I. LAND AND PEOPLE 1 - 18
II. GENERAL POLITICAL STRUCTURE 19 - 175
A. Constitutional history 19 - 29 B. Organization of the Kingdom 30 - 33
C. Form of government 34 - 37
D. The legislature 38 - 66
E. The executive 67 - 80
F. The judiciary 81 - 149
G. The Council of State 150 - 155
H. The Netherlands Court of Audit 156 - 160
I. Decentralized authorities 161 - 175
III. GENERAL LEGAL FRAMEWORK FOR THE PROTECTION
OF HUMAN RIGHTS 176 - 274
A. Competent authorities 176 - 177
B. The Equal Treatment Act 178 - 189
C. The Equal Treatment Act and
related legislation 190 - 193
D. The National Ombudsman 194 - 203
E. Legal aid in the Netherlands 204 - 211
F. Compensation for victims and rehabilitation 212 - 241
G. Sources of fundamental rights 242 - 247
H. Review of legislation in the light of
human rights 248 - 251
I. States of emergency 252 - 254
J. International treaty provisions and
article 103 of the Constitution 255 - 263
K. Fundamental rights and emergency
legislation 264 - 272
L. Responsibility for supervising the
observance of human rights 273 - 274
IV. INFORMATION AND PUBLICITY 275 - 285
1. The Kingdom of the Netherlands comprises the Netherlands in Europe, and the Netherlands Antilles and Aruba in the Caribbean. The Netherlands covers a total area of 41,526 square kilometres.
2. The Netherlands is situated in the lowlands of north-west Europe between 50° 45' and 53° 52' latitude and 3° 21' and 7° 13' longitude. It is flanked to the north and west by the North Sea, to the east by Germany and to the south by Belgium.
3. The Netherlands lies in the temperate zone of the Northern Hemisphere. The proximity of the sea and the warm North Atlantic Gulf Stream ensure a temperate maritime climate. The temperature therefore does not fluctuate greatly in the course of a day or a year. The average temperature, as measured by the Royal Netherlands Meteorological Institute in De Bilt, fluctuates between 2° C in January and 17° C in July.
4. The country is extremely flat, with a few hills in the east and the south. Some 27 per cent of the western and northern regions lies below sea level. The lowest point, 6.7 m below sea level, is in the west, where 60 per cent of the population is concentrated. The highest point, 321 m above sea level, is in the south, at the junction of the Netherlands, Belgium and the German borders.
5. As more than half of the country lies below sea level, and 60 per cent of the population live in these low-lying areas, protective dikes and pumping stations are essential. Natural dunes and artificial dikes protect these areas from inundation by the sea via estuaries and inlets, and prevent flooding from the rivers, groundwater and rainfall. Two major projects have ensured an effective system of water control. The Delta Project, completed in 1986, was initiated after the 1953 disaster when the sea inundated vast areas in the south-west and claimed 1,835 lives. It has closed off the estuaries in the south-west of the country by means of storm-surge barriers. The other project, the construction of a 30 km barrier dam closing off the former Zuider Zee from the sea, was completed in the 1930s. It transformed the Zuider Zee into a freshwater lake, since then known as the IJsselmeer. When the barrier dam was in place, work began on the reclamation of four huge polders which together represent a gain of 165,000 hectares of new land.
6. The Netherlands currently has a population of 15,341,000, of which 7,585,738 are males and 7,755,524 females. The average annual population growth was 0.73 per cent in 1993 and 0.67 per cent in 1994. (table 1)
Source: The Central Population Register.
7. Most people (62 per cent) are between 19 and 65 years old. In 1994 3,751,154 persons (25 per cent of the population) were younger than 19
and 2,007,994 (13 per cent) persons were older than 65. The birth rate dropped from 18.3 per thousand in 1970 to 13.2 per thousand in 1991. Since 1983 the number of births has nevertheless shown an increase, peaking at 197,000 live births (101,000 boys and 96,000 girls) in 1990. This represents an increase of 5 per cent compared with 1989 and is the sharpest rise in absolute terms since 1969. It is due to the fact that the children born during the baby boom of the 1950s and 1960s are now becoming parents themselves. The fertility rate of the female population has fluctuated around 1.60 since 1980.
8. In 1993 the death rate per thousand inhabitants was 9.0, equal to a total of 137,795 of which 69,884 were men. In 1993 the infant mortality was 6.3 per thousand live births. Maternal mortality is close to zero. The average age at the moment of death was 71.3 for males and 77.7 for females. At the moment of birth the life expectancy is 74 years old for males and 80 years old for females.
9. The national language is Received Standard Dutch. The Frisian language is accorded a special status. It has been a compulsory subject in primary schools in the province of Friesland since 1980. Dialects are also spoken in many regions.
10. About 54 per cent of the inhabitants of the Netherlands are adherents of Christian churches. In 1993 32 per cent were Roman Catholic, 15 per cent were Dutch Reformed and 7 per cent were Calvinist. Muslims comprise 3.7 per cent of the total Dutch population and Hindus 0.5 per cent.
11. Up to the 1960s the Netherlands was a country with negative net migration. This situation has now changed. Since the mid-1980s at least 20,000 more people have entered the country each year than have left it.
This figure has risen sharply in recent years: in 1992 and 1993 net
migration was little under 60,000. Two non-Dutch minority groups - Turks and Moroccans - account for approximately 1 per cent of the population (see table 2).
12. Table 3 presents population figures by household:
- in multi-person households with minor children in
employment
1/ Employed persons: working at least 20 hours a week.
2/ Employed persons: working at least 12 hours a week.
13. The population density is high in the Netherlands. As the total area of the country includes not only land, but also many rivers, canals and lakes, each square kilometre of land has to accommodate an average of 449 people. This makes the Netherlands one of the most densely populated countries in the world. The most densely populated area is the Randstad conurbation in the west of the country, which centres around the cities of Amsterdam, The Hague, Rotterdam and Utrecht.
14. The urbanization of the population can be described in two ways: by categorizing the municipalities on the basis of address density and on the basis of the number of inhabitants. Each of these approaches is illustrated below by means of a table. In table 4 the municipalities are distinguished according to the following five categories:
(a) Very strong urbanization, with an address density of 2,500 addresses or more per km2;
(b) Strong urbanization, with an address density of 1,500 to 2,500 addresses per km2;
(c) Moderate urbanization, with an address density of 1,000 to 1,500 addresses per km2;
(d) Little urbanization, with an address density of 500 to 1,000 addresses per km2;
(e) No urbanization, with an address density of less then 500 addresses per km2.
15. In 1994 the working population (i.e. people who work more than 12 hours a week) was 6.5 million. Between 1980 and 1991 the gross domestic product increased in real terms by an annual average of 2.1 per cent; in 1992 this was only 1.4 per cent. In 1994 the gross national product was 610,650 million guilders, the equivalent of US$ 335,522 million. Per capita income
was 39,700 guilders, the equivalent of US$ 21,813. The budget deficit was 3.5 per cent of GDP in 1991 and 3.7 per cent in 1992. The national debt was 62.5 per cent of GDP in 1991 and 63.6 per cent in 1992.
16. The annual average of registered unemployed was 415,000 in 1993, 6.5 per cent of the total labour force, rising to 480,000 in 1994. The minimum wage was 2,163 guilders (US$ 1,188) per month on 31 December 1994.
17. The Netherlands has an extensive social security system with provisions aiming at maintaining a certain material standard of living. The laws and regulations governing this system are some of the most far-reaching in the world and are regarded as being among the most important achievements of Dutch society. Two basic principles underpin the Dutch social security system. The equivalence principle, in accordance with which the level of benefits is related to the income lost and the social security contributions paid, forms the basis of, for example, the Unemployment Insurance Act. The solidarity principle, in accordance with which the contributions or taxes paid are regarded as irrelevant to the benefits entitlement, is embodied in the National Assistance Act, under which everyone living in the same circumstances receives the same benefits. In 1993, 25 per cent of the Government's current account was devoted to expenditures on social provisions.
