Institutional silence and the five mechanisms hiding lawsuits

Summary

When institutions fail to document their decisions, accountability becomes structurally impossible. In the FSV/RAM scandal, five mechanisms work together to ensure that lawsuits never reach public scrutiny. Combined with deliberate avoidance of written records in sensitive cases, these mechanisms create a system where institutional silence is not accidental but structural.

The five mechanisms

1. Non-publication of single-judge rulings

The majority of FSV/AVG cases are handled by a single judge (enkelvoudige kamer). Under Dutch practice, single-judge rulings are standardly not published on Rechtspraak.nl. This means the vast majority of FSV/RAM rulings — including those establishing unlawful government action — remain invisible to the public, lawyers, and researchers.

2. Pseudonymization of parties and advocates

Published rulings replace advocate names with “[gemachtigde: mr. X]”, plaintiff names with generic terms, and locations with “[woonplaats]”. This makes it impossible to search for cases by lawyer — preventing victims from finding related rulings and building collective legal strategies.

Confirmed in Legal Mike search actions (2026): unable to verify whether specific lawyers appeared as counsel in published FSV rulings due to pseudonymization.

3. Settlement policy preventing jurisprudence

The Belastingdienst offers flat-rate “tegemoetkoming” (accommodation payments) rather than “schadevergoeding” (compensation). This distinction is deliberate: the state secretary chose the tegemoetkoming framework to avoid establishing jurisprudence on liability (Kamervragen FSV-tegemoetkoming 2022, vraag 13/15).

Citizens retain the right to go to court for AVG-based damages, but the burden of proof lies with them — and without published jurisprudence, each victim must start from scratch.

4. Fiscal confidentiality (art. 67 AWR)

Article 67 of the Algemene wet inzake rijksbelastingen (AWR) is used to refuse access to internal communication about selection criteria, risk models, and data sharing decisions. In ECLI:NL:RBDHA:2025:6422, the court found the Minister’s invocation of “ongestoorde gedachtewisseling” (undisturbed deliberation) was too broad — it would effectively allow refusing all correspondence between officials.

5. Burden of proof on the victim

Victims must prove that damage was caused by unlawful government action. Meanwhile:

• RAM was deactivated on 25 May 2018 (one day before GDPR took effect)
• FSV was taken offline on 27 February 2020
• ~9,000 objection files were prematurely destroyed in 2019-2020
• 64 million datakluis files have never been searched
• Registration reasons are often no longer traceable

The KPMG report confirms: “outcomes of RAM analyses were not preserved, making it impossible to determine what role FSV played in them.”

Evidence of institutional silence

• The FSV Stuurgroep meeting of 25 June 2020 classified AVG violations as “bestuurlijk aanvaardbaar risico” (administratively acceptable risk)
• Internal documents from the CAF team used the codeword “stoppertje” for informal benefit stoppages — 160 cases without documentation, due process, or motivation
• The Palmen memo (March 2017) warning that fraud hunting had “derailed” was never archived in primary systems and never shared with the parliamentary inquiry committee
• The datakluis (64 million files) was discovered in July 2025 but the parliament was only informed in April 2026 — 9 months delay
• The Belastingdienst refused to reveal risk selection criteria: “Om controlestrategische redenen kan niet op voorhand aan belanghebbenden worden aangegeven op basis waarvan criteria een specifieke aangifte zal worden geselecteerd” (Kamervragen 2022)

Key ECLI references

Analysis

The absence of documentation creates plausible deniability while preventing victims from building legal cases. This pattern suggests institutional awareness of procedural vulnerability rather than accidental oversight. The five mechanisms do not operate independently — they reinforce each other, creating a system where victims face a closed loop: no published rulings means no legal precedents; no precedents means each case must be argued from scratch; without documentation, each argument is nearly impossible to make.

Related Entities

• /en/entities/toeslagenaffaire

Internal References

• /en/cases/toeslagenaffaire/
• /en/investigations/ram-mkb-profiling-tip-of-iceberg
• /en/investigations/causal-link-fsv-entrepreneurs