Chapter The institutional context of the Dutch judiciary

Transcription

1 Chapter 5 5. The institutional context of the Dutch judiciary The question to be addressed here is how the Dutch judiciary is organised. This is important to show how the demands of the constitution as regards the judiciary are realised as regards access to justice, and due process. This area is separated into three areas: the courts competences and jurisdiction, and the training and careers of members of the judiciary Courts in the Netherlands Competences A basic requirement of the judicial institution is that it must be accessible, and it must also be probable that everybody can physically reach a court within a reasonable time. Territorial jurisdiction is called relative competence. 2 The Netherlands has 19 district courts (gerechten), 5 Courts of Appeal (gerechtshoven), and one Supreme Court (Hoge Raad). Before January 2002 there were 61 sub-district courts (canton courts). In 2002 there were 1,880 fte judges working in the Netherlands, with 1,293 working full time and 587 part time. There was a total of 6,138 support staff. 3 At the end of this research in November 2006, the numbers published on the website of the judiciary were for 2004, 2200 judges (including part time, but excluding temporary replacement judges), with 260 people in training. 4 1 C.A.J.M. Kortmann and P.P.T. Bovend Eert, Dutch constitutional law, The Hague, London, Boston 2000, p. 130; for more on the numbers, see 2 P. Albers, C. Boonstra, F.C.J. van der Doelen and L. Mos, De territoriale verdeling van rechtsmacht in Nederland: bevindingen naar aanleiding van de CEPEJ expertmeeting van de Raad van Europa op 6 oktober 2003 te Den Haag, Trema 2004, p , p Juridische infrastructuur in internationaal perspectief criminaliteitsbeheersing, p. 51; my thanks to the Council for the Judiciary, public relations department. 4 The statistical data for support staff is not in terms of the number of staff, but rather in terms of 65

2 The institutional context of the Dutch judiciay After January 2002 the Judicial Organisation Act merged the sub-district courts with the district courts organisationally. There were several reasons for this change in the organisation of the courts. Originally, the sub-district courts were set up to deal with the simpler civil and criminal cases. As they were deemed to be a lower court than the district courts (which are also first instance courts dealing with civil and criminal cases but of a more serious nature), any appeals also went to the district courts. Thus to normal people using the courts, the system was rather confusing. The second (less formal) reason for this change, is that sub-district court judges would work relatively isolated for long periods of time. Although some sub-district courts engaged in cooperation with other nearby sub-district courts, there was, generally speaking, very little feedback on the functioning of the sub-district court judges and their staff. 5 With the new organisation, it is possible for judges of the sub-district sectors to rotate within the district court itself to one of the other sectors. A third reason, mentioned by the IBO, is that the sub-district courts as they were, were too small organisationally to implement integral management. 6 The next sign of efficiency after the distribution of jurisdiction following geographical factors is efficient case management. The most basic way to filter cases is according to the type of law they fall into, i.e. criminal, civil and administrative law. This form of efficiency is called absolute competence in Dutch law. On top of these three sectors, some courts have military and tax sectors under articles of the Judicial Organisation Act The five appellate courts and the Hoge Raad also have similar divisions, but only for tax, criminal and civil cases. The Hoge Raad hears appeals only in cassation (i.e. on points of law and not fact). All the other courts beneath the Hoge Raad can hear cases on both points of law and fact. The organisation of administrative jurisdiction is somewhat complicated in the Netherlands. The General Administrative Law Act (GALA) 7 instituted the present first instance administrative law court sectors as part of the district courts in Before that, legal protection against administrative decisions evolved during the last century separately for different fields of government activities. A variety of administrative tribunals existed. Also the Council of State had an important role in legal protection against the government; in this respect it gradually evolved from a body giving advice only to the Crown in certain cases (e.g. spatial planning and environmental decisions) into a full administrative court, nowadays called the Judicial Division of the Council of State In the period up until 1986, ninety nine per cent of the time government followed the advice of the administrative conflicts division of the Council of State, until the European Court of Human Rights ruled that such a system went against judicial working years (arbeidsjaren). In 2004 there were approximately 5,000 working years charged to the Council for the Judiciary for the support staff in terms of financial planning. 5 P.H.M. Kuster and T.J. de Geus, Rechterswerk, Trema 2003, p , p R. Meijerink, Recht van spreken, Interdepartementaal Beleidsonderzoek Bedrijfsvoering Rechtspraak, The Hague 1999, p Official translation for Algemene Wet Bestuursrecht (AWB). 66

