Opinion| The legislator should specifically protect people on the fringes of society

Make human rights and legal protection the guiding principles in drafting laws. This is the argument put forward by Michelle Bruijn, Professor of Regulation of Safety and Health. Currently, the judiciary too often has to correct the legislator after the fact. "This shows how important an independent judiciary is. But it is actually sad that it is necessary."

_{Written down by Esther van der Meer}

Squatting has been cracked down

A striking example is how judges handle the Dutch squatting law. The Netherlands has been struggling with a tight housing market for years. However, after decades of tolerance, squatting has been cracked down on increasingly in recent years. Since 2010, squatting has been a criminal offence, and since 2022, squatters can be evicted from a squatted building within 72 hours.

Bruijn: "Squatting is portrayed as a black-and-white issue: squatting is prohibited, and if you squat anyway, you are violating someone else’s property, so the squatter must leave the building. Politically, protecting property is seen as an absolute right that must not be infringed upon. But that is not how it works in practice."

"In legal cases where squatters challenge an eviction, you see the judge weighing the right to property on the one hand and a fundamental human right on the other: the right to housing. All interests are placed on a scale, and it does not automatically tip in favour of the right to property."

Judges take the current housing shortage into account

"For example, you see judges taking the current housing shortage into account in their considerations. Thus, the property owner must demonstrate that they have concrete short-term plans for the building to prevent vacancy. As the owner of a building, you cannot do as you please; you have a social function. I think that is entirely justified."

"What also stands out is that the judge-commissioner takes their time to reach a balanced decision. For this reason, the judge-commissioner sometimes rules that a squatter may remain in the building because the weighing of interests cannot be completed within 72 hours or because the parties have not provided sufficient information. This aligns with human rights: an eviction cannot simply be carried out. The judge is also saying: the legal period of 72 hours is too short."

"This is where you see the corrective function of the judiciary at work. It says: this law does not work like this; this cannot stand when you consider international human rights."

Supervisory role

According to Bruijn, it is, in itself, a good thing that the judiciary fulfils its supervisory role, but it should not have to come to this. "There was a great deal of discussion about the squatting law, both in 2010 and in 2022. Municipalities did not see the need for criminalisation, and the Council of State was also critical, yet such a law was still implemented and even passed by the Senate."

Even now that it has become clear that judges are criticising the law, there are still no plans to amend it. "It only affects a small group of people. Squatters do not exactly evoke warm feelings in society; few people will take to the streets for them."

"But I believe that legal protection should be well-regulated and accessible, especially for people on the fringes of society. If, as a legislator, you do not consider such groups and also lose sight of human rights, then for whom are you making the law?"

Want to know more about this topic?

Read the research on the squatting law and the speech for the congress of the Dutch Lawyers Association, ‘Legal protection under pressure’.