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Clinicians of 2023-2024 visiting PILP

Saskia Pietersen Aguilar

22 Nov 2023

strategic litigation & victory on ethnic profiling

On 18 October 2023 clinicians visited PILP (Public Interest Litigation Project) and met with its Executive Director Jelle Klaas. PILP has existed now for over a decade and since 1 January 2023 it has its office in the Amnesty International building in Amsterdam. PILP was founded by the Dutch section of the International Commission of Jurists.

PILP specializes in strategic litigation, that is: looking beyond specific cases to considers how the law can be used from a human rights advocate’s perspective to benefit larger groups of people in similar situations. PILP was the first Dutch NGO to specialize in strategic litigation.

Mr Klaas explained that strategic litigation is only one tool available to ensure that human rights are protected in practice. It should be used only when starting a litigation process will benefit the cause, namely the communities concerned, the human rights movement and the NGOs. This is important to consider as litigation requires money, resources and time.

Litigation must be approached as strategically as possible, as there are many different circumstances to take into account such as where the framework on the right in question is, whether the timing is right, should the litigation case be based on civil or criminal law, what claimants can you get together, what lawyers are willing to work on this case. One can only go to court if one can present solid legal arguments. Therefore, there are many legal, political and technical factors to take into account in determining whether litigation will benefit the specific case.

It is important to always be honest and open about the risks of starting a case. One example that Mr. Klaas gave of this within PILP was a client who wished to challenge alleged institutional racism by the Dutch tax authority. However, it is near impossible to bring in arguments of discrimination within tax laws, because the State has a large margin of appreciation.

From a strategic litigation point of view you must get involved in cases that will have an impact beyond the individual case. For movement lawyering (that PILP currently represents) this perspective has shifted to what is the actual movement doing for certain rights, what are the issues that civil society organisations are trying to fight for. There is a change in perspective and approach, where one chooses to focus on certain issues and analyses how we as lawyers can serve them. Still, when it comes to technical aspects, PILP decides what legal tools will fit the best.

This is different from community lawyering, where lawyers do what the community wishes them to do. Think of the anti-vaxxers’ campaign during the pandemic in the Netherlands. The restrictions introduced by the government were considered to be restricting their human rights. One specific group of anti-vaxxers pushed forward this view through court cases. The lawyers of this group would in each court case basically present a pamphlet that reiterated this community’s standpoint. Judges however saw these lawyers not as legal professionals but rather as part of the movement, or as interpreters working on behalf of their clients.

Finally, Mr Klaas talked about a recent victory of PILP in the case of ethnic profiling by Dutch Immigration police.

In the Netherlands, an Amnesty International campaign established that people of colour are more often selected for police and border checkOn behalf of two individual clients, Amnesty International, Control Alt Delete, RADAR and the Dutch section of the ICJ, PILP started a strategic litigation case, where the main client was always checked and chosen out of the line of border control. The client noticed that only people of colour were taken out of the line. The border police argued that as they were looking for terrorists and refugees, they were allowed to do this. The client became a spokesperson for the movement to challenge these practices, and for this reason he was chosen as the main client in the strategic litigation case brought by PILP.

PILP lost the court case in first instance. The court ruled that the selection was based on nationality and not ethnicity. This was baffling because during a check like this the border control does not know what nationality a person holds. The decision to take someone out of a line is based on racial stereotypes. This case was then taken to a court of appeals. Here PILP had to explain why the verdict of the court of first instance was absurd. To this end they had to rely on arguments based on statistics, politics, colonial history, and take the court through art. 8 of the European Convention of Human Rights. This required involvement of a large team including academics.

At first the case was not looking great as PILP had to answer a lot of negatively formulated questions such as: “if it is in their interest can you use their ethnicity?”

However, the verdict was ruled in their favour and this was a win both legally and politically. PILP chose to have their two clients of colour do the pleading, not as victims but as spokespeople. So they pleaded to the court why practices such as ethic profiling are harmful for society and this had a huge impact on court of appeal. Moreover this garnered a lot of media attention which was good as these clients were the perfect people to articulate a better picture on the issue.

This case was not appealed to the Supreme Court and thus the verdict at the court of appeals in principle ended ethnic profiling at the border police in the Netherlands.

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