Brexit: why EU leaders should hold their horses – Bas van Bockel

According to art. 50 of the Treaty on European Union (“TEU”, Lisbon version), “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. In February of this year the European Parliament published a briefing informing citizens and politicians of the backgrounds and the debate on this provision (published here: http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf). (For those with an academic interest in the issue, I highly recommend the piece by my friend Adam Łazowski, ‘Withdrawal from the European Union and alternatives to membership’ that is referenced). No doubt, the aftermath of the Brexit referendum has brought on a profound constitutional crisis in Britain which will take time to play out. EU leaders, while understandably frustrated and deeply concerned about the harmful consequences of this period of profound uncertainty for the economy and indeed for the very future of the European project, should realize that putting pressure on the UK to submit a notification subject to art. 50 TEU won’t help – and that frankly, it is not the most mature response either.

The constitutional crisis in the UK must now take its course. Amidst serious doubts about the sincerity of the Remain campaign strategy led by Jeremy Corbyn -and perhaps even more serious doubts about PM Cameron’s motives and political judgment in calling for a referendum in the first place- the United Kingdom is more deeply and sharply divided than perhaps ever before in its long and remarkable political history. A fundamental question is whether, under those circumstances, the outcome of the referendum can be deemed to be “in accordance with the constitutional requirements” of the UK, as also required by art. 50 TEU. This difficult question will no doubt be subject to heated public debate, as well as political debate in Westminster and, it seems, in Holyrood in the weeks, months, and (in the worst case) perhaps even years to come. In times of crisis and doubt, it should not be forgotten by European leaders that the question of the constitutionality of the referendum outcome is a question that must be decided by the UK itself before it notifies the European Council of its intention to leave the EU in accordance with art. 50 TEU. The mere fact that the UK resists pressure to submit an art. 50 TEU notification forthwith is already proof that these constitutional doubts exist, and are recognized by UK leaders.

One aspect of the debate that will no doubt further unfold in coming weeks is wat those constitutional requirements are and how they apply in an unprecedented situation like this one. In the UK, it is Parliament (and not the general public!) that is sovereign, and there are many good reasons for this. It is essential for a democracy under the Rule of Law that the legitimate interests of minorities are given due consideration in the political process, in accordance with overriding constitutional principles and customs that ordinary voters are not bound by. Otherwise, democracies would quickly relegate to the fortuitous tyranny of the majority over minorities and this is one vital function of the constitutional process in the UK and elsewhere that politicians in the UK will have to consider in the time to come when discussing the outcome and consequences of the referendum. In the meanwhile, Europeans elsewhere and their leaders simply have no choice but to be patient, as any other strategy could easily do more harm than good.

Why the Tribunal Dealing with the South China Sea Dispute Should Step Aside to Make Way for a Negotiated Settlement – Ruikun Sun, Tom Zwart

Increasingly, in the West, in the class rooms of law schools and offices of foreign ministries, international law is being associated exclusively with courts and tribunals. The idea seems to be that something can only be regarded as law if it emanates from an international court. This judicialization of international law overlooks the fact that these international bodies owe their existence to treaties, which are concluded by states, which still are the main actors in international law.

These international courts and tribunals are not the success story law professors and legal advisers would like us to believe. Thus, over time support for the International Court of Justice has been eroding. This is a consequence of the fact that weaker states use the Court to put pressure on more powerful states, which then renounce the jurisdiction of the Court if they lose. The International Criminal Court has been hailed as the global criminal court, but many of the big players, including three out of the five permanent members of the Security Council, have refused to sign up. Furthermore, the Court and its Prosecutor have managed to alienate the African states parties to such an extent that a mass exodus has almost become inevitable.

Political science teaches us that the support courts enjoy is not unlimited. To retain their legitimacy, they should stick to applying neutral and objective legal principles to facts in a technical fashion. Therefore, they ought to refrain from deciding cases which are unfit for adjudication. The South China Sea dispute, which is currently pending before an Arbitral Tribunal set up under the United Nations Convention of the Law of the Sea (UNCLOS), is such an unsuitable case for three reasons.

First of all, the case is a typical example of what Lon Fuller has called ‘polycentricity’. The case involves so many actors and affects so many interests, that the binary format of a court case between opposing parties can never do justice to all. Six states and Taiwan have declared a stake in this matter, but the case only relates to the Philippines and China, while the latter does not even accept the authority of the Tribunal. Because of the remit of the Tribunal under UNCLOS, it is only able to deal with some lesser aspects of the dispute, but it will have to forgo on others, like the crucial issues of maritime boundaries and sovereignty. This means that an award on the merits will only settle part of the issues between some of the interested actors at best, while leaving out other affected parties and points of contention.

In addition, the Tribunal deals with the case on the basis of adversarial court proceedings which pit one party against another on the basis of polarising positions. Such an approach is alien to East Asia’s culture of harmony, which relies on a willingness to invest in reconciling conflicts and differences. Consequently, in the region the award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support.

Finally, the South China Sea, which serves as the passageway for half of the world’s goods, is of vital geopolitical importance. Consequently, the dispute should be decided at the political level and not by a judicial tribunal. China has decided not to appear before the Tribunal because it contests its jurisdiction. It is an illusion to think that a legal award in a matter of high politics is going to gain any traction when one of the parties, which also happens to be a permanent member of the Security Council, refuses to take part in the proceedings.

The South China Sea dispute is ideally suited for what is called ‘integrative negotiation’, which favours cooperation over competition. Rather than opting for a win-lose outcome, where one party prevails at the expense of the others, the parties involved look for a win-win solution, which does justice to the interests of all. Considering the importance attached to harmony in the region, such an integrative approach has a high chance of being successful in this case.

One could rightly claim that thus far attempts to deal with the matter amicably through negotiations have not been successful. This is where something good may come out of the involvement of the Tribunal. In its decision it could appoint a Special Master, who will be entrusted with the responsibility to bring all directly affected parties to the table as part of integrative negotiations. The Tribunal will refrain from pronouncing itself on the merits of the case until a comprehensive settlement will have been reached, or, alternatively, until the Special Master reports that achieving such a settlement is unlikely. This will stimulate all parties involved to invest in the negotiations.

In the past reputable courts have decided to refrain from granting relief if the long term interest of justice so required. Thus, the legendary Chief Justice John Marshall of the U.S. Supreme Court denied the plaintiff’s petition for a writ of mandamus in Marbury v. Madison in 1803. Chief Justice Marshall felt that issuing a mandamus would irreparably harm the relations between the Court and the executive branch headed by President Thomas Jefferson. The decision in Marbury v. Madison is widely regarded as a defining moment in the history of the Supreme Court, which went on to become to most highly respected judicial body in the world. Therefore, the members of the Arbitral Tribunal should draw inspiration from this very sound judgment.

This blog was first published on the Culture and Human Rights Blog: http://culture-human-rights.blogspot.nl

 

When It Rains, It Pours: Tracking the recent developments in international criminal justice – Julie Fraser, Brianne McGonigle Leyh

International criminal justice has a reputation for being slow and progressing at a ‘glacial’ pace. For example, it took the International Criminal Court (ICC) ten years before it handed down its first judgment in the Lubanga case after it started operating in 2002. Similarly, the International Criminal Tribunal for the former Yugoslavia (ICTY) has a reputation for slowness; particularly after some trials lasted longer than six or more years. Court watchers are all too aware of the slow, sporadic developments coming out of these courts, and often eagerly await judgments. That is why the months of March and April 2016 were so anticipated, as they provided a windfall of developments within international criminal justice. The old expression is true: when it rains, it pours!

These developments are important given the fact that the ICTY is ending its mandate and is due to close up shop, and the ICC is just beginning to find its feet, as it will remain the major player in the global fight against impunity for mass atrocity crimes. How the international community, and more importantly the affected communities, will perceive the ‘justice’ pronounced by these institutions is yet to be determined, as both courts have their share of supporters and critics. However, it is clear that these recent legal developments will have a major impact for years to come on those accused, their victims and criminal jurisprudence.