18. The Dutch Government has endorsed the Statistical Yearbook of the Netherlands (1995) as an annex. This publication describes the principal demographic, economic and social indicators of the Netherlands. The Yearbook is updated every year and may be consulted at the United Nations Centre for Human Rights, Geneva.
Much of the information contained in the following sections is taken from The Kingdom of the Netherlands, an introduction to Dutch Constitutional L, C.A.J.M. Kortmann and P.P.T. Bovend'Eert, 1993.
19. The Kingdom of the Netherlands dates from 1813 when William I accepted the sovereignty. Before the period of French rule (1795-1813) the greater part of what is now the Netherlands had comprised a number of sovereign provinces, which formed a confederation, the Republic of the United Provinces. Originally there were 17 provinces, which also included the territory of present-day Belgium and Luxembourg. Later, under King Philip II of Spain, the seven northern provinces split off and joined together in the Union of Utrecht. There was no strong central authority, however. The Union did not possess a head of State, and the States General were usually seen as a meeting of envoys from the provinces rather than a national parliament. Government, however, was centralized under the French rule and the administrative advantages of this proved so great that in 1814, when the first written Constitution (Grondwet) came into being, it was decided that a unitary State should be established. Although the Constitution recognized provinces and local authorities neither possessed sovereignty. Sovereignty was vested jointly in the central institutions of the State.
20. It is worthy of note that in 1814 the Constitution introduced a monarchy, which had not been the recognized form of government in the country since the formal abjuration of King Philip II in 1581.
21. In addition to the monarchy, the 1814 Constitution established the States General, consisting of a single chamber, which exercised legislative power together with the monarch. However, the King also possessed autonomous regulating powers, which he frequently made use of. There was not yet a government in the modern sense, with ministers accountable to parliament. Although there were ministers, they were only advisers to the King. The Constitution did, however, institute an independent judiciary.
22. The Treaty of Vienna of 1815 united the present-day Netherlands with present-day Belgium. International politics required that there be a sufficiently large and powerful State on the northern border of France. On the instigation of the Belgians, who wished to see the nobility represented in Parliament, the new Constitution introduced a bicameral system, in which the Second Chamber consisted of elected members and the First Chamber of persons appointed by the King for life.
23. The unification of the two countries did not, however, last for long. King William's regime, which displayed certain authoritarian traits, met with opposition, especially among the southern liberals and Catholics. The latter objected to the King interfering in religious matters while the liberals, mainly French speaking, resented his Dutch language policy. The Belgians rose in revolt in 1830 and declared independence, and in 1831 a Belgian constitution came into force. The formal separation of Belgium and the Netherlands was, however, only finalized in 1839 by the Treaty of London.
24. A revision of the Dutch Constitution in 1840 then provided the initial impetus for the development of a modern system of government. Ministers were made liable under criminal law for acts contravening the Constitution or the law.
25. However, the most important constitutional reform occurred in 1848, introducing political ministerial accountability and giving the Government the power to dissolve Parliament. It also prescribed that the members of the Second Chamber (or Lower House) should be directly elected (albeit by a limited electorate), and gave the House important powers, such as the right of amendment and the right of interpellation. At the same time the foundation for a modern and uniform system of government for the provinces and local authorities was laid down.
26. These constitutional changes certainly did not mean an end to the role of the monarch. The Lower House was weak and internally divided, partly because there were, as yet, no political parties or parliamentary groupings. The King still had his autonomous regulatory power even though he now shared it with a minister. This arrangement did not last long, however. The years 1866 and 1868 witnessed conflicts between the Government and the Lower House which were finally decided in favour of the latter. The parliamentary system was by now established. Since then a Government or a minister that loses the confidence of the Lower House must resign, unless the House is dissolved.
27. The Supreme Court's Meerenberg ruling of 1879, followed by the 1887 revision of the Constitution, almost completely abolished the autonomous legislative powers of the Government. Since then orders introduced by the Government and enforceable by penalty have had to rest on delegation by an Act of Parliament. Also from 1887 onwards there was a gradual expansion of the franchise to include broader sections of the population.
28. Notwithstanding later constitutional reforms, the reform of 1917 can be regarded as the culmination of the construction of the constitutional system of the Netherlands. It introduced universal suffrage for men and women as well as the system of proportional representation. Furthermore, it put an end to the long-standing political conflict on the financing of denominational education. The political parties on the left voted for denominational education to be subsidized in exchange for recognition of universal suffrage by the religious parties.
29. To summarize, the following principal threads can de detected in the constitutional development of the Netherlands: ongoing broadening of the franchise, increasing power of the States General, consolidation of democracy, reduction of the autonomous powers of the Government, harmonization of the organization and powers of the decentralized authorities, and an emphasis on fundamental rights and legal protection against the actions of government bodies. In spite of these developments and another complete revision of the Constitution in 1983, little has really changed in the substance of the Constitution since 1848. The most important amendments to constitutional law have resulted from EC law, treaties and supranational and international case law. In addition, parliamentary and political relations have changed and developed independently of formal constitutional changes.
30. The present constitutional structure of the Kingdom of the Netherlands dates back to 1954, when, after several years of study, discussion and negotiation, the Netherlands, Suriname and the Netherlands Antilles (then including Aruba) decided to establish a new constitutional order. They drew up a document, known as the Charter of the Kingdom (Statuut), in which they agreed to "conduct their internal affairs autonomously and in their common interest on a basis of equality and accord each other reciprocal assistance". Thus the Kingdom, while remaining one sovereign entity under international law, came to consist of three co-equal partners which have distinct identities and are fully autonomous in their internal affairs.
31. Since then, two important changes have taken place. In 1975 Suriname decided, with the full assent of the partners, to leave the Kingdom and become a sovereign State in its own right. In 1986 Aruba became a separate country within the Kingdom, under the Charter, and now has the same constitutional status as the two other countries, the Netherlands and the Netherlands Antilles.
32. The Charter, the highest constitutional instrument of the Kingdom, is a legal document sui generis, which is based upon its voluntary acceptance by the three countries. It falls into three essential parts. The first part defines the association between the three countries, which is federal in nature. The fact that the three countries together form one sovereign entity implies that a number of matters need to be administered jointly, through the institutions of the Kingdom (wherever possible, the organs of each country participate in the conduct of these affairs). These matters are called Kingdom affairs. They are enumerated in the Charter and include the maintenance of independence, defence, foreign relations, the safeguarding of fundamental human rights and freedoms, legal stability and proper administration. The second part deals with the relationship between the countries as autonomous entities. Their partnership implies that the countries respect each other and render one another aid and assistance, materially and otherwise, and that they shall consult and coordinate in matters which are not Kingdom affairs but in which a reasonable degree of coordination is in the interest of the Kingdom as a whole. The third part of the Charter defines the autonomy of the countries, which is the principle underlying the Charter; the countries govern themselves according to their own wishes, subject only to certain conditions imposed by their being part of the Kingdom. Elementary principles of democratic government, observance of the Charter and Kingdom legislation, and the adequate functioning of the organs of the country are matters of concern to the whole of the realm. Conversely, although Kingdom affairs are matters for the Kingdom as a whole, the countries play active roles in the way they are conducted.