3 Chapter 5 independence, required under article 6 of the European Convention of Human Rights. 8 Now each district court has an administrative law sector so that a judge can rule upon the legality of governmental action in relation to citizens and organizations. From there on, there are three possibilities to appeal. The first is to the Administrative Law Division of the Council of State (Afdeling bestuursrechtspraak Raad van State) a High Institution of State (Hoog college van staat) 9, the second is the Central Appeals Tribunal (Centrale Raad van Beroep) (for the public service and for social security matters) and the third is the Trade and Industry Appeals Tribunal (College van Beroep voor het Bedrijfsleven). This structure has been criticised as being contrary to the principle of the uniformity of the law and the application thereof. 10 Following on from the jurisprudence of the European Court of Human Rights, under the GALA 1994 and the Council of State Act, the Council of State may no longer advise the Crown in cases where there appears to be a conflict between government and a party (a natural or legal person); the administrative conflicts division has ceased to exist. However, the Council of State still advises on draft statutes, and on other cases requested by government, but in these cases it does not fulfil a judicial function Separate jurisdictions Administrative law Administrative law is governed by the GALA This act established competences for the 19 district courts to review administrative acts by government and its agencies. It governs the relations between government and individuals (citizens or organisations), government actions, the method by which government policies are implemented, the method by which individuals can challenge government orders, and the way to lodge appeals against administrative decisions with the courts. However, the courts do not cover every administrative decision or government order. Such decisions and orders must fulfil certain criteria. An administrative body must make a decision on specified subjects; otherwise another channel of appeal is through the civil courts. For non-legal complaints the National Ombudsman may be addressed. Criminal law Criminal law is governed by the Code of criminal law and the Code of criminal procedure. The state actors in criminal law are the police, the public prosecution service (openbaar ministerie), the examining magistrate, and the criminal court itself. There 8 Case number: 1/1984/73/111, Benthem v. The Kingdom of the Netherlands. 9 There are many other High Institutions of State, for example, the Lower House and the Senate of the Dutch Parliament, the National Ombudsman, the Auditor, and the Supreme Court. 10 G.J.M. Corstens, Reorganisatie van de rechterlijke macht, Nederlands Juristenblad 2001, vol. 3, p Although this can still be considered to be a delicate and fragile balance conceptually, as the separation between advisory and judicial tasks is incomplete. 12 J.B.J.M. Ten Berge, Bescherming tegen de overheid: stand van zaken na invoering van de Algemene Wet Bestuursrecht, Zwolle 1995, ch

4 The institutional context of the Dutch judiciay also exists in the Netherlands the position of an examining magistrate (rechter comissaris). This is a judge who leads the investigation into cases where a public prosecutor has to conduct a more detailed investigation. The examining magistrate does not play a part at the trial stage. 13 In the Netherlands, as with all other democratic states under the rule of law, a suspect is innocent until proven otherwise. She has a right to legal representation, and if she cannot afford this, then legal aid will be provided, with a small contribution from the suspect herself. If the case is a summary case (a minor offence for example, speeding) then it will start in the sub-district sector of the district court, and an appeal will lie to one of the courts of appeal, and, if necessary, further to the Supreme Court. If it is a normal criminal case (a serious offence, like murder), then it would start at the criminal sector of the district court, and an appeal would then lie to one of the five courts of appeal, and if necessary, on to the Supreme Court. Civil law The codes of civil law and civil procedural law govern the relations between legal persons (this includes not only people, but also government agencies and private companies). An action at civil law can begin at the sub-district sector or civil law sector of the district court, depending on the value at stake. The sub-district sector deals (amongst other subjects) also with conflicts concerning rents and labour contracts. Appeals go to one of the five courts of appeal, and finally to the Supreme Court. The first instance courts establish the facts of the case and what went wrong (if it is contract law). Once they have weighed the facts of the case, they will come to a judgement. The court of appeal acts in the same way. The Supreme Court, however, (as stated above) only examines the law and not the facts of the case. Litigants going to the Supreme Court must be legally represented, and all representations must be in writing Members of the judiciary Training and selection In order to become a judge, one must have a law degree from a Dutch university, with an emphasis on Dutch civil (procedural) law, criminal (procedural) law, and administrative (procedural) law. The degree should meet the national requirements to become a member of one of the judicial professions, except notaries. Next to this formal requirement, other personal characteristics are looked for, for example, analytical skills, juridical insight, decision-making skills, an ability to work well under pressure, good communicative skills, and clear judgment techniques. Generally, there are two ways to become a judge, one for law school graduates the RAIO track and one for experienced lawyers the external track. 13 G.J.M. Corstens, Het Nederlands strafprocesrecht, Deventer P.A. Stein, Compendium van het burgerlijk procesrecht, Deventer

