Strasbourg, 17 May 2004
CCJE (2004) 30
Consultative Council of European Judges (CCJE)
Questionnaire on management of cases, judges’ role in the proceedings, and use of alternative dispute settlement methods: reply submitted by the delegation of Netherlands
A . ACCESS TO JUSTICE
1. The Justice Department issues a great deal of brochures and factsheets to inform potential and actual litigants, suspects, witnesses and victims about the organisation of the Dutch courts, the various proceedings, the rules of law and the possibility to obtain legal aid. All brochures and factsheets are available in the Dutch and in the English language; some also in the Turkish language. These brochures and factsheets are on display in every courthouse in the Netherlands and can be obtained at request at the Justice Department or at the Government´s central information desk, Postbox 51. Both have useful websites. The website of the Justice Department also offers answers on frequently asked questions of Dutch law and proceedings. The Dutch courts and the Council for the Judiciary have a common website, Rechtspraak.nl, which offers valuable information. Legal aid can be obtained at the various Legal Aid Offices in the Netherlands. The first advice at a Legal Aid Office is offered free of charge for everyone; further advice and assistance on a limited number of subjects is available for those who are eligible for legal aid.
2. Not lately. In civil cases concerning small claims (up to EURO 5.000), industrial disputes or rent matters no legal representation is obliged. To assist the plaintiff in such cases a change of law in 1992 allowed the use of a simple form in stead of a writ of summons; this form has been abolished in the civil procedure law reform of 2002 as it turned out to be too seldom used (only 4% ).The Dutch legal aid system offers a lawyer free of charge in criminal cases to every suspect who is remanded in custody, regardless of his or her means. In all other cases the Legal Aid Offices either offer assistance themselves and/or assign the case to a lawyer, who is entitled to a fixed fee from the Government .The criteria for eligibility are an income of EURO 1.503 for singles and EURO 2.113.- for families. Depending to the real disposable income a contribution of 89-761 EURO may be required. Those who are not entitled to free legal aid, are encouraged to take out a legal cost insurance.
3. Costs of one´s own lawyer
In all cases where free legal aid is not offered, one has to pay his own lawyer. There are no institutional arrangements to fix these costs. The Dutch Bar Association offers a not-binding recommendation on lawyers´ fees. Although the result of the procedure may be a factor to reckon with, the Dutch Bar Association forbids any outright no cure-no pay or quota pars lits arrangement. However, an experiment with these arrangements will soon start, strictly limited to claims of personal injury. If a client wants to challenge the invoice of his own lawyer, he first has to submit his case to special jurisdiction, offered by the Bar Association.
Recovery of the costs of one´s own lawyer by the winning party
In criminal cases a suspect who is eventually acquitted, has the right to petition the court to be reimbursed by the State for the expenses incurred. In administrative and civil cases the court on demand of the winning party will order the losing party to pay costs, according to a court-initated fixed cost-system (depending on the amount involved in the case and the number of acts of procedure). These do not necessarily cover the amount the winning party has to pay to his lawyer and often cover no more than 10-50% of the real costs.
Court fees, costs of interpreters, witnesses and experts.
Criminal procedures are totally free of charge. Administrative procedures cost relatively little. In civil procedures the court fees for both parties may vary, depending on the amount involved in the case, from 241 EURO till 4.535 EURO. Is a party granted legal aid, his court fees and costs are paid by the State. In civil procedures the losing party has to reimburse the winning party or the State the total amount of these costs.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
1. There are not many non-judicial tasks trusted to Dutch judges. However, the Justice department has announced that it will further narrow the field of tasks, actually performed by the courts. A bill has been proposed that shifts competence in criminal matters from the criminal courts to the public prosecutors and enable the latter to impose sanctions on criminal offenders, e.g. penalties, community service orders and disqualification from driving, with the possibility of an appeal to the court. Also legislation has been announced to enable married couples to obtain a divorce without the judge under certain conditions. We have not yet seen the end of this development.
2. In the Netherlands quite a lot of Dispute Committees and Courts of Arbitration handle disputes arising in a certain branche, like the Dispute Committee for the Banking Industry or the Dispute Committe for the Travel Industry and the Court of Arbitration for the Netherlands Building Industry. The competence of these Committees and Courts of Arbitration is usually assigned by the applicable General Conditions. The availability of these alternative dispute resolution bodies (which are frequently presided by Dutch judges) prevents numerous cases to go to the ordinary courts.
