Last Updated 03/07/2025 published 03/07/2025 by Hans Smedema

Legal Assessment of Systemic State Obstruction and Human Rights Violations by a Member State within the European Union Framework

 

I. Executive Summary

 

This report presents a comprehensive legal assessment of the allegations made by Mr. Hans Smedema against the Netherlands.

The core contention is that the refusal to investigate his case, predicated on its characterization as an “internal problem,” is legally unsustainable given the alleged systemic nature of the issues and their profound cross-border implications. The analysis concludes that Mr. Smedema’s claims, particularly those pertaining to “State Capture,” the knowing dissemination of false information to other states and international bodies, and the systematic denial of fundamental human rights, extend far beyond purely domestic concerns. These alleged actions directly implicate core principles and obligations under European Union law and international human rights law.

While the burden of proof for establishing systemic issues such as “State Capture” remains substantial, the alleged deliberate obstruction of justice and the creation of procedural barriers by the state itself could significantly influence the admissibility and substantive assessment of the case by international and EU courts. This report identifies several potential legal avenues within the EU framework, including infringement procedures, the Rule of Law Conditionality Regulation, and the Article 7 TEU procedure, alongside principles of state responsibility under international law, as relevant mechanisms for addressing such grave and systemic breaches of foundational legal principles.

 

II. Introduction: The Allegations and the European Commission’s Stance

 

Mr. Hans Smedema asserts a decades-long, systemic obstruction orchestrated by elements within the Dutch state, specifically to protect high-level figures such as former Secretary-General of Justice Joris Demmink and Jaap Duijs.1 This alleged obstruction encompasses systemic corruption, interference with judicial independence, active obstruction of justice, and the fostering of impunity for connected individuals.1 A critical aspect of Mr. Smedema’s complaint is the assertion that the Netherlands has knowingly provided false information to other EU Member States, specifically Spain, and to non-EU countries such as the USA, Canada, and Mexico, with the intent to block the human rights of a Dutch and EU citizen [User Query]. He maintains that these actions elevate the matter beyond what the European Commission might consider an “internal” issue, transforming it into a concern of international and EU-level significance.1

The European Commission, in its communication dated June 25, 2025, informed Mr. Smedema that the matter was “not related to the implementation of European Union law” and reiterated that Member States are “solely responsible for maintaining law and order and safeguarding internal security”.1 Consequently, the Commission stated it was “not empowered to intervene” and could not follow up further on his email.1

The purpose of this legal assessment is to provide a detailed analysis of Mr. Smedema’s arguments. It aims to evaluate the legal viability of his claims by examining the intricate interplay between national sovereignty, EU law, and international law, particularly in the context of alleged systemic state misconduct and its cross-border implications. The assessment will explore whether the alleged actions of the Netherlands, as described, indeed fall outside the scope of purely internal affairs and trigger EU and international legal responsibilities.

 

III. The Concept of “State Capture” and its Implications for EU Law

 

Definition and Characteristics of “State Capture”

 

“State capture” denotes a form of systemic political corruption where private interests exert significant influence over a state’s decision-making processes to their own benefit.2 This phenomenon involves political actors infiltrating state structures through clientelist networks, subsequently utilizing these state mechanisms to conceal corrupt activities and exploit state resources for personal or party-political gain.3 Unlike more common forms of corruption that focus on the selective enforcement of existing laws, state capture endeavors to shape the

creation of laws to safeguard and advance the interests of influential individuals.2 This influence can permeate various state institutions, including the legislature, executive, ministries, and the judiciary, and, notably, may not be deemed illegal under the captured state’s own legal framework.2 It transcends mere petty corruption, representing a fundamental abuse of state resources that systematically undermines checks and balances for the benefit of a ruling party or specific individuals.3 This concept is increasingly recognized as a pertinent issue even within established EU Member States.3

 

How “State Capture” Challenges the Rule of Law and Democratic Governance within an EU Member State

 

State capture inherently conflicts with the principle of the Rule of Law, which necessitates the impartial application of governmental powers and equitable outcomes in similar cases. Conversely, state capture is founded on the biased and politically motivated deployment of government resources.3 This erosion of impartiality diminishes public trust in governmental institutions, as these bodies are perceived to serve private agendas rather than the public interest.4 Such a scenario leads to widespread abuse of public office and compromises the independence of judicial and parliamentary bodies.4

