Category Archives: Procedures & Procedural Justice

Why is a legal “case” literally called a “desk” in Chinese?

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Trials in China largely consist of written documents collected in a dossier rather than in oral debates. This perception and administration of (criminal) justice is deeply entrenched in China’s legal culture, which can be well illustrated by China’s peculiar terminology on (criminal) trial.  Continue reading

Disdain for Law and Democracy: A Red Flag in Radicalization Processes

psychologyRadicalization and associated issues such as extremism and terrorism are important problems in our world. Various radical belief systems are associated with the problems of radicalization, extremism, and terrorism. These belief systems include extreme Muslim beliefs as well as radical right-wing and left-wing beliefs. Due to its importance and complexity, I am currently writing a book on why people radicalize. The book, to be published in 2018 by Oxford University Press, aims to provide an accessible, advanced, and up-to-date assessment of what is going on inside people’s heads with respect to fairness issues and radicalization. The book reviews several instances of radicalization and theories of radicalization. The book also introduces a framework to understand radicalization. In developing this framework I propose that perceived unfairness is a key antecedent of various radicalization processes, especially when these perceptions are combined with uncertainty or other threats and with insufficient correction of self-centered impulses. Continue reading

Procedural review: a solution for the European Court of Human Right’s problems?

ECHRHuman rights cases often concern politically sensitive matters. An example is the case the European Court of Human Rights decided two weeks ago on the Beslan hostage taking drama. In 2004, about 800 children and 300 of their parents were taken hostage in a school in Beslan, Russia, and were held in the school building under very harsh conditions. Several of the male hostages were executed in full view of the children. After unsuccessful negotiations with the hostage takers, the authorities decided to storm the school and end the siege. Much is unclear about what happened, but some powerful explosions occurred, killing dozens of people, and a fire broke out, which killed even more children and their parents. Over 330 people lost their lives and hundreds more were wounded. Not satisfied with the way in which the authorities responded to the occurrences, some of the victims and their relatives approached the European Court of Human Rights and asked it to examine if the Russian authorities had done enough to protect their lives and safety. Given the context of terrorism and civil strife in the North Caucasus, the case was of tremendous political sensitivity. Moreover, the facts were disputed and it was far from clear who should be considered to bear primary responsibility for the killing of so many children and their parents – the terrorists or the Russian authorities. Clearly, thus, this is an extremely hard case for the European Court of Human Rights to decide, and the question may arise what approach it should choose in dealing with it. Continue reading

Emerging Role of Expert Opinions in Chinese Criminal Justice

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Photo by Wang Qiufei, Dongfang Law Firm, China

On 13 March 2017, I left the Netherlands for Beijing to begin a week of meeting Chinese practicing lawyers about their experiences working within the criminal justice system. My overall observation is that the popular discourse for enhancing China’s criminal procedural fairness is not only a concerted sentiment, but also a concrete effort among professionals in the field.

Below, I reflect upon key insights I obtained during a lively training session, and then offer two remarks on how scholars can play a role to improve the world’s largest criminal justice system through knowledge exchange and practical cooperation. Continue reading

Unity of law in the application of the duty of consistent interpretation?

This blog considers whether unity of law should be strived for in the EU law remedy of the duty of consistent interpretation and, if so, how this could be achieved. I explain why it is necessary to differentiate between the national and the EU level when addressing this question. I argue that unity of law is not a pie in the sky on the EU level but that, on account of differences in the national methods of interpretation, the degree of unity will probably not be the same on the national and the EU level. To conclude this blog, I suggest three ideas to achieve a high degree of unity in the application of the duty of consistent interpretation on the national level, and that the Dutch could perhaps learn something from the Germans in this respect.
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The Urgenda judgement: legislature and government under intensive judicial supervision

Writing something about the Urgenda judgement (Rechtbank Den Haag 24 June 2015, ECLI:NL:RBDHA:2015:7145) might seem abundant at this point. After all, a lot of literature about the judgement has already been published. Is the judgement really so special? That can, with good reason, not be denied.