33. The seat of Government is in The Hague, but Amsterdam is the capital city of the Netherlands.
34. Central Government is a constitutional monarchy with a parliamentary system. Since 1814 there has been a hereditary monarchy occupied in
turn by Kings William I, William II and William III, followed by the Princess Regent Emma and Queens Wilhelmina, Juliana and Beatrix. The monarch enjoys immunity, while ministers are politically accountable and subject to criminal law. In practice only the political accountability of ministers has any real meaning. Legally speaking the monarch forms part of the Government but it is the ministers who actually make policy.
35. As has already been pointed out, under the parliamentary system a minister who loses the confidence of the Lower or (in theory) the Upper House must resign, unless a Chamber of Parliament is dissolved.
36. The fact that the Netherlands is a constitutional monarchy means that the exercise of all power is subject to limitation, and no single office possesses absolute power.
37. In general, the basic principle of Dutch constitutional law is a strict separation of the legislative, executive and judicial powers of government. In practice, the situation is considerably more subtly differentiated.
38. The States General are considered as the national representative organs of the people. The States General consists of the Second Chamber, or Lower House (Tweede Kamer) and the First Chamber, or Upper House (Eerste Kamer).
39. Dutch Parliament has relatively few members. Under article 51 of the Constitution the Lower House consists of 150 members and the Upper House of 75. The following observations can be made regarding the election of the members of both Houses (kamerleden).
40. Article 4 of the Constitution guarantees to each Dutch citizen the right to elect the members of the general representative bodies, including the States General, and to stand for election to them. The Constitution and the Elections Act (Kieswet) place a number of restrictions on this. Dutch nationals who have reached the age of 18 and are not disqualified from voting have the right to vote for members of the Lower House. The Netherlands Nationality Act determines who is a Dutch national. In principle a person does not have to be resident in the Netherlands to exercise the right to vote.
41. Article 54 of the Constitution specifies a number of cases in which the right to vote is withheld. Anyone who has committed an offence designated by Act of Parliament and has been sentenced as a result by irrevocable judgement of a court of law to a custodial sentence of one year or more, and has simultaneously been disqualified from voting, shall not be entitled to vote. The circumstances under which disqualification from voting can take place are limited by the Act of Parliament. In addition, anyone who has been deemed legally incompetent by irrevocable judgement of a court because of a mental disorder is also disqualified.
42. These conditions determine who belongs to the electorate of the Lower House. In principle the same body of people can be elected as members of the Lower or Upper House. The members of the provincial councils make up the electorate of the Upper House. Requirements which must be met by these members are laid down in article 129 of the Constitution. They must be Dutch, resident in the province and also fulfil the requirements which must be met for persons to be elected to the Lower House.
43. In principle elections to both Houses take place every four years. The Constitution lays down that the length of a parliamentary session is four years in the case of both Houses. Elections can also take place at other times if one or both Houses are dissolved. In both types of elections all seats in the House are up for re-election.
44. The arrival of universal suffrage through the constitutional reform of 1917 was accompanied by a fundamental change in the electoral system. Before 1917 an absolute majority system, organized on a district basis, operated in the Netherlands. This electoral system promoted cooperation between political parties at election time. Two major political blocs, consisting of coalitions of like-minded parties, struggled to win a parliamentary majority. The outcome of the election determined the political composition of the Cabinet.
45. Since 1917 a system of proportional representation has been in operation, whereby the country is treated as a single constituency. Under this system a candidate is elected if he wins 1/150 (Lower House) or 1/75 (Upper House) of the number of the valid votes.
46. The establishment of the election result is a very arithmetical business. All the votes on the lists are compiled by the central voting office, which then establishes the quota. This amounts to the number of votes cast divided by the number of seats (150). Each list which achieves the quota one or more times over gets a corresponding number of seats. The remaining seats are shared according to the D'Hondt system (based on the largest averages) which favours the large parties. The Elections Act also permits combined lists to be drawn up at nomination time, which can be advantageous when the remaining seats are being shared. Finally, the seats allocated to each list have to be shared out among the candidates on those lists. The available seats are first allocated to those candidates who won more than half of the quota. The order of priority among them is determined by the number of votes they received. If there are still some seats left over to be allocated, this is done in the order of appearance on the list of candidates.
47. Election of the members of the Upper House also takes place according to a system of proportional representation. Except in cases where the House has been dissolved, elections take place three months after the election of the members of the provincial councils. Thus the provincial elections have an almost immediate effect upon the composition of the Upper House.
48. The concepts of autonomy and independence are central to the constitutional provisions for the legal status of the States General. Alongside this, constitutional law also contains certain checks and balances.
49. Nowadays, the States General are considered to be permanently in session. Before the constitutional reform of 1983 the situation was different under the law. Under the Constitution, the monarch opened and closed both the normal, yearly sessions and extraordinary sessions. However, this did not curtail Parliament's autonomy in practice. In effect, even before 1983, Parliament was permanently in session.
50. Membership of one of the Houses cannot be combined with certain other functions. This is referred to as incompatibility. Under article 57, paragraph 1, of the Constitution no one may be a member of both Houses at the same time, a necessary prerequisite of the bicameral system. Paragraph 2 of article 57 then lists a number of offices which a person may not hold while being a member of Parliament. These include the posts of minister, State secretary, member of the Supreme Court and Advocate-General at the highest court in the country. In general, these incompatibilities may be deemed to be founded on the principle of separation of powers.
51. The incompatibility between being a member of Parliament and being a minister or State secretary deserves special consideration. It is representative of the relationship between the Government and the States General. Dutch constitutional law considers the Government and Parliament as two separate and distinct governing institutions. In practice this is referred to as a "dualistic" relationship.
52. Ministers and State secretaries are not appointed by Parliament and do not have to come from its midst.
53. Broadly speaking the Houses of the States General have two main powers: a shared role in the legislative process, and supervision of the way the Government exercises its powers.
54. Under article 81 of the Constitution the power to pass Acts of Parliament (wetten) is assigned to the Government and the States General jointly. Neither the Constitution itself, nor any other constitutional law, determine what the content of an Act of Parliament must or may be. In principle the legislature is free to draft any Act it wishes. But one must not consider it as sovereign. There are limits to what an Act may contain. Thus chapter 8 of the Constitution lays down a special procedure for revising the Constitution. In addition the legislature may not include anything in an Act which conflicts with fundamental rights or other constitutional provisions.
55. Constitutional law not only specifies what laws the legislature may not make, it also prescribes those which it must make. The Constitution and the Charter refer to the role of the national legislature in setting standards. This is true, for example, in the case of many fundamental rights, provisions relating to the organization and powers of central government offices, and in the case of financial provisions (budget, taxes and the money system).
56. Bills are prepared by civil servants in a particular ministry, possibly in cooperation with other ministries. During the preparatory stages consultations are usually held with the representatives of social groups and with experts. Advice is also frequently sought from one or more advisory bodies of which there are many in the Netherlands. There are extensive, official instructions for the drafting of bills which are specified by the Prime Minister. These aim to safeguard consistency of legislation and to reduce the enormous flood of regulations. Once the bill, together with its explanatory notes, has been prepared, and approved by the Cabinet it is sent to the Council of State for its advice. The minister concerned responds to this advice in a written report and, if necessary, introduces changes to the bill. It is then ready to be put before the Lower House. The advice of the Council of State, the minister's report and the reports from any other consultations are submitted at the same time.
57. Next, the President of the Lower House places the bill in the hands of a permanent or special committee. The committee's investigations are usually conducted in writing, in contrast with the procedure in many other countries. The committee produces either an interim or a final report, which consists of the written comments of the various parliamentary parties represented on the committee on the proposed bill. The Government responds to an interim report with a memorandum of reply, or to a (final) report with a note to the Lower House. The Government may introduce changes to the bill at this stage.
