Merits of the Case
This issue at the core of this case is the actual existence and scope of a “State of emergency” and to what extent there is actual justification, in reality and based on facts, the employ a special law, the Wbbbg (Wet buitengewone bevoegdheden burgerlijk gezag or Law on Exceptional Powers of Civil Authority) for the mandatory Covid-19 curfew measures on 17.5 million Dutch citizens, that are enforced and penalized, in addition to all other Covid-19 “emergency measures” in place, which are based on the Public Health Law (Wet Publieke Gezondheid).
The Judge at First Instance ruled that such power in view of all the relevant facts does not exist and that the legal instrument used by the Dutch Government to enforce such curfew on the entire Dutch population was erroneous and cannot be used for such measures. It was ruled that the curfew was unlawful, null and void, and be terminated at once.
Demissionary (outgoing) Premier Mark Rutte and Minister of Justice, Ferd Grapperhaus, immediately held a press conference, claiming that the judge’s ruling of the unlawfulness of the curfew rule, was “a real and unexpected setback”, that no matter what (even if judged unlawful), the curfew should be maintained at all costs, and he said that they will adopt a new emergency law, that would be submitted to the parliament the next day, to incorporate the curfew rule in the Public Health Act, which he assured the press and public, “could be adopted very quickly” (apparently a priori convinced that both chambers of the parliament would vote favourably – by which, in public view, he undermined the trias politica and rule of law).
The State then successfully appealed the enforceability of the judgment within 4 hours at the Higher Court (which is an unicum in the Netherlands). So a session took place that same day of the judgment to appeal and prevent merely the enforceability of the judgment, meaning: even though the curfew rule was judged unlawful and null and void – the State and police would continue to enforce it as if it was lawful! Accordingly, the Higher Court judged to maintain the enforceability in favor of the State just before 21.00 so as to ensure that the curfew rule still would apply that very same day, and be maintained until the merits of the case were revisited, which the current session – 3 days later.
This session was broadcasted on Dutch television, and the following is a transcription of the pleading of the case by Mr. Jeroen Pols against the claims of the State on the curfew rule. It is legally watertight, brilliant and devastating for the establishment: the future may judge this moment as historical.
The only response left for the government was to kill the messenger in order to prevent the message from spreading and being taken seriously. However, intelligent and honest people cannot be fooled by such tactics, they are then rather confirmed that the value of the legal case made, must be true.
It is translated in English and Spanish, as it is clear that due to international law, based on the WHO International Health Regulations (IHR), the case discusses relevant legal issues that apply worldwide. The IHR are implemented in each WHO member State, as this is an obligation, and therefore the same legal arguments apply, and could be used elsewhere.
First session: Mr. Jeroen Pols: Viruswaarheid / Virus-truth: love, truth and patience.
Honorable Chairman, Honorable Court
Before I start, I would like to emphasize for everyone watching, that we (Viruswaarheid/Virus-truth foundation) do not deny the existence of the Covid-virus and that there are certain categories of persons with an increased risk to be severely effected and sickened by the Covid-virus, and even die as a result. And I would like to emphasize that everyone that is confronted with such a horrible death, that we do not deny and know that that is obviously a heartbreaking and painful loss. The issue here is, however, no matter how you feel about the virus or the Covid-regulations taken, that ultimately everyone should desire the observance of the law and constitutional human rights, and the safeguarding of the rule of law. This as prior remark.
Furthermore, I would like to express my deepest respect for the Judge at first instance, Mr. Hoekstra, who not only issued a just, but also an incredibly courageous, judgement. We already brought 10 civil law suits this year against the various Covid-measures (regulation) and this is the first judgment that genuinely takes into account the people: the rights and lives of 17.5 million citizens who now approximately since one year live in a society that is undeserving of the rule of law. Governance and policy should be just and human. A policy that ignores crucial interests, like the happiness and well-being of 17,5 million people, – is – injustice. A policy that denies children and young adults their carefree environment and childhood, and frustrates their future perspectives, – is – injustice. This inhuman government policy destroys the future of an entire population. Ms. Judge Hoekstra filled many people again with hope that within the judicial power there are still persons that safeguard and defend their interests. Everyone is faced in life with a situation to choose to do the right thing: she did that!
The State, on the other hand, should also have done the right thing, but failed to do so … Namely, to respect to judgement of Judge Hoekstra. (instead, they followed a legally dubious route to prevent enforcement of the judgment ab initio).
