Montesquieu and marginal review
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’ (ABRvS 4 maart 2015, AB 2015). (more…)
Jeckyll and Hyde in Strasbourg
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? (more…)
The Unity of Law I: Blogging about the unity of law? 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. (more…)
Association of Human Rights Institutes’ Conference on Human Rights and Universality
The Association of Human Rights Institutes (AHRI) held their 16th annual conference on 21-22 September 2015 in Serbia, hosted by the Belgrade Centre for Human Rights. This blog gives a brief overview of my experiences at the conference. The theme of the conference was Human Rights and Universality, in acknowledgment of the new ways emerging to approach the universality of human rights. This theme reflected on discussions about what are common human values, and how human rights should be interpreted in the different cultural contexts. (more…)
The revolt of the judges
Judges in the Netherlands are rebelling against the endless series of changes in the organization of the judiciary. What is occurring is more than a simple merger; the organization has become too dominant in the judges’ work.
Judges do substantive work. They give judgments in other people’s disputes. To be able to do that work well they must be properly educated and trained. High demands are imposed on judges. Judges’ work is very diverse. The work of a family-court judge is usually content-wise less difficult than the work of commercial court judge. But where the commercial court judge can immerse himself in a difficult legal puzzle, the family-court judge must be able to deal with strong emotions and accommodate them during a hearing. With the internationalization and the Europeanization of the law, the judicial tasks have become more difficult substantively. This is the case in all legal areas. The Council for the Judiciary was installed to lead the necessary changes within the judges’ work in the right direction. It appears that now the Ministry of Security and Justice and the Council for the Judiciary have overplayed their hand in relation to the judges. (more…)
Change is timeless
This week I realized that during my entire professional life I have had to deal with changes. This already started when I was still working at the UU from 1985 until 1994. Simply in the education I experienced the semester system (2 teaching periods), the ‘block system’ (5 teaching periods) and the trimester system (3 teaching periods). At that time most colleagues found these changes a good idea. But good ideas are also time-bound. So I was not surprised that when I returned to the UU in 2012, I found a system of four teaching periods.
And, once again back in time, I was only working for a few years at the courts when major changes were announced. Since 1999, the courts have immensely professionalized and modernized themselves as an organization. As a court manager I have stood on the front line for ten years, it was a golden age to witness and – on a modest scale – help shape. (more…)
Dutch help for the Greek civil justice system?
The statement made during the Euro Summit on Greece on the 12th of July following 17 hours of meetings included one measure which has received less attention than the other (serious) demands made against Greece to qualify for new loans (Euro Summit Statement Brussels, 12 July 2015 (SN 4070/15)). One of the measures that Greece must take is:
“the adoption of the Code of Civil Procedure, which is a major overhaul of procedures and arrangements for the civil justice system and can significantly accelerate the judicial process and reduce costs”.
At first sight it seems remarkable that a reform of the procedure in civil courts has been given such a prominent place between the imposed cuts and economic reforms, especially in light of the hectic discussion during that memorable Sunday evening. What is the connection between this measure and the Greek debt problems? Does this not prove the ultimate European interference by also prescribing Greece a civil procedural law? (more…)
Should we be happy with a pesky hornet? On the querulant and his unintended, unexpected but desirable functions
Wibo van Rossum
While researching the challenge procedures (publication, ‘Wraking bottom-up’ in 2012 and the current research into the ‘pilot externe wrakingskamer’) I became interested in the querulant. Querulants, in my opinion, challenge a judge more often than other citizens. They are also partly classified by this characteristic. Erhard Blankenburg has previously said that with querulants a shift occurs from a conflict about the case, to a conflict over procedures. The big complaint of the querulant, which is also exactly the reason for his perseverance, is that his complaints are rejected by ‘corrupt officials and judges’ without giving him a ‘decent chance’ to tell his story. The procedure no longer legitimizes, according to Blankenburg with a reference to Niklas Luhmann (Legitimation durch Verfahren, Neuwied 1969). The procedure relieves us at some point “from the obligation of having to argue about the fairness of standards” (Blankenburg 2004:15), while repeated subjectively perceived injustice – perfection does not exist in the daily reality of the law – leads to a pathological complainer. (more…)
Access to Mediation
In the NRC Handelsblad a piece written by my colleagues Grootelaar and Van den Bos was recently published on the new mediation legislation. Apart from this article the public debate concerning mediation appears to be at a standstill for some time. The lull before the storm, I suppose. Although the private member’s bills submitted by the (then) member of the second chamber Ard van der Steur Wet bevordering van mediation in het burgerlijk recht, Wet registermediation and Wet mediation in het bestuursrecht are recently withdrawn, the Dutch government has indicated to come up with a bil of its own. This will likely lead to a new stream of articles in newspapers and legal journals. A recurring theme will presumably be the ‘personal responsibility’ and ‘self-reliance’ of citizens. But actually, as I argue in this blog, the obvious ambiguity of these concepts will force us to reflect on the access to mediation. (more…)
Judicial Independence Detained
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. (more…)