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STAATKUNDIG GEREFORMEERDE PARTIJ v. THE NETHERLANDS DECISION 13 its convictions into practice in nominating candidates for general representative bodies unacceptable. ... 4.6. The State’s specific obligations and the claims of Clara Wichmann and Others 4.6.1. It follows from the above that the State was wrong to take the position that its own balancing exercise entitled it not to take any measures against the SGP’s failure to admit women to its lists of candidates for election to the general representative bodies. The Court of Appeal was therefore right to conclude in [its] judgment that the State is under an obligation to take measures that will actually lead to the SGP granting the right to stand for election to women and that the State must adopt a measure to that purpose that will at the same time be effective and impinge as little as possible on the basic rights of the (members of the) SGP. 4.6.2. It does not follow, however, that the courts are competent or able to order the State to take specific measures to put a stop to the SGP’s discrimination as regards the right of its female members to stand for election. As was held in the Supreme Court’s judgment of 21 March 2003, [(Landelijk Jurisprudentie Nummer [National Jurisprudence Number], “LJN”) AE8462], the courts have not the competence to order the State to enact statutory legislation. The cross-appeal brought by Clara Wichmann and Others fails on this point. Leaving aside the fact that Clara Wichmann and Others have not, even in their cross-appeal in both cases, indicated what other measures the State would be in a position to take (apart from blocking the subsidy, which will be discussed hereafter), it is in the present case, which concerns the interrelation between a political party and the State, all the less possible in principle to give a court order for specific measures to meet the requirements of Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women because the choice of such measures to be taken by the State requires a balancing of interests which coincides with political assessments to a degree that cannot be expected from the courts. This also applies to an order blocking the subsidy allotted to the SGP by the State. Moreover, as the Administrative Jurisdiction Division of the Council of State held [see paragraphs 27-34 above], neither Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women, nor the International Covenant on Civil and Political Rights, nor the Convention requires this and present legislation does not offer that possibility apart from the situation, which does not obtain in the present case, of a final and binding judgment of a criminal court convicting of discrimination within the meaning of the penal provisions contained in section 16 of the Political Parties Subsidies Act. For the same reason set out in the second sub-paragraph, the Court of Appeal rightly denied Clara Wichmann and Others’ claim for an order to put an end to an unlawful situation within a time-limit to be set by the court at its discretion, quite apart from the fact that the ground on which any court might consider ordering such a vague and general prohibition is unclear.”

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Staatkundig Gereformeerde Partij v. the Netherlands

Judgment

Question Presented: Whether religiously affiliated parties can exclude women from running as candidates on the grounds that forcing the party to host women candidates violates its freedom of religious expression, as it believes women are unsuited for public office?

Alleged Acts: The Staatkundig Gereformeerde Partij of the Netherlands, a conservative religious party, violated the Convention on the Elimination of All Forms of Discrimination against Women by unfairly preventing women from running for office.

Procedural history: The case initially started in 2005 when a coalition of human rights organizations and pro-women's interest groups sued both parties in the Regional Court of the Hague. The original group of petitions alleged that the Staatkundig Gereformeerde Partij (SGP) violated the equal rights of women to stand for election by denying them the right to run in the party, and alleged that the Netherlands violated those same rights by allowing the SGP to submit candidate rolls for Dutch elections with those restrictions in place. The case against the SGP was dismissed for a lack of standing as the Court held that women had the option to run for election in other political parties. However, the High Court ruled that the Netherlands had violated Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women by subsidizing the SGP and providing it state funds for its election campaigns. The Netherlands appealed this decision to the Court of Appeal of the Hague in December 2007. The State argued that since women could still join other political parties and stand for office in the Netherlands, its financial support of the SGP did not violate the rights of women to stand for office. The Court of Appeal upheld the lower court’s decision requiring the Netherlands to cease funding the SGP until it allowed women to run as candidates, and also reversed the lower court’s decision that held the SGP did not violate the rights of women. Instead, the Court of Appeal held that the SGP’s exclusion of women did violate women’s Article 7 rights. The Court held that while the SGP had a right to run candidates that espoused beliefs associated with the party (e.g., women are unfit for office), it could not prevent women from running as candidates on its electoral ballots. The SGP appealed the Court of Appeal decision to the Supreme Court of the Netherlands, which in 2010 upheld both decisions by the High Court. The Supreme Court found that the SGP violated the Convention on the Elimination of All Forms of Discrimination against Women by excluding women from its candidate lists, and ordered that it must allow women in the party to run as SGP candidates within the Netherlands. Dissatisfied with the Supreme Court’s holding, the SGP appealed the case to the European Court of Human Rights to try and reverse the lower court’s decision.

Summary: Prior to this case, the Netherlands did not require parties standing for national elections to conform to gender quotas and put forward certain percentages or ratios of male and female candidates on their tickets. Thus, during the 2012 Dutch parliamentary elections, the Staatkundig Gereformeerde Partij (SGP) submitted candidate lists to the state that did not include any female candidates standing for election. The SGP held that it had the right to exclude women based on its religious beliefs and principles. The SGP described itself as “confessional political party firmly rooted in historical Dutch Reformed Protestantism,” a conservative strain of Christianity. The party’s religious beliefs dictate that women are inherently unsuitable for political office, so the party claimed that their right to freedom of religion protected them from any requirements to allow women to run as candidates. Thus, the party instituted a policy that fully banned women from running for political offices in the Netherlands as members of the SGP. After the SGP submitted its candidate lists to the state, a coalition of human rights and pro-women’s interest groups jointly sued the SGP and the Netherlands in the Regional Court of the Hague over the SGP’s candidate lists and accused both parties of unfairly preventing women from running as candidates. After lengthy proceedings through Dutch national courts, the Supreme Court ultimately required the Netherlands to force the SGP to allow women onto its candidate rolls. Both the SGP and State were dissatisfied with the Supreme Court’s decision. As the Netherlands has a civil law system, courts have the authority to order remedies that neither party sought (in this case, ordering that both the SGP allow female candidates and that the State refrain from funding parties like the SGP until they comply with the Supreme Court’s order). Thus, to challenge the Court’s holding, the SGP sued the State in the European Court of Human Rights (ECtHR) to determine whether the SGP had a right to exclude women from its candidate lists based on the religious beliefs of its members. The SGP also sought to determine whether the State could provide state funds to parties that violated the Convention, as the Dutch Constitution – in contrast to the Convention – did not forbid the State from doing so. Both parties hoped that the ECtHR would overrule the Supreme Court’s opinion, allow the SGP to submit candidate lists without women, and allow the State to fund the SGP and parties like it.

Conclusion: The ECtHR ultimately ruled that the protections afforded to women by the Convention on the Elimination of All Forms of Discrimination against Women outweighed the concerns for the petitioner’s freedom of religious belief. The Court held that promoting gender and sexual equality within government and democracy overrode concerns for religious liberty when constructing party lists. The SGP was ordered to create balanced candidate lists or it could not stand for election, and the State could not provide state funds to any political party that violated the Convention.

Legal Issue(s)

Gender

Applicable Law(s): The Convention on the Elimination of All Forms of Discrimination against Women, Articles 7, 9, 11; Constitution of the Kingdom of the Netherlands, Articles 1, 4, 6.

Region: Europe and Eurasia

Country: Netherlands

Language of Decision

English

Court: Human Rights Court

Election Type: General

Date of decision: Jul 10, 2012

Geolocation

Latitude: 52.074582533390135

Longitude: 4.324035588651896

: Geolocation

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Staatkundig Gereformeerde Partij v. the Netherlands

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