The European Union is fundamentally established on the Rule of Law, as enshrined in Article 2 of the Treaty on European Union (TEU).5 The effective functioning of the Union is contingent upon Member States upholding this foundational value. A state affected by capture is demonstrably hindered in its capacity to effectively implement EU law or safeguard the financial interests of the Union.1

The European Commission’s dismissal of the case as “internal” 1 directly contradicts the assertion of “State Capture”.1 State capture is explicitly defined as systemic political corruption that influences decision-making across state institutions.2 This definition implies that the alleged issues are not isolated incidents but represent a fundamental perversion of the state’s legal and governance structures. If a state’s core institutions, such as the Ministry of Justice, are alleged to be “captured” by figures like Joris Demmink 1, then its capacity to uphold any law, including EU law and international human rights obligations, is fundamentally compromised. This suggests that the Commission’s initial assessment may be based on an overly narrow interpretation of the distinction between “internal” matters and “EU law implementation” in the context of foundational values. Such an interpretation could inadvertently allow a Member State to shield systemic breaches behind a facade of domestic jurisdiction.

Furthermore, the research highlights that state capture is “completely incompatible with EU membership” and undermines the EU enlargement process.3 While these observations primarily refer to accession countries, the fact that “various member states within the EU are also increasingly showing signs of party-political use of government powers and resources, signalling that state capture is increasingly an issue within the EU as well” 3 is highly pertinent. If a Member State’s justice administration is compromised, other Member States cannot genuinely trust the integrity of its legal system.1 This erosion of mutual trust directly impacts the operational efficacy of the Area of Freedom, Security, and Justice (AFSJ) and the internal market, both of which are predicated on the principle of reciprocal recognition.5 Therefore, unchecked state capture within a Member State does not merely harm its own citizens; it poses an existential threat to the foundational values and operational integrity of the entire European Union.

 

Table 1: Key Elements of “State Capture” and their Alleged Manifestations in the Case

 

Key Element of State Capture	Definition/Characteristics 2	Alleged Manifestations in Mr. Smedema’s Case 1
Systemic Political Corruption	Private interests significantly influence state decision-making processes for their own advantage; goes beyond petty corruption to abuse state resources.	Alleged “decades-long systemic obstruction” and “State Capture” orchestrated by elements within the Dutch state.
Infiltration of State Institutions	Political actors infiltrate state structures through clientelist networks, using them to hide corrupt actions.	Joris Demmink alleged to be a “heavy criminal mole within the Ministry of Justice” for 40 years, wielding “power based on terror.”
Influence on Law Formation/Application	Aims to influence the formation of laws to protect influential actors and their interests, or selectively enforce existing laws.	Alleged “Royal Special Decree” since 1972 and “State Security” used as a shield to protect perpetrators and obstruct justice.
Abuse of Public Office	Exploitation of control over state resources and powers for private or party-political gain.	Alleged active blocking of investigations, manipulating evidence, and abusing function within the Ministry of Justice.
Erosion of Checks and Balances	Systemic abuse of state resources that undermines the mechanisms designed for accountability.	Police officers (e.g., Haye Bruinsma) purportedly forbidden from filing official reports; prosecutor (Ruud Rosingh) allegedly forced to relocate.
Impunity	Fostering of inequality and protection for connected individuals, leading to a lack of accountability.	Alleged “untouchable” status for high-level figures like Joris Demmink and Jaap Duijs; false information to international courts leading to rejection of complaints based on lack of domestic exhaustion.
Obstruction of Justice	Active measures to impede investigations, hide evidence, or deny access to legal remedies.	Crucial evidence (e.g., “Frankfurt Dossier”) allegedly discovered and erased; all evidence allegedly deleted or hidden by the state; systematic denial of legal representation.
Cross-border Impact	Actions affecting other states or international bodies, undermining mutual trust and international cooperation.	Netherlands allegedly presenting knowingly false information to Spain, America, Canada, and Mexico; alleged unlawful blocking of a US asylum offer.