Some highlights of the six decisions by the ICTY and ICC in the last few weeks are detailed below: 

ICTY

Radovan Karadžić

On 24 March 2016, the ICTY convicted Karadžić of genocide in Srebrenica, war crimes and crimes against humanity, sentencing him to 40 years imprisonment. As the former President of Republika Srpska and supreme commander of the Bosnian Serb Army during the Bosnian War in the 1990s, Karadžić is the most prominent figure convicted by the ICTY. The Prosecution charged him with genocide, war crimes and crimes against humanity, including murder, persecution, extermination, and taking UN peacekeepers hostage. The important conviction, seven years in the making, met with mixed reactions in the region, some welcoming its justice and others decrying it as an example of the ICTY’s anti-Serb bias. The defense intends to appeal the verdict.

Vojislav Šešelj

The ICTY’s decision on 31 March 2016 ended the contentious trial of Vojislav Šešelj that commenced a decade earlier. Šešelj was alleged by the Prosecution to be individually criminally responsible for war crimes and crimes against humanity based on his role as President of the Serbian Radical Party. He was alleged to have advocated a homogeneous ‘Greater Serbia’ by violence, to have instigated Serb forces to commit crimes, and participated in war propaganda and incitement of hatred towards non-Serb people. At trial, Šešelj was self-represented and chose to not present a defence. Despite this, the Tribunal found that the Prosecution failed to prove their case and acquitted Šešelj on all counts. This long-awaited decision sparked a huge reaction and much criticism that the Tribunal misconstrued the events and Šešelj’s acts in context. Despite the Prosecution’s plan to appeal the acquittal, Šešelj is campaigning in Serbia’s upcoming parliamentary elections.

ICC

There were no less than four major recent developments at the ICC, each having a significant impact on the law, procedure and perceptions of fairness in international criminal justice.

Jean Pierre Bemba-Gombo (Central African Republic)

On 21 March 2016, in the fourth trial judgment of the ICC, three judges of Trial Chamber III unanimously convicted Jean-Pierre Bemba-Gombo, the former Vice President of the Democratic Republic of Congo (DRC), and leader of the rebel group Mouvement de Liberation du Congo (MLC). He was convicted for crimes against humanity (including murder and rape) and war crimes (including murder, rape, and pillaging) committed by Bemba’s forces in the Central African Republic (CAR) from 2002 – 2003. Bemba is the first ‘big fish’ prosecuted by the ICC and the first person successfully convicted under the mode of liability of command responsibility. Command responsibility allows the Court to hold individuals accountable for crimes committed by subordinates under their effective control, where the individual knew or should have known that crimes were being committed and failed to take measures to prevent or punish the crimes. This case is also significant because it is the first conviction for sexual and gender-based violence before the Court, which included evidence of rape against men, women and children. While the case is likely to be appealed, the sentencing and reparation phases will begin. Unlike in previous cases of conviction before the Court, Bemba was never declared indigent and some of his assets have been frozen in order to be made available for reparations to victims.

Dominic Ongwen (Uganda)

Following the hearing in January 2016, the Prosecutors’ 70 charges against Ongwen were confirmed by the ICC on 23 March. This is the first case in the Ugandan situation to go to trial before the ICC. The charges relate to Ongwen’s role as alleged Former Brigade Commander of the Lord’s Resistance Army (LRA), particularly from 2002 – 2005. The charges include attacks against the civilian population, murder, torture, enslavement, and sexual and gender-based crimes. Over 2000 victims have sought to participate in the proceedings. The case is particularly noteworthy as Ongwen himself was allegedly abducted as a child and recruited to the LRA. His status as a former child solider could be used by his defence or as a mitigating factor during sentencing if convicted.

Al Faqi Al Mahdi (Mali)

On 24 March 2016, Pre-Trial Chamber I found there were reasonable grounds to believe that Al Faqi al Mahdi, a former trainee teacher and expert in Islamic law, is criminally responsible for planning and leading the 2012 attacks by al-Qaeda affiliate Ansar Dine against the mausoleums of Timbuktu, 15th century historic and cultural shrines, as well as a mosque. That same week it became known that he informed the ICC last month that he would plead guilty to a single war crimes charge of destroying or partially destroying historical buildings. This is the first time a suspect has stated their intention to plead guilty before the ICC. The case will now be assigned to a Trial Chamber, which will determine whether the evidence against the accused supports a guilty plea. If this occurs, it will mark a number of firsts: the first Mali case, the first guilty plea, and the first conviction for the destruction of cultural property.

William Ruto and Joshua Sang (Kenya)

Despite all of the above developments, marking significant achievements for the Prosecutor, the Prosecutor suffered a significant loss in the Kenya situation. After a ‘no case to answer motion’ by the defence, on 5 April 2016, Trial Chamber V(A) decided, by a majority of 2-1 (Judge Herrera Carbuccia dissenting), that the case against the Deputy President of Kenya, William Samoei Ruto, and journalist, Joshua Arap Sang, is terminated. The majority found that the Prosecution’s case was too weak for a reasonable Trial Chamber to convict. The separate opinion notes there were issues of witness intimidation and interference, as many of the Prosecution’s witnesses were killed or recanted their previous testimony, though no evidence has been presented that links the accused with any witness interference. Interestingly, the termination decision does not preclude a new prosecution in the future, despite the fact that had the case moved forward the men would have, according to the majority, been acquitted. The decision is subject to appeal but it is unlikely for the Prosecutor to do so if the evidence is simply not there.

 

This post has been written in co-operation with  Julie Fraser, PhD Candidate, Utrecht University, Netherlands Institute of Human Rights (SIM).

 

The Unity of Law 3: A step towards a definition and instruments that can optimize the unity of law – Rolf Ortlep

 

 Introduction

In my previous blog I gave a modest impetus to define the concept of ‘the unity of law’ and I have discussed a number of instruments which in any case (also) aim to optimize the unity of law. The following four instruments are distinguished: institutional reform, preliminary ruling procedure, coordination and a differentiated discursive substantiation requirement. The first instrument was discussed in my previous blog. I will now discuss the other three instruments.

Instruments to optimise the unity of law

Preliminary ruling procedure

The preliminary ruling procedure of the Court of Justice of the European Union (CJEU) has traditionally been the instrument to ensure that national courts do not interpret EU law differently. The national judge as a European Union judge in primo has the competence under article 267 TFEU and has at the highest instance, meaning a national court or tribunal against whose decisions there is no judicial remedy under national law, obliged to bring the preliminary question to the CJEU when it concerns the interpretation of EU law. The obligation to refer for the highest national courts does not apply, on the ground of the CILFIT-doctrine, if it is an acte éclairé or a acte clair. A acte éclairé is the situation in which the CJEU has already ruled on a question, whether or not in the framework of the same national case. When the correct application of EU law is so clear that there can be no reasonable doubt about the answer to the question, then it is an acte clair.

Recently a question raised in the case law of the CJEU is whether a difference of opinion over the same EU issue between the (highest) national judge and a (foreign) government, a lower national court of the same Member State, or a judicial instance of another Member State is an important indication that it is not an acte clair? It must also be taken into account that the European Union is now made up of more than 28 jurisdictions, 24 official languages and with ever broader areas of competence. In light of this, Advocate General Wahl recently defended that the chance that a real acte clair occurs is at best as great as the chance of meeting a unicorn. Therefore, it is not entirely surprising that at the CJEU and European Court of Human Rights proceedings are regularly conducted due to alleged failures to comply with the obligation to refer of article 267 TFEU respectively, the alleged failure to give reasons for why the obligation to refer was waived.

The question that arises in view of the above is whether the preliminary ruling procedure is still an adequate instrument to ensure that the national courts do not interpret EU law differently? What is exactly the scope of the – European law – duty of justification when the request for a preliminary question is rejected? Is it not more effective, in order to optimize the unity of law, to put more emphasis on ‘real’ horizontal cooperation between the national courts and the CJEU, so that in preliminary orders for reference there is regular synchronization with decisions of the highest foreign courts and that on different levels experiences and case law are shared between the highest national courts? With regard to that synchronization a step further can be made by advocating a principle of comparative justification in preliminary orders for reference.

