Strasbourg, 31January 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: Reply submitted by the delegation of the Netherlands
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
No. Judicial decisions must always contain certain elements laid down in the law (for more detailed information on these elements in civil, criminal and administrative decisions, please see the answer to Question 5). Furthermore, many courts have elaborated their own models for specific judicial decisions. Although these models are authoritative, they are not binding. A national format for civil judgments is being developed. As for the motivation of criminal judgments, see answer to question 13, 2nd paragraph.
Can each individual judge choose his own style of drafting his decision?
The principle of judicial independence entails relative freedom in the way a judge formulates his decision. However, the decision must always fulfil the requirements prescribed by law (mentioned in the answer to Question 5).
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
Where the court is composed of more than one member, it is not necessary that the decision is taken unanimously. However, to the outside world, judicial decisions are taken by consensus. There is no possibility of adding a dissenting opinion to the final decision.
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
In a more-member panel (which in the Netherlands always consists of at least three judges), the president or most senior judge does not have a second or casting vote. Judicial decisions by more-member panels are reached by consensus.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
A synthetic/concise approach is considered sufficient, but essential points raised by the parties should be addressed.
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
Yes, in civil cases, this scheme is followed. In criminal and administrative cases, other models exist.
How in general terms is an appeal /Supreme Court decision drafted? Is the appeal in your country by way of rehearing the case or not?
In general terms, appeal/Supreme Court decisions are drafted in the same way as first instance judicial decisions. Appeal is a full rehearing, cassation is a restricted review.
Is there a difference in the way a judgement is drafted according to the subject matter (civil, criminal, administrative)?
Yes, there are a number of differences in the way a judgment is drafted according to the subject matter. The elements which must always figure in criminal, civil and administrative judgments are laid down in the law (in the Wetboek van Strafvordering (Sv) for criminal decisions, the Wetboek van Burgerlijke Rechtsvordering (Rv) for civil cases and the Algemene Wet Bestuursrecht (Awb) for administrative cases).
Judgments in criminal cases
According to Articles 357 and 358 Sv, the judgment in a criminal case must comprise the following elements:
- the surname, Christian names, age, place of birth, occupation and place of residence of the defendant;
- the names of the judges having drafted the judicial decision and the date of the judicial decision;
- a decision on formal questions raised (nullity of the writ of summons, lack of jurisdiction, disallowance of the public prosecutor; suspension);
- a decision on material questions raised (whether it has been proved that the defendant has committed the offence described in the charge and if so its legal qualification; if it is accepted that the offence is proven and punishable, the punishability of the defendant and the imposition of a sentence or measure, prescribed by law);
- if the defendant has argued that the proven facts do not qualify as a punishable offence or that he qualifies for a remission of his sentence/there is a ground for exemption from criminal liability, and the judgment concludes otherwise, then this decision must be motivated in the judgment;
- in the case of imposition of a sentence or measure, its legal basis;
- the decision;
- the name of the judge(s) responsible for handling the case.
Judgments in civil cases
According to Article 230 Rv, the judgment in a civil case must comprise the following elements:
- the names and place of residence of the parties, the names of their representatives or attorneys;
- a summary of the procedure;
- the conclusion of the writ of summons and the conclusions of parties;
- the conclusion of the public prosecution in the cases that it has been heard;
- the grounds for the decision, including the facts on which the decision is based;
- the date of the judicial decision;
- the signature of the judge (in case of a three-member panel, the chairman’s signature) and the signature of the registrar. The judicial decision can also be signed by the judge pronouncing the decision in open court;
- the decisions;
- the name of the judge(s) responsible for handling the case.
Judgments in administrative cases
The elements which must figure in a written administrative judgment are summed up in Article 8:77 Awb. The judgment must comprise:
a. the names of parties and their authorized representatives or attorneys;
b. the grounds for the decision;
c. the decision;
d. the name of the judge(s) responsible for handling the case;
e. the date on which the decision was pronounced; and by whom, within which term and at which administrative jurisdiction a legal remedy can be invoked.
If the appeal is well-founded, the decision must mention the written or unwritten legal rule or general legal principle which has been violated.
In the case of a more-member panel, the judicial decision is signed by the chairman of the panel and by the court registrar. If the chairman or registrar is unable to sign, this must be mentioned in the judgment.
Could you describe precisely how the decision is transmitted to the parties?
Article 121 of the Constitution provides that all judicial decisions shall be pronounced publicly. However, in practice, the only judgments that are always pronounced in open court are those in criminal cases. In civil and criminal matters, the judgment is always in a written form. An original of the judgment is supplied to the parties which attended the case by the registrar of the court. To a party in default, the judgment must be assigned by a bailiff. In administrative matters, the same applies, but the possibility of verbal judgments exists.
Is the judicial decision binding only on the specific litigants or does it affect the public in general? Does your country acknowledge a difference in judicial decisions in personam and in rem?
In civil cases, the judicial decision is only binding for the specific litigants. In criminal cases the judicial decision can also affect the public. An irrevocable judgment in a criminal case can have a binding effect in ensuing civil cases concerning, for example, liability. In administrative cases, the decision may be binding on all, depending on the subject-matter. Some decisions in civil matters, both in personam and in rem, may affect third parties, e.g. in matrimonial or real estate matters.
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
In civil and administrative cases, the litigant can freely cooperate with the decision/order of the court. If he does not cooperate, the judgment can be enforced by the bailiff, or, in criminal matters, by the public prosecutor. The bailiff can enforce a decision by means of, e.g. seizure of goods and/or bank accounts, and forced execution. If necessary, the bailiff can call upon the police for help. In many cases, judges impose a penalty sum in their decision.