3. In 2002 the Netherlands Council for the Judiciary was established. The Minister of Justice is responsible for the structure and the budget for the judiciary in general. The judiciary is responsible for the organisation and day to day operation. The courts are financed on the basis of their output. By law all Dutch judges are appointed as deputies in courts of the same level. This enables courts with a backlog of cases to shift cases to other courts without a backlog. These operations are stimulated by the Dutch Council for the Judiciary. To provide temporary relief to courts of first instance with a backlog of civil cases, in the year 2000 a Flying Squad (Vliegende Birgade) was set up. This is a task force of five experienced judges and about twenty-eight law clerks, who provide written interim and final judgments on behalf of all courts that needed help. The flying Squad produced in 2002 no less than 1.858 decisions and will be in force until the year 2006. In 2003 a coordination point was set up with the task to divide all criminal MEGA-cases (cases with several suspects and an extensive file, which will take at least 3 full days in court) among all courts of the same instance.
4. All courts have ´total´ or ´integrated´ management of their own operations and are managed by a management board consisting of a president, the chairs of all sections of the court (by law limited to four), all of them being professional judges, plus one non-judicial member. The Council for the Judiciary provides sufficient training in management techniques.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT, QUANTITATIVE STATISTICAL DATA, MONITORING PROCEDURES.
1. The Council for the Judiciary is developing a uniform quality management system for all courts on the basis of the principles of Total Quality Management. The system aims to regulate all primary processes, taking into account the justified expectations of all parties involved. For each section of the courts a uniform quality statute is being developed. In this context work on a uniform system of measuring the quality of judicial activities is in progress and still in an experimental stage.
2-4. The financing of the courts is mainly based on their actual production, using the usual productionproces and the current level of costs per section of the court as a basis. The Council for the Judiciary has developed a system of planning and control for all courts, using a uniform planning model. This model consists of two parts: a production part and a budget part. In the production part an estimate is given by each court of the amount of cases each sector of the court expects to finalise in a certain year, using a standardised system (LAMICIE). This system was set up after examination of the average time it will take for a case of a certain category to go through its various stages of handling. A fixed amount of money has been allotted to each category of cases. Recent experts´ review of this system has shown that it is too complex and offers no incentive to achieve a higher efficiency or quality level, on the contrary tends to invite calculating behaviour. Recommendations were made to split the system in two and maintain the present, elaborate model to measure the workload of the courts, but use a simplified model for the purpose of financing these. This change requires legislation however, which has not been introduced yet. The present system enables the courts to measure the completion time of all cases as long as they fall into the fixed categories. It also shows how many cases of a certain category an individual judge has completed. All other or extra activities are not registered. There is no (further) official registration of the judges performance.
D. ALTERNATIVE DISPUTE RESOLUTION
In the policy letter on ADR 2000-2002 the Justice Department has outlined the framework for ADR policy developments for 2000-2002. In this letter four long goals are identified for ADR: giving legal status to settling disputes, settling disputes in the qualatively best or most efficient way, a more multiform access to the law wherby parties have more responsibility for settling their conflicts and reducing court caseloads. Preparations for a nation-wide project on court-annexed mediation in the Netherlands were started in september 1999. The other project concerns the referral of clients by the legal aid service. In both fields mediation is proposed in the field of civil and administrative law. For these projects a team comprising several project mediators was selected. All mediators must satisfy specific quality criteria and be registered with the Netherlands Mediation Institute. In total 70 mediators, among them judges, were selected. Lawyers were in the majority, although mediators from the following occupations were also selected: accountancy, architecture, consultancy, education and the medical sector. A three-days referral course has been designed for judges and legal secretaries. All costs, including the costs of the mediator, were borne by the Justice Department.
According to a survey in the end of 2002 the following results were achieved. In the court-based project almost 1000 cases were referred to mediation, of which 61% reached an agreement. The mediation sessions averaged 6.3 hours over an average period of 95 days. In the legal aid project 171 cases were referred to mediation. The mediations in this project averaged 2,6 hours over an average period of 7 days; 78% of them were succesfull. In both projects the parties were satisfied with the mediation and with the skills of the mediator and they indicated they would mediate in the future. After a period of three months, the mediation agreements were fulfilled completely in 66% of the cases and partly fulfilled in 22% of the cases. The results of these projects indicate that there is no best practice in the method of referral and no best criterion for selecting cases for referral. The most important condition for reaching an agreement is the willingness of both parties to negotiate. The research makes clear that even administrative and tax law cases can be referred, in spite of the often assumed lack of room to negotiate, as long as the parties are willing to negotiate and they are not served best by a strictly legal solution. The conclusion of the research is that there is room for negotiation both before and during a court proceedings. Both projects are continued until the end of 2004.
In april 2004 the Justice Department issued a policy paper ´Mediation and the legal system´. As from januari 2005, mediation will be positively stimulated by incentives and information campaigns, aiming at the general public and the professionals, e.g. the Netherlands Bar Association. There is no intention to restrict the access to the courts in any way.The two ways of referral, used in the abovementioned projects will be continued. Special legal counters will be set up for referral before court proceedings. In-court referral will be continued. The Justice Department bears the costs of nationwide coordination, monitoring and survey of the mediations. The state shall bear the costs of the mediation for people who are elegible for legal aid. Furthermore the state will contribute a fixed amount of EURO 200.- in the costs of each court-annexed mediation, regardless the financial position of the parties.