While at the level of the CJEU concerns are increasingly placed on the current preliminary ruling procedure, at the national level similar procedures are increasingly in the spotlight. The Wet versterking cassatierechtspraak (Cassation Proceedings (Further Measures) Act) introduced article 81a of the Judiciary (Organization) Act (Wet RO) on the 1st of July 2012. This preliminary ruling procedure contributes, according to the legislature, to the timely answering of important questions of law and to an optimal fulfilment of the law-making task of the Supreme Court (civil division) in cases in which large societal interests are involved and this improves the unity of law (in the sense of reducing the risk that lower courts make contradictory decisions in identical individual cases). The preliminary ruling procedure has recently been extended to include tax law (as from January 1, 2016) and it is being debated whether the expansion should also include criminal and administrative law in order to promote the development and the unity of law.

Currently, in the administrative courts a different type of preliminary ruling procedure is also discussed, the discussion about a preliminary ruling procedure between the highest national courts. In my previous blog the government proposal to abolish the Central Appeals Tribunal and the Trade and Industry Appeals Tribunal was mentioned: the jurisdiction of the former court goes to the courts of appeal and the jurisdiction of the latter court to the Administrative Division of the Council of State. If this government proposal passes, then the institutional structure of the administrative courts will consist of two supreme administrative courts: the Supreme Court and the Administrative Division of the Council of State. In the framework of this government proposal the House of Representatives adopted a motion of the members Recourt and Taverne on the 30th of April 2015. This motion calls on the government to include an institutional unity of law provision which provides that the Administrative Division should ask questions in a preliminary ruling procedure to the Supreme Court if a pending case includes a question of law that, from the perspective of the unity of law, requires an answer. Late last year it was announced that a government commission will consider this proposal.

Coordination/synchronization

The unity of law traditionally concerns coordination/synchronization, for example by informal judicial consultation, the establishment of judicial (policy)rules for example in rules of procedure, referring toe each other’s case law and by allowing members of the highest courts to work as a deputy on cases in one of the other courts.

Informal judicial consultation faces the question of transparency/openness. Classic in this respect is the case of Borgers. Given, inter alia, the article 6 ECHR principles of due process, particularly the principle of transparency, one should question a decision in a specific individual case came about after an informal judicial consultation between two or more courts, a consultation that is not known nor controllable for the parties and on which they can exert no influence. In his ‘Bloging about the unity of law?’ Prof. dr. Eddy Bauw further examined the legitimacy and the binding force of the collegiate agreements between judges (so-called judge made rules), such as about maintenance standards, the subdistrict court formula for severance payments and the sentencing orientation points and has, in that context, raised the question whether the court is not entering into the area of the legislature and whether judges are sufficiently equipped to establish standards. Linked to these is the question whether it is actually good to leave the unity of law at the discretion of the self-regulating capacity of the courts involved, because a democratically legitimized foundation is missing.

Also with regard to the case law of the CJEU and the ECtHR coordination/synchronization is important. Of increasing value for legal practice is the Charter of Fundamental Rights of the European Union. With the entry into force of the Lisbon Treaty, the EU Charter has been given the same legal value as the Treaties under article 6 TEU. This Charter is a confirmation of the fundamental rights guaranteed by the ECHR and the fundamental freedoms and rights deriving from the constitutional traditions common to the Member States. An interaction and mutual influence exists between the ECHR and EU law. A question that can be raised is how this interaction and mutual influence has taken shape and to what extent this could be improved.

Differentiated discursive substantiation requirement

 

Among the instruments that can help to optimize the unity of law, the instrument of a differentiated discursive substantiation requirement is a separate category, in the sense that it concerns the core of daily judicial work. In my previous blog, the importance of the justification of a decision in relation to the unity or the legitimate diversity of law was expressed. Upon the assumption that the issue of legal unity is a problem of argumentation, the question can be asked whether the reassessment of the attractiveness of judicial decisions is an effective instrument to optimize the unity of law? The term ‘attractiveness’ means the power to gain consensus according to societal views with a court decision. Hereby, the relationship, as mentioned in my previous blog, between the the concept of the unity of law and the concept of legal development come into play.

Developing the law into a solution that is as societally satisfactory as possible is not restricted to the democratically elected legislature, but is also the task of the judge. The explicit recognition of the latter by the court in its decision paves the way to openly justifying that decision, when the importance of the development of law or the promotion of the unity of law requires it, more extensively and, especially, in a discursive manner. By justifying a judicial decision in this manner, and thus for example explaining why a trend in the case law of another (higher) court is not followed, such a decision gains attractiveness and thereby provides more stability to reach and/or perpetuate the unity of law between the (highest) courts. Substantiating judicial decision in the manner just mentioned can in addition highlight why – in a particular topic – there is a difference in case law between the highest courts, which can have as a result that consensus arises in the matter that – in a particular topic – there is no unity of law between the courts, but ‘simply’ a legitimate diversity.

A differentiated discursive substantiation requirement is also in line with the development to make the judiciary more transparent for society. In the 2013 manual of the Scientific Council for Government Policy, titled: Speel- ruimte voor transparantere rechtspraak (Room to manoeuvre for a more transparent judiciary), a distinction is made in this regard between openness, comprehensibility and criticizability. The fact that the judge has a law-making task and also uses it clearly requires, according to the report, inter alia, that in cases of judicial law-making the arguments for and against the choice made are stated in the justification to give society more information to be able to understand, accept or criticize. In order to optimize the development and unity of law in that framework, one can also think about the introduction of dissenting – and concurring – opinions, as it exists at the European Court of Human Rights, or about strengthening the position of the Advocate General in, for example, administrative law.

Conclusion

In these blogs I have given a modest impetus to define the concept of the ‘unity of law’ and to discuss a number of instruments and research focuses that could optimise the unity of law. Certainly not as a final piece, but as an invitation to start a discussion – whether or not in a follow-up blog. Another way in which I will do that is by getting in contact with a number of colleagues through a paper which I will write. I hope that everyone feels free to, also on their own initiative, exchange ideas with me (r.ortlep@uu.nl) and to join our ‘unity of law train’. With regards to the blogs on this topic, it is now time for someone else.

The claim industry as object of research – Eddy Bauw

 

Under the headline ‘The claim industry’, the Volkskrant on Saturday the 27th of February devoted attention to the increase in the number of collective redress procedures in the Netherlands. The figures presented by the newspaper are clear: organisations who allegedly represent half a million people, have in total claimed 1.6 billion euros in damages from businesses and institutions. Yet this message will not have surprised the average newspaper reader. The media regularly reports about new collective redress procedures and many people will have asked themselves whether they should not have also joined the proceedings. Who does not have an insurance policy which appeared to have excessive charges, drive a car with rigged software, play the State Lottery or regularly take the NS train during rush hour? Only a few people would consider litigating for themselves to recover these kinds of damages. The amounts of losses are too low and the costs and risks of litigation are too high. One speaks here of ‘scattered damage’. However, if the claims are combined in a collective claim for damages, it suddenly involves significant amounts and it becomes a very different matter.

The Volkskrant article demonstrates that a growing proportion of the collective redress procedures are started by ‘claim companies’ that operate commercially and which often have the same persons behind it. It would appear that a lucrative business sector has developed, which we will continue to hear a lot of in the future. The latter is crucial for these claim companies. After all, media attention is the fuel which runs their machine. The business model is aimed at – liked the pied piper of Hamelin – having many claimants join and to do so, publicity is an important prerequisite. With every extra claim the total claimed compensation amount increases and thereby proportionally the earnings if successful. They almost always work on the basis of no cure no pay and receive a percentage of 15 to 25 percent of the total proceeds; this is also after deducting costs an attractive return in a time of almost negative interest rates and plummeting share prices. Therefore, the claim companies increasingly seem to act like a vehicle for investors looking for a better return on investment. A phenomenon that has blown over from the Anglo-Saxon legal systems and is known there as ‘third party (litigation) funding’ (TPF); ‘third-party lenders’ invest up front in the initial costs of the claim to be able to reap a percentage of the proceeds. Of course there is a risk that the claim is irrecoverable, but investors know: no risk no return. Behold the ‘claim industry’, a phenomenon that is developing rapidly in recent years which should be studied.

