Factsheet on the judiciary in the Netherlands
The Netherlands, as a democracy based on the rule of law, applies a system of checks and balances between the legislative, executive and judicial branches. In the factsheet below you will find information about the judicial system in the Netherlands, the role of parliament and how a separation of powers is arranged. The factsheet also explains how judges are appointed, as well as members of the Council for the Judiciary. Finally, the system of judicial review for conformity with the Constitution and international law is explained as well as the role of the Council for the Judiciary within the judicial system.
General information about the judicial system in the Netherlands
Since the last major changes to the system came into force on 1 January 2013, the Netherlands has had 11 district courts and 4 courts of appeal. The 11 district courts each have several locations in the area they cover. There is one Supreme Court, one Administrative Court for Trade and Industry, one Council of State and one Central Appeals Court for Public Service and Social Security Matters. The Council for the Judiciary is positioned between the Ministry of Security and Justice and the courts of appeal, the district courts, the Central Appeals Court for Public Service and Social Security Matters and the Administrative Court for Trade and Industry. The Supreme Court and the Council of State do not fall within the Council’s remit.
In the Dutch judicial system, a distinction is made between civil, administrative and criminal law. Several special chambers and divisions exist, such as the Agricultural Tenancies Chamber, the Enterprise Division and the Military Chamber, but these will not be discussed here.
Cases are generally first heard by a district court. In civil, criminal and tax cases, the parties can lodge an appeal against the district court’s judgment with the court of appeal. The next step is an appeal in cassation at the Supreme Court, the Netherlands’ highest court in civil, criminal and tax cases. In cassation proceedings the Supreme Court looks not at the facts but at whether the law has been applied properly.
If an appeal court judgment is quashed in cassation, the Supreme Court will refer the case back to a different court of appeal. The latter court must then reconsider the case, taking into account the Supreme Court’s judgment.
Criminal cases are brought before the court by the Public Prosecution Service and are heard by the competent district court in the area where the offence was committed.
Administrative cases must always be preceded by the objection procedure, which is started by lodging a notice of objection with the administrative authority in question. If the objection is declared unfounded, an application for judicial review may be lodged with the Administrative Court for Trade and Industry (company law) or with a district court. An appeal may be lodged against district court judgments with the Council of State (cases on asylum and immigration law, or environmental and planning law) or with the Central Appeals Court for Public Service and Social Security Matters (social security cases).
Under the Constitution everyone has the right to legal representation in court proceedings. In some cases the law actually requires parties to be represented by a lawyer. Anyone who does not have the means to pay for a lawyer can apply for assistance under the Legal Aid Act.
How is the separation of powers assured in the Netherlands?
The Netherlands is a democratic state based on the rule of law in which there is separation of powers between the three branches of government. A system of checks and balances maintains an equilibrium between the legislative, executive and judicial branches.
Parliament, the legislative branch, comprises two Houses. The House of Representatives is directly elected by means of a proportional representation system. All Dutch nationals aged 18 and over may vote and stand in general elections. The House of Representatives decides on legislation and on the ratification of treaties. The government generally introduces bills, which the House of Representatives debates before deciding whether or not to approve them. The House of Representatives may also introduce its own bills: private member’s bills. It has the power to approve the budget and scrutinises the work of the government. If a minister or state secretary, or the government as a whole, no longer has the confidence of the House of Representatives, they must resign.
The Senate reviews bills that have been approved by the House of Representatives, taking into account international treaties, the Constitution, the relationship with other legislation and the bill’s practical feasibility. In the Netherlands, the Senate’s role is less political then the House of Representatives. If a bill is not approved by the Senate, it is referred back to the House of Representatives.
The government is the executive branch. It is made up of the monarch and the ministers. The Cabinet considers and decides on overall government policy and promotes the coherence of that policy. The monarch is ‘inviolable’, which means that the prime minister is accountable for what the monarch says and does. Ministers are accountable to Parliament for all the monarch’s actions. The government pursues policy, introduces bills and represents the Netherlands abroad. The full spectrum of its actions, or lack thereof, is scrutinised by Parliament.
The judicial branch administers the justice system, which is organised as described above. It is independent of the other two branches. Courts give their judgments on the basis of international treaties and legislation. Judges are appointed for life, by Royal Decree. A judge’s appointment may only be terminated at the judge’s own request or when the judge reaches retirement age (70), and in special cases by the Supreme Court. The selection and appointment procedure for judges is discussed below.
Whether or not a piece of legislation is compatible with the Constitution is for the Parliament to determine. The courts do not review the compatibility of legislation with the Constitution. The courts can, however, consider whether legislation is compatible with international treaties, which lay down citizens’ fundamental rights. In practice this means that the courts can consider whether all legislation is compatible with, for instance, the European Convention on Human Rights and all EU legislation that has direct effect.
The Council for the Judiciary forms an important link in the contact between the three branches. It provides advice to the government and the States General on legislation and policy concerning the judiciary, both on request and on its own initiative. The Council’s advice is very important to the legislative branch (Parliament) and the executive branch (the government) in the legislative process.
