THE DUTCH JUDICIAL SYSTEM IN EUROPEAN PERSPECTIVE
A review of the CEPEJ-report 2006
dr. FCJ van der Doelen, Prof. dr. E. Niemeijer and drs. MPC Scheepmaker
In discussions on the usefulness and necessity of Europe, the Council of Europe has not such a prominent role as the European Union. Periodically the Council of Europe publishes reports on issues such as tolerance, racism and human rights, which in the old European democracies - such as the Netherlands - not always are well received1. The influence of the Council is often indirect. Some recommendations of the Council of Europe, for example in the field of mediation, later prove to be the porch of more binding directives of the European Union. The recommendations are also sometimes mentioned in the judgments of the European Court of Human Rights.
In October 2008 the second edition of the official report of the European Judicial Systems and Efficiency and Justice Commission (CEPEJ) appeared. In the corridors this committee often referred to with the French acronym CEPEJ. In some countries the report gives rise to commotion. The head of a page article in Le Monde reads: "Justice: la France au 35 e descend european grade '. The report is also an opportunity for French judges o advocate for an increase of the budget of the French judiciary. In many Eastern European countries, the report is studied carefully, for example comparing the high number of judges in Croatia in relation to comparable neighbouring countries like Bosnia and Slovenia. This leads to pressures to reduce the number of judges, partly fuelled by the fact that this country likes to join the European Union.
In the Netherlands CEPEJ reports attracted modest attention in recent years. The Journal of the Judiciary (Trema) focussed - as befits a union magazine - on the salary comparison which was included in the report. The Minister of Justice in 2006 - following a debate – sent the CEPEJ report to parliament. In the Netherlands no French surprise appeared by this international comparison.
This special issue of the Dutch journal ‘’Judicial Explorations’’ is devoted to the functioning of the Dutch legal system in a European perspective, in which the aforementioned report is an important reference point.
The increasing mobility of citizens in Europe and an increasing cross-border trade has created the need to understand how the different legal systems in Europe are structured and operate. The mutual recognition of their legal systems requires mutual trust between countries. Evaluation and monitoring of each system is an important tool to promote confidence between States, and the confidence of legal professionals as they collaborate across borders.
From this perspective Minister of Justice Hirsch Ballin - in the framework of the European Union - has recently proposed that the obstacles in terms of quality, integrity and equality of the legal system of the various countries to assess (Ministry of Justice, 2009). This helps contribute to a Netherlands Chapter Mutual Confidence in the soon to establish multi-annual planning of the European Union Program of the new Stockholm.
An important building block for this is the established six years ago by the "European Commission for the Efficiency of Justice" of the Council of Europe. One of the main tasks of this Commission is analyzing the various European legal systems, viewed from the central principles established in Resolution 2002 (12) Establishing the European Commission for the Efficiency of Justice. Based on this resolution in recent years developed a continuous evaluation process. Based on a - quantitative - comparison of all European countries created a detailed picture of public expenditures for Justice, access to justice, the courts of customers, the organization of courts, ADR, judges, and judicial support staff, judicial officers, position and careers of judges and judicial officers, lawyers, bailiffs, notaries and reform of the judicial system.
There are numerous activities including workshops designed for quality, turnaround times, mediation and enforcement of judgments. There is also a group of countries which are represented by a court. This group called Saturn collects information on processing times and exchanges methods for shortening these. The network's aim is to become a European Observatory. The Dutch representative in this pilot group is the Arnhem court. The activities and reports of the CEPEJ are accessible online (see: www.coe.int / CEPEJ).
Of these activities the biannual report on the justice system's is the flagship. The evaluation cycle is now completed three times, resulting in detailed - and more and thicker - reports on the actual functioning of the judiciary in 47 countries. The first test report was published in 2005, with data from 2002 (CEPEJ, 2005). The final report was published in October 2008, with data from 2006 (CEPEJ, 2008). The following report will appear in 2010 (2008 data). The reports aim to provide handles for depth studies and legal policy. The importance of such international comparisons in the future will undoubtedly only grow. Trust is a key concept in European cooperation. The affectivity, quality and credibility of the Dutch legal system is increasingly dependent on the functioning of the judicial system of other countries. That certainly applies to the twenty-six States of the European Union, where mutual recognition of legal decisions are increasingly important.
The CEPEJ-report is highly quantitative in nature. The abundance of figures gives the impression of reliability. An important part of the appeal of the report lies in the large amount of statistics gathered from 47 European legal systems.
If we put the tables and graphs in the report on a line, then the Dutch courts in the international benchmark score rather well at first sight. The Netherlands budget for the justice system is - even adjusted to the size of the domestic product – is relatively big concerning the prosecution, legal and trial. Even if we look at the area of management and performance, it appears that the Netherlands is not bad: there is a lot of ICT used in the courts. Also the management of performance and quality is relatively well developed. And the turnaround of the most common cases (dismissal, divorce and burglary) further suggests that a Netherlands court cases rapidly handle. Striking point is that legal professionals are rarely punished in disciplinary Netherlands, especially if compared with other countries. This applies both to judges, lawyers and notaries.
