The appointment of judges in the Netherlands is no more independent than in Poland or Hungary

The appointment of judges is no better regulated in the Netherlands than in Poland or Hungary. Time to repair a major leak in the rule of law roof while you can. And reason enough why the elections should also be about justice.

Click on the image below: https://soundcloud.com/decorrespondentleestvoor/marc-chavannes-de-benoeming-van-rechters-in-nederland-is-niet-onafhankelijker-dan-in-polen?utm_source=clipboard&utm_campaign=wtshare&utm_medium=widget&utm_content=https%253A%252F%252Fsoundcloud.com%252Fdecorrespondentleestvoor%252Fmarc-chavannes-de-benoeming-van-rechters-in-nederland-is-niet-onafhankelijker-dan-in-polenIn Poland and Hungary are at risk of the rule of law. Everyone knows that. In those EU countries, the ruling party simply appoints judges and dismisses colleagues who are out of line. Protesting and demonstrating does not help. Outrageous, very much. Time for sanctions? What is less well known is that the rules for appointing judges in the Netherlands hardly offer better guarantees for their independence. The “Minister for Legal Protection” appoints the members of the Council for the Judiciary. That Council elects the board members of the courts, who in turn give judges opportunities or not. A Dutch government that finds that judges make annoying or politically undesirable statements can ensure that there are more judges who share its vision. With the current rules.A construction error in the administration of the Dutch judiciaryFor years, critical judges and politicians have been pointing out that the government in the Netherlands has a far too direct finger. This is also the case in accordance with the standards of the Overarching Council of European Councils for the Judiciary and the International Judges Association. From the point of view of judicial independence, constitutional law scholar Paul Bovend'Eert characterized the administrative structure of Dutch jurisdiction as 'a serious construction error'. It would be surprising if the election debates were about this shortcoming of the rule of law. That criticism has so far found little resonance. That's not how we are after all, is the usual response. This is the Netherlands. It would be surprising if one of the upcoming election debates were about this serious shortcoming in protecting the rule of law. Most election programs speak highly of the rule of law, some advocate more money for the judiciary and social advocacy, but they also require no action to make the appointments more independent of the government. Of course, the Netherlands currently has a political top that — according to most people — does not directly interfere with the content of the case law. That was different during the Second World War. Things are different in many countries now. The democratic rule of law is the exception rather than the rule in the world. However, after the appointments of the judiciary, the Netherlands allows it to be arranged in such a way that an autocratic successor to the current cabinet cannot just name his friends. The keys to the safe are on the table.The rule of law is vulnerableThe democratic rule of law is the basis of Western democracies. But even in those democratic countries, the rule of law is not a carefree asset. The storming of the Capitol wasn't a Netflix series. The European Union is having the greatest difficulty in responding to Russia for annexing Crimea and nearly murdering and imprisoning opposition leader Aleksey Navalny in a prison. The EU's power and unanimity are not enough to provide an answer worthy of the democratic rule of law.

Even after the upcoming Parliamentary elections, there will be candidates here who claim that the election results are false. These are partly the same people who believe that covid-19 was invented by power-hungry politicians from the ruling parties. Trust in the corona policy is crumbling. The judge has had to take a decision a few times — sometimes yes, sometimes not in the way of the cabinet. The judiciary does this with seriousness and independence, but this third state power (besides the legislative and executive) was overquestioned and underfunded long before the coronavirus crisis. The ordinary work of the judiciary can only be done by an average of 40 percent overtime. That's where I wrote the series Save the judgeRead the series back in the Save the judgement.about collection.Politics deals carelessly with the judiciaryOne of the conclusions was that politics is taking a careless approach to this indispensable pillar of the rule of law: it too often expresses cross-border views, interferes too much with the legal effect of international treaties, has interfered too much with the accessibility of justice by increasing the costs of litigating, by cutting off the social advocacy financially, and by merging courts and courts without proper thought and consultation with stakeholders. 'Some politicians can not resist temptation in politically convenient moments making stricter penalties mandatory; judges are therefore prevented from applying general rules in individual cases. Another conclusion of my series was that parliament and cabinet do not think enough about how judges and their administrators are appointed. The management thinking that governs the entire government has also been applied to the judiciary this century. Hence the institution of the Council for the Judiciary, which 'manages' the courts on behalf of the minister and forces them to pay more attention to quantity than quality — this is of course never recognized as such, but it is a consequence of the chosen form of government. Judges have great difficulty with that. And that's what the House should have too.

Success for protests by judgesSince the establishment of the Council for the Judiciary in 2002, judges have experienced a top-down administration that has led, among other things, to the automation debacle known as the KEI project. Since 2012, judges have been protesting against it in an organized way, first with the “Leeuwarder Manifesto”, later with demonstrations and a survey by the critical right-wing movement Tegenlicht. This motivated and constructive resistance has prevented a second wave of court mergers. And contributed to the fact that, after tough negotiations including running away by the Association of Judges and Prosecutors (NVvR) and unanimous meetings of all courts in the country, a new procedure for appointing court directors was agreed as of 1 March this year. This is where judges who are not directors play an important role again for the first time. Until recently, the minister and the Council for the Judiciary appointed by him were able to express their own preferences without significant opposition from the judicial “workplace”, it has now been agreed that ordinary judges and court officials will have a decisive vote in the trust committee that advises the Council for the Judiciary on appointments. The Council for the Judiciary has the last word, but it has been agreed that it must be prevented from being used is being created. For a more far-reaching, decisive vote by judicial judges, the law on judicial organization should be amended. Until recently, judges and legal staff barely had an advisory vote. There is still room for politicians who want to direct justice. So there is a step forward. But an authoritarian regime can still appoint friendly judges to govern courts politically. Especially since the appointment of the members of the Council for the Judiciary has not changed — apart from a commitment by the Minister for Legal Protection to interfere a little less.According to the European standard, as set by the umbrella of Councils for the Judiciary, a national Council for the Judiciary should a) consist of a majority of judges, who b) are appointed without any influence of the executive or legislative powers and c) appointed by a the broadest possible representation of 'peers', co-judges .There are none of these in the current relationships in the Netherlands. The minister appoints and dismisses the members. The Council consists of four members, two of whom are judges, not a majority, and “peers” certainly have nothing to do with it. Based on these European criteria, the Polish Council for the Judiciary has been suspended from the European Association of Councils of the Judiciary. But the Dutch Council, which fought for that suspension, is not making a noticeable effort to comply with that standard itself.Council for the Judiciary still politically appointedThe Minister for Legal Protection does not seem to be keen on it either. That was made easy for him by an undaring advice from the Council of State. The advisory department did not want to take into account the evolving European majority view. The charter of the international association of judges formulated rules for the appointment of judges with a view to their onafhankelijkheid.dat. Because of their independence, judges should have a decisive vote in appointing their directors, not political leadership.The Council of State argues that the minister can only fulfil his ministerial responsibility for the judiciary if he also has the appointments there does. This responsibility primarily concerns administration and finances, but the Council forgets that a minister of ill will can thus get very close to the content of the case law without breaking any law.

Need a scare-dream series first?The European Union is also keeping an eye on the Netherlands. The European Commission's recent report on the rule of law in the Netherlands closely monitors the appointment practice of the members of the judiciary and the Governing Council and subtly describes it as an ongoing project towards greater complete independence. So work to be done, even according to the EU. Plenty of hints. Or is a Dutch Netflix production first needed in which Prime Minister Wilders instructs his Forum Minister for Legal Protection to replace the diastocracy within two years with a judiciary that helps close borders, no longer applies treaties and ignores the rulings of the European Court of Human Rights?