On Feb. 16, 2021, the District Court of The Hague ruled that the curfew should be revoked immediately. This was in response to a case brought by the Virus Truth Foundation. Omgevingsweb spoke with Willem Van der Werf, partner at Van der Feltz advocaten. Where did it go wrong, how could it have been done differently and what does this mean for the curfew?
'The curfew was established under the Extraordinary Powers of Civilian Authority Act (Wbbbg), part of the emergency law. This law must first be put into effect by Royal Decree on the Prime Minister's intercession. Subsequently, the Minister of Justice and Security can take measures in case of extraordinary, urgent circumstances, without the prior approval of the Senate and House of Representatives. This may include restrictions on outdoor sojourns. A proposal for an extension law must then be sent to the House of Representatives. This formed the basis for the curfew imposed from Jan. 23, 2021: between 9 p.m. and 4:30 a.m., it is forbidden to go out without a valid reason. The court ruled yesterday that this basis is incorrect. The main reason given by the court is that there were no such extraordinary and, in particular, urgent circumstances to justify this measure. There was no acute emergency. For example, we have been dealing with corona for almost a year now, and the curfew was also a measure that had been considered for some time. The judge also referred to the criticism of the Raad van State. The measure was discussed in advance by the House of Representatives and that does not reflect the urgency.
The second argument on which the court relies is the democratic deficit. If you want to introduce a measure like this, the law must be amended with the consent of both the Senate and the House of Representatives. That has not happened now. There was a debate in the House of Representatives prior to enactment.
What does the Wbbbg say about this? A separate law must be brought into procedure to extend the measure, otherwise it will expire. The point is that although the law has been brought into procedure, it has yet to be approved by the Senate. Of that, the judge says "that is not possible. In doing so, the judge also refers to the critical advice of the Raad van State. The latter also misunderstands why this route was chosen, and not an urgent amendment of the Temporary COVID-19 Measures Act.
What the court additionally allows for is that the State has a wide margin and, moreover, broad powers to deal with the coronapandemic. The curfew is a very far-reaching restriction of freedoms, while there are other means. It has not been sufficiently demonstrated that this measure is proportional, and that it could not have been replaced by less onerous measures.
'The cabinet could have chosen to declare a general or limited state of emergency at the very beginning of the corona crisis. That way you could have put a number of laws out of effect, and you could have more easily introduced a measure like curfew, for example. Then the cabinet could have chosen to activate the Wbbbg as part of the state of emergency, that too did not happen. The Cabinet believed that declaring a state of emergency was unnecessary and would cause too much unrest.
The system of directions to the presidents of the Security Regions to adopt emergency ordinances was then chosen. On these emergency ordinances were initially based the measures to combat the corona crisis. However, these were legally inconclusive and in part in violation of the Constitution. Gradually you saw that a number of freedoms returned, including those based on freedom of religion. The measure on limiting the number of people behind the front door was also dropped.
In the end, the conclusion was, I think correctly, that the system of emergency ordinances was unsustainable, and that there had to be a proper legal basis for combating the corona crisis. With that, it was no longer the existing Public Health Act that provided the framework for the Minister of Health to act, but the Temporary Measures COVID Act-19. That provided a number of temporary additions to the Public Health Act with broad powers for the Minister of Health, Welfare and Sport, the presidents of security regions and mayors to take action. The emergency ordinances lapsed after the Temporary Measures COVID-19 Act came into effect.
'The House of Representatives decided to delete the part of the bill that would give unlimited powers to the Minister of Health, WVS, for example, to take measures or still prescribe additional emergency ordinances to combat the coronavirus. These powers would come on top of the temporary amendment to the Public Health Act to give more leeway to the Minister of WVS but also to the mayors and presidents of the security regions. This is precisely where the House of Representatives drew a line through an amendment. The current powers do allow for restricting the number of visitors to homes and streets, but not for declaring a curfew. This made it necessary for the cabinet to look for another legal basis for a measure like curfew. For this, the Wbbbg, as part of the emergency law, seemed to offer possibilities. The Advisory Division of the Raad van State was already critical of this in its opinion of early February. Again, the main arguments were that there must be an acute emergency situation. The fact that the cabinet debated extensively with the House of Representatives prior to the curfew coming into effect, and the fact that the possibility of introducing a curfew has been discussed since as early as the fall, do not indicate an acute emergency situation, or an extraordinary circumstance. Indeed, the virus has been with us for a year: so why initiate this emergency law now? Despite the arguments put forward by the government about the seriousness of the situation and the scientific basis for the effects of the curfew, the judge did not go along with them.
'There are two options, both of which the Cabinet has put into effect. The first is to appeal the judge's ruling. A turbo urgent appeal has been filed. Further, the State has initiated an incidental proceeding to seek the suspension of the judgment. The court declared the judgment to be provisionally enforceable. In that suspension incident, the trial court decided yesterday, after weighing the interests of the parties, that the court's judgment be stayed until substantive appellate review of the summary judgment. That will happen in the near future. The curfew will thus remain in force for the time being at least. The substantive appeal will follow in the coming days. On Friday oral arguments will take place and shortly thereafter the court will render judgment.
The chances of the Cabinet winning this are difficult to estimate. I do have to say that so far the courts have upheld most of the measures taken by the cabinet to combat the coronavirus. There has been little attention to the rule of law in these rulings.
The second route has already been announced by the Minister of Security and Justice: bringing into procedure the emergency bill amending the Temporary COVID-19 Measures Act to still establish a sound legal basis for curfews. The bill goes to the House of Representatives today. However, the question is whether it will pass the Senate. Here the coalition parties do not have a majority. As time passes and fewer and fewer infections are recorded, the need for the curfew is felt less. So it will remain exciting in the coming days.