In a constitutional state based on the rule of law, a government does not imprison its own citizens in their houses. It is disgraceful and shameful that our government representatives believe that they have a mandate to take such measures. This judge eventually choose justice for a society in which injustice has become the measure of all things. But even if the underlying legal premises of the verdict of the Judge will fail (be successfully challenged), even then it is clear upfront that all the adopted measures (Covid-regulations) are legally inadmissible.
The most important question has never been asked by the policy makers and the parliamentary people’s representatives : namely, “do we in fact have the power to take these measures?” And this has only one answer and that is: NO.
The Covid-regulations constitute an unacceptable violation of the European Treaty on the protection of human rights (EVRM/ECHR) and also the International Treaty on the Protection of Civil and Political Rights of the United Nations (ICCPR), and, furthermore, the International Health Regulations (treaty) of the WHO. Additionally, the regulations are irreconcilable with the legal regime of the Public Health Act (Wet publieke gezondheid). I will explain this further.
The Covid-regulations are consistently justified by reference to article 2 EVRM and article 22 of the Constitution. The State simply claims that it has to adopt and enforce these Covid-regulations (rules) since it is under an obligation to safeguard the health of the public. But this proves to be a reflection of a rather perverted interpretation of the health concept.
Thereafter, I will tackle the basis of the entire policy, namely the advisory opinions of the OMT (special pandemic/Covid-19 public health advisory organ to the State) and the extent to which this can legally constitute the sole basis of the current State policy-decisions. I will then submit my conclusion that there is only one solution, namely, full rejection of the claim of the State (to retain the mandatory curfew instituted by abuse of a non-applicable law circumventing the lex specialis).
WHO International Health Regulations and Public Health Act
Allow me to begin with the WHO International Health Regulations and the Public Health Act. The WHO International Health Regulations or IHR, constitutes the legal basis for combatting existing virus-induced illnesses. The Public Health Act (Chapter V) implements the obligations of the IHR treaty. All WHO member States (currently 194) that have ratified this treaty in 2005 have submitted themselves to an obligation to ensure conformity with the provisions of this treaty (pacta sunt servanda) and adjust their domestic legislation accordingly. And what is the object and purpose of this treaty? (cf. 1969 Vienna Convention on the Law of Treaties). That will surprise you!
The objective is to prevent that our entire societies will be disrupted by virus-induced illnesses. And what is it our policy-makers do? They adopt and enforce Covid-regulation/measures that result in precisely that which is to be prevented under the treaty and implementing law, namely, the total disruption of the society. Ergo: This policy is therefore already in its entirety in violation of this treaty (i.e., its very object and purpose).
Neither the IHR nor the Public Health Act provide a legal basis for these Covid-measures. The State operates here in a total legal void. The IHR is based on measures with “full respect for the dignity, human rights and fundamental freedoms of persons”. The IHR does not allow a harsh and repressive policy by which fundamental human rights are violated and/or perish on a large scale. The battle against virus-related diseases is no excuse (justification) for unbridled limitation of freedoms. In this context, the WHO has emphasized that in case there is a serious situation that requires emergency powers, then there should be first an assessment (scrutiny) based on the requirements of article 15 EVRM (on permitted exceptions to human rights during public emergency) and the criteria of the Siracusa Principles. I will further elaborate.
The Public Health Act therefore does not provide a legal basis for the Covid-regulation (social distancing, closure of buildings, schools, restaurants, non-essential stores, mandatory face masks, prohibition of gathering in public places, protest, stay at home, etc and, case in question, mandatory curfew). Chapter V of the Public Health Act, implementing the WHO IHR, is focussed strictly on very dangerous virussen that result in mass illnesses. It involves firstly those viruses like ebola with a lethality rate up to 90% or other disease (like smallpox or SARS-1) with a mortality rate of 10 percent or more. The current “emergency law” under which the measures are established, is incorporated in this very Chapter V. However, SARS-CoV-2 with an infection fatality rate (IFR) of 0,23% almost 500 times less fatal than ebola (its even more!). Despite that fact, our policy-makers have (unlawfully) brought SARS-CoV-2 within the scope of the Chapter V.