At Utrecht University research is currently looking at by who and how claim organisations (foundations, associations, ‘companies’) are managed, whether and how they are financially accountable and which information they share with those that have joined them. In 2011 rules have been drawn up (the Claim Code) by a ‘Claim Code Commission’ in consultation with claim organisations and the research primarily focuses on the compliance thereof. The results are expected in early May. Previous research showed that the compliance was not going too well.[1] Because this research took place shortly after the creation of the code, it was perhaps due to the initial adjustment problems, but at the next measurement it is serious.

However, more research is needed to gain insight into the combination of factors, the ‘determinants’, that can explain the emergence of the phenomenon in the Netherlands and to identify the social impact thereof. That would have to be multidisciplinary research. After all, we are dealing with a phenomenon that cannot only be explained by legal factors. For that research information can be drawn from the experiences gained in countries like Australia and the United States.

Research can contribute to a balanced view of the phenomenon. Unlike the news seems to suggest there are not only disadvantages. After all, what is wrong with honouring a claim for damages? We can trust that the court will only grant the damages if there are good grounds for it and in that case only the actual damages are compensated. Without collective redress procedures the aggrieved parties would let it be and the companies or institutions who acted unlawfully or culpably failed to fulfil their obligations would benefit. Then there is a missed opportunity to give an incentive for greater diligence. The deterrent effect of liability law is thus undermined. It is precisely because of this deterrent effect that recent European legislation promotes the collective redress procedures when rules in the field of personal data protection and competition law are breached. That companies which are guilty of unlawful processing of personal data or forbidden price-fixing get a (hefty) fine, as is now the case, was found to be insufficient. The damages that individual consumers have suffered as a result must be compensated and that can be seen as a welcome addition to the enforcement by supervisory authorities, and as an extra incentive to adhere to the rules. A collective action is, given the generally small amounts per aggrieved party, an important measure to let this system function. The bundling of claims that this creates is also much more efficient and less taxing on the judicial system than the settlement of a large number of individual cases. As for TPF? That helps overcome the financial obstacles to access the court and profit may be made in return. In short, collective actions for damages increase the deterrent effect of liability law, promote access to justice and ensure efficient settlement of claims, so that the courts are not unnecessarily burdened.

Reasoned in this way, one wonders why there is so much concern about the development of collective redress procedures. Because that there is a concern, that is clear. In the Netherlands the efforts have been made to regulate the phenomenon. The aforementioned Claim Code is one example, but it is not binding. The legislature then attempted to give this code some status by instructing the courts in the law (art. 3:305a para. 2 of the Dutch Civil Code) to declare a claim organisation inadmissible “if (…) the interests of the persons for whose benefit the action is brought are insufficiently safeguarded” and thereby inter alia referring to the rules of the code. Until now this addition has not made much of an impact. Work is underway on a legislative proposal that on the one hand makes a class action possible and on the other hand makes a new attempt to curb the ‘proliferation’ of claim organisations. But the European Commission is also concerned about the ‘abuse’ of collective redress actions and advises Member States in a Commission recommendation amongst others not to allow profit-related remuneration (such as no cure no pay), not to allow commercial claim organisations and to grant the court opportunities to guard against abuse. Furthermore, the Commission does not rule out TPF, but wants to set conditions that see to transparency, so as to avoid conflicts of interests between claim organisations and claimants.

With the latter we touch on the core of the objections towards the claim industry, as it is developing. Claim organisations fulfil a useful purpose, as has been made clear, but should be transparent on the points required by the Claim Code: governance, supervision, financial compensation and accountability and the method of representing interests. Only then can claimants assess whether their interests are in good hands and do not come in conflict with the financial interests of directors of the claim organisations or potential lenders in the background. Such conflicts of interests could quickly arise, for example when choices have to be made whether a collective settlement is accepted or litigation is continued with all the costs attached. The research referred to above must show whether claim organisations adhere to the basic requirements of the Claim Code. If they do not, that might be ‘writing on the wall’. However, this does not show whether the feared negative effects actually also occur. For that more research is necessary. Therefore, research must also be directed at finding solutions that can preserve the aforementioned benefits of collective redress procedures and at the same time can prevent the unwanted side effects.

[1] See for a discussion of the results of that research: E. Bauw en T. Bruinen, ‘Slow start of veeg teken? Gebrekkige naleving Claimcode vereist ingrijpen’, Nederlands Juristenblad 2013, 140, afl. 3, p.165

This blog was later posted in Dutch on the UCALL-blog.

The Unity of Law 2: A step towards a definition and instruments that can optimize the unity of law – Rolf Ortlep

In his ‘The Unity of Law 1: Blogging about the unity of law?’, Eddy Bauw gave an inspiring kick-off on the subject of the unity of law. It is the intention to – with this blog as a starting point – start a series about that topic. With this blog and the next blog, this challenge is taken up.

In his blog, Eddy Bauw examined the importance of the unity of law from, amongst others, a legal, social and economic perspective. Mentioned and endorsed is that the unity of law improves the quality of the litigation process: it makes litigating easier for litigants and facilitates the processing and disposal by the court. It also increases efficiency and effectiveness, which in turn can lead to saving on costs. The foregoing is confirmed by the study: In de schaduw van de rechter. Individuele en maatschappelijke kosten en baten van de juridische infrastructuur (In the shadow of the judge. Individual and societal costs and benefits of the legal infrastructure).[1] In this study it is noted that the unity of case law can reduce the recourse to the courts. This conclusion with the idea that the unity of case law is a condition by which litigants can make a good assessment of possible solutions for a conflict. Then litigants can bring conflicts to an end through a cheaper alternative mode of dispute resolution, rather than going to court. The ‘old masters’ already suggested this. For example, Ph.A.N. Houwing observed: ‘Good law avoids procedures, does not stimulate them. A procedure is a societal evil. A procedure creates turmoil within and between parties, creates or increases their enmity. A procedure takes unproductive effort. It takes time and all the while the legal uncertainty persists. A procedure costs unproductive money, whoever is fighting for a cow, also gives one.’[2]

Referring to the blog of Eddy Bauw, I take the importance of the unity of law as a starting point in this blog, because I do not want to merely repeat his blog, and because I want to give a modest impetus to define the term ‘unity of the law’ and to discuss a few instruments which can optimise that unity of the law to be used as research focus points. Certainly not as a final piece, but as an invitation to – whether or not in a follow-up blog – enter into a discussion.

A step towards a definition

The unity of law can be defined in different ways. To form an opinion on this the unity of law is respectively defined here as follows.[3] The notion of ‘the unity of law’ is linked to the notion of ‘the development of law’ (‘the formation of laws’). The latter is when the court, in its judgment, determines the current law and its significance extends beyond the dispute. A dimension of the development of law is advancing the unity of law. Therefore, the former is the more general goal: a court judgment – for example of a court in first instance – which constitutes a derogation of the law as it stands at that moment (so-called ‘judicial disobedience’) can even advance the development of law. In the event that the court develops the law it can, in turn, contribute to the unity of law, in the sense that the clarity, accessibility and foreseeability (predictability) of the law are increased.

