werking van het IVBPR’, NJCM Bulletin 19-7 (1994), p. 828-840
CONSTITUTION, INTERNATIONAL TREATIES, CONTRACTS AND TORTS facts(HR 17 October 1980, NJ 1981, 141) Article 5: Right to liberty and security It was found that within the framework of insolvency proceedings the courts, when deciding on the possible detention of the insolvent party, should weigh the interests served by the detention against the right to liberty of the person concerned(hr 2 Decem ber 1983, NJ 1984, 306) Article 6: Right to a fair trial Whilst insolvency proceedings are also covered by Article 6, the principle of a public hearing should, in principle, suffer an exception in the interest of the debtor whose insolvency is sought to be declared, unless one of the parties to the proceedings requests a public hearing and no valid grounds are advanced against such request(HR 20 May 1988, NJ1989, 676) Article 8: Right to respect for private and family life It was found that the refusal by a private school to continue adm ission of certa in pupils who refused to attend religious instruction which was a regular item of the curriculum did not amount to non-respect for private and fam ily life within the sense of Article &(HR9 April 1976, NJ 1976, 409) Within the framework of insolvency proceedings certain inroads upon the respect for private life may be justified in the light of the protection of the interests of the creditors(HR 21 February 1984, NJ 1984, no 63, p. 394) Tortuous liability was found by the Hoge Raad in a case where a private indiv idual had passed on certan damaging information on his neighbour to a public authority which thereupon stopped the payment of certan allowances to the latter. Indeed the defendant was found to have infringed the right to respect for privacy and family life and to have therefore acted in tort(hr 9 January 987,NJ1987,928) If it is esta blished that the publication of a picture infringes upon the respect due to private life, this infringement then represents a"reasonable interest"within the sense of Article 21 Auteurswet( Copyright Act)on which a ban on publications can be based (Hr 1 July 1988, NJ 1988, 1000) The Court of Appeals,'s Hertogenbosch, was confronted with a dispute overa request for access to infomation about the identity of the parents of the applicant which information was in the hands of a social medical institution which had, at the time, assisted the presumed mother, since deceased. The Court found that it had to ba ance three categories of legitimate interest against each the interest of the applicant to know the identity of her parents(protected under article 8 ECHR) the public interest to protect the confidentiality of infomation received in confidence by institutions such as the defendant from their patients the interest of persons in a position such as the presumed mother to see her private and family life protected, aga in protected under Article 8 ECHR
CONSTITUTION,INTERNATIONAL TREATIES,CONTRACTS AND TORTS 7 facts (HR 17 October 1980, NJ 1981, 141). Article 5: Right to liberty and security - It was found that within the framework of insolvency proceedings the courts, when deciding on the possible detention of the insolvent party, should weigh the interests served by the detention against the right to liberty of the person concerned (HR 2 December 1983, NJ 1984, 306). Article 6: Right to a fair trial - Whilst insolvency proceedings are also covered by Article 6, the principle of a “public hearing” should, in principle, suffer an exception in the interest of the debtor whose insolvency is sought to be declared, unless one of the parties to the proceedings requests a public hearing and no valid grounds are advanced against such request (HR 20 May 1988, NJ 1989, 676). Article 8: Right to respect for private and family life - It was found that the refusal by a private school to continue admission of certain pupils who refused to attend religious instruction which was a regular item of the curriculum did not amount to non-respect for private and family life within the sense of Article 8 (HR 9 April 1976, NJ 1976, 409). - Within the framework of insolvency proceedings certain inroads upon the respect for private life may be justified in the light of the protection of the interests of the creditors (HR 21 February 1984, NJ 1984, no. 63, p. 394). - Tortuous liability was found by the Hoge Raad in a case where a private individual had passed on certain damaging information on his neighbour to a public authority which thereupon stopped the payment of certain allowances to the latter. Indeed the defendant was found to have infringed the right to respect for privacy and family life and to have therefore acted in tort (HR 9 January 1987, NJ 1987, 928). - If it is established that the publication of a picture infringes upon the respect due to private life, this infringement then represents a “reasonable interest” within the sense of Article 21 Auteurswet (Copyright Act) on which a ban on publications can be based (HR 1 July 1988, NJ 1988, 1000). - The Court of Appeals, ‘s Hertogenbosch, was confronted with a dispute over a request for access to information about the identity of the parents of the applicant which information was in the hands of a social medical institution which had, at the time, assisted the presumed mother, since deceased. The Court found that it had to balance three categories of legitimate interest against each other: - the interest of the applicant to know the identity of her parents (protected under Article 8 ECHR); - the public interest to protect the confidentiality of information received in confidence by institutionssuch as the defendant from their patients; - the interest of persons in a position such as the presumed mother to see her private and family life protected, again protected under Article 8 ECHR
