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