The execution of judicial decisions in criminal cases is the responsibility of the public prosecution (Article 553 Sv). In the fulfillment of this task, the public prosecutor can be assisted by police forces.
The Dutch law does not provide for contempt of court procedures as such, but some provisions in the law have a similar purpose.
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
Article 121 of the Constitution provides that all judicial decisions shall be pronounced publicly. In practice, however, judgments are not always pronounced in open court. When they are, the public or journalists can in principle not be excluded.
As to the hearings, they also take place in open court, but restrictions may be imposed. According to the law, the judge can order for the entire hearing or part of it to take place in camera or only in the presence of certain people:
a. in the interest of public order and good morals,
b. in the interest of State security,
c. if the interests of a minor or the respect for the private life of parties make a hearing in camera necessary,
d. if public access would cause damage to the dispensation of justice. If someone disturbs the hearing, the judge can order his removal from the courtroom.
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
When decisions are published on the internet by the courts, all data allowing direct identification must be removed. However, when civil decisions are published in law journals, such data are often not removed, save in some matters, e.g. family matters.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
In principle, judicial decisions can be made available to persons or authorities other than the litigants themselves. Cases attracting particular interest can be published on the internet site of the Dutch judiciary (www.rechtspraak.nl) in anonymised form. In principle, everyone is entitled to have a copy, save in cases where the parties or others have to be protected. In criminal cases, the judge will also assess whether the applicant has an interest in receiving a copy.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or Supreme Court cases?
The internet-site of the judiciary contains a selection of judicial decisions dating from 1999 onwards. The website comprises a selection of the case-law from all courts at all levels. Approximately 15.000 judicial decisions are published on this website each year.
Moreover, important decisions (of courts of all levels) are published in law journals.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
Yes. A common and over-arching quality system, used by all the courts, has been developed during the last years and this system is now operative. The objective of this system is to systematically pursue quality development in all the courts.
This quality system works as follows. The system firstly defines the elements, the components, of quality. In the system, five areas, relevant in the assessment of the quality of justice, are distinguished:
1. impartiality and integrity of judges;
2. expertise of judges;
3. personal interaction with litigants;
4. uniform application of the law;
5. speed and proceeding on time.
These areas are subdivided into several more concrete and tangible components that can be measured in an empiric or quasi-empiric way. To give some examples: the area of impartiality and integrity is subdivided into indicators like the registration of secondary occupations of judges, the existence of a procedure for complaints by litigants, the impartiality of judges as perceived by litigants and lawyers, etc.; the area of speed and proceeding in time is subdivided into indicators like the average time between request for judgment and judgment, waiting times for hearings etc. The system further provides for standards and instruments to collect and measure data, like registration systems, audits, and client evaluation surveys. Indeed, the situation in each court is evaluated regularly.
Important to note is that the Council for the Judiciary is now working on methods to translate the quality-standards into factors that codetermine the allocation of budgets to the courts.
A striking element of the system is the organisation of peer review. All judges are supposed to discuss, at least every two years, their performances in court on the basis of observations of some colleagues, who are present at a hearing, that is also recorded on video.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
Yes, one of the core elements of quality of justice is of course the quality of the judgments. In the quality-system, standards are set for, e.g., the number of cases judged by full-bench divisions and the training of judges. The courts must register the amount of quashed decisions and evaluate the reasons why the judgments were quashed in appeal or cassation.
Some other important issues are the following.
An extensive program is implemented to improve the motivation of criminal judgements, more in particular with regard to the motivation of proof and of the sanctions imposed.
Ideas are discussed to set up “reflection committees” (with or without the participation of persons from outside the court), that will evaluate the quality of the judgments incidentally.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
· legal basis:
Article 94 of the Dutch Judicial Organisation Act (“Wet rechterlijke organisatie”) explicitly confines to the Council for the Judiciary the task to assist the courts in promoting the quality of justice.
· identification of the agencies that are responsible for the process:
The Council for the Judiciary assures development, anchorage and maintenance of the quality system, and stimulates quality projects in the courts. The development of the quality system takes place in close cooperation with the courts. The courts are responsible for their own quality-programs and they must report to the Council.
· parameters that are evaluated:
· methods by which each parameter is evaluated:
see under question 12 and 13
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
The importance of systematic and permanent reflection on the quality of justice, in all its aspects, is self-evident. The system is a means and not an end in itself and it should not become a bureaucratic burden, nor should it be (mis-)used to evaluate individual judges. Involvement of and support from the participants is essential.
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
Apart from what has been said above, the following factors may be mentioned.
The question of sufficient financial and human resources for the judiciary is of permanent concern.
The standards for the recruitment of judges are an essential factor, as well as the quality of initial and continuous training of judges and the staff.
The management of cases should be improved.
Quantitative standards used to evaluate the performances of the courts and of individual judges should be realistic and provide sufficient time for the judges to work in conformity with high professional quality-standards.
Is a system of evaluation of quality of each of the following in force in your State:
professional performance of police?
A system of evaluation of quality may be developed in the future.
professional performance of public prosecution services?
A system of evaluation of quality is currently being developed.
professional performance of lawyers?
No. However, there is an extensive system of initial and continuous education. Besides, disciplinary courts watch over professional quality.
enforcement of judgements?
No. It is noted that the enforcement of judgments does not meet particular problems. Besides, disciplinary courts watch over the professional quality of bailiffs.
efficiency of ministry of justice services in general?
quality of legislation?
NB: The Association of Notaries is also actively involved in quality evaluation.