Moreover, the Public Health Act does not provide for generalized and large-scale measures and repressive policies. That is logical and self-evident. If a dangerous virus is spreading in society, then government action is limited to provide advice on the basis of voluntary cooperation: People in general are afraid to die. So if there is such a dangerous disease, the streets will be empty – without an entire army of police that will have to fine everyone into abeyance of that advice.
The Public Health Act is therefore a lex specialis. This means that other laws and regulations cannot be used to take measures and create powers to combat virus-induced illnesses. Every single measure will have to find its legal basis in first instance in this Act, lex specialis. During the negotiations of this Act, the late Minister of Health, Dr. Else Borst (cruelly murdered in 2014), has purposely made a choice for “coercion as ultimate last resort” and to ensure safeguards in the law against taking such measures lightly. The Public Health Act therefore provides only for the application of coercive measures in respect of individual cases.
This is, for instance, applicable in case it has been confirmed that a person is suffering from a dangerous virus-induced disease (by a physician), who can then be brought into mandatory isolation or quarantine. But, this person is endowed in such case with the right to a lawyer, provided for by the State, and a judicial review based on due process. (in conformity with ECHR and other human rights treaties). However, a serious problem arises if the Government takes away the freedom of its population to combat a relative harmless virus. Like the Covid-virus in casu, that poses no health threat to 98% of the population – an absolute fixed number by the RIVM (Dutch National Institute for Public Health and the Environment /Dutch CDC). Of course, then indeed you need an entire army to force people to abide by the rules that destroy their lives and livelihood. But then you have arrived in a de facto dictatorship!
The current Covid-regulation, however, have imprisoned 17,5 million people in their own homes without due process, without a legal assessment by a judge and without the legally required assignment by the State of a lawyer.
Another fundamental problem is the following: The Public Health Act is restricted to combat a virus-induced ILLNESS and not INFECTION. The law (Chapter V) does not provide a basis for combatting infections (not resulting in sickness). That is de facto prevention. You cannot imprison people based on prevention; constitutional rights cannot be violated or restricted on the basis of preventive measures.
The Act is also not intended for the reduction of “R” values. That is absolutely not possible or allowed. Further is the application of this Act (lex specialis) limited to the existence of an epidemic (or pandemic), which certainly is already no longer the case; because, based on Article 1 of the Act an epidemic is defined as a significant increase within a short time of new PATIENTS suffering from a virus-induced sickness. Note: Patients! Patients is something different as infected persons. Infected persons are not sick persons.
As of last year March/April, the epidemic has de facto passed and thus every legal basis for taking emergency/coercive measures is since then missing.
And, moreover, the Act is not intended to be applicable for the reduction of an ICU capacity problem. If policy-makers first cut back all ICU places in hospitals, which has occurred over the last 5 years, then they cannot subsequently imprison an entire healthy population to solve this problem. Then, instead, they have to ensure that there will be sufficient hospital (ICU) beds. A year has passed … what was done to enlarge the capacity in hospitals? Nothing! The policy-makers rather keep the population in strangulation.
What here occurs therefore is a flagrant violation of the law. Positive tests are not patients. I cannot repeat it enough. To count the number of positive tested infected persons is absolute nonsense! The Act is based on patients (persons that are ill), and persons who have no symptoms – are – not – ill, and so there is no need to test them. Here I refer to the words of the outgoing Premier Rutte who expressly mentioned on television that “it is useless to test persons that have no symptoms” (when asked whether he ever had done a Covid-test himself). But this is exactly what we massively do at this moment!?!
Merely on this ground already, the mandatory curfew-rule has to be abrogated. This applies, by the way, to all current instituted Covid-measures. Well-meant urgent/strong advice remains of course always possible.
Violation of ECHR and Siracusa Principles
Then I arrive at the violation of EVRM (ECHR) and Siracusa Principles. The Dutch population is de facto living in an emergency situation since March last year. The measures that have been taken under the emergency Covid-regulation added to the Public Health Act, constitute emergency rules that normally can only be taken on the basis of article 103 of the Constitution. This was not done.
The curfew-rule has to be adopted within context with all other Covid measures. In an emergency situation, a State can only take measures that infringe on fundamental human rights and freedoms, provided the stringent conditions of article 15 ECHR are met. The fact that this article 15 ECHR is applicable, can also be discerned from the statement of the Raad van State (Council of State), which underlines:
“A number of Contracting Parties has informed the Secretary-General of the Council of Europe dat they will enforce Article 15 ECHR in relation to the Covid-crisis in order to divert from certain ECHR-rights. The Netherlands has not done so. The rights as provided within the ECHR therefore are here therefore fully applicable.”