VAN EMPEL/DE JONG The Court found that none of the three categories of interest should prevail over the two others in all circumstances. In particular, absolute protection for the right to information about the identity of the parents would have such far-reaching consequences, that such absolute protection could only be based on an explicit statutory provision to that effect(Court of Appeals, 's Hertogen bosch 18 September 1991, NJ1991, 796) Article 9: Freedom of thought, conscience and religion It was found in general terms that on the basis of Article 9, par. 2, it must be concluded that the law of torts can prov ide a legal ground or limitations upon the freedom of thought, conscience and religion(hr 5 June 1987, NJ 1988,702) Article 10: Freedom of expression In a case relating to TV broadcasting of football matches the Hoge Raad found that Article 10 does not impose as such a ban on the refusal of data to the newsgathering media(HR 23 October 1987,NJ 1988, 310) Ina judgment of 1988 the Hoge Raad found that under certa in ci interests protected under Article 8 and Article 10, respectively balanced aga inst each other(HR 4 March 1988, NJ 1989, 361) Article 2. first protocol In 1988, the Hoge Raad was confronted with a dispute conceming the refusal by the Maimonides Lyceum to adm it a boy who was found not to qualify under the rules for admission reserved to Jewish children according to the guidelines of the Halacha As to the mpact of Article 2 First Protocol, ECHR the Hoge Raad found that parents were entitled to respect for their choice of education based on certain principles correspond ing to their religious and philosophical convictions, but do not have a right vis-a-vis a private institution which provides education on this basis, to have their children admitted to that education"(HR 22 January 1988 AB1988,no.96) 1. 2.2 European Social Charter n a case adjudged by the Hoge Raad, the Court relied on Article 6(4)of the European Social Charter, "on which employees and employers can rely directly"to find that under the circumstances a strike by employees of the Dutch railways was not illegal, notwithstanding certain(alleged) political overtones(HR 30 May 1986, NJ 1986, no 688, N.S. v Vervoersbond FNV e a.)
VAN EMPEL/DE JONG 8 The Court found that none of the three categories of interest should prevail over the two others in all circumstances. In particular, absolute protection for the right to information about the identity of the parents would have such far-reaching consequences, that such absolute protection could only be based on an explicit statutory provision to that effect (Court of Appeals, ‘s Hertogenbosch 18 September 1991, NJ 1991, 796). Article 9: Freedom of thought, conscience and religion - It was found in general terms that on the basis of Article 9, par. 2, it must be concluded that the law of torts can provide a legal ground or limitations upon the freedom of thought, conscience and religion (HR 5 June 1987, NJ 1988, 702). Article 10: Freedom of expression - In a case relating to TV broadcasting of football matches the Hoge Raad found that Article 10 does not impose as such a ban on the refusal of data to the newsgathering media (HR 23 October 1987, NJ 1988, 310). - In a judgment of 1988 the Hoge Raad found that under certain circumstances the interests protected under Article 8 and Article 10, respectively, will have to be balanced against each other (HR 4 March 1988, NJ 1989, 361). Article 2, First Protocol - In 1988, the Hoge Raad was confronted with a dispute concerning the refusal by the Maimonides Lyceum to admit a boy who was found not to qualify under the rules for admission reserved to Jewish children according to the guidelines of the Halacha. As to the impact of Article 2 First Protocol, ECHR the Hoge Raad found that "parents were entitled to respect for their choice of education based on certain principles corresponding to their religious and philosophical convictions, but do not have a right vis-à-vis a private institution which provides education on this basis, to have their children admitted to that education” (HR 22 January 1988, AB 1988, no. 96). 1.2.2 European Social Charter In a case adjudged by the Hoge Raad, the Court relied on Article 6(4) of the European Social Charter, “on which employees and employers can rely directly” to find that under the circumstances a strike by employees of the Dutch railways was not illegal, notwithstanding certain (alleged) political overtones (HR 30 May 1986, NJ 1986, no. 688, N.S. v Vervoersbond FNV e.a.)