Netherlands

Judges do not elect judge members of the governing bodies, such as the Council for the Judiciary, among themselves. Discussions about amending the selection procedure for Council members to limit the influence of the Minister of Justice and Security are ongoing. Such amendments would limit room for abuse by the executive and be consistent with Council of Europe recommendations. With the fifth member of the Council for the Judiciary, three out of five members are now judges.

Besides the risk of undue influence by the executive over the Council, through appointing its members, commentators also view the executive’s direct involvement in decision-making on judicial careers as potentially problematic. The Minister of Justice and Security has a role in judicial appointments, verifying the compatibility of candidates with the legal requirements and appointing them. In practice, however, the Minister has always followed the Council’s recommendations. The Ministry is also involved in judicial promotions. While the Council for the Judiciary proposes judges selected at the court level for promotion, nothing precludes the Minister from rejecting the proposal, although no Minister has ever done so. Nonetheless, the judges’ association has advocated for a legal duty for the Minister to accept the Council’s proposal.

Currently, the parliament has a role in appointing Supreme Court judges: It selects and ranks three candidates from a list of six drawn up by a Committee of Supreme Court judges, and invites the first-ranked person for an interview. The selected candidate is nominated by the Minister of Justice for appointment. The Government originally committed to a constitutional revision limiting the role of parliament, taking away its power to nominate. The amendment would have granted selection power to a three-person Committee, with one member appointed by the parliament’s speaker, one by the president of the Supreme Court, and one jointly by the two. Eventually, on 6 February 2023, the Government abandoned the proposal to amend the appointment procedure, based on the advice of the Council of State. The Council of State concluded that the parliament’s current role enhances the democratic legitimacy of the procedure, and that the engagement of the Committee of the Supreme Court judges already sufficiently prevents undesired political influence. It has been reported that the Supreme Court was not opposed to the current procedure, since, in practice, the parliament always based its choice on the list of candidates put forward by the Committee.

Commentators have argued that internal judicial independence is not always guaranteed in the Netherlands. According to them, the problem lies in the risk of abuse of discretionary power by court management boards, especially in view of their lack of transparency, for example, as regards case assignment and transfers from one team or court to another.
Additionally, the efficiency-driven manner of financing courts has raised concerns, as judges may be forced or incentivised to make calculated procedural decisions to meet targets, disregarding fair trial guarantees in the process.

The Council for the Judiciary has established a new appointment procedure for members of court management boards. The agreement between the Council, judiciary association and other representatives of the judiciary is aimed at giving judges more influence on the appointment of the members of court management boards. It entailed the establishment of a committee composed of four judges, two members of the court management boards and two court officials, who interviewed candidates and proposed one candidate to the Council for the Judiciary for appointment.

An evaluation of the temporary appointment procedure for members of court management boards, which aims to increase the role of judges and court staff, is expected to be finalised in the summer of 2023. The evaluation will aid in the lead up to a new agreement on a procedure for future appointments.

As reported in 2022, the government intended to abolish the opportunity for judges to be members of the national and European Parliament (as recommended by the Council of Europe’s Group of States against Corruption – GRECO). The plan was also to introduce additional rules regulating the holding and disclosure of financial interests by judges, and the implementation of an integrity policy by court management boards. Based on an act to prevent money laundering and the financing of terrorism, the Minister of Finance has introduced rules for judges in apex courts and the Council for the Judiciary, their spouses and children, and the partners of their children, to disclose the origin of their assets. These rules do not apply to judges in district courts or courts of appeal.

In 2022, the European Commission recommended that the Netherlands “continue efforts to improve the level of digitalisation of the justice system”. While the Netherlands has made some progress in this area, particularly as regards publication of judgments and digital solutions for court proceedings, according to the Commission, in 2023 the rate of publishing judgments still remained low. Hence, the Commission has called for continued efforts to address the issue.

The power of the executive to give instructions to prosecutors in individual criminal cases, even if rarely used in practice, potentially endangers prosecutorial independence. The removal of this power, so as to reinforce prosecutorial independence, has been discussed. Such a change would be consistent with the Council of Europe recommendations. However, the Council of State has questioned the need for change, suggesting the current balance between the independence of the prosecution service and the political responsibility of the Minister of Justice and Security is adequate. As highlighted by the Commission, the prosecution service itself does not see the need for amending legislation, since the Minister has not used this power in practice and the law on judicial organisation contains adequate accompanying guarantees. The Dutch judiciary association supported the draft legislation, however, arguing that this power undermines mutual trust in the EU, which is based on the presumption that the prosecution office is independent from the executive.

Article 120 of the Dutch Constitution precludes courts from reviewing the constitutionality of laws and treaties. This means that, even if a court concludes that the law it is tasked to apply is unconstitutional, it is still obliged to apply it. The Advisory Division of the Council of State provides advice on the constitutionality of bills. Often, however, constitutionality is revealed only in the practice of the application of laws. Dutch courts will not apply national law when it contradicts international law, including the European Convention of Human Rights. International law does not, however, always apply to the case and provide the safeguards against problematic interpretation of legislation. In such instances, a review of constitutionality could provide a safeguard.

After the childcare allowance scandal (over harsh legislation requiring the reimbursement of erroneously paid childcare allowances), the Council of Europe’s Venice Commission issued a number of recommendations regarding all three branches of power, including the judiciary. The Venice Commission noted that “while the shortcomings in individual rights protection uncovered in the Childcare Allowance Case are indeed serious and systemic and involve all branches of [G]overnment, it appears that eventually the rule of law mechanisms in the Netherlands did work.” With regards to the judicial branch, the Commission suggested establishing channels for the judiciary to draw other branches’ attention to legislation that is giving rise to systemic problems in practice. The Commission also highlighted that “it could be considered whether Article 120 of the Constitution should be amended or whether other mechanisms of constitutional review should be introduced.”

The Dutch judiciary has sought to draw lessons from and provide adequate follow-up to the findings related to the childcare allowance scandal, within the remit of its competences. The Supreme Court and the Council for the Judiciary already use their annual reports to flag potentially problematic rules, and the Council of State has announced its intention to “increase the signalisation of such legislation”. A new approach in the case law of the Administrative Jurisdiction Division of the Council of State involves closer scrutiny of the proportionality of administrative measures.

The Government reported to the European Commission that the Government, in dialogue with the parliament, would work further in 2023 towards establishing a system of constitutional review.