The lack of unity of law touches upon injustice. When someone exclaims about the law, outraged: ‘that is unjust’, it is often because he or she feels that two ‘identical’ cases are not treated equally with regard to the law. In that sense, the unity of law has a stronger connection with the equality postulate of the law. A prerequisite for the victory over the feeling of injustice or inequality and thus consensus on the legitimacy of the outcome is that it has to be supported by proper and explicit arguments. With that in mind, the description of the notion ‘the unity of law’ is more about a characterization on the basis of what is required for the unity of law. In view of this, it can be observed that there is no unity of law if a difference in case law is not supported by proper and explicit arguments. In this characterization the view that the unity of (case)law can never be fully achieved, and that it is not an end in itself, fits in. After all, to agree with H.C.F. Schoordijk: ‘In a pragmatic explanation, which is always influenced by the answer to the question: ‘what kind of society do we want?’, legal rules receive different answers.’[4] The importance of legitimate diversity is equal to the importance of the unity of law, or negatively formulated, in the words of M.A. Loth: ‘Unfounded unity of law contributes just as much to inequality as unjustified diversity.’[5]

Instruments to optimise the unity of law

Beforehand a few instruments can be named that in any case (also) have as a goal to optimise the unity of law. For now, the next four instruments are distinguished: institutional reform, preliminary ruling procedure, coordination and a differentiated discursive substantiation requirement. These instruments I will discuss as possible research focus points below and in a following blog.

Institutional reform

In order to optimise the unity of law, the institutional structure of the judiciary is an important issue. In this respect there is also a prominent place for the legislature and, more generally, the question can be asked how the Trias Politica functions in the interaction between judge and legislator in the establishment of the unity of law? As an example the current debate about the institutional structure of the administrative courts can be mentioned. To promote, inter alia, the unity of law there is a government proposal to discontinue the Central Appeals Tribunal (for the public service and social security matters) and the Administrative High Court for Trade and Industry: the jurisdiction of the former court will go to the court of appeals and the jurisdiction of the latter court will go to the Administrative Division of the Council of State (Kamerstukken II 2015/16, 34389, no. 1-4). If this government proposal passes, then the institutional structure of the administrative courts will consist of two supreme administrative courts: the Supreme Court and the Administrative Division of the Council of State. This government proposal has raised the question whether or not there should be an institutional unity of law provision and in the meantime the government has set up a committee for that purpose (Stcr. 2015, 47139).

Besides a preliminary ruling procedure (compare my next blog), a common division of the highest judges can be thought of as an institutional provision for the unity of law. Such a division, whether or not by creating a new court, also has constitutional questions, especially since the Administrative Division of the Council of State does belong to the administration of law, but not the judiciary. With regards to a common court of the highest judges reference is often made to the gemeinsame Senat der obersten Gerichtshofe des Bundes in Germany. The gemeinsame Senat consists of the presidents of the highest Bondsgerechten, but with the exclusion of the Constitutional Court, the Bundesverfassungsgericht. When one of the highest Bondsgerechten wants to depart from a judgment of another highest Bondsgerecht respectively from the gemeinsame Senat itself, a judgment of the gemeinsame Senat must be requested through a preliminary ruling procedure. In practice, this procedure is rarely used. An important reason being that in Germany the unity of the law is mostly guaranteed by the Constitutional Court, the Bundesverfassungsgericht, which is lacking in the Netherlands. It would be interesting to research in how far a constitutional court in the Netherlands could contribute to optimising the unity of the law. But also with regards to the case law of the European Court of Justice and the European Court of Human Rights an institutional reform may be considered. In that regard the discussion is highly relevant about the value of the accession of the European Union to the ECHR and to what extent this could contribute to the optimisation of the unity of law between the two European Courts. This question can also be posed with regards to the entry into force of Protocol no. 16 which provides for a consultation of the ECHR by the highest national court pending proceedings at the national level.

To be continued

My next blog, as I have mentioned previously, examines the other three instruments to optimise the unity of law and I come to a conclusion. To be continued…

 

 

[1] Research Memoranda nr. 4, Den Haag: Raad voor de rechtspraak 2014.

[2] Zekerheid omtrent het recht, Zwolle: Tjeenk Willink 1947, p. 15. Original Dutch version of the quote: ‘Goed recht vermijdt processen, stimuleert ze niet. Een proces is een maatschappelijk kwaad. Een proces schept onrust in en tussen partijen, schept of verscherpt hun vijandschap. Een proces kost improductieve inspanning. Het kost tijd en al die tijd duurt de rechtsonzekerheid voort. Een proces kost improductief geld, wie vecht om een koe, geeft er nog een toe.’

[3] Compare R. Ortlep, ‘Optimaliseren rechtseenheid tussen de hoogste bestuursrechters’, in: E.M.H. Hirsch Ballin, Rechtsontwikkeling door de bestuursrechter. VAR-reeks 154, Den Haag: BJu 2015, p. 59-160.

[4] Realistische en pragmatische rechtsvinding: taak en taakopvatting van de rechter in de westerse wereld, Oisterwijk: WLP 2014, p. 56-57. Original Dutch version of the quote: ‘Rechtsregels krijgen bij een pragmatische uitleg, die altijd gekleurd wordt door het antwoord op de vraag: ‘wat voor maatschappij willen we?’, dikwijls een verschillend antwoord.’

[5] ‘Rechterlijke samenwerking en rechtsvinding’, in: C.P.M. Cleiren e.a. (red.), Rechterlijke samenwerking, Deventer: Gouda Quint 2001, p. 111-124, i.h.b. p. 113. Original Dutch version of the quote: ‘Ongegronde rechtseenheid draagt evenzeer bij tot rechtsongelijkheid als ongerechtvaardigde verscheidenheid.’

The civil law sanctioning of violations of the principles of civil procedure – Ivo Giesen

In 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.

The lack of concern for the sanctioning of human rights violations in civil law forms a substantial problem. Suppose that a rule in the Dutch law of evidence has been to the detriment of a party, which in their view has compromised the ‘equality of arms’. Then that party can – and should – complain in appeal and/or in cassation, with or without recourse to art. 6 ECHR. Perhaps the Court of Appeal will recognize that the procedure in first instance did not proceed entirely correct; that omission can then be restored in that same procedure in appeal: ‘equality of arms’ is then still ‘offered’ (in this example by not letting the rule of evidence have an adverse effect). The same applies if the proceedings in first instance were conducted in breach of the right to a public hearing, or if the judge perhaps did not appear completely impartial. A restoration in appeal and/or cassation would not change the fact that for a certain period of time – given the processing times at the Courts of Appeal: roughly speaking about a year – in the Dutch legal system a violation of human rights has existed or continued to exist. Is that allowed? Should such violations not be more strictly addressed? Shouldn’t there something be done with regard to the intervening period? There is nobody who even seems to pose these questions.
It is also possible that a complaint about a violation of a principle and/or art. 6 ECHR is pushed aside by the Court of Appeal and/or Supreme Court, but that afterwards the ECtHR finds that something went wrong. Then the national possibilities using the ordinary remedies have been exhausted; the national system will have ‘failed’. Obviously then a form of sanctioning by European or – preferably – national action is desired, if need be, in retrospect. Although there is relatively quickly a lot of clarity from a ‘European’ perspective (either the determination of a violation is sufficient, or a compensation – also – follows), that is definitely not the case from a national perspective. The legislature has been struggling for years with the question how to deal with violations of the ECHR as found by the ECtHR, especially in civil cases, because in those cases the complication arises that the original opposing party of the complainant should not suffer from the correction of the violation. A legislative proposal on this issues that was announced a few year ago, has never come, and will never come (Stb. 2013, 162, p. 4), although from a Strasbourg point of view the current situation is seen as undesirable, according to, for example, T. Barkhuysen & M. van Emmerik, Rechtsherstel bij schending van het EVRM in Nederland en Straatsburg, NJCM-Bull. 2006, p. 58.

