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Montaigne Centre Blog

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

Wibo van Rossum

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

Access to Mediation

Marc Simon Thomas

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van mediation in het burgerlijk recht, Wet registermediation and Wet mediation in het bestuursrecht are recently withdrawn, the Dutch government has indicated to come up with a bil of its own.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

Leonie van Lent

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…)

No penalty payments in combination with an order for the payment of a fine…

Ton Jongbloed

The judicially imposed penalty payment on a party not complying with a court order (dwangsom) was introduced in the Dutch Code of Civil Procedure in 1933. Through the rejuvenation in 1978, the regulation of the penalty payment is now equal in Dutch, Belgian and Luxembourg law. The topic of the penalty payment is closely linked to the Molengraaff Institute for Private Law in Utrecht. Professor S.N. van Opstall (professor from 1 March 1955 until 1 September 1971) gave his inaugural lecture titled, ‘Some comments about the penalty payments’ and wrote a preliminary advice for the Association for the comparative study of the laws of Belgium and the Netherlands in 1961 concerning the rules of the penalty payment in Dutch law. I myself have been interested in the indirect means of enforcing a judgment for years. Initially I wanted to dedicate my dissertation to this topic (but it was already claimed by a lawyer from Amsterdam who, in the end, never seriously worked on the topic) and later I wrote articles, books and case notes about it. (more…)

Conference on Procedural Justice and Legal Practice

Lisa Ansems

On the 10th of April 2015 the international conference on procedural justice and legal practice organized by the Montaigne Centre took place. Guests and speakers, from Utrecht and from far, gathered at 10 am at a very suitable location: one of the courtrooms of the District Court Midden-Nederland, location Utrecht. After a short welcome by Miranda Boone the conference was officially opened by Ton Hol. He placed the theme procedural justice in the context of the transition from the Enlightenment, when decisions could derive legitimacy through referring to general rules, to the Romantic period, when society requested a more individual approach. (more…)

Research report: ‘Access to Justice – a current portrait’

Hilke Grootelaar

As was proved yet again last week in the Second Chamber, there is great interest in the budget cuts made to the legal aid system. And rightly so, because this ultimately concerns the quality of the rule of law. In the past few years the government has taken various measures which affect the access to justice. This has led to public debates on several fronts. The First Chamber organised an expert meeting on the 4th of February 2014 with authoritative legal experts and subsequently organised a debate on the 11th of March 2014 about the current state of the rule of law. What became extremely apparent from the expert meeting and the debate is that a widespread feeling exists that the quality of the rule of law in the Netherlands is currently under pressure. The concerns on the access to justice are illustrated by the various motions that were carried by the First Chamber. In January of this year it became clear that state secretary Teeven wanted to continue the cuts in the legal aid budget despite the critique from the First Chamber. In February 2015 the government decided that the former mayor of Utrecht, Wolfsen, should be chairman of the committee that is currently researching the rise in costs of the subsidized legal aid. (more…)

Democracy and Judicial Selection

Philip Langbroek

The provincial elections were considered a test case for the current cabinet, since the provincial councils also elect the Senate of the Dutch Parliament. The elections were accompanied by a debate on whether we should get rid of the Dutch Senate. Politicians from one of the coalition parties pleaded for the abolition of the Senate, because the Senate can block legislative bills from becoming law. Seeing as the indirect election of this body does not run simultaneously with the election of the House of Representatives, coalition governments with a majority in the House of Representatives, may have to deal with minority support in the Senate. This can be inconvenient for the parties supporting the government in the House of Representatives. The entire idea of checks and balances between different state bodies in order to counterbalance the exercise of government power, however, seems to be an alien concept to those debaters. They also do not seem to care much about the quality of representative democracy, as they only want to have a more efficient decision making process for the majority. Instead of discussing more efficient decision making at the detriment of effective voting rights of citizens, we should focus on how we can reinforce the democratic position of citizens. (more…)