Nederlandse grondrechten: klaar voor de toekomst?: Modernisering van grondrechten in de Grondwet in het licht van het EVRM en het EU-Grondrechtenhandvest

Abstract

The fundamental rights in the Dutch Constitution are urgently in need of amendment. At present, they are not in line with developments in technology and society. Some fundamental rights are formulated in such an outdated manner that they are barely comprehensible. Consider, for example, the right to freedom of expression. In the Constitution this right is described as ‘the freedom to publish thoughts and opinions through the press’. Is it possible to invoke this fundamental right in cases that involve spreading fake news or comments that incite hate on the Internet? And what effect does this fundamental right have in relation to legislation that forces social media platforms to apply filters in order to protect copyrighted materials? There is no clear answer. Other fundamental rights also display outdated formulations and a lack of practical manageability. The right to secrecy of communications, for example, is unable to provide adequate protection from the large-scale interception of communication data by government institutions. Moreover, a number of important fundamental rights are not even included in the Constitution. This applies for instance to the right to a fair trial and the right to good administration. The latter right requires that the government acts impartially and with due care towards citizens. This vague and incomplete protection of fundamental rights in the Constitution affects its very raison d’être. The Constitution is a legal remedy to safeguard the freedom of citizens. A powerful and unambiguous protection of fundamental rights is therefore imperative. The fact that the current fundamental rights no longer fulfil this role is unacceptable. Countering abuse of power by the government, after all, fosters citizens’ trust in the administration; trust that is necessary for the acceptance and effectiveness of government action. In a democratic state under the rule of law, like the Netherlands, this is essential. Thus, the catalogue of fundamental rights in the Constitution must be updated. This doctoral thesis sets out arguments for this position, and offers concrete proposals to achieve this modernisation.