26 März 2024

EC Country visit, 2024 RoL Report, Country chapter on the Netherlands – Questions to the Meijers Committee

26 March 2024

1. In its Opinion of 8 October 2023 on the Dutch justice system, the Venice Commission recommends that the process by which the House of Representatives designates Supreme Court judges could be carried out in a more open and reasoned manner[1]. This could be done for instance by making the list of candidates and reasons for their (non-) selection public. What is your position on this matter?

The current process of selection and appointment of Supreme Court (Hoge Raad) judges contains sufficient guarantees against undue political influence by politicians. The one or two isolated efforts by an MP to influence the selection process on party political grounds in the last decades are clearly exceptions that confirm the standing practice.

However, the procedure could be made more open to the public by (a) publishing the names of the six candidate send by the Supreme Court to the House of Representatives, and (b) making the cv’s of the three candidates proposed by the House of Representatives to the Minister accessible to the public. This would increase the information necessary for evaluation of the whole process and the role of participants in the selection process. This change does not require amending of legislation. It would also provide more information on the five of the six candidates on the Supreme Court’s list that are not appointed. The negative effects of publishing  names of candidates discussed but not selected by the Supreme Court on the list send to the House of Representavie clearly outweights any positive effect.

It is unclear to us what the Venice Commission had in mind when writing that the process could be carried out in a more „reasoned manner“.

• The Venice Commission also calls for circumscribing the Minister of Justice’s power in respect of the appointment procedure of candidates to the Council for the Judiciary and to the court management boards to guarantee against external pressure on the decisions on budgetary matters as an element of judicial independence[2]. What is your position on this matter?

The Meijers Committee holds the opinion that court judges (and other persons working at the court) should choose the president and the board members of the court. It should not be the Council for the judiciary that chooses the president. Appointment of presidents and board members by the Council for the Judiciary risks too much influence from the Minister/Ministry on the judiciary, as the Council is appointed by the Minister/Ministry.   

• The 2023 Rule of Law Report refers to draft legislation aiming at abolishing the power of the Minister of Justice to instruct the prosecution service to investigate or to prosecute in an individual case[3]. In this regard, the Venice Commission recommends removing the Minister’s power to give instructions not to prosecute in specific cases, or at least to limit this prerogative to clearly defined exceptional circumstances[4].  Could you further elaborate on your position on this matter?

See earlier written contribution.

Core of our argument:

In the Dutch legal system and judiciary, the independence of the Prosecution Service in individual cases means a guarantee against political pressure and interventions that easily may amount to putting at risk, if not violating of the rule of law. Even the appearance of political pressure should be prevented. The existence of the possibility to issue specific orders in individual criminal cases creates such an appearance. Considering the recent developments in several EU member states regarding undermining rule of law standards, it is urgent to avoid any appearance of political pressure on the judiciary, of which the Prosecution Service in the Dutch legal system is an indispensable element. It has a monopoly for decisions on criminal prosecution, only subject to a restricted check by the Court of Appeal. A specific power of the government to prosecute or not to prosecute in concrete cases does not fit well in this balanced system.

• The 2023 Rule of Law Report reported on concerns expressed by judges and public prosecutors regarding staff shortages and challenging working conditions due to a high workload[5]. The Venice Commission has called for care to be taken ‘so that financial decisions by management boards do not unreasonably interfere with judges’ internal independence and responsibility to decide on judicial matters in the specific court cases according to the specificities of each case’[6]. What is your position on the matter?

The shortage of judges and legal staff and, as a result, the structural overtime of judges has no direct impact on independence. Judges in the Netherlands had and have complete independence in their decisions. But this does create problems that eventually undermine the judiciary as a third state power. There are already courts that in criminal cases sometimes say, these few hundred or few thousand somewhat smaller cases we can no longer handle on time. The prosecution is advised to dismiss them.  Or in civil cases, cases remain pending for a long time before a judgment is rendered, so that the result is no longer relevant because of the passage of time. In child custody cases, children’s judges have too little time to devote to the cases, with consequences for the children. There are an increasing number of judges who believe that a responsible decision cannot be made if one is not given enough time to make it. After all, judges make very important decisions about people’s lives. A judge must not only handle cases, but also study, reflect, tap into new trends in society and incorporate that into jurisprudence. And they should be given time to do so.

In the long run, the lack of money and thus time judges can spend on the cases affects the independent judiciary. The prosecutor’s office is given more and more power to dispose of cases. Civil issues, for example, go to arbitration committees and no longer to the independent judiciary. The judiciary is the third state power but is treated as a group of civil servants like so many, who just have to make sure they work a little more efficiently. This conduct eventually undermines the judiciary and also makes it less and less attractive to work for the judiciary. All these elements reinforce each other.

Decisions are not influenced. Judges can decide independently in the Netherlands. But when one doesn’t get enough time and not enough support from staff, the independent decision becomes increasingly difficult.

• In your written input you raise that confidentiality of contact between lawyer and client has been under pressure due to the proposal to restrict the free and confidential communication between detainees and their lawyers – by visual supervision during the visit of a lawyer to high- security prisons and to restrict the number of lawyers for detainees who stay in high-security facilities to two. Could you update us on the state of play of this proposal and offer your views on its compatibility with domestic and international human rights?

The proposed arrangement for monitoring visits by lawyers and the maximum of two lawyers per inmate who may visit their clients confidentially in high-security facilities is part of a series of measures taken to prevent continued criminal activity in prison. These high-security facilities house persons suspected or convicted of terrorism or organized crime. In itself, the tightening of these measures is a matter of concern and must be continually monitored to ensure that it does not violate human rights. But in the opinion of the Meijers Committee, it cannot be said that the free choice of lawyer or the confidentiality between client and lawyer is at stake. More lawyers can be chosen, only they do not have confidential access and will have to consult with their client in writing, for example, or through the two lawyers who can visit the prisoner. This is being done because in the past lawyers let their laptops or tablets contact people, members of the criminal organization outside.  This is prevented by keeping an eye on the conversations. It is difficult to find a balance between humane treatment of detainees and preventing organized crime leaders from continuing their practices from detention and, for example, ordering the liquidation of people.

However, the balance has been further threatened in the latest adopted amendments on 6 March 2024.[7] The amendments legally established that for detainees at the AIT and EBI, supervision is exercised during visits and telephone calls from lawyers to detainees, which can be later listened to in the specific situation that the lawyer her/himself becomes a suspect. The Meijers Committee argues that this hampers free movement, since the lawyer knows that the conversation is recorded and can be listened to under certain circumstances.

[1] The Netherlands- Opinion of the Venice Commission on the legal safeguards of the independence of the judiciary from the executive power, 6-7 October 2023, para. 26.

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[2] Ibid, para. 45.

[3] 2023 Rule of Law Report, Country Chapter on the rule of law situation in the Netherlands, p. 4.

[4] Ibid, para. 72.

[5] Ibid, p. 7.

[6] The Netherlands- Opinion of the Venice Commission on the legal safeguards of the independence of the judiciary from the executive power, para. 47.

[7] TK 2023-2024, 36 372, nr. 10; TK 2023-2024, 36 372, nr. 12.