2. There will be no legal provisions to ensure the quality of the mediators. This is primarily left to the profession itself, which is developing a Mediation Certificate. In the meantime additional criteria will be formulated.
3. Legal aid for mediations, referred by the future legal counters or by the courts will be available.
4. Confidentality of the mediation is, now and in the future, depending on the agreement between the parties involved. No legislation is foreseen. In the policy paper the minister of justice states that he does not want to overregulate the instrument of mediation and that he is not convinced of the necessity of legislation on the matter of confidentiality of the mediation. He wants to leave that for the courts to decide in each case.
1.2 The judge may recommend parties to engage in mediation, but there are no ways to force parties into mediation. A judge who is sufficiently qualified as a mediator may act as a mediator himself, but not in the same court where the referral to mediation has taken place. This was standard-practice during the abovementioned projects and is according to the Policy Paper on ADR, also the official point of view of the Justice Department.
3. When an agreement is reached in a court-annexed mediation each party can ask the Court to declare it enforcable.
c) Out of court ADR
None. If a party wants an agreement enforced by the courts he has to start normal proceedings for enforcing a contract.
d) ADR in administrative law disputes
Yes. See the results of the projects above. In most cases the settlement is declared subject to approval of the competent administrative authority.
e) criminal law and ADR
The dutch public prosecutor does not have a duty to prosecute. He has the power to dismiss a case and may formulate certain conditions, like an amicable settlement with the victim.
E. CASE MANAGEMENT
a) in general
1. According to the Council for the Judiciary the average figures are.
Small claims, labour and lease cases: single judge (kantonrechter) 58 days
Other civil cases: 389 days in the courts of first instance
521 days in the courts of appeal
Criminal cases. single judge (Politierechter) minor offences: 51 days
Criminal cases single judge (juvenile court) 62 days
Criminal cases Court of first instance: 139 days 1
2. Judges´ powers in civil cases in general have been increased by the procedural reform of 2002. Before this reform, the judge already had the power to order parties to appear before the court in any stage of the proceedings. As to timelimits, the judge can only order a party to submit a written submission. He can set no other timelimit nor sanction delaying tactics or abusive behaviour. A fundamental review of the dutch law of civil procedure is taking place. An elaborate working paper has been drafted and is at present open for discussion.
3. Small claims are always handled by a single judge (kantonrechter). In all other civil cases it has become customary in the courts of first instance that a single judge handles the case. This is generally considered a loss of quality. In criminal cases, the limits of competence between the single judge (politierechter) and the full court are shifting, due to legislation (not yet full in force) which empowers a single judge to impose a prison sentence up to 12 months instead of 6 months.
b) in civil disputes
1. The procedural law reform of 2002 resulted from a succesfull experiment with a simpler and faster procedure in the courts of first instance that was initiated by the judges themselves (Versneld Regime). This model, which obliges both parties to put all their cards on the table in one written statement each, followed by a conference in which the judge takes an active part, is now the rule, unless the parties, or one of them, can convince the judge that special circumstances demand a second round of reply and rejoinder. The proceedings start with a summons, issued to the defendant by a process-server. The plaintiff must indicate in the summons the points in dispute with a description of the defendants´defence and name the evidence. The latter applies to the defendant in his statement of defence. At the sitting, which follows in 90% of all cases, the judge talks to the parties to see whether the proceedings can be brought to an end with a settlement or can be referred to a mediator. If neither is the case, the judge may obtain the information that he needs from the parties in order to give a judgment or reach an agreement with the parties about the way in which the proceedings will continue, with the furnishing of evidence and/or appointment of expert(s).
Thus the principles 1.1, 3, 6 and 8 are more or less implemented. Sanctions as mentioned in principle 1.2.,1.3,1.4 and 2 are not available. The law merely states in art. 21 and 22 that a judge may draw his own conclusions if a party either does not act truthfully or refuses to give requested information and/or to submit documentary evidence on request. Principle 5 is under discussion as a part of the Fundamental Review. Principle 7 is met by the possibilities of the summary proceedings (kort geding).
2. In all family cases and in a few other special procedures simplified procedures are prescribed, starting with a petition to the judge, followed by a written answer and an oral hearing of the case. In all pending civil cases the plaintiff can demand a preliminary order. This is not often done, because of the availability of separate summary proceedings (kort geding) in all cases.
3. (i) in family matters and other special procedures, esp. to obtain a freezing order, litigation commences with a petition to the judge.
(ii) it is up to the petitioned judge to decide whether the petition is granted without any hearing and even without notifying the eventual defendant. This is usually the case with freezing orders. In other cases the defendant is usually notified and an oral hearing is organised.
