Crize instituţionale – puterea judecătorească
Dealing with a double crisis: about the Dutch Supreme Court
The Dutch judiciary faces an
organizational as well as a fundamental crisis.
Solutions geared towards the organizational crisis
might intensify the fundamental crisis. The proposal
for a pre-trial chamber at the level of Supreme
Court is illustrative.
Keywords: double crisis, organizational
solutions, Dutch Supreme Court, Committee
Hammerstein; judiciary; administration of justice
During the last decade the quality of the administration of justice of the Dutch judiciary has moved more and more to the center of attention.1 The heightened attention seems to suggest that there are currently developments in the judicial state of affairs that cause structural problems, if not crises, in the Dutch judiciary. These more structural problems manifest themselves as a ‘system overload’ in terms of cases, leading to a slow administration of justice. This system overload appears as an unwanted side effect of the rationalization and juridification of society, in a complex interplay with the emancipated citizen who translates the exercise of rights more and more into legal claims. The suspicion of a crisis in the Dutch judiciary also forces itself upon us as the Dutch media excavates and exhibits failures of the judiciary with much gusto and a keen eye for drama. Other aspects that contribute to the experience of a judicial crisis are an increased atmosphere of intolerance in the Netherlands, rooted in the perception of rising criminality, the fear of immigration and terrorism, culminating in a general sense of insecurity.2 At the same time, the judiciary struggles to master the massive influx of cases, to administer justice within a reasonable period of time and in accordance with all the material and procedural safeguards a democratic Rechtsstaat requires.
The foregoing hints, to put it carefully, at a concern with the performances of the Dutch judiciary. In order to get to the core of the structural problems, it is helpful to distinguish between an organizational crisis and a fundamental crisis in the Dutch judiciary. As proposed solutions focus on the organizational crisis, a brief sketch of the organization of the Dutch judiciary is called for. Next, we turn to one of the proposed solutions. Particularly interesting is a proposal by the Committee Hammerstein concerning the highest level of the judicial organization, the Dutch Supreme Court. It is likely that actions and solutions at this level affect the entire judicial organization. It is suggested that, since both crises are indissolubly connected, measures exclusively aimed at solving the organizational problems might well have effects, for better or for worse, on the fundamental crisis.
A double crisis
The Dutch judiciary suffers from a double crisis: an organizational crisis and a fundamental crisis. The organizational crisis is the most prominent on the screen: it manifests itself as an increase of cases brought to trial, leading to a slow administration of justice and culminates in a general concern about quality of the administration of justice.3 The discussion about the more fundamental crisis concerning, for example, the legitimacy of the justice so administered seems not yet to have been crystallized in a definite shape. It is often addressed in terms of an almost unbridgeable gap between the judiciary and its ‘consumers’, citizens seeking justice.4 In the daily practice of the judiciary both crises are fully intertwined and are hardly discussed in this differentiated manner. This is even more so since the discussions seems to merge in the quest for judicial quality. The organizational crisis might loom large but it seems plausible to expect that measures initiated to tackle it, also have their impact on the fundamental crisis as well. The question then becomes if the solutions geared towards the organizational crisis exacerbate the issue of legitimacy or offer relief for that crisis as well.
The aspects that contribute to or even generated the organizational crisis are located in society as well as in law itself. There are societal developments that play a considerable role. Central in this is the process of individualization, legally framed in bills of rights. These highlight the importance of individual self-determination and the limited role of the state, safe-guarding the private sphere of the individual from state intervention or, if necessary, demanding action from the state to guarantee the exercise of self-determination. This latter aspect gained momentum with the introduction of socio-economic rights demanding a positive obligation on the part of the state to ensure the proper exercise of fundamental rights.5 This modern legal development of attributing rights to individuals to safeguard and to shape their individual autonomy is first and foremost an achievement, enabling citizens in the Netherlands to live as we now do. These conditions also resulted in the birth of the „mondige burger”, the emancipated citizen, who knows his/her rights and expects an accommodating spirit of other citizens and the state towards the exercise of these rights. It has also, however, brought along a culture wherein rights increasingly have become the basis of legal claims. Hence these rights paved the way to the court, as the attribution