 

IV. Alleged Violations of Core EU Values and Fundamental Rights

 

A. Breach of the Rule of Law (Article 2 TEU)

 

Mr. Smedema’s complaint asserts that the alleged systemic corruption and obstruction, particularly concerning Joris Demmink, directly contravene the principle of the Rule of Law.1 This includes the alleged misuse of public power, active obstruction of justice, and interference with judicial independence.1 The Rule of Law is not merely a principle but a foundational value of the European Union, explicitly stated in Article 2 TEU, and its consistent application is crucial for the Union’s integrity.5 The alleged fostering of “inequality and impunity for connected individuals like Demmink and Duijs” directly challenges the fundamental tenet that “the law is the same for all”.1 Furthermore, the complaint details the alleged use of “State Security” as a shield since 1972 and a “Royal Special Decree” to protect perpetrators and obstruct justice.1 Such actions, if proven, represent a profound subversion of legal processes and the impartial administration of justice, which are cornerstones of the Rule of Law.

 

B. Denial of Fundamental Rights to an Effective Remedy and Fair Trial (Article 19 TEU, Article 47 CFR, Article 6 ECHR)

 

A central and deeply troubling aspect of Mr. Smedema’s complaint is the alleged systematic denial of legal representation, dating back to 1972 and consistently since 2000.1 He claims that lawyers in the Netherlands, and even in Spain, were purportedly “forbidden” from taking the case due to the protection afforded to individuals like Demmink and Duijs.1 The right to be advised, defended, and represented is a fundamental guarantee under Article 47 of the Charter of Fundamental Rights of the European Union (CFR) 9, which ensures everyone whose rights are violated by Union law has the right to an effective remedy before a tribunal.9

A significant paradox arises from the alleged provision of false information by the Dutch state to international courts, such as the European Court of Human Rights (ECHR). This allegedly led to a complaint being rejected in 2005 or 2006 based on an incorrect finding of a lack of domestic exhaustion.1 This creates a “cruel paradox” when access to domestic remedies was allegedly forbidden.1 ECHR jurisprudence confirms that the exhaustion rule applies only to remedies that are “accessible” and “effective”.11 Moreover, a “less rigid approach” is adopted by the ECHR when there is “deliberate concealment and obstruction on the part of some authorities”.12 This legal principle suggests that a state cannot benefit from its own alleged obstruction to evade accountability under the guise of procedural requirements.

Article 47 CFR explicitly states that “Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”.9 The alleged systematic denial of legal aid in the main obstruction case since 1972/2000 directly contributes to an inability to present a legally “coherent” argument, thereby making effective access to justice impossible.1

Mr. Smedema’s argument that procedural dismissals—such as those based on “incoherent reasoning” or “failure to exhaust domestic remedies”—are a direct and calculated outcome of state-orchestrated obstruction 1 represents a critical legal perspective. This shifts the focus from any apparent procedural shortcomings on the part of the applicant to the state’s alleged active role in creating those very impediments. If substantiated, this conduct would constitute an “abuse of process” by the state itself, where a procedural right, such as requiring the exhaustion of remedies, is exercised in a manner contrary to its established purpose, which is to allow domestic authorities the initial opportunity to address issues.11 This implies that a state cannot legitimately leverage its own alleged wrongdoing, specifically obstruction, to evade accountability by subsequently citing the procedural consequences that stem directly from that obstruction. Such an argument could provide a robust foundation for challenging the Commission’s initial dismissal and advocating for the admissibility of the case despite apparent procedural deficiencies.

Furthermore, the alleged systematic denial of legal representation, the obstruction of investigations, and the manipulation of evidence 1 appear to be more than isolated human rights violations. They seem to be integral components of the alleged “State Capture” mechanism. If the state’s institutions are indeed infiltrated and controlled to shield certain high-level figures, then the denial of fundamental rights, including the right to an effective remedy and a fair trial, transforms into a deliberate

tool of this capture, rather than an accidental failing. This suggests a calculated strategy to ensure impunity by dismantling the very legal mechanisms designed to provide justice and accountability. The broader implication is that these human rights violations are not merely symptoms of a deeper problem but are active instruments employed in the alleged systemic corruption, thereby posing a direct challenge to the Rule of Law and the European Union’s foundational commitment to fundamental rights.