5 Chapter 5 The RAIO track After graduation one may apply for an assignment as a judicial trainee in the RAIO 15 training programme. The recruitment and selection programme takes about 8 weeks. There are approximately 250 trainees at any given time, and training takes in principle six years. The first four years of training are done as internships within the judiciary itself, at a court and a public prosecution service, and the final two years are spent in the legal field outside of the judicial organisation. Whether one gets a place on this training programme is dependent upon two factors: firstly, the results of the selection procedure, and, secondly, the number of places available (the minister of justice decides on this number every year according to the need). Next to the internships, the Training and Study Centre for the Judiciary (Stichting Studiecentrum Rechtspleging - SSR) provides a broad range of courses. 16 The SSR itself went through a reorganisation in 2002, the same year that the Council for the Judiciary began its operations. As a teaching organisation, it is mostly responsible for training people to become judges, with about 1200 lecturers. According to Didde, 17 the most important reform was that the institution was no longer under the leadership of a director from the hierarchy of the Ministry of Justice. Even though funding still comes from the Ministry of Justice, which is responsible for management, 18 much of the administrative influence has now gone. Furthermore, the organisation s internal teaching organisation has changed, whereas before it focused on the three areas of the law in terms of civil, criminal and administrative. It was changed to having a layer of five middle managers from different departments, who together marked out the working field of the SSR: course organisation, teaching methods and programming. They are also responsible for management and JUSTEX (a database for commentary on administrative law jurisprudence). 19 Next to the role of the SSR and the courts in training RAIOs in the first phase of their careers, some discussion was also held about the role of the Court of Appeal in the training of RAIOs. 20 This discussion was held at the conference Hovenconferentie 2002 with a main summary in the Trema December issue in The reason for involving the Court of Appeal in the process at all is twofold: firstly, all judges start at the court of first instance, therefore the Court of Appeal has a vested interest in having high-quality judges promoted to their instance. Secondly, promotions to the Court of Appeal occur so frequently that the courts of first instance are left without experienced judges to take their place, and are left with the workload. Furthermore, they must spend time and resources on training incoming judges from the RAIO track or the external track. By leaving his lacuna in the first instance courts, the Court of Appeal 15 Rechterlijke ambtenaar in opleiding (trainee judicial officer). 16 See E. Köhne-Hoegen, Over de socialisatie en (her)opvoeding van de raio, Trema 2006, vol. 5, p R. Didde, SSR under construction. Een nieuwe wind in Zutphen, Trema 2002, p Ibid., p Ibid., p See J.B.H. Röben, Hoven in opleiding, Trema, vol. 10, p

