Category Archives: Procedures & Procedural Justice

The Two-Way Street Between Law and Social Psychology

                                                                                         Kees van den Bos

Blog KeesInsight into social psychology is relevant for the understanding of how the law works in courtrooms, how people perceive the law as a legal system, and how officials function in several legal contexts, such as in the areas of legal decision making, law making, and law enforcement. In other words, social psychology is needed to understand how the law works (or law in action). Furthermore, in part because both social psychology and law share an emphasis on behavioural regulation, notions about how the law should work (or law in the books) can also profit from an understanding of basic principles of social psychology. Importantly, insights into the social psychology of law are not merely an application of basic social psychological principles in legal contexts. Rather, studying social psychology and the law often provides insights that may well feed into basic social psychological research. Thus, both law and social psychology can learn from each other. In this blog I reflect on the two-way street between law and social psychology.

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Process-based fundamental rights review: what about the applicant?

L.M. (Leonie) Huijbers

Afb blog Leonie

What if you see a runaway train moving toward five people tied-up on a track. Would you pull a lever to redirect the train to another track? Yes, of course. No doubt about it. But what if there was another person tied-up on the other track? The decision whether to pull the handle or not becomes inevitably harder. This famous philosophical conundrum applies in a similar, yet – fortunately – less gruesome way, to the European Court of Human Rights. The backlog in cases, the failure of states to implement the Court’s judgments, the increasingly harsh (political) criticism on the Court, and the shortage of resources have put a strain on the proper functioning of the European Convention on Human Rights’ system. This has given rise to the question of whether the Court should continue to provide justice to each applicant, possibly at the cost of the Convention system (track one), or whether it should focus on providing general justice, by ensuring justice for as many individuals as possible, even when it may come at the cost of the applicants before the Court (track two). This dilemma between individual and general justice is also relevant for the Court’s recent procedural turn… Continue reading

#Whataboutthepresumptionofinnocence?

metoo-2859980_960_720Leonie van Lent

The #metoo campaign has once again shown what social media are capable of: stirring a worldwide debate on important issues for people and society and questioning power structures that are not or cannot be put on trial in the same way in traditional media, politics and courts. But also: destroying reputations, careers and relationships, creating large-scale gossip and speculation and forcing people to their knees who know that there is no chance to defend themselves against the storm unleashed by this puny but unassailable mark.

At the same time, human rights treaties not only state that the human body is inviolable, but also stipulate innocence until proved guilty. But what good does this? People are groped involuntary on a massive scale and at the same time people are subjected to a rhetoric of naming and shaming without due process. In this blog, I argue that the presumption of innocence has been neglected wrongfully by lawyers and that now is the time to let it live up to its expectations, also with regard to the media. Continue reading

Fake Facts: the Justice Scoreboard of the Directorate General for Justice and Consumer protection

justice-2071539_960_720Philip Langbroek

The European Commission has a justice policy which involves all national judiciaries, whose functioning is monitored. However I argue that this monitoring is done unsatisfactory. Justice is an important subject in the European Union. For example, trade and crime do cross borders and economic competition contracts and regulations need the guarantee of enforceability. It is obviously unavoidable that a lot of European law is involves regulation and law enforcement. National judiciaries play an important role in the enforcement of EU-law. And it seems perfectly justified that the European Commission monitors the functioning of those national judiciaries. The monitoring of that function is done through the so-called Justice Scoreboard. This Justice Scoreboard, however, is a methodologically inadequate device to evaluate the functioning of national justice systems. The main problem of the Justice Scoreboard is that the data it is based on are overall not reliable and based on nationally – differently! – defined statistics. Consequently, national numbers cannot adequately be compared, which leads to a misleading presentation of the data in bar charts. Continue reading

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

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Sjaak Zhang

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

psychologyKees van den Bos

Radicalization 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?

ECHRJanneke Gerards

Human 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

Cong-rui Qiao

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?

Sim Haket

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

Rolf Ortlep

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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