One last example. A possible violation of the reasonable time requirement must of course be sanctioned, but – again – provided that the legal relationship between the two original civil parties to the proceedings may not be changed as a result. Thus, that means that the aggrieved party must start a new civil procedure, now against the State of the Netherlands, in order to claim damages (HR 28 March 2014, NJ 2014/525 (De Bilt)). This is obviously a tough new burden for someone who already has dealt with a – too lengthy – procedure. Therefore, whether we can speak of an ‘effective remedy’ at the national level in the sense of Article 13 ECHR in this case can seriously be questioned, and rightfully so, for example by L.C.W.M. van Kessel, NTBR 2014/32, p. 273; Asser in his NJ-note under HR 28 March 2014, NJ 2014/525 (De Bilt), and Asser Procesrecht/Giesen 1 2015/421.
The necessity, as shown by the examples outlined above, to reach a solution for this sanctioning or enforcement problem is obvious, but it becomes even more apparent in light of the case Rumpf v. Germany (ECHR 2 September 2010, Appl.No. 46344/06). In this case, Germany was told by the ECHR that it had failed to introduce an effective domestic remedy to deal with treaty violations (in the area of the reasonable time requirement), after which the German government was imposed a duty to create such an instrument within a year, see Asser Procesrecht/Giesen 1 2015/99, 105 and 412. As the State of the Netherlands you don’t want to risk such a judgment against you.

So, what to do? A violation of a principle of civil procedure should mainly be avoided – and therefore a strong focus on prevention is surely needed – but, if that doesn’t work, it should at least be addressed and sanctioned. The ECHR offers, in retrospect, some opportunities through Articles 41 and 46 ECHR. However, in accordance with Article 13 – the right to an effective remedy in the domestic system – and also in light of Article 1 ECHR and Article 35 paragraph 1 ECHR, in which the subsidiarity of the ECHR protection mechanism is expressed, it is initially for the national government to introduce a (system of) effective remedies. An adequate domestic mechanism to sanction human rights violation in a civil proceeding to their full extent in the same civil proceeding, is not yet standard however. We must – in addition to the correction on appeal that does not completely eliminate the violation – for the time being make do with a few specific solutions (proceedings for interim relief or perhaps a declaratory decision, or State liability?) which are not evident or not sufficiently ‘developed’.
The solution? There are undoubtedly other possibilities, but I think the notion of ‘integrity damage’ as developed in medical liability law could provide relief, see Asser Procesrecht/Giesen 1 2015/144-148. In general, it can be said – as has occurred with violations of the reasonable time requirement – that the mere failure to observe, for example, the requirement to hear and be heard has led to stress and frustration (precisely because someone did not get to tell his or her own story); such a fundamental right therefore ‘requires’ that it can actually be enforced. That such a violation can be polished away in appeal, so that no (material) damage remains – regardless of the perhaps wrongly incurred additional legal costs and any other related damages – is not sufficient, because the infringement of the fundamental right as such remains. That (infringed) right remains without a sanction, while the complainant is also deprived of at least one ECHR-worthy court. The immaterial damages fitting that ‘stress and frustration’ then follows from the infringement ‘as such’, so for the violation of one’s human right as such. Because the human rights’ integrity of a citizen is violated by the courts, this citizen has the right to compensation (by the State) for his ‘integrity damage’, a (new type of) loss item which is caused by the ‘integrity infringement’. And there you have it: this might actually be the required generally applicable sanction!
[This Blog is an adaptation of an editorial of mine (NTBR 2016/1, p. 1-3) which also was published as a Ucall Blog, both in Dutch]

Montesquieu and marginal review – Lukas van den Berge

In Dutch administrative law, a familiar view entails that the administrative court should not ‘occupy the chair of the executive’. By virtue of its powers, the government would have a ‘discretionary latitude of decision’ in which it is only under democratic control; insofar as it is not a matter of a ‘criminal charge’ there is only space for judicial review beyond the ‘edges’ of the administrative domain. In literature the ‘marginal test’ encounters increasing criticism. Many advocate that the Dutch administrative review of proportionality should align itself to EU law and German law, in which judicial control on proportional weighing of interests has a broader significance. The ever ongoing ‘withdrawal of the legislature’ would require a more sophisticated and nuanced approach whereby the judge can intensify his review in cases in which there is no punitive decision, but nonetheless a breach of important interests or fundamental rights. In addition to the literature, the courts are tending towards a broader review of proportionality. Apart from the question whether there was a ‘criminal charge’, the Administrative Law Division recently ended the so-called ‘alcolock programme'; upon application of that regulation it considered a proportionate weighing of interests ‘insufficiently guaranteed’.[1]

The practice of ‘marginal review’ is closely related to the notion of law and policy as separate domains and the trias politica as a separation of powers. A ‘gouvernement des juges’ thereby often serves as a sceptre, whereby the legal meaning of the proportionality principle has been stretched in such a way that it is not the democratically elected legislature and the executive, but the judges who determine the course of politics. Proponents of a broader judicial review of proportionality argue that the sharp boundaries between law and policy are lacking and generally understand the trias as a system in which the legislature, executive and judiciary are inextricably entangled in an interior equilibrium. In this view there is not the fear for a ‘gouvernement des juges’, but for a system in which the executive is allowed free reign and the interests of individual persons are too oppressed. At a time when the law as normative regulatory framework is significantly eroding and the executive often operates on the basis of ‘open’ powers that fear is more justified than ever before. Therefore there is an increase of those in favour of a ‘trias politica 2.0’ that does justice to such developments. Such a novelty, however, is unnecessary. A return to the original spirit of Montesquieu’s separation of powers doctrine is sufficient.

A lot of misunderstandings remain about the meaning of that doctrine. Take Corstens who, in a recent speech, looks back disapprovingly on the period in which ‘the judge according to the principles of Montesquieu’ would only be the ‘bouche de la loi’; the mouthpiece of the law’. By now, according to Corstens, ‘we know better’ and realize that ‘there is also a head attached to that mouth’.[2] Meanwhile it has been repeatedly demonstrated that such interpretations of Montesquieu’s theory are based on a persistent myth. Schönfeld, for example, argues that Montesquieu’s image of judges as ‘bouches de la loi’ does not refer to a mechanic application of the law, but rather emphasizes that the judge, in relation to the legislative and executive powers, performs an independent task.[3] Schönfeld’s analysis has been placed in a broader context by authors such as Witteveen and Foqué. In Montesquieu’s view, positive law is necessarily embedded within relations controlled by equity (‘rapports d’équité’) as a fundamental principle that precedes positive law. Thus, Montesquieu clearly opposes the voluntarist and imperativist conception of the law that characterizes the ancien regime and proposes a ‘relational’ view of the law in its place. The idea of essential intersubjectivity also translates itself into Montesquieu’s idea of a trias politica. In spite of the hitherto prevailing monistic concept of sovereignty, that reduces all authority to a central point, he assumes a system in which the omnipotence is distributed among different equal actors who are mutually engaged in a precarious balance. Only a constitution in which ‘par la disposition des choses, le pouvoir arrête le pouvoir’ can prevent this balance from being disturbed.

Thus, the concept of ‘marginal review’ is in no way related to Montesquieu’s original doctrine; instead it rests on the distorted reception and philosophical combatting of his ideas in later periods. Kant and Rousseau, for example, considered Montesquieu’s idea of a shared sovereignty as a direct threat to the equal liberty of citizens, which could only flourish when the legislature holds undivided sovereignty. Additionally, Montesquieu’s original doctrine on the separation of powers was opposed by philosophers such as Hegel, who considered the state as an ‘ethical whole’ that would disintegrate as soon as it would be controlled by the abstract reasoning of unworldly judges. Legal protection against the government would fall within the hierarchy of the executive itself, that would be permeated with the moral awareness that is required for that purpose. The doctrine of ‘marginal review’ is based on similar allegations against a pluralistic concept of sovereignty. In a classic essay, Van Wijk argues that the ‘ongoing withdrawal’ of the almighty legislator does not ask for an ‘advancing judge’, but rather a judge who does departs ‘as the mirror image must depart from the person who moves away from the mirror’. The administrative judge would not be a referee, but only a linesman; all he can do is to judge beyond the ‘hem of the free consent of the executive’. From their eccentric position judges would also not be able to control the executive. The lacuna left by the legislature could better be filled by the executive itself, which, other than judges, does not have to ground its decisions on alienating legal abstractions.[4]