 

V. State Responsibility for False Information and Obstruction in International and EU Law

 

A. State Lies as Human Rights Violations under International Law

 

States possess the capacity to disseminate false information to conceal human rights violations or other serious misconduct, and they can extend such deception to the populations of other states.16 When state agents knowingly make untruthful statements with the intent to deceive, these lies can interfere with the interests of individuals protected by human rights law.16 In certain circumstances, such deceptive practices are a “necessary condition for human rights violations,” as they enable the perpetration of abuses that could not otherwise be committed.16

Under international law, an internationally wrongful act of a State occurs when conduct attributable to the State constitutes a breach of an international obligation.17 The conduct of

any State organ—whether legislative, executive, or judicial—is considered an act of that State, even if the organ exceeds its authority or contravenes instructions.17 The alleged provision of false information to international courts, such as the ECHR, could therefore constitute a breach of the implied duty to provide truthful information to treaty bodies and monitoring functions.16 Lies by state officials can also be interpreted as a form of obstruction to the fundamental right of individual petition.16

The “abuse of process” doctrine, a recognized principle of public international law, prohibits the exercise of a procedural right in a manner that contravenes the purpose for which that right was established.14 This doctrine applies to the misuse of procedural instruments for fraudulent, procrastinatory, or frivolous purposes, or to gain an illegitimate advantage.15 This principle, rooted in the broader concept of good faith, could be invoked if the Netherlands is found to have deliberately provided false information to international bodies with the aim of obstructing justice or denying effective remedies.14

 

B. Breach of the Principle of Sincere Cooperation (Article 4(3) TEU)

 

The principle of sincere cooperation, enshrined in Article 4(3) TEU, is a foundational tenet requiring the Union and its Member States to implement all necessary measures to ensure compliance with their Treaty duties “in full mutual respect”.18 This principle imposes an active obligation on Member States to cooperate with and comply with both original and derivative EU law, and crucially, to “abstain from any measure which could jeopardise the attainment of the Union’s objectives”.18

Mr. Smedema’s specific allegation that the Netherlands “presenting knowingly false information to an EU Member state Spain” [User Query] directly implicates this principle. The provision of false information to a fellow Member State, particularly within a legal or investigative context, would constitute a clear failure to cooperate sincerely. Such an action could directly jeopardize the attainment of key EU objectives, especially those related to the Area of Freedom, Security, and Justice (AFSJ) and the vital principle of mutual trust among Member States.5 The Court of Justice of the European Union (CJEU) has previously affirmed breaches of sincere cooperation in cases involving failures to protect the financial interests of the Union or to provide clear and precise information regarding the implementation of EU law.18

 

C. Erosion of Mutual Trust within the EU’s Area of Freedom, Security and Justice (AFSJ)

 

Mutual trust stands as a structural principle of EU law, indispensable for the cohesion and effective functioning of the Union, particularly within the Area of Freedom, Security, and Justice (AFSJ).5 This principle implies a reciprocal acceptance among legal entities and an expectation that the law will bind them together, ensuring a predictable and reliable legal environment.5 The Rule of Law is inextricably linked to mutual trust; a democratic and legitimate EU cannot exist if the Rule of Law is absent or eroding.5

Mr. Smedema argues that the alleged systemic failures and the “untouchable” status of key figures like Demmink and Duijs “erode the principle of mutual trust essential for cooperation within the EU’s Area of Freedom, Security and Justice (AFSJ)”.1 If a Member State’s justice administration is compromised by systemic corruption and obstruction, other Member States cannot reasonably trust the integrity of its legal system.1 This directly undermines the very foundation upon which cross-border judicial cooperation and mutual recognition rely, thereby jeopardizing the operational effectiveness of the AFSJ.5

The user’s claim of “knowingly false information” being presented to Spain, America, Canada, and Mexico [User Query] goes beyond mere incompetence or negligence. If proven to be “knowingly” false, this conduct suggests a deliberate act of deception by an organ of the state, which would be attributable to the state under international law.17 This is not merely a breach of a specific rule, but an active subversion of the principle of good faith and sincere cooperation that underpins all inter-state relations within the EU 18 and international law.16 Such conduct, if systemic, constitutes a direct assault on the integrity of the EU legal order and its international standing, making it unequivocally more than an “internal” matter. It creates a detrimental ripple effect, systematically eroding trust between Member States and with international partners, thereby hindering cooperation on critical justice and security matters.