(iii) in summary proceedings the parties can appear voluntarily before the court at an oral hearing. To organise such a hearing the court requires at least a draft of the writ of summons.
(v) yes. In summary proceedings (kort geding) the rules of evidence do not apply. In procedures starting with a petition to the judge, the rules of evidence do apply if they are incompatible with the nature of the specific proceedings.
(vi) In summary proceedings the usual term for issuing a writ of summons does not apply. In really urgent cases the defendant may be summoned in court `at all days and hours´.
(vii) On request of an interested party the court can order a court expert even before a procedure has been instituted (voorlopig deskundigenbericht).
(viii) On request of an interested party the court can take evidence (voorlopig getuigenverhoor) or carry out an on-the-spot-investigation (voorlopige plaatsopneming) even before a procedure has been instituted.
4.1. Please note that in the Netherlands the choice between instituting interlocutary proceedings or ordinary proceedings rest exclusively with the plaintiff. The court can not switch procedures.
(iii) yes, without any limit. Small claims, labour and lease cases can also be put in summary judgment before the kantonsection of the court, where no legal representation is required. The choice of proceedings rests entirely with the plaintiff.
(v) Decisions of divorce, custody or maintenance can only been given in ordinary proceedings, like all decisions that change the legal status of the parties. Yet it is normal practice for a judge in summary proceedings to anticipate on a decision on the merits and issue orders concerning practical topics of custody or maintenance
4.2. No. The court where the main proceedings are brought, is not bound by any decision in the summary judgment. Should the judgment in main proceedings turn out to be contrary, the summary judgment is put aside from the date of the judgment on the merits. However, as long as a summary judgment is in force, it has to be obeyed.
4.3. Yes. It is up to the parties to decide on a procedure on the merits after having obtained a summary judgment. Only 5 % of the parties do initiate a procedure on the merits, whereas another 5% appeals against the summary judgment itself (summary judgments are open to appeal and cassation as such). An exception are the cases based on the allmost worldwide TRIPs-treaty (Treaty on Trade Related Aspects of Intellectual Property Rights) that obliges a party who was granted an injunction to enter into a procedure on the merits or else lose his rights under the injunction.
5. As long as a decision in summary judgment does not formally change the legal status of the parties, any kind of judicial order or injunction can be given. There is no limit.
Even irreversible court orders may be issued. This system has its own checks and balances, esp. with the possibility of a speedy (TURBO) summary judgment in appeal within days. The Supreme Court allows the broad use of injuction relief. It only takes a strong stand on interim-payment-orders, requiring extra-reasoning why the plaintiff does not need to await judgment in normal proceedings.
7. The most used protective measure is a freezing order, which allows a creditor to freeze goods and/or debts, including third-part-debts, obtain a money order and sell the goods or collect the debts after judgment. Dutch law allows the freeze of almost any debtor`s assets, providing the asset is located in the Netherlands. A freezing order is granted by the courts at a creditors´ written request, in 98% without hearing or notifying the parties.
9. The judge can declare almost any judgment immediately enforcable, although it is customary to grant the defendant some time to comply with it voluntarily. Has the judgment been declared immediately enforcable, the filing of an appeal has no suspensory effect. The appellant can petition the court of appeal to suspend the judgment until the appeal is decided or order the winning party to furnish adequate security during the appeal proceedings. Keep in mind that a party who enforces a judgment that is not final does so at his own risk and is liable to pay damages when the enforced judgment is reversed. Should the execution of a judgment give rise to any dispute, the law offers a special and speedy action to the parties involved; actions have to be brought before the same judge who handles the summary proceedings within the court. (executiegeschil).
10. With an exception to small claims up to EURO 1750.- (almost) any judgment is open to an appeal without any leave. The right of appeal has to be exercised within a certain time-limit. The appellant has to give reasoned grounds for his appeal, but not necessarily in his writ of summons in appeal. The court of appeal assesses each case ex nunc, e.g. at the time of its own decision. There is no limit to the grounds for appeal or the arguments and facts that an appellant may put forward. An appeal is brought in less than 10% of all cases, so a system of court leave to appeal does not seem to be necessary.
11. Dutch bailiffs play a central role in the enforcement of judgments. They are the ones with the power to serve notice of a judgment and to seize the goods of the debtor under execution and eventually, sell them. As pointed out earlier, every creditor who wants to safeguard his right of payment has the possibility of obtaining a freezing order even before proceedings have started. With the exception of money-orders every judgment which consists of an order or an injunction can be imposed upon the defendant on a penalty of a certain amount per day or per breach. This works out well. It would help however if we had better ways of forcing debtors to disclose information about their assets, especially abroad and the possibility of freezing goods abroad, like it might exist in the United Kingdom.