The Netherlands therefore should have informed the Council similarly, but failed to do so, and thus the Government is in violation of ECHR and is acting unlawfully.
These prerequisites for limiting human rights under article 15 ECHR are further subject to the specific criteria/requirements of the Siracusa Principles; adopted under the auspices of the Human Rights Commission of the United Nations. These Principles were developed in response to the fact that emergency coercive measures are a favorite tool for abuse by dictators, especially in South America. At the very initiative of the Netherlands in 1984 these Siracusa criteria became also applicable to the ECHR (European Convention on Human Rights).
By the way, I have been in contact with Professor P.J.G. Kapteyn yesterday who has signed the Siracusa Principles on behalf of the Netherlands. He has reached the age of 92 years and unfortunately his energy failed him to personally attend here to elaborate on the Siracusa Principles himself.
Only under stringent conditions, States are allowed to take measures that violate fundamental human rights. First of all, there needs to be an “exceptional or actual and imminent danger which threatens the life of the nation”. This is the case if the entire population is threatened and their physical integrity is endangered.
In casu this is not the case. 98% of the population will not or hardly develop any symptoms after an infection. Therewith already, the most important condition has not been met.
Another required condition is that the effect of the measure/rule adopted has to be measurable. That is of course self-evident, since otherwise you cannot determine whether the measure is effective. The State has admitted that the effect (of the mandatory curfew) rule cannot be measured; as this is not possible for the very reason that this rule has been implemented jointly with the advisory one-person visit rule.
Furthermore, there have to be initiating factual events. The mandatory curfew rule was not initiated by a factual event. This measure was only be adopted in succession to other ones within the continuation of a policy executed for almost a year. However, an “emergency measure” is not a policy instrument but should only be applied with the objective to counteract imminent State emergency situations resulting from factual events. It is evident, that after one year, there is not a “sudden” occurrence which necessitates the enforcement of an emergency measure (that violates human rights).
I want to further stress here, that possible adoption of a curfew-rule was already announced on 14th of December 2020, and then discussed as intended to be instituted already beginning of January. So this is not a measure that the government suddenly and promptly adopted directly in response to a sudden state of necessity or urgency: their intention to do so existed already long before that time, which in itself is curious!
Also there needs to be a direct threat of an exceptional scale. This is absolutely not the case. The curfew rule is justified by the recommendation of the OMT that pages-long deliberates possible threats from virus-mutations from various countries and resulting number of potential infections. We just heard a long story from the State lawyers about mutations and infections, you name it … you can easily talk hours about it. It pictures dark clouds that will gather together, but these clouds do that already for 11 months – and no rain is ever pouring from them.
Every measure should be justified by directly countering an actual and clear (identifiable) existing or threatening danger; and cannot be instituted merely in reaction to the mere fear of such a potential danger. The State thus confuses a “potential danger” with “an actual real threat”. A potential danger involve stories about viruses that may – or may not – spread faster and that potentially in the future perhaps may lead to an extra burden of the hospitals. A real imminent threat involves situations like a dam/dike bursting or a wave of 50 meters high heading our way from the ocean (tsunami).
Also, an actual emergency situation is always easily recognizable; one does not need hours of story telling about viruses that mutate. A real pandemic is identified by ongoing moving ambulances from and to hospitals, funeral homes faced with extreme overwork, and a society in total panic. An emergency situation is recognized by observation of the reality, and not flowcharts or models and recommendations based thereupon.
Moreover, an emergency measure can never be applied for the purpose of a “behavioral experiment”, whereas the curfew rule is exactly intended to be just that, according to the policy-makers. That is a more than curious argument for imprisoning an entire population.
In addition, other criteria have not been met: the severity, duration and geographical scope of every measure should be strictly necessary to avert the imminent danger to the State and should be proportional in kind and extent of the measure. The necessity for taking an emergency measure should also be thoroughly examined. A measure (violating human rights) is not strictly necessary in case less stringent measures are available to avert the pending dangers. And the concept of “strictly necessary” should be objectively applied. The burden of proof of the necessity for the measure lies with the State.
And here I like to add, that currently something is “strictly necessary” because the State believes or simply states that it is necessary; the required substantiation thereof, is however virtually always lacking.
