Judicial Independence in the Netherlands

Member States are free to apply more stringent criteria to protect judicial independence than provided for in the ECHR. In Chapters 4 to 6 the relevant provisions on judicial independence as laid down in the Dutch Constitution, the Judicial Organisation Act (hereinafter: JO Act) and the Judicial Officers (Legal Status) Act are discussed, explaining the meaning and scope of judicial independence in Dutch positive law. In Chapter 5 the organisation, management and operational control of the Judiciary are addressed. Chapter 6 dealt with the supervision of judges, complaint procedures, judicial liability and incompatible ancillary positions. Finally, Chapter 7 addressed the importance of judicial independence to our current approach to the notions of the separation of powers and the rule of law.

The administration of justice and the organisation of justice have both been summarily laid down in the Constitution. Much has been left to the Legislature. Nowhere in the Constitution is it stated that a judge is or should be independent in the performance of his function. In Dutch positive law, however, the emphasis has always been on the personal independence of judges. The Constitution provides ample safeguards for the personal independence of judges by way of appointments for life, suspension, dismissal and supervision of the manner in which judges fulfil their duties by members of the judiciary, and prescribed regulation of their legal status by Act of Parliament (see articles 116 and 117 Constitution). These safeguards though are partly offset by leaving it to the Legislature to decide which courts form part of the judiciary. Moreover, the constitutional guarantees of judicial independence do not apply to tribunals that do not form part of the judiciary. The Dutch government thus has little opportunity to pressurize judges through measures relating to their legal status. However, personal independence is no guarantee of functional judicial independence, the most important concept from a constitutional perspective. Functional independence of judges has not been established as such in the Constitution. Nevertheless, this has never been the subject of discussion and through international law it is part of Dutch domestic law. Since the functional independence of judges has not been laid down in Dutch administrative law, the doctrine of the separation of powers is still relevant to the functional independence of judges in the Netherlands. Since 2002 the Judicial Organisation Act includes certain guarantees on the protection of judicial independence, which serve as minimum standards for functional independence (‘independence exceptions’). These provisions state that the management bodies of the judiciary in carrying out their duties and their powers relating to the management of tribunals may not involve itself in the procedural aspects or substantive assessment of the legal issue in dispute or the decision in a specific case or category of cases (articles 23 section 2, 24 section 2, 96 and 109 JO Act).

The new organisational structure of the judicial organisation is also important for judicial independence. The Council for the Judiciary was established in 2002 as a buffer between the Dutch Minister of Justice on the one hand and the courts on the other in order to increase judicial independence. Although the Council for the Judiciary got off to a good start and functions well so far as facilities are concerned, it has not been very successful in enhancing judicial independence in my opinion (see Chapters 5 and 7). It has a rather hierarchical structure. This is remarkable for a judicial organisation in which traditionally the independence of organisational units and the judges within those units has always been fundamental. In particular, the individual judges’ independence within the courts has been diminished. There is one national judicial organisation now, in which the Council for the Judiciary performs a quasi-supervisory role in relation to the various courts, whilst the Minster of Justice is responsible for supervising the proper operation of the courts. Since it is not always possible to make a clear-cut distinction between the operation of the courts and the exclusively judicial domain it sometimes happens that courts are accountable to the Council for the Judiciary, and so indirectly to the Minister of Justice, for matters touching upon the administration of justice. Moreover, the operation of the courts has a direct impact on the functioning of judges, as is clear from research on the effect of increased production pressure (compare Boone, 2006).

On various occasions the President of the Dutch Supreme Court as well as the Procurator General at the Supreme Court have pointed out that it is impossible to completely separate the operation of the courts from judicial policy. They are of the opinion that where there is conflict between the proper processing of cases (judicial policy) and the proper operation of the courts (efficiency and effectiveness) it is the sole prerogative of the judiciary itself to find a proper balance. The government has always denied that judicial policy and the operation of the courts are inseparable. In the Explanatory Memorandum to the bills the government has tried to illustrate through examples that even when certain aspects of the operation of the courts touch upon the administration of justice the two are still separate. This is, however, a slightly contradictory reasoning. On the one hand the government notes that the operation of the courts is to be regarded as separate from the administration of justice in order to define the position of judges vis-á-vis that of the management board members, on the other hand it admits that there are some aspects that overlap. This poses a possible threat to judicial independence as in all matters relating to the administration of justice, including judicial policy, a judge should be independent. Grey areas must therefore be avoided. The ECHR demands that there can be no doubt about judicial independence. It could be argued that the current statutory meaning of operational control of courts, especially since it includes the quality of the administrative and organisational working methods of the court and lacks a strict definition, has now become so wide that the risk of interference with judicial policy is very high, and may be too high. This may have a considerable impact on the performance and functioning of the courts. This effect is only partially offset by the independence exceptions introduced by the JO Act, at the initiative of the judiciary, these exceptions in themselves being an improvement. It is significant that as a result of the introduction of integral management it was deemed necessary to define the powers of the court management boards, the Council for the Judiciary and the Minister of Justice in order to protect the judicial independence. Why were these organs not assigned fewer competencies or their powers not defined more accurately in the first place?