Furthermore, the alleged “State Capture” 1 provides a direct causal explanation for the provision of “knowingly false information” [User Query]. If state institutions are indeed captured by private interests seeking impunity, then the dissemination of false information becomes a logical and necessary tactic to protect those interests and obstruct justice. This directly leads to the erosion of mutual trust among Member States 1, as they cannot rely on the integrity of a justice system that is allegedly compromised. The broader implication is that state capture is not merely an internal governance issue but a corrosive force that actively undermines the very fabric of EU cooperation and international relations by weaponizing disinformation and procedural manipulation.

 

VI. Applicability of EU Enforcement Mechanisms to Systemic Violations

 

The European Union possesses a “Rule of Law Toolbox” 7 comprising various instruments designed to promote, prevent, and respond to Rule of Law issues within Member States. While the European Commission initially dismissed Mr. Smedema’s case as an internal matter 1, his detailed arguments 1 touch upon multiple facets that could potentially trigger these EU mechanisms.

 

A. Infringement Procedure (Article 258 TFEU)

 

The European Commission is empowered to initiate an infringement procedure against a Member State that fails to implement EU law, either through its own investigations or following complaints from citizens, businesses, or other stakeholders.20 If the Member State concerned fails to rectify the suspected violation, the Commission may launch a formal infringement procedure, which typically involves sending a reasoned opinion – a formal request to comply with EU law.20 Should non-compliance persist, the Commission may refer the matter to the Court of Justice of the European Union (CJEU).20

If the CJEU finds that a Member State has breached EU law, the national authorities are obligated to take action to comply with the Court’s judgment.20 In instances where, despite a CJEU judgment, the Member State still fails to rectify the situation, the Commission may refer the country back to the Court for the imposition of financial penalties, which can include a lump sum and/or a daily payment.20 These penalties are calculated considering factors such as the importance of the rules breached, the impact of the infringement, the duration of non-compliance, and the country’s ability to pay, ensuring a deterrent effect.20 While infringement procedures are frequently utilized for issues like the non-transposition of directives, there are proposals for “rule of law infringement procedures” that would allow for fast-tracking and the use of interim measures to address systemic Rule of Law backsliding.21 The Commission has, in recent years, increased its enforcement activities, though it sometimes opts for dialogue over immediate infringement proceedings.22

 

B. Rule of Law Conditionality Regulation

 

This regulation, which came into force on January 1, 2021, provides a mechanism for the European Commission to adopt measures, including the suspension of payments of funds from the EU budget, to Member States that violate the principles of the Rule of Law.6 To date, budgetary measures under this regulation have been applied only once, in relation to Hungary in December 2022.6

A significant challenge in applying this regulation lies in the requirement to establish a “sufficiently direct link between breaches of principles of the Rule of Law and the EU’s financial interest”.6 Mr. Smedema’s argument that a Ministry of Justice allegedly plagued by systemic corruption is “incapable of effectively combating fraud against the EU budget (PIF Directive, Article 325 TFEU)” 1 directly addresses this criterion. This contention suggests a potential pathway for the application of the Conditionality Regulation by linking the alleged systemic corruption and obstruction of justice to a direct impact on the protection of the Union’s financial interests.

 

C. Article 7 TEU Procedure

 

Article 7 of the Treaty on European Union (TEU) can be activated when a Member State breaches fundamental EU values, such as the Rule of Law, or is clearly at risk of doing so.24 This procedure is specifically designed to address a “serious and persistent breach of EU values”.25

However, the Article 7 procedure faces significant political hurdles. The introduction of punitive measures under Article 7(2) TEU requires a unanimous vote in the European Council, which has largely “stymied” its application.24 Although Article 7(1) has been triggered against Hungary, the process has not yet advanced to Article 7(2).25 This highlights the considerable political challenges inherent in utilizing this mechanism, as Member States may be reluctant to vote against a peer, particularly if more than one Member State faces similar concerns.24

 

D. EU Anti-Corruption Framework

 

Corruption, defined as the abuse of entrusted power for private gain, poses a serious threat to the Rule of Law, democracy, and fundamental rights.26 Article 83 TFEU designates corruption as a ‘euro-crime,’ recognizing its particularly serious nature and cross-border dimension.27 Furthermore, Article 325 TFEU obliges both the EU and its Member States to protect the Union’s financial interests against fraud and other illegal activities.27