of rights is completed by means of effective exercise only. It is not only the quantity that increases steadily, but also the complexity of the cases seems to spiral ad infinitum. This is amongst other things due to scientific, technological and economic developments such as nanotechnology, IVF, genetic modification, the internet and the coming into existence of global financial and trade systems. Such developments render societies ever more complex and the Dutch society responded with a notable increase in rules.6 These developments and their regulatory responses gave rise to specialized areas of law such as intellectual property, banking and finance, professional liability or the ICT law, requiring the involvement of specialists in that specific field into the legal proceedings. The fact that judges are no longer the only specialists in a procedure but need to involve specialists from other domains, adds to the problem of time-management. Finally, the processes of internationalization and the rapid development of the European Union, concurring with a legal expansion in terms of treaties, guidelines and non-national judicial decisions also have to be taken into account by the judiciary, exacerbating the time-problem even further. Furthermore, Dutch law contains institutions and rules that, in themselves positive and indispensable, also contribute in an indirect way to the organizational crisis. For example, the Dutch Constitution guarantees general access to justice in article 17 and grants legal aid for people of limited means in article 18.7 In addition, there is also the institution of the prohibition on the denial of justice or, formulated differently, the obligation to decide on all legal matters that are brought to court (article 13 of Wet Algemene Bepalingen – General Provisions Act). The interplay of legal institutions such as the foregoing and the above mentioned social developments generate a system overload of the judiciary. These institutions and rules are however aspects of our society that should not and cannot be subject to radical change as this would threaten and violate the democratic Rechtsstaat per se. A plausible course of action would be an enlargement of the judiciary: more judges and alternative ways of dispute resolution (ADR). The latter is a development well on its way in the Netherlands. The former – though high on the agenda - however meets budgetary and practical obstacles (such as selection and training) causing a temporal friction between problem and solution. Consequently, the Dutch judiciary has to fight its battle on more than one front.
Organization of the Dutch judiciary
The structure of the Dutch democratic Rechtsstaat is determined by the trias politica: in our era rather a division of labor, in a sophisticated system of checks and balances, than a separation of powers. The judiciary branch operates next to and, to some extent, with the legislative and executive bodies.8 Crucial for the performance of the judiciary is its independence, safeguarded by several institutions.9 The judiciary itself, the organization of the courts, is organized in a strict hierarchy based on substantive and territorial jurisdiction. For the underlying analysis a general sketch of the court system in the Netherlands suffices. Primary law regarding the judiciary is formulated in the Judicial Organization Act.10 The ‘entrance’ level is constituted by district courts (19 in total in the Netherlands). A district court is constituted by sectors. These sectors always include: civil law, criminal law, administrative law and a sub-district law sector. The next level, the level of appeal, is formed by 5 Courts of Appeal. Notably, administrative law has its own procedural route concerning appeals. The Supreme Court, located in The Hague, is the court of final appeal. It deals with appeals in cassation in civil, criminal and tax law cases. The function of the Supreme Court is geared towards maintaining legal uniformity and the development of law and in this way it provides guidance for and control on the administration of justice by the other lower Dutch courts. In individual cases, the Supreme Court is the court of last resort and guarantees legal protection of individual citizens, even if the interests at stake have no bearing on the overall legal uniformity or development of the law.
Proposal by the Committee Hammerstein
On all levels of the Dutch judicial organisation the case load exceeds the available capacity and the quest for solutions that do not infringe upon the quality is in full swing. The focus of this paper is on the highest level of the judiciary as it is plausible that solutions implemented at this level, reverberate upon the whole organisation of the judiciary. It will be clear that, since quality of the administration of justice is of the utmost importance, the solution is not to be found in attempts to increase the output tout court. The risk that the sheer quantity of production might prevail over the quality of the administration of justice is not acceptable. Earlier on it was mentioned that extending the organisation, in terms of more judges, is an option but also a limited one due to financial issues, selection and training problems. A last way out of the organizational crisis discussed here therefore exists in measures to reduce the input of cases.