It is tempting to connect firm conclusions on these figure. But one should be very careful, as is shown by the contributions in this special issue. The figures used in expenditure, ict, business turnaround and no such numbers appear most reliable. Also in this case here appears to apply an old truth: there are half-truths, lies and statistics - all in ascending degree of deception. CEPEJ is working on improvement of the reliability of the data. Scientists provide depth studies, which zoomed to a specific part of the report, for a limited number of countries, such as quality systems, ICT use or execution. Furthermore CEPEJ statistical guidelines for the method of data collection for reporting norms. They are also working to establish a system of peer review for the way data are collected in the country.
The main way to enhance the reliability of such policy information is obvious: to go ahead with it by not only describing the data but merely to really analyze it. Only then are the unreliable data are really discovered and countries are forced to deliver the data more reliable. An in our view promising approach approach is used in the interpretation report of the European Union (Duke and Van Gucht, 2008). The report in the first place uses not only the official self-reports of one country, but also additional surveys of relevant professional bodies. The figures provided by states and professional interest groups appear not always to correspond, as the different data presented provided in fact a reliability margin. Further, the scores of countries is analyzed by comparing the standardized T-scores. With such analysis, the real differences between countries are more easily to compare and understand.
Besides the problem of reliability, the issue of validity, plays in international comparative research. The leading operational principle is that the chosen indicators should have a substantive connection to a particular concept. Comparing countries by lawyers quickly is considered impossible because there are inherently too many differences and diverse context for lawyers in the European countries. The functions that institutions play in a country are too diverse. There is little point in comparing apples and oranges. On the other hand, we would like to state - there is little point in comparing countries that are exactly the same. The truth must be somewhere in between.
In the so called country comparative literature, this debate known as the Most Different Design versus the Most Similar Design (Lieshout, 1983). Quantitatively, European country faces substantially with the lack of sufficient units to analyze complex causal connections reliably. The small number of research units and the often rough measurement methods, the results of strictly quantitative analysis but also problematic. The strength of this type of analysis are objectified theoretical relationships and the illustrations on the basis of specific situations in different countries.
The choice for comparing all the countries that are members of the Council of Europe is seen as a choice for a certain uniformity. That this approach is useful, apparent from the final chapter that the data on a more qualitative way some interesting European trends described in accessibility, efficiency, procedural and judicial independence (CEPEJ, 2008, p. 248-253).
The accessibility is the general European trend to reduce the number of courts and concentration of them. There is also a trend to increase court fees. This limits the geographic and financial accessibility of the legal system. In national policies this is mostly tackled with increased ICT-applications as a panacea for the negative effects on reducing access. The report will also show that ICT is increasingly used in management and the primary process.
The trends in efficiency are not clear. Expenditure for the legal system vary widely, even when data are adjusted for national income and number of residents.
In the process of different law sectors, there is clearly a trend towards simplified procedures to introduce the various jurisdictions. In European countries it is seen as an effective means to both productivity and the quality of justice to promote. In addition, mediation in civil cases in recent years a growing market.
Finally, it confirms that CEPEJ the independence and integrity of the judiciary in some countries a source of concern. The European practice of recruitment, selection and appointment, training, remuneration, supervision and other positions appear to be very diverse in Europe.
The Dutch Justice system in European perspective
In this special issue, we asked the authors themselves - inspired by the CEPEJ report to examine how the Dutch legal system works in a European perspective. The contributions are diverse. Some authors focus specifically on the manner of accountability and monitoring of the legal professions. Others try - with the available data CEPEJ – to get grip on the efficiency of the Dutch justice.
In the opening article, written by Barendrecht, it is outlined how increasing international demand for accountability of judges arises. The CEPEJ report compares the judiciary in the countries of the Council of Europe and shows how this accountability occurs. This happens on inputs and procedures. And that is to narrow. Accountability for results is far more important. Societal demand creates new methods for measuring user experiences. This fits into a trend in which is less emphasis on hierarchical and internal accountability, such as on appeal, and more horizontal accountability towards stakeholders, profession and consumers of public services.
Langbroek focuses his contribution on the various methods used in European countries to promote the quality of justice. He makes use of existing case studies on quality management in various countries of the Council of Europe. The author distinguishes different levels of involvement of a Ministry of Justice or a Council for the Judiciary to quality in the courts and / or the administration of courts. A limited comparative analysis seems to indicate that cooperation between courts and the ministry of justice generally is based on mutual trust and that interventions by the Ministry are rare. In most countries however are interactions (associations) courts and the Ministry of Justice to promote quality are centrally coordinated.