The Urgenda Foundation is the organisation for sustainability and innovation which aims to together with companies, governments, civil organisations and individuals, make the Netherlands sustainable more quickly. This foundation has filed a civil case against the State, because according the foundation while the government has recognized the urgency of the climate problems, it has taken insufficient action to prevent dangerous climate change. In the Urgenda judgement the State, on the basis of the standard of due care observed in society as set out in article 6:162 of the Dutch Civil Code, is subject to a periodic penalty payment ordered to reduce the annual greenhouse gas emissions by 2010 by at least 25 percent compared to the 1990 levels. The relevant international provisions for the case cannot be relied on at law at the national judge, in the sense that they are unsuitable to be directly applicable as positive law in the national legal system and they are therefore not binding on all persons as provided in articles 93 and 94 of the Dutch Constitutions. However, the court applies the so-called consequential effect. The latter means that the court, in applying the national open standards, such as the standard of due care observed in society, takes into account international provisions that are not binding on all persons as provided in articles 93 and 94 of the Dutch Constitution.

 


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The civil law sanctioning of violations of the principles of civil procedure

asser_procesrecht_1In December 2015 my book ‘Principles of civil procedure’ was published as part of the Asser Procesrecht-series (‘Beginselen van burgerlijk procesrecht’ Wolters Kluwer: Deventer 2015). In this book, I discuss, after some general considerations, the guiding principles of civil procedure from a Dutch and European perspective. Based on the research into and the analysis of the seven discussed principles of civil procedure, I included in the General Considerations a chapter on ‘Sanctions after violations of a principle of civil procedure’. From my research into the seven specific principles dealt with, I had quickly discovered that the sanctioning of violations of those principles (which are almost always protected as a human right under Article 6 ECHR and Article 47 EU Charter) is rather shabbily endowed in the Netherlands. The theme is hardly discussed in the doctrine and rarely any specific rules (through legislation or case law) exist. Therefore, we seem to be unable, as yet, to cope adequately with the sanctioning of such violations. I am convinced that this is a bad state of affairs, that we need an urgent improvement and that – fortunately – there is a solution available. Continue reading

Dutch help for the Greek civil justice system?

crisisgrThe statement made during the Euro Summit on Greece on the 12th of July following 17 hours of meetings included one measure which has received less attention than the other (serious) demands made against Greece to qualify for new loans (Euro Summit Statement Brussels, 12 July 2015 (SN 4070/15)). One of the measures that Greece must take is:

the adoption of the Code of Civil Procedure, which is a major overhaul of procedures and arrangements for the civil justice system and can significantly accelerate the judicial process and reduce costs”.

At first sight it seems remarkable that a reform of the procedure in civil courts has been given such a prominent place between the imposed cuts and economic reforms, especially in light of the hectic discussion during that memorable Sunday evening. What is the connection between this measure and the Greek debt problems? Does this not prove the ultimate European interference by also prescribing Greece a civil procedural law? Continue reading

Should we be happy with a pesky hornet? On the querulant and his unintended, unexpected but desirable functions

francisco_de_goya_y_lucientes_-_the_dream_of_reason_brings_forth_monsters_-_google_art_projectWhile researching the challenge procedures (publication, ‘Wraking bottom-up’ in 2012 and the current research into the ‘pilot externe wrakingskamer’) I became interested in the querulant. Querulants, in my opinion, challenge a judge more often than other citizens. They are also partly classified by this characteristic. Erhard Blankenburg has previously said that with querulants a shift occurs from a conflict about the case, to a conflict over procedures. The big complaint of the querulant, which is also exactly the reason for his perseverance, is that his complaints are rejected by ‘corrupt officials and judges’ without giving him a ‘decent chance’ to tell his story. The procedure no longer legitimizes, according to Blankenburg with a reference to Niklas Luhmann (Legitimation durch Verfahren, Neuwied 1969). The procedure relieves us at some point “from the obligation of having to argue about the fairness of standards” (Blankenburg 2004:15), while repeated subjectively perceived injustice – perfection does not exist in the daily reality of the law – leads to a pathological complainer. Continue reading

Judicial Independence Detained

ehrmAs fits a centre of research on judicial administration, earlier blogs have dealt with urgent questions about the adherence to the rule of law and the functioning of the judiciary in the Netherlands. The topic of pre-trial detention combines all those questions. Here the politics of safety, the politicization of constitutional guarantees (Brenninkmeijer, ‘Stresstest rechtsstaat Nederland’, NJB 2015, afl. 16, p. 1049), and public opinion exert a particular problematic influence on the independence of the judiciary, which should guarantee critical review of pre-trial detention and the presumption of innocence. Continue reading