Finally, the WHO International Health Regulations should be duly taken into account. And most importantly, the declaration of an emergency should be in good faith on the basis of the objective situation to establish to what extent this in actuality forms a threat to the very existence of the State. And as before, the State will surely claim, “we did not declare a State of emergency”, and that may be true, but in fact we are confronted by an emergency (through all measures taken), which makes it only worse.
All the above mentioned prior conditions were never even discussed let alone met. And it is striking that within the defense of the State, also currently, not one remark is dedicated to address international obligations, despite the fact that this has been raised on numerous occasions. This is further remarkable, since these international conventions are an integral part of our legal system and are legally binding.
Again, a necessity is not a necessity by merely proclaiming it as one. In short, the curfew rule, and all other Covid-measures, constitute a flagrant violation of international human rights treaties.
Article 2 ECHR, article 22 Constitution
Now I will discuss Article 2 ECHR and article 22 of the Constitution. The State refers in each lawsuit to its obligations to take measures in order to safeguard the public health. It has thus become the silver bullet for justifying every conceivable limitation/violation of fundamental human rights.
It is deplorable, however, that policy-makers did not take this obligation more serious in the past. The cutbacks in the health care and 50% reduction of ICU beds in the past years are, in fact, difficult to reconcile with this obligation. But the pressing issue here is the limited interpretation of the concept of health. The Cabinet and the Parliament are apparently of the opinion that public health equals the absence of a virus. Public health is however a much broader concept. Since 1972 the concept of health has been recognized as an indivisible trinity: people have apart from physical health, also a mental and social health. But the current Covid-measure are devastating for the mental (psychological) and social health. The policy pursued has serious ethical concerns and its devastating severe consequences are clearly visible. I refer the Court to the productions 24, 27 and 28 on this matter, research conducted by Professor Michaela Schippers, in which such consequences for the population are scientifically substantiated related to social distancing, isolation, the prohibition of group formation, the mandatory imprisonment in nursing homes, large scale closure of schools, businesses and other institutions, and how this kind of policy affects our children and younger generations. This is downright criminal. Also the curfew rule is directed at that generation. We are damaging our children and youth for the rest of their lives.
And in conjuncture with this, for almost a year now, people are living in a constant atmosphere of terrorizing fear about viruses, and suffer from the continually persisting stress related to their financial and existential insecurities and diminishing future perspectives. The policy inflicts an unthinkable damage to the social and mental well-being of the entire population.
Also the curfew rule was adopted within the scope of public health. But a prerequisite for the lawfulness of such measure is that the overall health gains and losses should constitute a positive health saldo for the entire population. Nothing indicates that such assessment between health damage and health gains were ever researched. Meanwhile it is evident that this final balance is nothing less than catastrophic.
Professor Michaela Schippers analyzed the integral health consequences due to the State pursued Covid-policies and measures. In the first lockdown, 40,000 children suffered child abuse; more than 1 miljoen treatments were postponed or cancelled, which also involved persons with serious illnesses or postponed diagnoses (e.g. cancer-related), etc. It is clear that we will pay an astronomical price in human life: and that is not the price we will pay for the Covid-virus, but the price we will pay for the enforced Covid-measures itself.
Finally, also the economic consequences have an impact on public health and well-being. E.g., gross domestic product that has decreased substantially; mountains of debts; enormous increase in unemployment and in number of bankruptcies. The extent of the damage is barely conceivable, without any clarity as to what the precise identifiable advantages are in return. This balance was never researched or analyzed: the State just “does something” – acts in an absolute vacuum.
Now I will discuss the OMT recommendations. These constitute the sole basis for Government policy. The State is under the impression that it is allowed to blindly follow all these recommendations. But the question is whether this is wise. We are meanwhile a year ahead and the problem only seems to increase – meantime we are just repeating more of the same policies in the faint hope that we will succeed perhaps one day in the future.
Meanwhile the OMT also regularly alters their objective for adopting and maintaining Covid-measures: first, the number of available ICU beds had to be decreases; then, and we all still remember this, we had to “flatten the curve”; after that, the “R” number had to decrease below 1; when it turned out that it was below 1 already, still that was no justification for abolishing the stringent measures, because if this objective was met, then suddenly popped up “the Signal Value”; and after that, we had to await a vaccine in order to get back our freedoms; and now the vaccine has arrived, we have to wait until sufficient people have been vaccinated; and then it turns out that the vaccine does not fully protect against positive infections, so now we also need a curfew rule because there are also newly mutated viruses! All the Covid-measures should be retained according to the OMT, whatever happens. Again, we are nearing almost a year of these measures without any future perspective of relief.