In a modern state under the rule of law, the sovereign position of the legislature no longer speaks for itself. According to the generally accepted view, after all, the legislature is also bound by principles that precede its orders. In addition, the idea of the state as an ‘ethical whole’ has lost its persuasiveness; that idea is at odds with contemporary notions of pluralism and diversity. In a modern democracy, the collective identity of a legal community is not a mystical idea, but principally elusive. Thus, the realm of the law is essentially an ‘empty space’ which can only be filled by continuous debate.[5] A strict separation of powers, where each of the actors only deals with its own field, makes such a debate impossible. Therefore a theory of the rule of law is needed which takes Montesquieu’s philosophical spirit of essential relations and mutual balance as an example. There is definitely no place for an executive ‘free consent’ as ‘legal vacuum’, certainly not at a time in which the legislature grants ever-expanding powers to the executive. The solution lies in a system of ‘le pouvoir arrête le pouvoir’ which does not weaken the unity of the legal community, but rather strengthens it. The realm of the law is, in Montesquieu’s view, not self-evidently ‘ethically filled’ nor permanently ‘empty’. Instead Montesquieu assumes a shared sovereignty between legislature, executive and judiciary where each of the actors has its own task, but also invites a constant dialogue among the actors. In this way, Montesquieu’s original doctrine is a true ‘trias politica 2.0’ that provides for an urgent current need.

 


[1] ABRvS 4 maart 2015, AB 2015, 160 m. nt. R. Stijnen.

[2] https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Hoge-Raad-der-Nederlanden/Over-de-Hoge-Raad/Geschiedenis-van-de-Hoge-Raad/HR%20en%20WOII/De%20Hoge%20Raad%20en%20de%20Tweede%20Wereldoorlog.pdf.

[3] K.M. Schönfeld, Montesquieu en ‘la bouche de la loi’ (diss. Leiden), Leiden: New Rhine Publishers 1979.

[4] H.D. van Wijk, ‘Voortgaande terugtred’, in Besturen met recht, Den Haag 1974, p. 99-115 (= Voortgaande terugtred (oratie Amsterdam VU), Alphen aan den Rijn: Samsom 1959).

[5] Cf. C. Lefort, ‘L’image du corps et le totalitarisme’, in: L’invention démocratique, Parijs: Éditions du Seuil 1981, p. 159-176.

Jeckyll and Hyde in Strasbourg – Antoine Buyse

Having a split personality is usually not seen as a positive thing. Not for the outside world, and not for the person itself. Robert Stevenson’s novel about Dr Jekyll and Mr Hyde famously showed how the constant shifting between personalities can almost destroy someone. A clear and unified self-perception and image is the preferred style of identity in almost all fields of life and practice, from organizational science to marketing or psychology. Choices have to be made for the sake of clarity and efficiency, but also for the mere functioning of a person or organization it seems.

From this perspective, it is no surprise that the history of the main guardian institution of the ECHR, the European Court of Human Rights, which celebrated its 50th anniversary on the 4th of November, has been marked by an almost constant discussion about the Court’s role and focus. The text of the Convention itself seemed straightforward enough about the function of the Strasbourg Court. It states in Article 19 that the Court was created “to ensure the observance of the engagements undertaken by the High Contracting Parties.” But the ways in which this can be done has led to deep soul-searching within the Court and a lot of debate outside of it. Should the Court focus on the role of provider of individual justice in the applications that represent the large bulk of its docket? Or should it, for principled or pragmatic reasons take an altogether different, more constitutional role, ruling on principles and structures rather than the nitty-gritty of each individual case?

Looking back at the history of the Court’s work in acting as guardian of the Convention, we can easily discern traces of both. Most judgments have focused on very individualised instances of injustice. But the Court started pointing at structural deficiencies in states early on, for example in Marckx v Belgium. In addition, there have been a few inter-state cases of course. And more recently, in the last decade, state parties have nudged the Court into experimentation leading away, at a slightly larger scale, from dealing with all individual cases. The Convention includes since Protocol 14 a provision in Article 35 on the possibility to dismiss cases in which the applicant did not suffer “a significant disadvantage”. Not every single case merits discussion by the Court anymore. However sparingly used, it departs from the principle of purely providing individual justice to everyone coming to Strasbourg. In a more significant move, the Court has developed the practice of the so-called pilot judgment procedure, starting with the Broniowski v Poland case in 2004.

Pilot judgments are a tool to be used when the Court receives a large number of applications with the same root cause. The Court then selects one, pars pro toto, to deal with all comparable applications. In a pilot judgment, the Court both identifies the structural human rights problem at stake and gives indications to the state concerned that go beyond the individual case. These problems have so far included overly long judicial procedures, property restitution programmes, and prison conditions for example. This in effect gives the Court a quasi-constitutional role through the lens of one case.

Often but not always, comparable cases pending before the Court are “frozen”, leaving these other applicants in the metaphorical cold, or eventually even sending their case back to the national level. For them, the benefits of the Court taking a constitutional role may be quite difficult to see. And sometimes, the pilot judgment procedure yields no direct results at all, as the country at stake resists the Court’s more intrusive, constitutional actions. This was the case in the British prisoners’ voting rights saga. But when the pilot procedure works well, it not only saves the Court work, it also goes beyond the combatting of symptoms and addresses the causes of human rights problems more directly. In those instances the Court weds its individual-justice personality with its constitutional one.

To conclude, the Court has to deal on a daily basis with countries who constantly shift from nice Dr Jekylls to evil Mr Hydes and vice versa. The agility with which states oscillate between good and bad human rights practice is obviously not something to be copied by the Court. But I certainly wish for the Court in the coming years to become more at ease with its double identity as both a guardian of individual justice and as a constitutional actor. The two can and should co-exist. The Court itself has called the Convention a living instrument. It is time the Court accepts something else: that it has, itself, a living identity.


 

The Unity of Law I: Blogging about the unity of law? The kick-off – Eddy Bauw

The kick-off

Let me get straight to the point. The aim of this blog is to start a series about the ‘coherence of law’. The idea to do this arose after a session of the Montaigne Centre in July about this theme. During the session it became clear that the participants had rather different opinions about the function and importance of the coherence of law. It seems worthwhile to further explore these differences in order to identify the various aspects related to the coherence of law. This could contribute to our individual understanding and potentially lead to a common approach with a great follow-up. A series of blogs seemed like a good way to start this process.

I thought it would be good to start in this first blog with a comprehensive survey of the different perspectives from which the coherence of law can be approached. Starting from the outside we can then work towards the core. In the following I give an initial attempt to such an exploration of the field. While doing so I will also take into account recent developments. It is in my opinion more important to name the different perspectives and interests in this blog than delving into the content of the subject. For the latter a blog is not a suitable approach.

Perspectives on the coherence of law

From the legal perspective the importance of the coherence of law is a given as guarding the coherence of law is an explicit legal order for the highest judges. That order is so fundamental and self-evident for the functioning of each legal system that we usually spend very few words on it. Without a highest court of law to take a decision on legal questions, the consistency within the law cannot be guaranteed. To be more specific, important legal principles such as legal certainty and legal equality cannot be assured without the coherence of law. In view of the obviousness of the importance of the coherence of law, the debate about it relates mainly to the planning and organizational issues, which incidentally, in turn, do indeed concern matter of principle. A current issue is of course the set-up of the highest administrative courts, for which we could easily establish a separate series of blogs. Another issue which has been dragging on is that of the legitimacy and binding force of the collegiate agreements between judges and other coordination mechanisms, which have emerged to achieve coherence of law in matters that do not lend themselves for review by the highest courts or against which no appeal is possible. On this topic numerous dissertations have been published over the years. Topics which have gained the most attention in this regard are the maintenance norms, the sub-district court formula in severance payments and the sentencing orientation points. The discussions on this issue focus on whether the court is not treading on the position of the legislature and whether judges are sufficiently equipped for these standards.