The EU has actively modernized its anti-corruption framework. A notable development is the 2023 proposal for a new Directive on combating corruption by criminal law, which aims to update and harmonize rules on definitions and penalties for corruption offenses across the EU.27 Significantly, this proposal specifically extends the definitions of criminal corruption offenses to include “obstruction of justice” and “abuse of functions”.27 This directly aligns with Mr. Smedema’s allegations of obstruction of investigations and evidence by the Ministry of Justice 1, providing a stronger legal basis for addressing such claims within the EU’s anti-corruption efforts.

The EU’s “Rule of Law Toolbox” 7 encompasses various instruments, including infringement procedures, the Conditionality Regulation, Article 7 TEU, and the Anti-Corruption Framework. While the Commission initially dismissed the case as internal 1, the detailed arguments presented by Mr. Smedema 1 touch upon multiple facets that could trigger these mechanisms. For instance, the alleged inability of a compromised Ministry of Justice to combat EU budget fraud 1 directly links to the Conditionality Regulation’s requirement for a financial interest nexus.6 Similarly, the alleged obstruction of justice 1 is now explicitly covered by the modernized anti-corruption framework.27 This suggests that while no single mechanism might perfectly address all aspects of the complaint, a comprehensive legal strategy could argue for the cumulative effect of these breaches. This cumulative impact could demonstrate a systemic failure that affects multiple areas of EU competence, thereby strengthening the argument for intervention. The Commission’s historical reluctance to act in certain cases 22 may be attributed to political considerations, but the legal grounds for action appear to be increasingly robust.

The challenges inherent in applying the Conditionality Regulation, particularly the difficulty in establishing a “sufficiently direct link” 6, and the political hurdles associated with Article 7 TEU 24, underscore the inherent complexities in addressing systemic Rule of Law breaches. However, Mr. Smedema’s detailed allegations 1, which include specific instances of obstruction—such as police officers allegedly forbidden from filing reports, a prosecutor purportedly relocated, and evidence allegedly erased—provide concrete examples that could serve as crucial evidence. The fact that the European Parliament has documented concerns regarding democracy and the Rule of Law in Hungary 25, and that the Commission’s annual Rule of Law Report examines justice systems and anti-corruption frameworks across Member States 6, indicates a growing recognition of systemic issues within the Union. This implies that while direct legal action might be challenging, persistent external scrutiny and meticulous documentation of alleged systemic failures, as provided by Mr. Smedema, are vital. Such efforts contribute to building a cumulative case that might eventually overcome political inertia or meet the evidentiary thresholds required for the activation of EU mechanisms.

 

Table 2: Overview of EU Rule of Law Mechanisms and their Relevance to the Case

 

EU Mechanism	Legal Basis/Description 7	Specific Relevance to Mr. Smedema’s Allegations 1	Key Challenges/Limitations 6
Infringement Procedure	Article 258 TFEU. Commission initiates legal action against Member States failing to implement EU law. Can lead to CJEU referral and financial penalties.	Alleged systemic obstruction of justice, denial of effective remedy, and potential non-compliance with EU anti-corruption obligations.	Commission discretion in initiating; often settled pre-court; political reluctance for systemic Rule of Law cases.
Rule of Law Conditionality Regulation	Allows suspension of EU funds to Member States violating Rule of Law principles that affect the EU budget. In force since 2021.	Alleged systemic corruption within Ministry of Justice affecting ability to combat fraud against EU budget (Article 325 TFEU).	Requires establishing a “sufficiently direct link” between Rule of Law breaches and EU financial interests; applied only once to date.
Article 7 TEU Procedure	Addresses “serious and persistent breach of EU values” (e.g., Rule of Law, human rights). Can lead to suspension of voting rights.	Alleged systemic assault on Rule of Law, denial of fundamental rights, and “State Capture” undermining EU foundational values.	Requires unanimous vote for punitive measures (Article 7(2)), leading to political hurdles and “stymied” application.
EU Anti-Corruption Framework	Article 83 TFEU (euro-crime), Article 325 TFEU (financial interests). Modernized framework criminalizes corruption, including obstruction of justice and abuse of functions.	Alleged systemic corruption within Ministry of Justice, active obstruction of investigations, manipulation of evidence, and abuse of function by high-level figures.	Enforcement relies on national authorities; political will to act against systemic corruption within Member States can vary.

