Strasbourg, 14 March 2001
CCJE (2001) 30
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by the Netherlands
I. THE INDEPENDENCE OF JUDGES
1. The independence of judges is guaranteed by the constitution and by legislation.
2. The Constitution states that the structure, composition and competence of the judiciary is a matter of legislation; the same for the courts which belong to the judiciary. The constitution also states that supervising power on the the judicary must be fulfilled by members of the judiciary itself as provided by legislation. Finally the Constitution ensures the life appointment of judges and the regulation of their rights and duties by legislation.
3. Judges are appointed in a certain court and they are not removable.
5. Formally no, but the president of the court has restricted possibilities in case the judge concerned makes a mass of his work; as a matter of fact the president will be very reluctant to exercise his authority to avoid allegations of abuse of powers. Parties involved can always refuse a judge for reasons of impartiality. If the judge does not accept this refusal a special chamber of the court must decide.
II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. The age for appoinment as a judge in a district court is in practice from 30 years; legally the minimum age is 25 years. Judges must have a good knowledge and experience in (regurealy) at least 2 mainfields of law (criminal law, civil law, administrative law, family/juvenile law). Further they are selected on the basis of competences and abilities of listening, personal balance, deciding power, sensitivity, sociabililty, integrity, cooperation, attitude towards clerks and people seeking justice.
2. Judges are recruited on the basis of a psycological test, a assesment and interwiews by a commisson of 6 persons (in 3 chambers of 2). The commission proposes/rejects a candidate for appoinment by looking over firstly the results of its interviews, then a provisional judgment, next the outcome of the external expertise, and as last step the final judgment.
3. Candidate must be graduated in Dutch law on a university level. The system of education is under review and the requirement for the future wille be a master degree.
4. For becoming judicial trainee (until the age of 30) no previous professional experience is required; however in practice there is short experiendce (2-3 years), but not obligatory as a lawyer. After the age of 30 years there must be a experience of at least 6 years in the legal profession.
5. See my answer at 1 and 4.
7. They are appointed by the Queen on the proposal of the Minister of Justice, who accepts fully the conclusions of the selection commission (for a first time appointment; in case of appointments on key management positions as are presidents of the courts, the Minister of Justice may as an exception set aside the first name on the list)
8. Appointment after selection carried out by predominantly the judiciary itself.
9. So far the Minister of Justice is responsible for the recruitment. He exercises this task in concordance with the judiciary, i.e. the assembly of Court presidents and the judicial study and training centre (SSR). The Netherlands Association for the Judiciary (NVvR; see internet: www. verenigingvoorrechtspraak.nl) must give consent to the rules of recruitment, selection and appointment.
11. The judge has to apply for an other position if he wants promotion. Regular promotion after first appointment as a judge in a district court is (a) appointment as judge (justice) in court of appeal, (b) appointment as a vice-president a district court (same or one of the other 18) and (c) appointment as ‘unus judex’ in a subdistrict or cantonnal court. If there is a vacancy, a public announcement is made in the general legal magazine, selection for promotion takes place in the court itself except for position of president. Presidents are selected by a commission of 3 court presidents with advise of a committee of the court concerned consisting of a majority judges, a representative of the clerks and the director of administration.
There is new legislation under the Parlament (Judicial Reform Act) which will provide the judiciary with a Council for the Judiciary with certain authority in the field of promotion and career development.
12. There are no objective criteria. You must have a 5-8 years experince as a judge to be accepted as serious candidate for promotion. There are still elements of the early anciennity system.
13. Only in the case of serious professional or personal disfunctioning by the Supreme Court.
14. We urgently need a by the judiciary accepted system of career planning and developping abilities and competences, specially in the field of management. The judiciary is on the eve of a huge reform and will be responsible for its own administration and budget from 2002 on.
III. THE FUNDING OF THE COURTS
1. By a budget provided by the Minister of Justice as part of the budget of his ministry.
2. You may describe the system of budgetting as ‘what is availabble and politically feasable’ not as ‘what is needed’.
3. So far: formally no, in practice however they work together with the director of administration attached to every court. This director is a civil servant responsible to the Minister of Justice, but in the last 10 years this orientation is more and more directed to the needs of the courts and less to the wishes of the ministry.
4. Until 1990 there was a enormous lack in good housing, equipment and ICT. Housing has been improved in terms of quality, but there is no room for extensions. ICT is now is on the way to the normal standards in the public field. Staffing is below standard but as part of the coming reform this will also improve. Workload is high and too much cases are waiting too long for proper handling.
5. We urgently need graduated clerks for preparing standard cases and the organisation of handling the cases is primitive.
6. The judiciary is in a process of taking responsibility for the whole adminstration of justice including the non-judicial tasks. At same time studies are implemented (as far as budget is available, clerks can be found and the organisation can manage) to get carrying out non-judicial tasks by other officials than judges.