6 The institutional context of the Dutch judiciay should make some investment in training incoming judges to the courts. Whilst this has not led to a general policy, the courts of appeal do play a role in training judges. 21 The selection procedure is composed of the following steps: A preliminary look to ensure that a candidate fulfils the initial requirements (a law degree). Afterwards, the candidate takes an analytical/cognitive test. There is then a personal interview, and an assessment. If the candidate gets thus far, there will be an interview with the RAIO selection committee. Further tests are used to determine intelligence, analytical capacity and personality. Following all tests and interviews, the selection committee will write up their views and judgment on the candidate s application. The Training and Study Centre for the Judiciary (SSR) select RAIOs. 22 There is a limit to admission to this training, that of being not older than 30 years of age. It is however difficult to get qualified people for this training programme. Many of the applicants for the selection procedure are offered and accept other jobs before the selection period is finished. A recent move to protect judicial independence and integrity was the combination of the Commissie Aantrekken Leden Rechterlkijke Macht (CALRM) (a Committee concerned with attracting members of the judiciary) with the RAIO selection committee. The Council for the Judiciary did this in order to make the selection process accessible and transparent. This means that persons other than those from the judiciary have a say in the selection process. According to Hooft Graafland, there are now 66 members of CALRM: 18 from the RAIO selection committee, 40 from the judicial organisation (including 5 from the public prosecutors office) and 26 external. That external members get to sit on the selection committee lends itself towards the legitimacy of the whole process. 23 The external track The alternative way of becoming a judge is via external candidate training. Lawyers with at least 6 years experience at the bar, in business, at universities or in government may apply for the external candidates training. The other formal requirement next to the 6 years experience, is that the candidate should have completed three of five examinations in the following legal areas: civil law, including civil procedural law, criminal law, including criminal procedural law, administrative law, including administrative procedural law, public law and tax law. One must be older than 30 to function as a judge, and older than 35 to function as a judge at an appeal instance (a raadsheer a justice ). 24 First of all, the candidate is invited to be interviewed by a preselection 21 There is at least one local policy at Den Bosch when new judges come to the civil sector at the district court; they go for training to the Court of Appeal for several months. My thanks go to Dr. Philip M. Langbroek for this information. 22 After 2002 the Council for the Judiciary also has a stronger role in recommending judicial appointments than the Ministry of Justice. 23 J.A.Z. Hooft Graafland, Beroepsethiek van rechters, Trema 2005, vol. 7, p This is a tricky term to translate, as the system of appeals is different for each type of law. A raadsheer is someone who is a judge at a court of appeal (gerechtshof) or the Supreme Court. 70

7 Chapter 5 committee, which gives advice concerning the possibility that the candidate will pass the following selection process. If the preselection committee gives the go-ahead, a psychological examination will follow as well as three interviews with two members of the committee. The result of these deliberations may be a rejection of the candidate, the suitability of the candidate for the position of a judge, or the recommendation that the candidate should receive some training at a court before she is suitable to be appointed as a judge. This training may take one year, sometimes longer. After successful completion of this training one may be appointed as a judge, but it may take considerable time before an appointment is effected. A difficulty is that this training takes place in the spare time of the candidate who still has to do her/his current job. Considerable personal investment is asked for, without the certainty of a positive result, and without any compensation whatsoever. Furthermore, the separate courts offer the necessary training and there is almost no co-ordination on a national scale concerning the requirements that candidates should meet after training. Overall, the current policy is to compensate for the shortage of inflow from the RAIO training by an influx of external candidates. According to Röben, due to an expansion of the judiciary and the retirement of many older judges, it is estimated that in the coming years (from 2002 at least) a 1000 new judges will be needed. 25 According to Didde, only 60 people start the RAIOs training at the SSR per year (from 2002) to become either judges or prosecutors. 26 Furthermore, the shortage will be compounded by the fact that not all of these people complete their training to be judges. However, he also expresses the belief that with the shortage of judges applying for RAIO positions, there will be an increase in temporary judges, or judges coming from outside the system. 27 Additionally, questions are being asked about the qualities which judges should have apart from the traditional judicial ones. The PVRO (The Judicial Organisation Reinforcement Project) 28 developed a project on personnel management. This included a programme for competency management. In 2000, the Ministry of Justice was considering a renewal of the recruitment and selection procedures for the judiciary Judicial career A judge usually starts his/her career in a district court, as a member of a three-judge chamber, and may later preside over hearings single-handed. From this position judges may become members of an appeal court, a vice president, or a sub-district sector judge. Sub-district court judges had a higher status compared to ordinary district court judges and they received higher salaries. Other positions in the hierarchy of the judicial 25 J.B.H. Röben, Hoven in opleiding, Trema 2002, vol. 10, p R. Didde, SSR under construction. Een nieuwe wind in Zutphen, Trema, vol. 5, p See E. Köhne-Hoegen, Over de socialisatie en (her)opvoeding van de raio, Trema 2006, p This stands for Project Versterking Rechterlijke Organisatie: It was an initiative of judges and the Ministry of Justice before the new Judicial Organisation Act in 2002 to improve the quality of judicial organization. For more information, see chapter 6, part Council for the Judiciary. 29 Derde voortgangsreportage PVRO, 1e halfjaar 2000, van landelijk naar lokaal, PVRO, Amersfoort 2000, p