And surely if the British virus-mutant is under control, then arrives the Brazilian variant or the South African variant, because these are extra extra dangerous. We then have another 200 countries to go that all have their own variants. And after that, perhaps we go local, so we get the “Gooise” or “Hague” variant, the latter allegedly most dangerous of them all :-).
Never ever any prediction came true. Everything is 50-50 (Lit: “It can freeze or thaw” Dutch expression) – as you yourself Honorable Judge, summed up all the various OMT recommendations. But an OMT recommendation can never be the sole basis for a Government policy, the Council of State points this out explicitly: The State has to make its own independent assessment. And that always should include a legal analysis before such recommendations can be implemented.
For that reason, I was surprised by the remarks by the State lawyers, “well we are lawyers, we cannot judge these OMT recommendations”. But that is their very profession: lawyers if confronted with the OMT recommendations, before adopting and executing those, should examine whether such recommendations are legally allowed and justified. Because we live under the rule of law, and as such, all laws constitute the legal framework within which we are allowed to operate; outside thereof you are legally off limits!
This applies, by the way, also to the “margin-of-appreciation”: another silver bullet to which the State constantly appeals. Yes, there is a broad policy freedom; but also this freedom is limited by boundaries of law and within the legal framework; outside of that – there is no margin-of-appreciation!
What is also missing are facts. And then I refer to the stories we just heard by the counterpart, I listened to it very carefully, but I have no idea what exactly was factually said. I hear stories about mutant-viruses, spread of viruses, infections, etc., but concrete facts are lacking. According to the OMT there is a great pressure on health care services, “and that is the reason for which we are doing it all, no?”
But if there is in fact currently an exceptional situation, why does the OMT not provide an overview how this situation compares to previous years? That is in fact the only way in which you can determine whether there is indeed an exceptional situation now. I put this forward in the session of every single lawsuit : those figures are not available and both State and OMT refuse to give any insight in this! Whereas, should I be on the side of the State, it would be the first thing I would submit: “Mr Pols you say there is no exceptional situation, but see here, the ICU have an overcapacity of 200% whereas in previous years it was only 80%”. Then, perhaps, you may have a story. But this I have never heard from the State or OMT.
The opposite is true: hospitals are not flooded with more patients than previous years. And that is a fact. At this moment, only half of the total ICU capacity is occupied. And in addition, I refer to the OMT recommendations of April, where it was stated that should ICU capacity be reduced under 700 beds – now occupied by Covid-patients – then hospital personnel can again take leave … Honorable Judge, we are now below 500 beds and we throw our society in an even more restrictive lockdown! If you still understand this … I don’t.
Factually, nothing exceptional is happening. That does not mean that nothing is occurring, since we have of course a structural problem due to our Cabinet engaging in mismanagement: ICU capacity that was seriously cutback and secondly, the health care services now being jeopardized by the very government requirement for the continuous PCR-testing. We are massively testing health caregivers, who have no symptoms! And as Rutte himself admits, “he never had himself tested, since this is nonsense if you do not have symptoms”. However, the hospital personnel does not have that choice and is legally required to regularly take those PCR-tests (that are invalidated anyway – contested by another lawsuit). And if they have a positive test, the they are required to home quarantine, and thus the health care is again reduced by one caregiver. Ergo: this is a self-induced (created) problem by the government policy!
So the question is why do we sent those much needed and healthy health caregivers home?
Another question is: why does the OMT base its policies and recommendations on 100 thousands test-results of persons who are not sick, who have no symptoms? What value do these recommendations have if this meaningless fact constitutes its very basis? Again, since I cannot explain it more simply than Mr. Rutte did, “it is not useful to test people who have no symptoms”. So why are we doing this? I say this, because exclusively this testing is the fundament of the entire policy and related measures, including the recently implemented curfew rule!
