Disappointing Court of Appeal of The Hague ruling in Citizens v Plasterk case

Press release agency Brandeis

The Snowden disclosures do not show that the US and UK security services, the NSA and GCHQ, obtain intelligence in an unauthorised way. The Hague Court of Appeal has judged in Citizens v Plasterk case. As this has not been established, according to the court, the claims of the coalition of citizens and interest groups are dismissed. The coalition wants the Dutch services to verify the lawful origin of data.According to the coalition, the many revelations, just last week from WikiLeaks, give reason to require the Dutch services to verify how data they receive from foreign services was obtained. No enquiries are currently being made. The modus operandi of services is secret.

That secret working method now also seems to be the salvation of the Dutch state. Precisely because the method of operation is secret, the coalition failed to demonstrate concrete violations of fundamental rights in the cooperation between the foreign and Dutch services, according to the court.

The court does not examine whether Dutch law, the Intelligence and Security Services Act (Wiv), gives the services a sufficient mandate to act. That fundamental question is also a hot issue in the bill for a new Wiv, which the Lower House recently passed, and now remains unanswered. The regulator, CTIVD, earlier also drew attention to the lack of legal mandate for the services' current policies.

Christiaan Alberdingk Thijm, one of the coalition's lawyers: "That all the revelations do not show that the foreign services are acting in violation of the law is simply not correct. Every citizen feels on his water that what the services are doing is not allowed."

The ruling also contains some good considerations:

• The Court confirmed that Dutch services must refrain from using data known or suspected to have been acquired by a foreign service using a method that infringes a fundamental right;
• The court indicates that Dutch services may not use the so-called "U-turn" construction. They may not ask foreign services to carry out activities they are not allowed to carry out themselves;
• If the Dutch services systematically or knowingly receive data from foreign services that they should not or could not have collected themselves, the court said, this would constitute a violation of the law.

Cassation

The ruling means a licence for the Dutch services to collect large amounts of data of its citizens through foreign intelligence services without legal protection. The Citizens against Plasterk coalition disagrees and is appealing to the Supreme Court.

What was it about again?

In late 2013, the "Citizens against Plasterk" coalition sued the Dutch state, represented by Interior Minister Plasterk. The reason is Edward Snowden's revelations about the practices of (foreign) intelligence services. The coalition demands that the State stop using data not obtained in accordance with Dutch law. In 2014, Minister Plasterk almost stumbled over the matter because he had misinformed the House of Representatives about the practices of foreign services in the Netherlands.

In this matter, the coalition does not seek to eliminate cooperation with foreign services as such. It does, however, believe that when cooperating and when receiving data, safeguards must be observed. Otherwise, data obtained by the NSA and other services in violation of Dutch law will end up in the hands of Dutch intelligence services. According to the coalition, this amounts to data laundering.

Coalition Citizens Against Plasterk

Lawyers at Brandeis firm are conducting the litigation for the coalition of citizens and organisations. They do so on the basis of their pro bono fund for social causes. The participating citizens are: Rop Gonggrijp, Jeroen van Beek, Bart Nooitgedagt, Brenno de Winter and Mathieu Paapst. The affiliated organisations are: Privacy First Foundation, the Dutch Association for Criminal Lawyers, the Dutch Association for Journalists and Internet Society Netherlands.

Source: press release agency Brandeis 14 March 2017, https://www.bureaubrandeis.com/buitenlandse-diensten-handelen-niet-illegaal-vergaren-gegevens-burgers/.

For more information and procedural documents, see also Appeal and European intervention in Citizens v Plasterk case.

Update 7 September 2018: Today, the Supreme Court unfortunately rejected the cassation. The Supreme Court confirmed the Court of Appeal's ruling and does not consider it incomprehensible. After the Court of Appeal of The Hague, the Supreme Court thus also provides a licence for Dutch services to collect large amounts of data of Dutch citizens via foreign intelligence services without legal protection. Read here the entire Supreme Court ruling on jurisprudence.com. The coalition will now consider legal follow-up steps at the European Court of Human Rights in Strasbourg.