58. After these investigations have been completed, which sometimes takes years, the plenary discussion of the bill begins. The bill is proposed in the Lower House by one or more ministers or State secretaries. The debate in principle passes through two phases. In the first phase the general content of the bill is debated, and the second phase deals with the separate sections. The second phase is important in connection with the Lower House's power to make amendments. The Government can also introduce changes to the bill during the plenary debate.
59. The procedure in the Upper House is rather different, because it has no power to amend bills; it can only accept or reject them. Also, once a bill has passed to the Upper House, the Government is no longer able to introduce changes. What the Government can do, on the instigation of the Upper House or on its own initiative, is to decide to submit an amending Act (novelle) to the Lower House. This can be regarded as a bill to change a bill which is pending before the Upper House. The committee stage of investigations proceeds in the same way as in the Lower House. After the committee stage, a plenary debate takes place and a vote is held on the complete bill. The Government may still withdraw the bill before the vote. It is able to do this at any stage from the moment that the bill is first put before the Lower House.
60. Once the Upper House has accepted a bill - as it almost invariably does -it still has to be ratified by the Government. This means that it has to be signed by the monarch and countersigned by one or more ministers or State secretaries (art. 87 of the Constitution). Once ratified, it becomes an Act of Parliament. This does not mean that the Act comes into force, however. Under article 88 of the Constitution, an Act cannot enter into operation before it has been published. Section 3 of the Publication Act implementing on article 88 of the Constitution, requires that Acts of Parliament be published in the Bulletin of Acts and Decrees (Staatsblad). The minister of justice is responsible for their publication.
61. In addition to their shared legislative powers, the States General have an important role in exercising control. The most important element of this, from the point of view of positive law, is ministerial responsibility, which is governed by articles 42 and 68 of the Constitution. Under these provisions ministers and State secretaries are obliged to supply any information which may be requested by one or more members of Parliament, provided that supplying such information does not harm the interests of the State. Information may be supplied in a number of ways. Obvious examples are through interpellation and the right to put questions to ministers.
62. However, this is by no means the only way in which Parliament exercises control over the Government. In the first place both Houses have the right of inquiry. In principle, they may conduct inquiries into abuses or any other matters about which they consider that they need information.
63. A regular form of control takes place in committee meetings, where members of Parliament may put questions to a minister or State secretary. There are also informal contacts between members of the Government and members of the States General. It goes without saying that ministers and State secretaries regularly consult the leaders of the parties in Government and, if necessary, other members of those parties as well as the opposition parties.
64. A special form of control is exercised in respect of matters which may not be decided without the prior consent of the legislature or the Houses of the States General. Hence approval must be attained from the States General in order to conclude treaties or declare war. In other cases the States General are empowered to revote a government order. In principle, this is the case if the Government has declared a state of emergency. The States General are empowered to decide whether it should continue or not.
65. In addition to their shared legislative and controlling functions mentioned, there are a number of specific tasks which one or both Houses fulfil. For example, the Lower House appoints the national Ombudsman, members of the Supreme Court and the General Court of Audit. Both Houses also have a petitions committee which handles incoming petitions.
66. The national budget is implemented by Act of Parliament. Each ministry has its own budget, which underlines the responsibility of the individual minister. The budgets cover one calendar year. The draft budgets are submitted to the Lower House on the third Tuesday in September, the day of the speech from the throne. The Netherlands does not have a rule that the budget must balance. The draft budget is dealt with in much the same way as any other bill, which means that the Lower House has the right to amend it. The Upper House may only accept or reject it. The draft budget is seldom rejected by either House.
67. Before the revision of 1983, the Constitution assigned executive power to the monarch. The introduction in 1840 of the requirement that all Acts of Parliament must be countersigned by a member of the Government means that since that date the term "King" in this context must be taken to refer to the "King" in terms of the Constitution, i.e. the Government. Since 1983 there has been no explicit provision in the Constitution relating to the executive power of the Government. Article 42, paragraph 1, of the Constitution merely states that the Government is made up of the monarch and the ministers. Constitutional history shows, however, that this provision indicates not only the composition of the Government but also its function. Hence it is still the Government that wields executive power.
68. Since the revision of 1983 the Constitution has included a separate provision on the Cabinet. Article 45 now provides that the ministers together comprise Cabinet, chaired by the Prime Minister, and specifies that its role is to consider and decide upon overall government policy and promote coherence of that policy.
69. Despite his limited powers, the position of the Prime Minister has become increasingly important in recent years. He is seen as the political leader of the Cabinet, and is presented as such in the media. The fact that the Prime Minister is usually the leader of the largest party in Government has contributed to this development. As a rule he is the person appointed by the monarch to act as a formateur in forming the Government. His role as coordinator has increased considerably. He is often the spokesman for the Cabinet, for example at the annual general debates in Parliament and at the weekly press conferences following cabinet meetings. However, the Prime Minister has no statutory hierarchical position in Parliament with respect to ministerial accountability, the no-confidence rule or the dissolution of Parliament. Under the Constitution powers and responsibilities are shared among the ministers and are exercised through the Cabinet.
70. The process of forming a Government is instituted when the ministers of the outgoing Government submit their resignations. The Constitution does not state when that must happen. There is no fixed term of office for a minister.
71. Two general conditions need to be taken into consideration when a new Government is being formed. Firstly, account must be taken of the balance between political parties in Parliament. Because of the no-confidence rule the Government must be able to count on the support, or at least the acceptance, of a majority in the Lower House. Secondly, there must be a measure of agreement among ministers.
72. The process of forming a Government is set in motion when the outgoing Government resigns. The Sovereign considers their resignation and asks the ministers to continue to implement all Government policy which they consider necessary in the interests of the Kingdom. The outgoing ministers usually confine themselves to concluding matters already in hand, although this is not necessarily the case. The longer the outgoing Government remains in office, the more likely it is to be in a position to effect even radical policy changes. In the meantime the monarch, as head of State, takes the initiative in forming a new Government. First he consults the Vice-President of the Council of State, the speakers of both Houses of Parliament, and the leaders of all the political parties represented in the Lower House. Their verbal recommendations given at the palace are followed by written reports. The reports submitted by the leaders of the political parties are published. They usually include the parties' preferences regarding the formation of a government coalition and a proposal as to who might be appointed as formateur or informateur.
73. On the basis of these recommendations the monarch appoints an informateur or a formateur with a specific task. There are similarities as well as differences between the constitutional positions of the informateur and the formateur. Both are advisers to the monarch. They preside over the
day-to-day work involved in the process of forming a Government, which is concluded when they present a final report to the monarch for publication. The informateur investigates the possibilities of forming a Government. He accepts his assignment immediately. The formateur's brief is to form a Government, which he does only when he is certain that it is possible to draw up a list of nominations for ministers.
74. The assignment may be highly specific or it may be left very open. The first assignment is usually given to a representative of the largest party represented in Parliament. In practice there is no clear distinction between the roles of the informateur and the formateur. Over the years informateurs have gradually been given an increasing share of work involved in forming a Government. At present, the formateur, who is often the envisaged Prime Minister, plays a role only after agreement has been reached on most issues. It is then his task to complete the formation.
75. In principle the formateur or informateur must take account of the wishes of the parties represented in Parliament which are considered likely participants in the new Government. The way he approaches his task depends largely on whether and if so, to what extent the leaders of the parties in Parliament and the parties themselves are to be involved in forming a Government. The main aim is to form a Government which can count on the firm support and cooperation of a majority in the Lower House, or at least one which will not be immediately rejected by the parliamentary majority. It is conceivable that a few general talks with the party leaders will suffice to ensure minimum level of support for the new Government. Government formed in this way is known as an extra-parliamentary Government. Alternatively, the formateur or informateur may need to enter into extensive negotiations with the political parties in order to form a Government. Government formed in this manner is known as a parliamentary Government.