 

VII. Legal Assessment: “Do I Have a Case?”

 

Synthesis of Arguments: The Alleged “Internal” Problem is Demonstrably International and Impacts EU Law and Values

 

Based on the detailed analysis presented, the argument that the case transcends a purely “internal” problem is strongly supported.

The alleged provision of “knowingly false information” by the Netherlands to other EU Member States, such as Spain, and to international entities, including the USA, Canada, and Mexico, directly implicates international law on state responsibility 16 and the fundamental EU principle of sincere cooperation.18

Furthermore, the alleged “State Capture” 2, systemic corruption, and obstruction of justice 1 are not isolated domestic failings. Instead, they constitute a profound assault on the Rule of Law (Article 2 TEU) 5, fundamental rights (Article 19 TEU, Article 47 CFR) 9, and the essential principle of mutual trust within the EU’s Area of Freedom, Security and Justice.5 These are foundational values and operational principles of the Union, making the matter one of direct and significant EU concern, rather than a mere internal affair.

 

Strength of Arguments Based on Rule of Law, Fundamental Rights, Sincere Cooperation, and State Responsibility for False Information

 

The arguments concerning the Rule of Law are robust. The alleged systemic corruption, interference with judicial independence, and fostering of impunity directly contradict the core tenets of the Rule of Law, which demands impartiality and equality before the law.1

The claims regarding the denial of fundamental rights to an effective remedy and fair trial are particularly compelling. The alleged systematic denial of legal representation and the paradox of domestic exhaustion being rendered impossible by state obstruction 1 are directly addressed by ECHR and CJEU jurisprudence. These bodies have established that the exhaustion rule applies only to accessible and effective remedies, and that a state cannot benefit from its own obstruction or concealment to evade accountability.11

The alleged breach of sincere cooperation by providing false information to other Member States is a direct violation of Article 4(3) TEU, a foundational principle of the Union.18 Such actions undermine the mutual trust essential for the functioning of the EU.

Finally, the concept of state responsibility for false information under international human rights law 16 and the doctrine of “abuse of process” 14 provide strong legal grounds to challenge the alleged deceptive conduct. If a state deliberately provides false information to obstruct justice, it is acting contrary to the purpose of international legal procedures.

 

Challenges in Proving “State Capture” and Systemic Obstruction in a Legal Forum

 

While the legal arguments are strong in principle, the practical challenge lies in proving the systemic nature of “State Capture” and the deliberate intent behind the alleged obstruction and dissemination of false information.2 The alleged destruction of evidence and suppression of investigations 1 inherently complicates the collection of direct proof.

Furthermore, the activation of certain EU mechanisms, particularly Article 7 TEU, faces significant political hurdles due to the unanimity requirement for punitive measures.24 The Rule of Law Conditionality Regulation, while relevant, requires establishing a “sufficiently direct link” between Rule of Law breaches and EU financial interests, which, despite Mr. Smedema’s arguments, still needs to be legally substantiated with compelling evidence.6

 

The Argument that Procedural Denials are a Consequence of the Alleged State Obstruction, Not a Reason for Dismissal

 

This constitutes a crucial strategic point in the case. Mr. Smedema’s contention that the “incoherent reasoning” or “failure to exhaust domestic remedies” are manufactured by the state’s obstruction 1 is legally sound under certain interpretations of human rights law.11 This argument directly counters the European Commission’s initial dismissal 1 and asserts that the procedural barriers themselves are an integral part of the alleged violation. This approach seeks to prevent the state from benefiting from its own alleged wrongdoing.

The Commission’s initial “no case” response 1, based on the “internal problem” argument, when juxtaposed with the extensive and detailed allegations of systemic state capture, cross-border false information, and deliberate obstruction 1, suggests that the Commission might be employing a bureaucratic or political shield.

This is not necessarily a definitive legal judgment on the merits but could be a refusal to engage due to the sensitive nature of challenging a Member State on foundational issues, especially given the political difficulties of applying Article 7.24 This implies that the challenge needs to be framed not just as a legal complaint, but as a direct challenge to the Commission’s

discretion and duty to uphold EU values when faced with allegations of systemic breaches that undermine the very foundation of the Union.