An approach from the societal perspective focuses more on the importance of the coherence of law for the citizens’ trust in the judicial system and the rule of law. The prolonged existence of different decisions concerning the same legal questions – especially when the judgments are socially relevant – can undermine the credibility of the judicial system and the law for the citizen. For example, the fact that it took such a long time before there was any clarity about the legal completion of the thousands of Dexia claims, has done little for that trust. That affair was partly the reason to accelerate the process of answering questions of law by the highest instance court by introducing the possibility of preliminary questions to the Dutch Supreme Court. With the answers to those legal questions lower courts can expeditiously resolve the – many – cases in which the legal question is raised, without a series of contradictory decisions or undue continuance while waiting for years of procedure in appeal and cassation, as was the case with the Dexia claims. Although the evaluation of this legislative amendment has not yet taken place, there has been a lot of enthusiasm about the positive effects. The House of Representatives has asked for a mid-term evaluation with the view of extending the instrument to tax law and criminal law. When it comes to tax law, they did not even want to wait for the mid-term evaluation as there is already a legislative proposal at the Council of State. Another issue in which the societal trust plays a role is the consistency in sentencing. Striking differences in sentencing for the same offences proved give the impression of arbitrariness and are difficult to explain to suspects and society. For all the areas of law the digitization of decisions has made comparison easier and differences come to light sooner.

Looking from an economic perspective, then the coherence of law for the predictability of the outcome of recourse to the courts is paramount. The law is an important co-determinant of economic activity. Citizens and companies act on estimations, such as the possibility of obtaining a license or the effectiveness with which agreements can be enforced if a dispute arises over a contract. For these estimations predictability is of great importance. A high degree of predictability promotes economic activities. Additionally, predictability reduces the (transaction)costs to be incurred in the event of a dispute. After all, the clearer it is what the outcome of proceedings before the courts will be – and the coherence of law always play an important role herein –, the faster parties will work it out together to avoid the extra costs of a procedure. People negotiate, as we call it, in ‘the shadow of the law’. In general predictability adds to the impact of the law in the behavior of individuals and businesses. The less ambiguous standards become, the more people will allow their behavior to be determined by these standards and damage that would be the result of deviant behavior can be avoided. Thereby predictability/coherence of law adds to the deterrent effect of the law.

In the European context coherence of the law has traditionally also had a primarily economic significance. It then concerns the ensuring of a – legal – level playing field for businesses by harmonizing legislation and promoting uniform application of European law by national judges. The latter in particular by means of the – obligation – of national courts to ask questions to the Court of Justice of the European Union. With the Charter of Fundamental Rights of the European Union and the forthcoming accession of the EU to the European Convention on Human Rights the coherence of law, as is expected, will be given a more fundamental rights dimension. Similar to, but more limited in scope, the interpretation of the ECHR by the European Court of Human Rights, by which the state parties are generally awarded their own margin of appreciation.

This brief tour d’horizon, which undoubtedly leaves aside many aspects and perspectives (and to which I would like to see additions!), shows how diverse the function of the coherence of the law is, but also how essential it is to strive towards it to achieve the goals and the functioning of the law as a system. Without an acceptable level of coherence of law that legal system will produce sub-optimal results: the judicial system will be slower and more expensive, citizens and businesses will lose trust, and economic activity will be impeded unnecessarily.

Developments

It is therefore not surprising that various initiatives have arisen in recent years to promote the coherence of law. At the European level one can consider the attempts to accelerate the answering of preliminary questions. Last year it took on average 15 months and that meant a speed record. But even then it is not very appealing for national courts, who are faced with pressure to shorten their turnaround time, to submit a question the ECJ. Yet, I still do not have the idea that the threat of liability of the Member State if the national court wrongly refrains from submitting a question, as adopted in the Francovich judgement of the ECJ, plays a significant role in this consideration.

At the national level it can be established that the promotion of the coherence of law was one of the central aims of the modernization of the judiciary that was put into effect in 2002. The court management and the Council for the Judiciary were entrusted with the task of promoting the ‘uniform application of law’. Furthermore, in recent years the possibilities for the Dutch Supreme Court for the abridged dismissal of cases have been expanded so as to focus on the core tasks: promoting the coherence of law and the development of law, and the aforementioned preliminary procedure was introduced in civil law. The discussion on these interventions has concentrated primarily on the objection that it is all at the expense of legal protection in appeal cases. The recognition of the importance of the coherence of law is further reflected in the ‘Judge’s Code’ of the Dutch Association for the Judiciary from 2011. The code indicates that it is expected of individual judges that, because of the pursuit of coherence of law, they also give shape to substantive cooperation with other judges. “The coherence of law on the one hand limits the autonomy of the judge and on the other hand is an important aspect of the quality of the judiciary. The judge is aware of the importance of promoting the coherence of law by applying the law and thereby acting upon the recommendations with support among fellow judges, such as the maintenance norms and the sub-district court formula. The judge justifies his decision when he departs from such recommendations. [translation]”

Possible topics for research

With the finding that the coherence of law is a theme that is gaining importance, the question is still not answered what academia can contribute. Of course there is the usual legislative evaluation research, such as into the introduction of the above-mentioned legislation which extends more time to the Dutch Supreme Court to focus on its core tasks, such as ensuring the coherence of law. These studies are of course important, but not the most exciting ones for researchers. The latter also applies to the studies that consider the issue of the collegiate agreements between judges to promote coherence of law. As mentioned, all of these studies have found their necessary place and I see in that area no reason to set new interesting research questions. It would be interesting to research the backgrounds of the differences. These could be, for example, due to the local conditions which explain the differences. Consider, for example, the differences in sentencing in drugs cases between Rotterdam and the other courts. Because the shipment of drugs that are intercepted in the port of Rotterdam are much larger than elsewhere, then there could be a tendency at the court of Rotterdam (and we already see the signs) that a batch of drugs will less quickly be regarded as ‘large’ than in other courts, which translates into differences in sentencing. While this offers an explanation, it does not justify the differences. How would an investigation into the background and the ‘determinants’ of differences in judgements look like? And what contribution could this study offer to either reducing those differences or increase the societal acceptance of those differences?

For relevant questions I think we should particularly look at the changing societal context within which the law and the judicial system must function. When it concerns Europe I believe the question should be about the process and the pace of harmonization within the EU. For some years now we have seen declining trust of European citizens in the EU and growing political discord between Member States on issues that concern the center of the European principles. Herein we can consider the pace of unification and harmonization and thereby also the pace at which coherence of law is achieved within the EU. Should it not be further considered what scenarios there are in relation to the pace in which coherence of law within the EU can be achieved? When doing so, should we not assume broader margins of discretion for Member States and a more gradual (‘natural’) convergence of systems rather than the further development of a set of instruments aimed at a ‘top-down urge for uniformity’ from Brussels and Luxembourg? These are not only political questions. It could be considered how each of the different possible development trends could might look legally, inter alia when it comes to the instruments and their standards.

For the rest, I wonder about the following questions/topics. What is the relationship between societal trust in the legal system and coherence of law? What is the (possible) influence on that trust by the digitalization of legal decisions and the availability of (big) data on the Judiciary, through which differences in decisions can more easily be discovered? What are the main problems when it comes to the relationship between coherence of law and societal trust? Is it still the familiar areas of sentencing and – maintenance and severance – payments or are there other problems which were not previously exposed? What has been the effectiveness of the initiatives of judges to improve the coherence of law. Have those initiatives had the desired effect? Which other initiatives could be conceived?

Furthermore, I think of research into the importance of predictability of judicial decisions for economic behavior. Such research would then also need to focus on other factors affecting the performance of the legal system, such as the duration of court procedures and what significance that has for economic growth. Understanding such mechanisms can clearly reveal the importance of research in the field of the administration of justice and can show that this research, which appears a theoretical subject to non-lawyers, actually does have social significance. The latter should be a central issue in these blogs, in my opinion. But now it is someone else’s turn.