76. The drafting of a coalition agreement plays an important part in the discussions regarding the formation of a parliamentary Government. It is an agreement between the parties to be represented in the new coalition to accept a basic policy programme for the coming term of government. The parties undertake to refrain from supporting a motion of no confidence in the new Government, and to act in accordance with the policy programme during the Government's term of office. While the coalition agreement is of limited significance in constitutional terms, its political importance has increased considerably in recent decades.
77. After the coalition agreement has been concluded, negotiations usually centre on the composition of the Government. Here too, the political parties are almost invariably involved. Agreement has to be reached on the appointment of ministers and State secretaries and on the distribution of posts following these negotiations. The formateur may offer the posts to the proposed candidates. Finally a constituent assembly of the formateur and the prospective ministers convene to endorse the coalition agreement and decide whether they will be able to pursue a joint policy. In effect, the composition of the Cabinet is decided in the constituent assembly.
78. At the end of this meeting the formateur accepts his assignment and presents a final report to the monarch, containing a proposal on the appointment of new ministers. Finally, the resignation of the outgoing ministers and State secretaries is accepted and the new Government is appointed. The new Prime Minister countersigns the relevant Royal Decrees. The swearing-in ceremony is then held in the presence of the monarch. A few weeks later the new Government presents its policy statement in the Lower House, outlining the policy it intends to pursue.
79. It is difficult to define the powers of the Government. A reading of the Constitution can easily lead to misunderstanding because it contains few provisions explicitly granting power to the Government. In some parts these powers are couched in rather misleading terminology: a Royal Decree, for instance, is an order given by the Government, i.e. the monarch and one or more ministers.
80. The question of whether the legislature is competent to delegate regulatory powers to other bodies, such as the Government or a minister, is in principle laid down in the Constitution. Provisions assigning competence to the legislature or instructing it to regulate certain matters are formulated in unambiguous terms. The verb "to regulate", the noun "rule", and the phrase "by or pursuant to an Act of Parliament" are used to authorize the legislature to delegate or leave further regulation to another body. In all other cases the legislature must handle the matter itself, although the regulation of details may be left to others, in which case it is not a matter of delegation but of execution.
81. Chapter 6 of the Constitution is based on the principle that there is a single type of judicial office - the judiciary (rechterlijke macht) - which is competent to decide on all kinds of disputes and to impose penalties. Apart from the national system, reference must also be made to the EC Treaty under which the European Court of Justice exercises binding jurisdiction over the Netherlands, and to the European Court of Human Rights whose jurisdiction has been recognized by the Netherlands.
82. Up to the present, membership of the judiciary as intended in the Constitution has been regulated by the Judiciary (Organization) Act (Wet op de rechterlijke organisatie). According to section 1 of this Act the judiciary comprises: the Supreme Court (Hoge Raad) which is also named in the Constitution, the courts of appeal (gerechtshoven), the regional courts (arrondissementsrechtbanken) and the district courts (kantongerechten). Due to the wording of the Constitution on the judiciary the public prosecutions department (openbaar ministerie) may be seen as part of the judiciary. However, it does not exercise jurisdiction but belongs to the executive and
is responsible for investigating and prosecuting criminal offences
(see para. 94 ff).
83. Members of the Supreme Court, like the members of other institutions which form part of the judiciary, are appointed for life by Royal Decree, i.e. until they reach the age of 70. Appointments are made on the basis of a list of three persons nominated by the Lower House of the States General. The Government may choose from these nominees. The involvement of the Lower House can be explained by the fact that the Supreme Court passes judgement when ministers, among others, have committed an offence while in office. In practice the Lower House places on its list the three candidates most highly recommended by the Supreme Court.
84. The Supreme Court comprises several divisions. The majority of judgements are passed by five members. The Netherlands has five appeal courts, which also have divisions. In principle judgement is passed by three members. The 19 regional courts also have separate divisions. Some judgements in the regional courts are given by a single judge, others by three judges. There are 64 district courts which, with a single exception, do not have divisions. Judgement is almost always passed by a single judge in the district courts.
85. Members of the judiciary are appointed for life by Royal Decree. Life tenure has been defined in an Act of Parliament as meaning up to the age of 70. A judge can only be dismissed by his colleagues in the judiciary, and then only in circumstances laid down in an Act of Parliament. The legal status of the judiciary is also regulated by Act of Parliament. These rules aim to guarantee the independence of the judiciary. For that matter Dutch constitutional law does not establish the functional independence of the judiciary in so many words, but it stems directly from article 6 of the European Convention on Human Rights.
86. The Constitution has little to say on the competence of the judiciary. This is largely determined by Acts of Parliament and in jurisprudence. Article 112, paragraph 1, of the Constitution states that the judgement of disputes involving civil rights and obligations shall be the responsibility of the judiciary. In principle this covers all disputes between individuals, between the Government and individuals and between different government bodies. Paragraph 2 of the same article states that responsibility for the judgement of disputes which do not arise from matters of civil law (burgerlijke rechtsbetrekkingen) may be granted by Act of Parliament either to the judiciary or to courts which do not form part of the judiciary. This constitutional provision does not define the competence of the judiciary precisely, since it may be extended or limited by the legislature.
87. In addition to article 112, paragraph 1, the legislature must take into account a number of other provisions concerning the powers of the judiciary. Article 113, paragraph 1 of the Constitution assigns responsibility for judging criminal cases to the judiciary, and paragraph 3 of that article states that custodial sentences may only be imposed by the judiciary. Finally, cassation and the judgement of certain types of misfeasance are the responsibility of the Supreme Court.
88. Disputes between individuals and the Government concerning the exercise of government duties (administrative law) may also be brought before an independent court. First, however, a complaint must be lodged with the government body concerned, which may review the disputed decision
(see para. 131 ff).
89. The Constitution not only grants powers to the judiciary, but also lays down in general terms how it must exercise these powers. For instance, trials must be held in public and judgements must specify the grounds on which they are based, except where an Act of Parliament provides otherwise. There are also statutory regulations on the matter. One characteristic feature of Dutch law is that no form of jurisdiction recognizes a system of dissenting or concurring opinions. The courts act as a united body and may not communicate a minority opinion to the outside.
90. All courts are competent to review lower statutory regulations in relation to higher ones and to declare the former incompatible with the latter. In addition they are required to review all national rules in relation to the standards of EC law, which by virtue of its supranational status forms part of the national system of law. In addition, article 94 of the Constitution provides that judges and other officials shall not enforce national laws if doing so would involve contravening directly applicable treaty provisions or decisions of international organizations.
91. There is one notable exception to this system requiring the courts to allow higher legislation to prevail. Under article 120 of the Constitution, the courts are not involved in deciding on the constitutionality of Acts of Parliament. The aim of this provision, which dates back to 1848, is to ensure that responsibility for the interpretation of the Constitution rests with the legislature. Even if the courts do consider an Act to be in conflict with the Constitution, they are not authorized to declare it not binding or not to be enforced. In a controversial Supreme Court decision of 14 April 1989, NJ 469, this prohibition against judicial review was explained in broad terms. The Supreme Court interpreted this article to mean that not only could the validity of legislation not be tested against the Constitution, it could not be tested against the Charter for the Kingdom of the Netherlands or against general legal principles either.
(a) Criminal law
92. Main features of the criminal procedure. The Code of Criminal Procedure regulates detection, investigation and prosecution of criminal offences, trial in criminal cases, the application of penalties and the enforcement of sanctions.