Another problem is that the OMT does not research whether and to what extent, less stringent measures are possible. What’s up with new remedies, such as Ivermectine, which usage has proven to reduce ICU requirement up to 80%! How is it possible that these alternatives are not researched? But then vaccines can no longer be sold – this can be a possible motivation …
Then the most important issue, and that is the requirement for proportionality. The Council of State yesterday pointed this rightly out. If you take measures to shut down a whole country for an emergency, the first thing that needs to be analyzed is what exactly is this potential danger? What is the potential disease burden of this virus? How many persons can actually end up in the hospital, if we take no measures at all? This seems to me the first necessary prerequisite to make a calculation before taking Draconian measures. “Because we all do it for to release pressures on health care after all”, which we are being told.
In all the recommendations, and also now, I never hear anything about it. I only hear about very high waves – but how high – is never revealed. And this is precisely the core of the case – this is the basis on which the policies need to be evaluated. Therefore I would like to hear from RIVM, who is also present, and the State, how many patients does this involve exactly? Because I cannot imagine that no evaluation had been made.
And really, basically it is very simple: for 98% of the population, the virus is almost completely harmless, the IFR is fixed at 0.23% – that is the rate of people that get infected and die as a (allegedly direct) result. But this rate is equal to the common flu! Then the only question left, is how many people can get infected?
I hope to hear from Professor Pierre Capel (witness for Virus-truth) and the State, what that percentage exactly is – since in case of common viruses, normally only maximum of 20% will be infected. I presume that the RVIM conducted an analysis on how many persons already have been infected (relevant to establish whether and when this 20% has been reached).
By the way, last year, we also sued the RIVM and requested this related research, analyses and data (conducted by our tax-money), but RIVM refused to submit those to the public! It only published a few meaningless results of those analyses, nothing more. These are essential analyses, because if you don’t know how many people were already infected by Covid, then you are sailing blindly, without any fundament for your policy. But this should be the core issue: what is the potential scope of the expected (health /ICU) capacity problem?
The next concern is the democratic legitimacy, also since we already have heard a lot about that. Both the State and the Judiciary like to appeal to it. But democratic legitimacy means more than a favorable vote by parliamentarians. Anyone following the debates can observe that those parliamentarians mainly exhaust themselves in crying out for taking away even more freedoms and adopting even more Covid-measures. But never ever have I heard one parliamentarian ask the question: How these measures relate to international obligations?
Article 27 of the 1969 Vienna Convention on the Law of Treaties provides that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”.
A State cannot invoke its domestic laws and regulations to violate obligations of laws of a higher order. And, mind you, the very issue at stake here is fundamental human rights! And still not even one parliament-member ever asked a question about this (with the exception of Forum for Democracy)? Also none of policy-makers ever raised this. Absolutely no legal assessment has taken place in respect to all these Covid-measures!
And precisely for that reason alone, “democratic legitimacy” cannot be a reason for the judiciary not to intervene – on the contrary – it is exactly in this respect that the judiciary is obliged to fulfill its function. The judge has to dismiss (swoop down) such unlawful regulations!
And with that, I will now reach my conclusion:
This case does not only concern the curfew rule. It involves our entire society, the lives and well-being of 17.5 million people. Do we consider it worthwhile to maintain our society based on the rule of law and its associated freedoms and human rights for our children? Do we accept a government that only finds solutions in inhuman and repressive solutions that take away our freedoms, dignities, and very humanness? Do we accept measures that leave people to die loveless and in loneliness and that damage our children and young generations? Do we accept that the entire population is imprisoned by its own government? Do we accept measures that endanger the well-being and existence of millions of people? What this government does, is not possible and allowed. We can no longer view this as mere mismanagement – the person responsible for this will, in my view, one day be held criminally accountable. And the same applies to those people who facilitate this policy.
International treaty obligations do not leave you, Honorable Judge, with a choice. You are, as judge, obliged to abrogate and annul legislative and other measures in existence which violate those directly binding treaty obligations. Neither the Cabinet nor the Parliament has the power to set aside those international treaty obligations.
Judge Hoekstra made a courageous and just decision (to annul the curfew with immediate effect) but the question is of course, Honorable Judge, what will you do? Will you make a decision on behalf of the interest of the people – or will you facilitate these inhuman policies? I rely on the fact that you will do the right thing and reject the claim of the State.
In that case, I would like to ask you do this on the basis of the ECHR and the IGR (WHO International Health Regulations), then perhaps the Parliament will likewise understand that the curfew rule (now imposed by ministerial decree) can also not be made into a law …!
Thank you for your attention.
Mr. Jeroen Pols – February 19th, 2021