In accordance with the provisions of the JO Act the Minister of Justice may give instructions to the Council for the Judiciary, which in turn may give instructions to the court management boards, which may instruct the judges. Hence there is a four-tier supervisory mechanism. The government has argued that any possible threat to judicial independence is avoided because the courts do not have to account for their management directly to the Minister of Justice but only indirectly to the Council for the Judiciary. This reasoning disregards the fact that, in the protection of judicial independence, exerting indirect influence is just as unacceptable as exerting direct influence. The determining factors are the nature and scope of the supervisory powers. In particular, the ministerial power to nominate members of the Council of the Judiciary for suspension or dismissal by Royal Decree violates the principle of the separation of powers. Indeed, through his role in relation to members of the Council of the Judiciary and indirectly court management boards, the Minister could pressurize these bodies, thus affecting their independent functioning.

According to the government, these supervisory powers were necessary to deal with unforeseen eventualities. The Minister of Justice during the parliamentary debate on the Bill replied to every question on judicial independence in relation to each and every ministerial supervisory power that such powers were required for the execution of ministerial responsibility for the proper functioning of the judicial organisation. The minister then added that the ministerial power in question was one such power. Every ministerial supervisory power was thus based on one single argument, which, incidentally, is without merit. The fact that in the past few years these powers have not been used does not alter the fact that the mere existence of these powers infringe on judicial independence. The ECHR demands that independence is guaranteed both in law and in practice. As long as the Council for the Judiciary is not really independent of the Executive, the Minister of Justice can use it to exert influence on the judicial organisation.

In carrying out their duties and using their powers it is possible, within the existing legal framework, for the court management boards and the Council for the Judiciary to exert influence on an individual judge in the performance of his or her adjudicatory role. The introduction of progress reviews, career planning, quality management, production targets and an annual planning scheme may all contribute to the possibility of management boards and presidents of court divisions influencing individual judges performing their adjudicatory tasks. Although a judge need not explain how he reached a particular decision in a particular case, the measures mentioned earlier may put him or her under pressure. Moreover, the performance of court management board members and members of the Council for the Judiciary is indeed subject to scrutiny and this may have implications for their legal status.

It transpires from the Explanatory Memorandum and debate about the bills in Parliament that the Legislature sees the relationship between court management board members and judges working in that court as one of judges working together. Mistakenly so, in my opinion. Indeed, one of the members of the court management board is not a judge and the members that are judges are not independent of the Council for the Judiciary and the Minister of Justice when acting in the capacity of managers.

Dutch law, like the ECHR, has few provisions on the interdependence between judges. It is clear that an appeal court can quash a decision of a lower court, this being the usual legal remedy in most systems. A tribunal is not legally bound to follow decisions of a higher court but it runs the risk of having its own decision quashed on appeal if it deviates from such a decision. There is no statutory provision which explicitly refers to internal independence. In academic works on Constitutional and Administrative Law there seems to be no consensus yet on this issue, although in my judgment the prevailing opinion is in favour of internal independence. I should have thought that a judge must be functionally independent from his colleagues, as will be explained further below. The Legislature in this respect has chosen to be on the safe side. The statutory provisions relating to the promotion of the uniform application of the law and the improvement of the legal quality takes the individual competence of judges as a starting point. Judges can only jointly make judicial policy rules, which may be deviated from in compelling circumstances.

When reforming the judicial organisation the government stressed that judicial independence also plays a role in the broader context of the relationship between the different branches of government. Questions such as ‘How independent should the Judiciary be vis-a-vis the other branches of government?’ and ‘What powers over the Judiciary cause an imbalance?’ are difficult to answer in abstract terms. The doctrine of the separation of powers, including that of checks and balances, does not clearly define how the competencies attributed to various organs still comply with this doctrine. However, this does not mean that the doctrine of the separation of powers is out of date. The system of a judicial organisation should provide for judicial independence, in accordance with the Constitution in its broad sense. Judicial independence historically is a product of the doctrine of the separation of powers. Nowadays, judicial independence is above all regarded as a prerequisite for a fair and effective protection of citizens, a component of the rule of law. In a society based on the rule of law citizens must be able to count on the judge hearing their case being unbiased, especially in cases where the adverse party is a government body. The judge should not have to be concerned whether his decision is favourable to the Government. This requires judges that are independent from the other branches of government. The concepts of separation of powers and judicial independence are thus closely connected. That is why the constitutional principle of judicial independence should be upheld in the organisation of justice and why the focus should be on the judicial rather than the management perspective.