93. Different authorities are charged with investigation (the police), prosecution (the public prosecutions department), sentencing (the judiciary), and execution of criminal sanctions (the prison system).
94. The Public Prosecutions Department in the Netherlands is organized hierarchically under the authority of the Minister of Justice. It is organized along the same geographical lines as the courts (first instance: local; second instance: regional; Supreme Court: national).
95. The public prosecutors are State officials belonging to the judiciary. They are in a somewhat dualistic position. On the one hand they are hierarchically organized officials under the ultimate authority of the Minister of Justice; on the other hand they belong to the judiciary. As a result, the Public Prosecutions Department enjoys a considerable degree of independence from the Ministry of Justice.
96. Only a public prosecutor has the power to bring a case before the court. Neither the police nor ordinary individuals have the power to do so. However, individuals may lodge a complaint with the regional court about failure to prosecute a case. If the complaint is considered to be founded, the court orders the public prosecutor to prosecute the case.
97. In accordance with that power the public prosecutor is the formal head of investigations by the police. This does not mean that a public prosecutor is personally involved in every police investigation. In practice he deals with complicated or sensitive cases. The main task is to set priorities in criminal investigations in general. Police investigations often require the use of force or pressure. In such cases permission must first be obtained from the public prosecutor.
98. The public prosecutor plays a different role in the enforcement of sentences. When an offender has been sentenced and has exhausted all legal remedies, the public prosecutor is obliged to enforce the sentence. He issues an order on the basis of which the offender will serve his term in prison. The actual enforcement of a prison sentence is carried out by the Government prison service.
99. Pursuant to articles 167 and 242 of the Code of Criminal Procedure, the public prosecutor must decide after the preliminary investigation whether or not a case should be brought before the courts. The investigation of a case does not automatically culminate in a court hearing. The public prosecutor has to answer two questions when deciding whether to prosecute or not:
1. Are the investigation findings likely to result in a conviction? and, if so,
2. Is a trial in court, followed by a conviction, desirable considering all relevant interests?
100. The following, for instance, would be reason for not continuing the prosecution of a case:
(a) Prosecution could harm the interests of the victim (publicity concerning sexual offences);
(b) The offence was committed so long ago that prosecution would be disproportional (a petty theft five years previously);
(c) The offence is serious in the abstract but is not in fact (theft of a paperclip);
(d) The offender himself is the principal victim (negligence as a result of which the offender is injured and his relatives are killed);
(e) Harm to the national interest (confidential information likely to be divulged in the course of the trial).
101. The general rule is that cases can be tried in three instances. The courts consist of divisions of one (local/regional), three (local/regional/ Supreme Court) or five (Supreme Court) judges. Laymen do not take part in the judiciary: there is no jury system and every judge must hold a degree in law.
102. The public prosecutor institutes court proceedings by issuing a summons/subpoena which includes the indictment. The indictment is the basis for the trial in court and the court's task is limited to considering the facts set out in the indictment. The court is not allowed to impose a penalty for an offence other than the one described in the indictment. The possibilities of changing the indictment during the procedure are limited: changes can only be allowed if the nature of the accusation remains the same. The indictment therefore has to contain an accurate description of the actions which the public prosecutor considers a criminal offence. That description has to cover all aspects of the offence as it is described in the relevant legislation. If the description is too vague, the indictment will be null and void; the procedure may be started anew, because the indictment does not provide a proper basis for a full trial. If the court is not satisfied that the action or actions described in the indictment have been proven the suspect is acquitted.
103. The charge against the defendant has to be substantiated by the public prosecutor too. According to article 338 of the Code of Criminal Procedure the criterion by which the court may deem the accusation proven is that it must be satisfied that the facts as stated in the indictment are true. The conviction must be based on evidence submitted by the public prosecutor. According to the legal definition, only evidence which is specified by law is admissible, while any evidence that has been obtained unlawfully may be declared inadmissible.
104. The forms of evidence specified in the law are the following:
(a) The facts as perceived in court by the judge himself;
(b) Statements made by the defendant;
(c) (Sworn) testimony of a witness;
(d) (Sworn) statements of an expert;
(e) Information in writing (e.g. official reports by the police).
105. The evaluation of evidence is to a large extent left to the discretion of the judge. There are only a few specific rules in this respect:
(a) Evidence in support of an indictment may not be based only on the confession of the defendant or on the testimony of a single witness. This applies to the indictment as a whole: parts of the indictment may be accepted as true on the basis of one of these forms of evidence;
(b) Testimony given by a witness may only be taken into account in so far as it concerns the witness himself as perceived, i.e. seen, felt or heard. Hearsay evidence is therefore excluded for any purpose other than to confirm that it was heard by the witness; the truth of what was heard cannot be based on such a statement;
(c) The facts set out in an indictment may be deemed established on the basis of a sworn police report.
This last rule is very important in practice because according to long-standing Supreme Court jurisprudence the exclusion of hearsay evidence does not apply to official police reports. In other words, a police report may contain the statement of a witness and be taken as complete proof of the indictment. As a result the hearing of witnesses in court is the exception rather than the rule. Witnesses are heard if the case is not clear to the court or if the testimony reported by the police is disputed.
106. As a rule, the testimony of an anonymous witness cannot be accepted; it is, however, acceptable as evidence in serious criminal cases if the witness is in danger and has given testimony in a special procedure before an investigating magistrate. The defendant must have an opportunity to put questions to the witness, although it is not essential that the examination take place in a public hearing. The investigating magistrate has to verify the identity and credibility of the witness. The defendant has the right to examine an anonymous witness. A witness who has given testimony in this special procedure may be excused from attending the trial.
107. The Code of Criminal Procedure provides that a defendant who does not understand Dutch must be assisted by an interpreter in the court hearing. The same article also provides that the defendant shall have access to the assistance of a professional lawyer of his choosing. If the defendant cannot afford legal assistance, counsel will be provided and paid for by the State in more serious cases, if the defendant is being held in pre-trial detention or if he is accused of an indictable offence (as opposed to a summary offence).
(b) Law enforcement instruments
108. Minor offences. Law enforcement in criminal cases may take various forms other than the classical one (prosecution and criminal conviction). Administrative sanctions may be imposed for recurrent offences, since they are just as useful, easier to apply in practice and less expensive for Government authorities. In the process of reviewing or drafting legislation, alternatives to criminal sanctions and the possibilities of decriminalization are always considered. Successful action against minor offences depends less on repressive penal sanctions than on prevention, which can be achieved at reasonable cost. This implies efforts to change the factors that encourage such offences and to promote social control. Recurrent offences should be tackled by an overall policy that aims at fostering a respect for law. Furthermore, measures must be taken to prevent offences from being committed unnoticed or too easily.
109. The same stress should be placed on prevention and individual responsibility with respect to administrative regulations. Many fields of social and economic life are governed by a wide range of regulations. Contravention of such regulations is often an offence. Yet in the public mind many of these contraventions are seen not as real offences or crimes, but as a more or less normal way of doing business. If the public is to be encouraged to observe the law, they must be properly informed in the first place. Furthermore, an effective and efficient monitoring system is needed in order to detect irregularities, whether intentional or not. The Government believe that it makes sense to punish offenders by means of a criminal conviction only as a last resort.
110. Serious crimes. Serious crimes demand a different approach. In this area the criminal justice system is responsible in the first place. These offences are generally condemned, prevention has proved to be very difficult and the public generally believes that they should be punished. This is primarily the task of the police and the public prosecutor, who can exercise the powers needed. Criminal law enforcement is explicitly repressive in this respect. First and foremost, organized crime must be repressed and criminal organizations must be prevented as far as possible from gaining a strong position in society. Criminals should not have a chance to infiltrate businesses operating lawfully. Offenders must be prosecuted and heavily penalized in order to make the Netherlands unattractive to criminals from abroad. Recent legislation gives the authorities wide-ranging powers to confiscate the proceeds of crime.
