Supreme Court passes Passport trial to State Council
Since 2010, Privacy First conducted a mega case against one of the most serious privacy violations in Dutch history: the central storage of fingerprints under the Passport Act. In this case, however, Privacy First was successively declared inadmissible, declared admissible ánd vindicated, but finally declared inadmissible after all. How could this happen? And what does this mean for legal protection in the Netherlands?
Since May 2010, Privacy First Foundation, together with 19 co-plaintiffs (citizens), had been pursuing a large-scale lawsuit against the central storage of fingerprints under the Passport Act (Passport Litigation). This was a civil law case. Indeed, individual citizens could not go to the administrative court for this issue. Indeed, citizens could only go to the administrative court if they first provoked an individual decision to do so: an administrative refusal to issue a passport (or ID card) following an individual refusal to be fingerprinted. Thus, one could sue under administrative law only if one was willing to go through life without a passport (or ID card) for years. Moreover, the provision in the Passport Act on central storage of fingerprints (Section 4b) was (and still is) not yet in force. The administrative court was therefore incompetent to review this provision. Moreover, direct appeal against legislation is impossible in Dutch administrative law (unlike in other countries). The administrative court could therefore only review art. 4b Passport Act individually and indirectly ("exceptively") against higher privacy legislation after this article would have come into force, so only after central storage (and exchange) of everyone's fingerprints a fait accompli would be. To avoid massive privacy violation prevent thus left only the civil court as the only competent court for Privacy First et al. After all, since time immemorial, civil courts have been the courts par excellence where national legislation can be directly tested against higher (privacy) legislation, even if that national legislation has not yet entered into force but still poses an imminent privacy violation.
Privacy First could (as a relevant foundation) pursue this case civilly in the public interest, on behalf of every Dutch citizen. Since the early 1990s, this has been possible through a special procedure in the Civil Code: the so-called 'general interest action' under Art. 3:305a of the Civil Code. The Supreme Court also seemed to have given the green light to this, at least until Privacy First et al. sued the State in May 2010. In July 2010, however, the Supreme Court broke through its earlier jurisprudence by declaring that interest groups would still only be able to go to the civil courts if there was no administrative remedy available to individual citizens. For the issue in our Passport Process, however, citizens could now precisely not to the administrative judge. So Privacy First et al still had a strong case. Moreover, the Supreme Court's new admissibility criteria did not seem to apply to general interest actions, but only to so-called 'group actions' (on behalf of a particular group of people rather than the entire population).
Incomprehensible Supreme Court ruling
In February 2011, the District Court of The Hague wrongfully declared our Passport Trial inadmissible. Privacy First et al subsequently lodged an appeal. Partly due to pressure from this appeal, the central (and decentralised, municipal) storage of fingerprints was (largely) stopped in the summer of 2011 and fingerprinting for ID cards was abolished in January 2014. A month later (18 February 2014), the Court of Appeal of The Hague subsequently declared Privacy First admissible - in the public interest - and judged that central storage of fingerprints violated the right to privacy. Interior Minister Plasterk responded not amused and demanded cassation to the Supreme Court. Against all odds (after all, Privacy First had virtually all the legislation, legislative history, case law and legal literature on its side), the Supreme Court subsequently declared both Privacy First and the 19 co-claimants (citizens) on 22 May last inadmissible. After all, according to the Supreme Court, these individual citizens can go to the administrative courts and this has also closed the way to the civil courts for Privacy First. This while in recent years it had become clear that our fellow plaintiffs not could go to the administrative court, at least not to review Section 4b Passport Act (central storage of fingerprints). In numerous administrative law cases, the administrative judges of various courts declared themselves incompetent to do so in recent years. For Privacy First as an interested organisation, the way to the administrative court was therefore not open either. That the Supreme Court now rules as if this were not so is simply incomprehensible. Moreover, litigating citizens cannot be required to go through life without a passport for years. Nor can citizens be required to have their privacy violated (fingerprinting and even storage) before they can have it tested. That the Supreme Court does seem to require this is not only incomprehensible (and contrary to previous Supreme Court jurisprudence itself), but also downright reprehensible.
Gap in legal protection
The Supreme Court's ruling creates a legal vacuum: to review massive, imminent privacy violations (such as central storage of fingerprints under the Passport Act), citizens and organisations may as a result be able to go neither to the civil court nor the administrative court. This hits a big hole in Dutch legal protection as it has been in recent decades. Although the Supreme Court referred the case to the highest administrative court (Council of State), it is highly uncertain whether the Council of State will still be able and willing to review the central storage of fingerprints under the Passport Act. The Supreme Court had rejected the State Council's opinion in a four current, parallel administrative law cases surrounding the Passport Act should therefore wait before ruling in Privacy First's Passport lawsuit. By not doing so, the Supreme Court has completely prematurely sat in the Council of State's chair, put the Council of State under intense pressure and is taking a huge risk. After all, should the Council of State soon rule differently from the Supreme Court (i.e. that the Council of State lacks jurisdiction in the matter), the Supreme Court will thereby make a gigantic blunder and the Supreme Court and Council of State will jointly create a huge hole in Dutch legal protection in violation of the European Convention on Human Rights (ECHR).