This particular course of action is examined and suggested by the Committee Hammerstein in its report of February 2008.11 The Committee was installed on March 27th 2007, by a decree of the Directorate-General for the Administration of Justice and Law Enforcement of the Ministry of Justice.12 The aim was to investigate into the possibilities to strengthen the „norm-directing role” of the Dutch Supreme Court. Hence the focus of the inquiry is on the function of the Supreme Court pertaining to the development of law, as mentioned above. The Committee Hammmerstein brought several solutions to the fore such as the possibility for lower judges to address prejudicial questions to the Supreme Court. Another proposal concerns placement and internships of judges and trainee-judges in suitable position within the Supreme Court. The most striking proposal however concerns the introduction of a pre-trial chamber. The introduction of such a pre-trial chamber would continue the course set out by article 81 of the Judicial Organization Act, which allows the court to decide whether a case has prima facie grounds for leave to appeal.13 The setting up of a pre-trial camber, though, would still require a change of the Act as it allows Supreme Court the discretion to select cases that ‘really matter’.14
In its essence, this part of the proposal appears deceptively simple: in order to reduce the influx of cases, a gatekeeper in the guise of the pre-trial chamber is installed. This pre-trial selection requires however justification because it is essentially a restriction of access to justice. Instead of a court system in which a case can pass three instances, in some procedures it is going to be restricted to two instances. The Committee justifies this selection of cases by reference to the core-functions of the Supreme Court. The Supreme Court should only deal with cases that are important in view of answering questions of law and hence contribute to the development of law. Cases regarding individual legal protection should only be dealt with if the parties involved are likely to suffer a ‘significant’ drawback.15 It follows that the pre-trial chamber, consequently: the Supreme Court itself, determines which cases are relevant but only in view of its ‘core business’ and not in the larger framework of legal protection of citizens. Furthermore, the Committee does not formulate a list of hard criteria for selection but instead suggests ‘open criteria for selection’. For its concrete application, the Committee refers to ‘experience‘in selecting cases, acquired in due time by the pre-trial chamber.16
The omission of such hard selection criteria makes it all the more difficult to justify the selections made by the pre-trial chamber towards the public in general and specifically to the parties involved in concrete cases. And here the organizational crisis and the fundamental one get intertwined once again. Because a pre-trial chamber might well reduce the input and thus solve the work overload of the Supreme Court, the risk of deepening the fundamental crisis is more than likely: the organizational reduction is on the one hand a restriction of access to justice, posing a possible threat for the legal protection of individual parties. This threat is even more likely as it remains unclear what the justification will be for selection in concrete cases.. It can be conjectured that both these aspects just add to widening the gap between the judiciary and the public. The public, and more specifically the parties involved, will most likely care a big deal more about legal protection in respect of their actual interests than about the development and uniformity of Dutch law.17
The Dutch judiciary is haunted by a double crisis: one concerns organizational problems in terms of an ever increasing influx of cases, the other pertains to more fundamental matters of legitimacy of the administration of justice. In the daily practice of the judiciary, the two crises are intermingled and are also dealt with as such by the judiciary and the Ministry of Justice. However, proposed solutions appear primarily geared towards solving organizational problems. Apparently, it is thought that reducing the input of cases guarantees not only an improvement of the quality but also to, and in one stroke as it were, to the legitimacy of the administration of justice. Though it is not in advance excluded that increased efficiency might add to ‘closing the gap’ between the judiciary and the public, it is also not without risk. Analyzing the proposal of the Committee Hammerstein, in particular the idea of a pre-trial court, shows that the reduction of case load for the Supreme Court puts a strain on the legitimacy. Both the problems of justification of selected cases and the issue of restricted access to justice can only exacerbate the fundamental crisis.
Hans Boutellier, De veiligheidsutopie
, (Den Haag: Boom juridische uitgevers 2003).
Cfr. A.J.G.M. van Montfort, P.O. de Jong, M. Herweijer, A.T. Marseille, „The sooner the better management of time in district courts”, International Journal of Sociology of Law,
33 (2005): 35-51.
Gabriël van den Brink, „Geloofwaardige rechtspraak: de rechter als bruggenbouwer”, Rechtstreeks
More on these developments in: Lyana M.A. Francot-Timmermans and Ubaldus R.M.T. de Vries, „Normativity in the second modernity”, Rechtstheorie,
39 (2008): 477-494.
Leny E. de Groot-Van Leeuwen and Wouter T. de Groot, „Dining out in the trias politica
: involvement of the Dutch judiciary in the legislative process”, International Journal of the Legal Profession
, vol.10, no.3 (2003): 272.
De Groot-Van Leeuwen and De Groot, Dining out in the Trias politica
Informative in this matter is the comparative study of Nuno Garoupa and Tom Ginsburg, „Guarding the the Guardians: Judicial Councils and Judicial Independence”, The American Journal of Comparative Law
, Vol.57 (2009): 201-232.
Committee Hammerstein, „Versterking van de cassatierechtspraak”, Den Haag (2008).
Article 81 holds: If the Supreme Court considers a complaint that has been filed cannot result in cassation and does not warrant the answering of questions of law in the interest of the uniform application of the law or the development of law, it may confine itself to this consideration when stating the grounds for its decision.
Committee Hammerstein, „Versterking”: 40 and further.
Committee Hammerstein, „Versterking”: 3.
Committee Hammerstein, „Versterking”: 41.
- Lecturer In Law, Faculty of Law, Economics and
Governance, Utrecht University, The Netherlands.