While individual allegations might be dismissed as internal, the sheer volume and interconnectedness of Mr. Smedema’s claims—encompassing breaches of the Rule of Law, fundamental rights, sincere cooperation, anti-corruption principles, mutual trust, and impacts on financial interests—collectively paint a compelling picture of systemic failure.

Each alleged breach, from the denial of legal aid to the provision of false information to other states, contributes to a narrative of a state actively subverting its legal obligations. This suggests that even if no single breach immediately triggers a specific EU mechanism, the cumulative effect of these alleged violations, particularly when framed as “State Capture,” might reach a “tipping point” where the EU can no longer credibly maintain that the issue is purely internal. Such a comprehensive and interconnected presentation could compel a re-evaluation of the Commission’s stance, especially if the situation is framed as a direct threat to the EU’s own integrity and credibility on the global stage.

 

VIII. Recommendations and Potential Next Steps

 

Strategic Considerations for Pursuing the Case Further

 

To effectively pursue the case, a multi-faceted strategic approach is advisable:

• Reframing the Narrative: It is crucial to continuously emphasize the systemic nature of the alleged “State Capture” and its direct impact on core EU values and cross-border cooperation. This reframing moves the discussion beyond the perception of isolated domestic failings to one of fundamental threats to the Union’s legal order.
• Focus on Specific EU Law Breaches: While “State Capture” provides a powerful overarching conceptual framework, it is strategically beneficial to focus on specific, actionable breaches of EU law. Examples include violations of Article 4(3) TEU on sincere cooperation, Article 47 CFR on the right to an effective remedy, and Article 325 TFEU concerning the protection of EU financial interests. These provisions have clearer legal triggers for EU mechanisms.
• Evidentiary Strategy: Meticulous documentation and presentation of all available evidence, regardless of how fragmented it may initially appear, are paramount. This evidence should demonstrate the alleged obstruction of justice, denial of remedies, and dissemination of false information. The argument that the state actively created the lack of evidence or the inability to exhaust procedural remedies is a crucial legal point that should be consistently advanced.
• Public and Political Advocacy: Given the inherent political hurdles in activating certain EU mechanisms, such as Article 7 TEU, complementing legal efforts with strategic public and political advocacy should be considered. Raising awareness among civil society, media, and political stakeholders can generate external pressure on EU institutions to act.

 

Possible Avenues for Re-engaging with EU Institutions or International Bodies

 

Several avenues for re-engagement exist, each with its own specific requirements and potential impacts:

• Re-engagement with the European Commission: A refined complaint should be submitted to the European Commission, explicitly addressing its “internal problem” argument. This complaint should detail how the alleged actions breach specific EU Treaty articles and foundational values, and how the procedural impediments faced are a direct result of state obstruction. The implications for mutual trust within the EU and for the protection of EU financial interests should be prominently highlighted.
• European Parliament: Engagement with relevant committees or individual Members of the European Parliament (MEPs) who have demonstrated concern for Rule of Law issues is a viable option.25 The Parliament has historically called for the activation of Article 7 procedures in cases of systemic breaches.25
• European Court of Human Rights (ECHR): A new application to the ECHR could be considered, specifically addressing the “exhaustion of domestic remedies” issue. This would involve arguing that the state’s alleged “deliberate concealment and obstruction” rendered domestic remedies ineffective or inaccessible, thereby excusing the exhaustion requirement under ECHR jurisprudence.11
• Other International Bodies: Exploration of other international human rights bodies or mechanisms where state lies and obstruction can be raised is advisable. Leveraging the “abuse of process” doctrine, which applies in international law when procedural rights are misused for illegitimate purposes, could be a powerful tool in these forums.14

 

Importance of Robust Evidence and Legal Strategy

 

The ultimate success of any future action will be heavily dependent on the ability to present a coherent, well-documented case that systematically links the alleged actions of the Dutch state to specific breaches of EU and international law. Simultaneously, it will be critical to effectively counter the “internal problem” defense and navigate the inherent challenges of proving systemic obstruction. Continued engagement with expert legal counsel and meticulous strategic planning are paramount to building a compelling and admissible case.

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