Privacy First litigation file submitted to Council of State
In recent years, Privacy First has already been substantively involved in the administrative law cases against the Passport Act that are now before the Council of State. Moreover, as a result of the Supreme Court's ruling, Privacy First will have the entire Passport Act case filed in its entirety (by the lawyer in one of these cases) with the Council of State. This is to strengthen the arguments of the concerned citizen against central storage of fingerprints under the Passport Act. After all, according to the Supreme Court's ruling, it is now up to the Council of State to pass judgment on this as yet.
Multiple violation ECHR
Privacy First et al. eagerly await the judgment of the Council of State. At the same time, Privacy First itself is considering filing a complaint with the European Court of Human Rights in Strasbourg for violation of art. 8 ECHR (right to privacy) as well as art. 6 and 13 ECHR (right to access to justice and an effective remedy). Despite the Kafkaesque anticlimax at the Supreme Court (and depending on the final verdict of the Council of State), a European condemnation of the Netherlands may thus be on the horizon.
Our Passport litigation has cost Privacy First a huge amount of money in recent years: at least EUR 100,000 (!) in legal fees, paid entirely from donations to Privacy First. For years this has weighed terribly on the limited resources available to a small foundation like Privacy First. On top of this, the Supreme Court has also ordered Privacy First to pay EUR 5,088 to litigation costs. In doing so, Privacy First does once again an urgent appeal for your financial support. Please deposit your financial contribution to IBAN: NL95ABNA0495527521 t.n.v. Stichting Privacy First, Amsterdam o.w.v. "Passport Process" or transfer your donation directly via our donation module. Thank you in advance for your help!
Update 15 October 2015: At the end of May this year, Louise van Luijk's lawyer submitted the full civil litigation file of Privacy First et al to the administrative judges of the Council of State. This is to strengthen Louise's arguments against the collection and storage of fingerprints under the Passport Act. Louise is one of the Dutch citizens who have been litigating against this under administrative law for years and have had to go through life without a passport during that period (for litigation reasons). Click HERE for an earlier report on Louise in the March 2011 TV programme VARA Ombudsman (from 21m11s). This week, Privacy First (on the advice of Stibbe Lawyers) additionally filed an independent request for joinder in Louise's case filed with the Council of State; click HERE for the entire document (pdf). Privacy First hopes that the Council of State will soon grant this request; partly in the interest of the admissibility of interest groups in this type of litigation. The court hearing in Louise's case will take place at the Council of State on Thursday 3 December next.
Update 4 November 2015: the Council of State rejected Privacy First's request for joinder almost immediately and barely argued; click HERE (pdf). On this, Privacy First filed a complaint and request for reconsideration with the chairman of the Administrative Law Division; click HERE (pdf). Subsequently, the Council of State rejected it again, arguing that "it is impossible to see for what reason Privacy First did not apply earlier. in addition to conducting the civil proceedings, could have turned to the administrative court in order to participate in the administrative procedure"; click HERE (pdf). Privacy First interprets this to mean that Privacy First would have been admissible at an earlier stage under administrative law and will take advantage of this in future court cases. Also, according to the Council of State, Privacy First could apparently have litigated both civil and administrative law at the same time. As far as Privacy First is aware, this constitutes a break with the prevailing legal doctrine that the same issue cannot be litigated by the same party in two different courts at the same time. (For this reason, Privacy First et al had chosen to litigate purely civil law since 2010). Privacy First will also take advantage of this knowledge or trend change in new litigation. However, Privacy First is surprised that the Council of State considers it already too late for our joinder in this case. Art. 8:26 Awb Indeed, it literally provides that "the administrative judge until the close of the hearing ex officio, at the request of a party or at their own request, may give interested parties the opportunity to participate in the proceedings as parties", or even until the closure of the hearing on 3 December as. Apparently, the State Council simply did not feel like it. Privacy First nevertheless views the State Council's verdict on the earlier (de)centralised storage of fingerprints under the Passport Act with confidence. In the absence of a critical judgement on the matter, for the Administrative law litigants (including Louise van Luijk) also opened an extremely promising avenue to the European Court of Human Rights in Strasbourg, both in relation to the right to access to justice and an effective remedy (Articles 6 and 13 ECHR) and the right to privacy (Article 8 ECHR).