Neither the legislative branch nor the executive branch has any influence on the courts’ findings and judgments. The courts also reach their judgments independently of the Council for the Judiciary and each court’s own management board. They can therefore never be called to account for the substance of their judgments by the executive or legislative branch or by the Council for the Judiciary.
How are judges appointed at different levels? How are the members of the Council for the Judiciary appointed?
Recruitment, selection, training and recommendation for appointment of members of the judiciary is done in conjunction by the judiciary and the Council for the Judiciary. The minimum requirements for appointment as a judge are laid down by law.
Most of a judge’s training is done by the court itself, but part of it is conducted by a central training institute, the Training and Study Centre for the Judiciary (SSR). The SSR partly falls under the responsibility of the Council for the Judiciary. After a candidate has successfully completed their training, the Council for the Judiciary recommends them for appointment as a judge.
The Minister of Security and Justice assesses whether the recommendation meets the statutory requirements and other formal requirements. If this is the case, a nomination for appointment is submitted to the monarch. The monarch signs the Royal Decree, appointing the judge. Judges are appointed for life. Nominations for appointment are never rejected.
Supreme Court judges are appointed in a similar manner. An internal Supreme Court committee, which comprises experienced and less experienced Supreme Court judges, selects possible candidates for appointment to the Supreme Court. They seek out people who may be eligible for appointment in the future and follow them throughout their further career. When a vacancy opens up for a Supreme Court judge, the committee decides which of the possible candidates would be best suited to the appointment, depending on what area of law the vacancy relates to. It then draws up a list of candidates. The Supreme Court discusses the list in its general meeting and then submits a recommendation of three people to the House of Representatives of the Parliament.
The person at the top of this list of three is invited to an interview with the Permanent Parliamentary Committee on Security and Justice. Under a standing agreement between the Supreme Court and the House of Representatives, no questions are asked about the candidate’s political views, religion or beliefs. In practice, the House of Representatives always follows the recommendation of the Supreme Court. The Supreme Court and the House of Representatives both agree that the appointment of Supreme Court judges must not be politicised.
The recommendation for appointment of the new Supreme Court judge then goes to the Minister of Security and Justice, who assesses whether the formal requirements have been met. If this is the case, a nomination for appointment is submitted to the monarch. The monarch signs the Royal Decree, appointing the judge. As with other judicial appointments, the nomination always leads to the signing of the Royal Decree.
By law, the Council for the Judiciary must have three to five members. There are currently four members, half of whom are from the judiciary. In the event of a tied vote in the Council, the president has the deciding vote. The president is always from the judiciary, which guarantees that the opinion of the courts is decisive.
Vacancies on the Council for the Judiciary are published in the national media, after which an advisory committee assesses the candidates’ suitability and makes a recommendation to the Minister of Security and Justice. The advisory committee consists of a president of a court, a representative of the Netherlands Association for the Judiciary, a member of a court management board who is not a judge, and one person appointed by the Minister of Security and Justice. The member who is a court president chairs the committee.
Members of the Council for the Judiciary are appointed by Royal Decree on the recommendation of the Council itself. The Council’s recommendation is always followed.
What influence do Parliament and the government have after the appointment of a judge (term of appointment, dismissal disciplinary measures and training)?
Judges are appointed for life. Neither the government nor Parliament has any influence whatsoever on dismissal, promotion, disciplinary measures or training with regard to judges.
Does the Netherlands have a system of judicial review for conformity with the Constitution and international law?
In the Dutch system it is up to the legislative branch to consider whether bills are compatible with the Constitution. When the government drafts a bill, it also assesses its compatibility with the Constitution and international treaties. When hearing a case, the court may consider whether legislation is compatible with international treaties to which the Netherlands is party, but the court is formally not permitted to assess whether legislation is compatible with the Constitution. Failure to comply with this rule cannot, however, lead to dismissal or other disciplinary measures.
It should be noted that the Council for the Judiciary is always able to provide advice on a bill. This allows the judiciary to express its opinion to Parliament on the constitutionality of a bill in advance. The actual examination and review of bills is the prerogative of Parliament.
What is the role of the Dutch Council for the Judiciary within the judicial system?
The selection and appointment of the members of the Council for the Judiciary has already been discussed above. The Council for the Judiciary itself has a clearly defined role in the selection, appointment and training of members of the judiciary. This too has been discussed above. The SSR training institute also falls under the responsibility of the Council for the Judiciary.
The role of the Council for the Judiciary is clearly defined in the Judiciary (Organisation) Act (part 6, sections 84 to 109).
The Council is responsible for:
- preparing its own budget and the overall budget of the courts;
- allocating budgets to the individual courts;
- supporting the operational management of the courts;
- monitoring the implementation of the budget by the courts;
- nationwide activities relating to the recruitment, selection, hiring, appointment and training of court staff.
The Council’s tasks also include advising Parliament on new legislation, after consulting the courts.
The budget for the administration of justice is set according to objective criteria laid down in legislation. The Minister of Security and Justice provides the necessary funds from the central government budget, which is set by the government and Parliament.