The Role of Dutch Courts in the Protection of Fundamental Rights

A description is given of the genesis and general character of the system of the protection of fundamental rights by the Dutch courts, as far as this system has been developed on the basis of Articles 94 and 120 of the Constitution and of case law. The way in which Dutch courts have dealt with the power that is codified in Article 94 of the Constitution is emphasised. Subsequently, attention is paid to the way in which the ECtHR has influenced the Dutch legal order, and more specifically the Dutch system of the protection of fundamental rights. This influence is dealt with by a discussion of some key rulings of the ECtHR.
Next some recent developments which might challenge the open character of the Dutch system of the protection of fundamental rights are discussed. Proposals to change Article 94 of the Constitution, and discussions on the curtailment of the competence of the ECtHR are considered and analysed. The analysis focuses on the consequences which the proposals and discussions might have for the system of the protection of fundamental rights by the Dutch courts.