8 The institutional context of the Dutch judiciay organisation are the offices of co-ordinating vice-president at the district courts, president of a district court, (vice) president at a court of appeal, member of the Supreme Court, and (vice) president of the Supreme Court. Similar positions can be obtained in the administrative courts not belonging to the judicial power. The positions of co-ordinating vice president and of president are management positions. Judges hold the view that the management of professionals should be done by their fellow professionals. Therefore, the leading management positions within the courts are to be held by judges. These are not, of course, the only advancements possible. It is also possible to be promoted to the Court of Appeal. As discussed earlier, there is a vested interest by all concerned in having high-quality decisions delivered by judges. To that end, after a judge has been appointed, there will be continuous training provided by the SSR, either at Zutphen (home of the SSR), or the SSR will organise tailor-made courses for individual courts themselves. 30 Training and knowledge management are not the monopoly of the SSR in the judicial organisation. They will happily recommend the courts to use the services of universities and private consultants. The core activity is in the initial training of judges. Until recently it was quite normal for members of the bench, lawyers working in industry, trade, government or universities to be appointed as substitute judges. In practice this would mean a substitute judge sits once per month. For the courts, this was a way to keep in touch with experiences and expertise in the outside world. In this way, some 1000 lawyers participated in the business of judicial decision-making. The courts must publish the secondary functions of all their judges on the justice website: Many substitute judges are lawyers at a law firm and only the appearance of bias by a judge towards a colleague of the same law firm is considered unacceptable Conclusions The institutional issues of court competence and the training and appointment of judges directly affect the quality of and access to justice. One can conclude that the courts and judges form the foundation of the institutions of justice. From an institutional point of view, there is clarity of jurisdiction, and thus there exist clear legal obligations on courts to hear cases at certain times and places. Furthermore, the rigorous training and testing of candidates to become judges reflect the aspiration of the programme to reach the highest possible standards to ensure high quality and independent and impartial justice. 30 See R. Didde, SSR under construction. Een nieuwe wind in Zutphen, Trema 2002, vol. 5, p See Nederlands Vereniging Voor Rechtspraak, Leidraad Onpartijdigheid Raad voor de Rechtspraak rechtspraak.nl/naar+de+rechter/landelijke+regelingen/algemeen/leidraad+onpartijdigheid+van+de+ rechter.htm ; see also E. Bauw and F. van Dijk, Conflicterende eisen hollen rechtspraak uit, Nederlands Juristenblad 2003, p , p For more information on the NVVR, please see chapter 4, part 4.3. Judicial Independence and integrity. 72

9 Chapter 5 The modernisation process that began in the 1990s in relation to increasing access to administrative justice, was a policy reaction to a ruling of the European Court of Human Rights. This is a sign that the Netherlands regards human rights seriously, and it also reflects that human rights and judicial independence are very much connected to organisation and therefore to the quality of that organisation. Whilst relative competence in terms of territorial distribution mirrors the political need for efficiency, one can also see that this is related to the quality of organisation and therefore affects human rights of access to (independent) justice. If one recalls the description of Mintzberg s professional bureaucracy, the training and recruitment of judges is central to quality implementation and control of productivity, and for the protection of independence and impartiality (professional values). To that end, one can see in this chapter that the training and appointments procedures are very rigorous and thorough. However, transparency has become an important issue in the recruitment of judges, whether through the RAIO track or the external track. This is in order to inspire trust not only in the competence of judges, but also in their independence and impartiality. The following chapter will examine how the Netherlands has further built upon this foundation of courts competences and the training and appointment procedures. 73

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