111. Sanctions differ for various kinds of offences. Serious crimes always have to be prosecuted in court and penalties are imposed. Other offences may be dealt with by the public prosecutor, or even the police, without a court procedure. In such cases, the public prosecutor may decide not to institute proceedings if the offender agrees to satisfy certain conditions. The conditions are not negotiable: the offender has to "take it or leave it". If he does not agree, he will be prosecuted and the court will examine the case. This option applies only to misdemeanours (e.g., contraventions of the Road Traffic Act) and offences punishable by no more than six years' imprisonment (e.g. drunken driving, petty theft, shoplifting, minor forms of aggression, relatively simple forms of fraud, etc.).
112. Criminal sanctions. The courts have wide discretionary powers. In applying criminal sanctions the Dutch Criminal Code, unlike many others, does not specify a minimum penalty for each and every offence. However, there is a general minimum (a fine of 5 guilders, or 1 day imprisonment) for all offences; the maximum penalty is indeed specified for each individual offence.
113. The Code distinguishes between penalties and measures. Penalties are meant to exact retribution and prevent recurrence. Measures can be imposed to restore the legitimate status quo as far as possible or to compel the offender to undergo psychiatric treatment in order to protect society. They usually take the form of court orders.
114. The most common penalties are:
(a) Imprisonment (min. 1 day, max. 20 years);
(b) Community service (max. 240 working hours) as a substitute for imprisonment of 6 months maximum;
(c) Fine (6 categories: f. 500; f. 5,000; f. 10,000; f. 25,000; f. 100,000 and f. 1,000,000);
(d) Confiscation of objects relating to the offence;
(e) Deprivation of certain rights (e.g. the right to vote or to be elected).
115. Orders may be given to effect the following:
(a) Confiscation of objects the possession of which is illegal or contrary to public order;
(b) Repayment of the proceeds of the offence (the amount is unlimited, depending only on the benefit actually received by the offender; if the obligation is not met, the offender may have to serve up to six years' imprisonment);
(c) The payment of damages to the victim;
(d) Placement in a psychiatric hospital (this presupposes a mental illness as a result of which the offender cannot be held completely responsible for his crime, that the crime is sufficiently serious and that the offender is a danger to himself, to other persons or to property).
As a general rule penalties and measures may be imposed in combination.
(b) Civil procedural law
116. Sources. Dutch civil procedural law is for the most part regulated by the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering - 1838), the Judiciary (Organization) Act (Wet op de rechterlijke organisatie - 1872), the Bankruptcy Act (Faillissementswet - 1893), the Counsel Act (Advocatenwet -1952), the Legal Aid Act (Wet op de rechtsbijstand - 1994) and certain other Acts. A number of international conventions also regulate certain aspects of Dutch civil procedural law, the most important of which is the EC Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters. Individuals may invoke the provisions of a convention during proceedings if such provisions are binding on all persons and directly applicable.
117. Main principles. The main principles on which Dutch civil procedural law is based are as follows:
(a) Proceedings are held in public: nevertheless, certain cases where the privacy of the parties is at issue, such as family law proceedings, are not heard in public, nor are certain procedural matters, such as witness hearings, dealt with in open court. However, judgements are always pronounced in public;
(b) The court adopts a passive role: the parties determine the content and extent of proceedings and the court is bound to follow them in this. The presiding judge is empowered to lead proceedings and must, where necessary, apply additional legal rules ex officio;
(c) The parties must be heard: in order to ensure equality of arms, both parties must be afforded the opportunity to put forward their point of view either orally or in writing;
(d) There must in principle be two courts hearing the facts of the case: the court of first instance gives judgement on the facts of the case and the law. On appeal, the facts may be re-examined and the decision on points of law reached by the lower court reviewed. Any errors which may have been made can be corrected in this way;
(e) There must be a possibility of appeal in cassation: with a view to preserving the uniformity of the administration of justice, the Supreme Court, as court of final instance, may evaluate the legal opinions of the lower courts;
(f) Parties must have legal representation: with a view to efficient and speedy proceedings, parties in proceedings before the district courts, the appeal courts and the Supreme Court must be represented by counsel. This is not the case in proceedings before the sub-district courts;
(g) Parties bear the costs: in principle the parties bear the costs of an action. If one of the parties loses the action, he or she may be ordered to pay the costs of the other party. The less well-off may be able to obtain State-funded legal aid, although this is not an obstacle to the court's making an order for the payment of costs;
(h) The grounds on which the decision was taken must be stated: in the interests of the proper administration of justice, the grounds on which a decision is taken must be stated in full.
118. Legal representation. Before courts for which legal assistance is compulsory this is provided by advocates (advocaten). Formal procedural matters, such as the submission of documents, must be done by solicitors (procureurs) who are competent to act at the court in question. Parties appearing before the sub-district courts are entitled to conduct their own case, although they may also appoint a representative for this purpose.
119. Proceedings at first instance. The rules of absolute competence determine which court is entitled to take cognizance of a particular dispute. The sub-district courts are competent to hear claims up to f. 5,000 and litigation relating to contracts of employment, rents, sales agreements and agricultural tenancies, whatever the amount involved. All other disputes are heard before the district courts. The rules of relative competence determine in which court district proceedings should take place. The general rule is that the district court within whose area of jurisdiction the defendant lives is competent.
120. Proceedings are initiated by a writ of summons, in which the plaintiff summons the defendant through the bailiff to appear before the court on a particular date, which he is obliged to do. If he fails to appear, judgement is given by default granting the plaintiff's claim unless the court has found it unlawful or unfounded. If the defendant appears, then proceedings continue as a defended action.
121. In principle each party is given the opportunity to set out their case twice. On the first day of the sitting, or on a date to be determined later, the plaintiff submits his statement of claim, following which the defendant makes his statement of defence, although he may also waive this opportunity and submit to the opinion of the court. When submitting his statement of defence the defendant may also submit a counter-claim, in which case an exchange of statements similar to that which followed the first claim takes place. After hearing the statement of defence the court decides whether it would be appropriate to order the appearance of the parties in order to obtain further information or to test the waters regarding a settlement. The plaintiff may then submit a reply to the defence to which the defendant may submit a rejoinder. Once all statements have been filed, oral pleadings may follow during which the parties' counsel once again set out their clients' case. The court may also ask for further evidence to be submitted. Once this has been done, the court gives judgement.
122. In addition to proceedings initiated by a writ of summons, it is also possible in certain cases laid down by law to start proceedings by petition. In principle these are cases in which the legal consequences cannot be regulated by the parties themselves and consist mostly of family law litigation. Such proceedings are faster and less formal, and comprise four stages, i.e. petition, defence, oral hearings and judgement.
123. Legal remedies. The most important ordinary legal remedies are: objection, appeal and appeal in cassation. They all have suspensive effect, which means that where the execution of a judgement has already begun, it must be halted unless the judgement was declared immediately enforceable.
124. The lodging of an objection gives a defendant against whom judgement has been given by default the opportunity of a defended action at first instance, despite the fact that he did not appear at the initial hearing. Objection procedures constitute a prolongation of the hearing of the case - this time defended - before the same court that gave the judgement by default. After judgement has been given the parties may still lodge appeal proceedings and appeal in cassation.
125. Appeal proceedings must be lodged within three months of the date of a judgement in a defended action. The second court hearing the facts examines the case afresh and may correct any errors made at first instance. Generally speaking, the district courts hear appeals against judgements handed down by the sub-district courts and the appeal court those of the district court. In certain cases, notably those involving financial matters where the amount in question is less than f. 2,500, no appeal is possible.
