The PILP is a project of the Dutch Section of the International Commission of Jurists (Nederlands Juristen Comité voor de Mensenrechten – NJCM). We help NGOs, interest groups, lawyers, scientists, and activists with strategic litigation for human rights in the Netherlands.
The PILP can adopt cases that meet four criteria. The cases must:
A) Protect, strengthen, and further develop human rights;
B) Apply to the Netherlands and/or Dutch policy;
C) Be in the public interest; and
D) Be strategic.
What can we not adopt?
The PILP is not a test case fund.
We have limited capacity and must choose which cases we adopt strategically.
The PILP aims to progress human rights. We do not help organisations or individuals whose whole or partial purpose hinders this progress or is aimed at hindering this progress.
Our four criteria
A) Protect, strengthen, and further develop human rights
The PILP understands ‘human rights’ to consist of human rights and civil rights as laid down in the Dutch Constitution, international and European conventions, and in directives and instruments. These include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Social, Economic and Cultural Rights, the European Charter of Fundamental Rights, and the European Social Charter.
B) Applicable to the Netherlands and/or Dutch policy
The PILP selects cases which apply to the Netherlands. This selection can include cases related to events that take place on Dutch territory or within the jurisdiction of the Netherlands. It can apply to acts by both public or private Dutch actors.
C) In public interest
The PILP selects cases which have potential to bring about structural social or judicial changes in legislation, policy, and/or practice. We choose cases which help us demonstrate to the broader public that human rights are the concern of all individuals, as well as cases where experts and interest groups confirm that a human rights violation is present.
For that reason, we prioritise:
- Subjects experienced as problematic by a large part of the Dutch population and/or which impact a large part of the people present on Dutch territory; and
- Subjects which are not well-known by a large part of the population but impact a specific minority.
We can instigate litigation for interest groups as well as individuals, so long each case is in the public interest. If we instigate litigation for an individual, the PILP will attempt to involve interest groups who are already working on the subject matter.
The ‘strategic’ in strategic litigation is twofold. On the one hand, it concerns the strategic set-up of a legal procedure to bring about social or judicial change. The effect of a legal procedure extends further than the court of law, so it is critical to think carefully about the political analysis and potential media strategy. On the other hand, ‘strategic’ concerns the choices made about the content of the procedure, such as the determination of the claim, the claimant, the counterparty, the forum, the timing, and the lawyer.
The PILP first looks at whether NJCM, or one of the organisations that cooperates with them, has already been active or outspoken on the topic. We will always look at what possibilities exist to reach our goal through lobbying or campaigning first. Strategic litigation is no ultimum remedium, and should not be the end goal in its own right.
Other relevant factors
The PILP also takes the following factors into account when deciding whether a case should be adopted:
- Level of devotion. Applicants of the case need to be devoted to a resolution in the public interest and be willing to remain active for the duration of a case.
- Sufficient substantial interest. The issue at hand needs to be of sufficient interest and must fall within the framework of human rights.
- Potential precedential effect. The case must have the potential for precedential effect and thereby improve the protection of human rights after the proceeding in the Netherlands.
- Sufficient chance of success. There should be sufficient likelihood that the judicial institution will give the desired ruling. Success is also be measured by increased public awareness.
- Limited loss. The potential impact of a possible undesired ruling must be limited.
- The facts and evidence must be clear and easily available.
- Expert It is possible to find and use scientific, judicial, or other relevant experts.
- Influence and achievability. Cases should have a long-term influence and the ability to strengthen interest groups and communities after the PILP is no longer involved. There must be a possibility of knowledge-sharing about the results of a proceeding.
- Impact. The outcome of the case must have a significant impact on the protection and development of human rights. This outcome can be, for example, to create a judicial precedent, influence public awareness, change legislation and practice, bring misconduct to light, uncover facts, or empower a community.
- The PILP has limited capacity. The potential case must be within our budget and resources.
The PILP works in four thematic areas:
- Refugees and Migration;
- Discrimination and racism;
- Law and democracy; and
- Social and Economic Rights.
The PILP identifies core subjects within these themes. We attempt to balance human rights issues which are already quite popular and those which would benefit from increased attention.
Further working procedure
The PILP prefers to be involved as early as possible in the instigation of strategic litigation.
It is preferable that the PILP first choose the subject matter and then the corresponding strategy. Strategic decisions include the forum, the type of procedure, the client and the representation.
The issues we investigate commonly arrive at us through organisations, activists, lawyers and NGOs.
First, the executive director of the NJCM determines a position regarding the potential case.
The PILP subsequently investigates whether the NJCM has already taken a position on the subject. When in doubt, We request information from a working group actively involved with the subject matter. Along with the relevant NJCM working group, we test the validity and extent of the issue.
The PILP often organises brainstorm sessions with experts who are involved with the subject to canvas their opinions. We will also investigate if and how other NGOs have lobbied around the issue.
After we take these steps, we determine the future of the potential case. By way of application form, we request advice from the PILP advisory council. Here we explain who’s interest is served by the case, what we think the strategy of the litigation should be, who is involved so far, and what potential risks are involved with the proceeding.
The PILP is not a test case fund: we take an active coordinating role in proceedings we instigate. Furthermore, the NJCM can be a (co-)claimant in a proceeding, and a lawyer from the PILP can act as one of the attorneys (often alongside other lawyers, preferably pro bono via Pro Bono Connect).
Pilot Period II
Until May 2019, the PILP will primarily, but not exclusively, target:
- The violation of the right to privacy by the government by, amongst other things, the composition and implementation of anti-fraud and anti-terrorism measures;
- Islamophobia and racism;
- The right to demonstrate; and
- Poverty and human rights.