Among others on the basis of the report CEPEJ Reiling 2008 compares the use of ICT in the judicial systems in European countries. Data of different countries appear not to be reliable. The (leading) question concerning whether ICT actually change the law, is answered by the author affirmatively. In most countries, office automation, databases of case law, email and internet access for judges and support staff is implemented. That's not to that extent the case for case registration, and even less for case and court management. ICT can improve turnover times, access to information, public confidence and consistency in judgments.
Apart from judges and law officers are also key players in justice systems. The CEPEJ report of 2008 shows that in countries like Denmark and Sweden there are two to three times more disciplinary actions against lawyers than in the Netherlands. Wolfson takes the report to make a plea to keep the creation of a visitation system in the legal profession. In his eyes, the Dutch lawyers must score better than average for its authority in the growing interweaving international secure. The legal profession is in the model of professional organizations which operate on a model in which contractors ( "Agents") usually have more expertise, knowledge and information than their clients ( 'principals'). Such asymmetry is typical of the relationship between lawyer and client. Against this background, a visitation has a triple stimulating role: as a learning tool and quality, and accountability to the environment, and as a step to the oversight.
Van Otterlo also focuses its contribution to the legal profession and presents a picture of the Dutch Bar. Consisting of 15,000 lawyers today, over 3800 offices. Approximately 3500 lawyers working in the top 30 law firms. So-called one Pitters (consisting of a one lawyer office) are also the majority of the bar in the Netherlands. The main developments in the sector have attracted internationalization, commercialization, professionalization of management, specialization and differentiation, which will change the characteristics of the bar and the Dutch justice system in the near future.
Another interesting point of the law in different countries can be compared is the number of civil cases that is referred to the way they are dismissed. Niemeijer and Klein Haarhuis compare the number of civil cases in the Netherlands in two ways: in time and in comparison with some other European countries. The figures in the report appear not to be correct. Using reliable data for the Netherlands, they come to the conclusion that the number of civil cases in the Netherlands rose steadily. In comparison with European countries, the Netherlands in 2006 at the top. The authors also note however that this relatively high number of awards and rise above it due to a 'light' version of legal cases, the final decisions on summons in the subdistrict. This concerns the vast majority of cases, the 'small claims' in absentia be dismissed. In addition, the Netherlands - in comparison with other European countries – appears to be in the mid to lower segment, concerning the number of judges and lawyers. The authors conclude that the Dutch judiciary, although handling many cases, deals apparently with them in a relatively short and efficient procedure, with a relatively small number of lawyers and judges involved.
In the following comparative analysis, by written order to enter, is a type of lawsuit central, namely divorce. The CEPEJ report should contain figures on numbers of divorces on a adversarial base and on the average length of the procedure. Also in this case the presented Dutch data in the report appear to be not correct. The author shows how the divorce laws varied greatly in Europe. Due to wide variations on divorce rates and the length of proceedings the CEPEJ-report should not be used for a position to judge the effectiveness of justice in different countries. To get a better grasp on the quality of divorce proceedings, the pros and cons of the different systems should be studied further.
Then Eshuis address the issue of enforcement of judicial decisions. The CEPEJ report unfortunately gives no attention to what extent judicial decisions in civil cases are effectively implemented. But it gives information about the organizations and officials involved in the implementation of judicial decisions. The author shows that in this respect, European countries differ greatly. An important distinction is between states where responsibility for the execution of judgments lies with public authorities and state where this responsibility is left to private parties. Although incomplete, the data from the CEPEJ report suggesting that several countries in Europe spend more effort than the Netherlands to ensure that the right gets its course. The government responsible to the execution of court verdicts in the civilian domain is restricted to the maintenance of resources which the litigant - for their own costs and risks - can use a right granted to him to consume.
Finally Huls discusses the position of the supreme position in international comparative perspective. He focuses on taking the issue of legitimacy, where the legacy of Mitchel Lasser is applied to the situation in the Netherlands. Legitimacy is subsequently analyzed as a political concept, a legal concept and a sociological concept. Then the author shows how the Supreme Court civil works surrounded by some competitors and makes some comparisons with other countries. He concludes with a plea for the modernization of the Institute appeal, so the Supreme Court can exercise leadership, both in content and organization.
In view of these contributions, the aforementioned impression that the Netherlands in European perspective belongs to the top, seems somewhat premature. This CEPEJ data are not yet reliable enough and are not internally consistent concepts operationalized. The contributions show that the CEPEJ report is relevant, but there is still much work to be done to achieve reliable and valid conclusions. Nevertheless CEPEJ that pioneered to get an objective, empirical picture of the functioning of the European legal systems to sketch. Given the growing interdependence of European legal systems, the reports will undoubtedly be of increasing political interest.
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