Conclusion and recommendations

The way the legal status of judges has been organised in Dutch law to guarantee judicial independence definitely meets the standards set by the Council of Europe, and in places exceeds them. The statutory provisions for the four-tier mechanism for supervision of the operation of the courts are a different matter. There is no actual case law indicating that the competencies of the Minister of Justice and the Council for the Judiciary are contrary to the principle of judicial independence within the meaning of article 6 ECHR. However, existing case law makes it clear that judges should not be subject to outside pressures, which criterion has been given a broad interpretation. Indirect forms of exerting pressure on a judge or the mere appearance of such pressure may infringe article 6 ECHR, even if the judge in question serves in another capacity, such as a managerial function and irrespective of whether this function is within the judicial branch of government. Moreover, research on how the JO Act works has shown that the new legal structure enables the Minister of Justice and the Council for the Judiciary to exert influence on the functioning of an individual judge through operational control and the allocation of budgets or by taking measures under the guise of promoting a uniform interpretation of the law. The strong emphasis on production in particular is worrying. No specific ECHR case law on the management and operational control of courts is to be expected in the near future, having regard to the wording of article 6 ECHR, which provides only for the assessment of a particular case in question, as well as the fact that an individual judge cannot make a complaint about the lack of judicial independence. In this respect the non-binding recommendations by the Committee of Ministers or the advice of the CCJE and the Venice-Commission are more promising. These also apply to the organisation of justice at a macro level, and may aid the national legislature in deciding on the best course of action when organizing the judicial system.

In addition to the legal framework provided by article 6 ECHR it is just as important in a modern (democratic) society that the judiciary takes up an independent and equal position vis-à-vis the other branches of government. Therefore, the separation of powers is still a fundamental value. Judicial independence in particular supports this argument. It requires an independent position of the judiciary in accordance with essential standards of organisational independence.

Finally, some recommendations are made to the legislature. Firstly, it is recommended that the right of access to an independent and impartial tribunal in all instances be included in the Constitution. This right should not be limited to cases that are within the judiciary’s exclusive competence. This proposal is not entirely new, for example the 2010 Royal Commision on the Dutch Constitution recently made a similar proposal, but it should definitely be included when analyzing the importance and guarantees of judicial independence in international and national law. Moreover, it concerns one of the fundamental values of the administration of justice which is one more reason to enshrine it in the Constitution. As to its formulation in the Constitution, it may be appropriate to follow a combination of the wording of article 6 ECHR, allowing a broader scope, and that of the provision on judicial independence in the German Constitution (article 97 GG): 1. In the adjudication of a dispute or the trial of a criminal charge against him, everyone shall have the right of access to an independent and impartial tribunal. 2. The tribunal in the performance of its functions is bound only by the law.

Secondly, it could be argued that a Constitution should contain more extensive provisions on incompatible functions with a view to the desired organisational judicial independence. It should not be permissible for a Member of Parliament to act as a judge simultaneously and vice versa. Apart from this being contrary to the doctrine of the separation of powers, it also gives the appearance of a lack of impartiality.

Thirdly, it is recommended that all ties between the Council for the Judiciary and the Minister of Justice be cut where the operation of the courts is concerned. The Legislature has failed to come up with any valid arguments substantiating the Minister’s competencies in this field. Judicial independence of the individual courts and their judges could be better guaranteed if the Council for the Judiciary were to be made a truly independent organ. This would prevent altogether the Minister of Justice from indirectly influencing the operation of the courts through the Council for the Judiciary. To this end, the provisions in the JO Act on ministerial responsibility for the Council for the Judiciary would for the most part have to be repealed. This is especially true where the power to give directions, to set aside decisions and to interfere with the legal status of members of the Council for the Judiciary is concerned. The government could play a role in appointing the members of the Council of the Judiciary if desired. This does not affect judicial independence. The supervision of the functioning of the members of the Council of the Judiciary could equally well be carried out by the judicial organisation itself, just as is the case with the supervision of the functioning of individual judges. Obviously, transparency of such an internal supervision system is of the essence. Publication of Annual Reports may considerably contribute to this. As regards the allocation of budgets to the courts it is not necessary or desirable to cut the ties between the Council for the Judiciary and the Minister of Justice altogether, partly because it is after all a constitutional function of the legislature to allocate the budgets. This role is, however, limited to allocating adequate budgets. The current legal framework does not provide for ministerial responsibility for the efficient use of funds. This is a welcome development from the perspective of judicial independence when compared with the system for financial management of the courts which was in existence prior to 2002.

The members of the management boards, including the Court President, in the Dutch judicial system are in a dependent position vis-à-vis the government (par. 5.6). Having regard to his statutory duty to supervise the functioning of individual judges it is recommended that the President be appointed for life, both in his judicial function and as president of the management board (Articles 116 and 117 Constitution).

A final recommendation relates to the statutory regulation for promoting the uniform application of the law and improving legal quality. The current rules are vague and inconsistent with actual practice (paragraphs 5.5. and 5.12). It would be advisable to state explicitly in an Act which judicial organs are authorised to establish judicial policy. These may be the sector meetings or the court meetings, which are already regarded as bodies authorised to do so, or the national sector meetings. In any case, a specific provision in law will clarify the relationship between the court management boards and the Council for the Judiciary in this respect, both having only a supportive function under the JO Act. This is important from the perspective of judicial independence. Management organs of the judicial branch of government can never be part of a rule-making process nor take the initiative to adopt such rules. Even if they are given a more independent position than their current statutory one, they should in their capacity as managers not be given the authority to decide on matters concerning the freedom of judicial decision making. At the request of these judicial organs, the management boards may provide assistance and discuss matters. The need for establishing judicial policy is clear from the established practice of national and regional meetings of judges and is a welcome development from the perspective of legal security and equality before the law. It only deals with the way in which a judge uses the margin of discretion offered to him by the legislature, as he can always deviate from policy rules if circumstances dictate.

In my opinion, judicial independence in the Netherlands is best served in the manner described above.