126. Appeals in cassation may be lodged with the Supreme Court against judgements on appeal and judgements given at first and only instance within three months of the judgement being given. The Supreme Court does not review the facts of a case: its role is to decide whether procedural formalities have not been complied with or the law misapplied. If the Court strikes down (casser) a judgement it refers it back, if further examination of the facts is necessary, to a lower court which has to hear the case afresh taking the Supreme Court's ruling into account. In other cases the Supreme Court may conclude the case itself. Even if the parties do not lodge an appeal in cassation the Procurator General may do so in the public interest and in "the interests of the law".
127. Special procedures. Applications for interlocutory injunctions may be made to the President of the district court requesting urgent provisional rulings. Because of the provisional nature of these rulings the court deciding on the main proceedings is not bound by them. Provisional rulings may also be requested in the course of main proceedings, notably before the sub-district court. There are different procedural rules governing certain areas of law, such as the law of persons and family law.
128. Rules of evidence. Evidence may in principle take any form. The parties may also give evidence during proceedings. It is the court which decides, in every case, on the value of the evidence.
129. Execution. A court decision may be enforced with the assistance of the bailiff, who is a government official. A number of methods of execution of judgements are prescribed by law. Seizure to effect recovery compels the party concerned to fulfil an obligation to pay a sum of money, while other forms of seizure require the surrender or delivery of goods. Seizure of assets may be under a writ of execution following a judgement, or provisional in order to protect the interests of a creditor in the absence of a judgement, although the court's permission is required for such seizure. Another means of execution is astreinte, which is imposed by the court if the defendant fails to comply with the judgement.
130. Alternative ways of settling disputes. If both parties so choose and the law permits, they may submit their dispute to arbitration. Arbitration has been the subject of extensive statutory regulation since 1986, inspired in many ways by the United Model Law on International Commercial Arbitration of 1985. Another alternative form is the binding third party ruling.
(c) Administrative law
131. The Netherlands has a special system of legal protection against the decisions of the Government quite apart from the protection offered by the Civil and Criminal Codes. The civil courts may, however, provide additional legal protection against certain acts by the authorities.
132. With the introduction of the General Administrative Law Act (Algemene Wet Bestuursrecht) on 1 January 1994 the system of administrative law was reformed. The Act laid down a uniform system of procedural administrative law which all administrative courts must apply. It is based on the principle that appeals may be lodged with the administrative courts against orders within the meaning of the Act. However, before the interested party can bring his case before an administrative court, he must have first lodged an objection unless a preliminary administrative procedure has been held or Part 3.5 of the Act applied. The district court is the competent court provided the Act does not specify otherwise (sect. 8:6). An appeal against the judgement of the district court may be lodged with the Administrative Law Division of the Council of State (sect. 37 of the Council of State Act) unless appeal lies to the Central Appeals Tribunal (sect. 18 of the Social Security Appeals Act (Beroepswet)). The civil courts offer additional protection against certain actions of the authorities which cannot be appealed against before the administrative courts.
133. The demarcation of competence between the civil and administrative courts is regulated as follows. With regard to the question of whether recourse may be had to the protection afforded by the administrative legal system, the decisive factor is whether a written order or decision given by a body which may be deemed to be a government body is at issue. The definition of such a body includes not only the traditional tiers of government (central, provincial and municipal authorities) but also all other bodies which exercise government powers. The competence of the administrative courts is a broad one; however, if these courts have no jurisdiction, recourse may be had to the civil courts. Generally speaking, the demarcation of competence between administrative courts and civil courts does not give rise to problems and the system ensures that members of the public are always able to present their complaints to one court or another.
134. In the Netherlands it is the Government itself and the independent judiciary which provide legal protection in administrative matters. In this the Netherlands differs from many other countries. The procedure involved is outlined below.
135. When a government body issues an order, the order itself states how and within what period of time objections may be lodged against it. In most cases objections may be lodged with the government body itself (only in a few exceptional cases may the courts be approached directly). This allows the body concerned to address any shortcomings and thereby avoid unnecessary court proceedings. An objection need not be restricted to a claim that a statutory provision has been contravened; policy considerations may also be addressed. The individual involved is given the opportunity to explain his objections orally. The government body then reviews all aspects of its order (i.e. its lawfulness and effectiveness as policy) and issues a new order if it considers the objection well founded. If the individual in question is still dissatisfied with either the new order or the dismissal of his objection, he may lodge an appeal with the district court. Even if the government body has not reached a decision on the objection within the statutory period, the individual may nevertheless lodge an appeal with the district court, thus ensuring that a government body cannot prevent a member of the public having recourse to the courts.
136. Proceedings before the district courts are laid down in considerable detail in law. Judgement must always be pronounced in public and the grounds on which it is based clearly stated. It may declare the appeal inadmissible or unfounded, or well founded. In the latter case the contested order is rescinded and the government body in question must issue a new order which takes the judgement into account. (Appeal against the new order lies directly to the district court.) The court may also decide that a new order is unnecessary: the judgement then takes the place of the original order.
137. Appeals may also be lodged against a district court judgement, and this is stated in the judgement. The same procedure is followed as in the case of appeal to the district court. If the appeal is granted, the case is referred back to the district court concerned or is disposed of by the appeal court itself. Review of a court judgement is possible.
138. Proceedings before the courts may be divided into two stages: first the written stage, in which information is gathered and the case file assembled, and second a hearing of the facts in open court. Witnesses and experts may be called and the parties heard. Such cases are usually heard by three judges sitting together, although less complex cases may be heard by a judge sitting alone, even on appeal.
139. The institution of objection or appeal proceedings with the government body or the district court does not mean that the contested order loses its effect. In some cases this would be desirable; a separate procedure before the district court has been created, in which the court may decide that an order will come into effect only after a certain period of time has elapsed, for example after proceedings have been concluded. No appeal lies from such judgements.
140. The system of protection under the administrative law has its own special features. The idea of the separation of powers which underlies the division of competence in the Netherlands means that the courts are bound to respect the freedom of government bodies to determine policy. This is expressed in the limits on the courts' competence to review administrative orders and decisions, limits which have largely been established by case law. In brief, the courts examine whether the order has contravened any statutory provisions (including directly applicable treaty provisions within the meaning of the Constitution) and if it passes the test of "reasonability". The latter test does of course bring the freedom of administrative bodies to determine policy within the scope of the courts, although any review of such freedom is always conducted with a certain circumspection. The dividing line between the test of lawfulness and that of reasonability is becoming less and less sharp. Examination of decisions in the light of directly applicable treaty provisions that are binding on all persons has already led on several occasions to national legislation being declared inapplicable.
141. The fact that treaty provisions have actually been invoked before the courts and taken into account in reviewing contested orders can be illustrated by a judgement well known in the Netherlands concerning article 26 of the International Covenant on Civil and Political Rights. National legislation was found to be discriminating between men and women in the matter of pension rights. The court ruled that the Act in question should be declared inapplicable, and it was subsequently amended to bring it in line with article 26 of the ICCPR. Legislation is also frequently examined in the light of the provisions of the European Convention on Human Rights. In practice, the courts have broad scope for such examination of legislation.
142. Another characteristic feature of the administrative legal protection system is its accessibility to the public. This is the result of a deliberate choice on the part of the legislature. Accessibility is guaranteed by the fact that there is no charge involved when lodging an objection with the government body itself and that even though court fees in appeal proceedings are low it is nevertheless possible to obtain assistance from the State towards the cost. These are statutory provisions. Should the State refuse to provide financial assistance, this decision too can be put to appeal. If the appellant wins his case, the court fees will be reimbursed.
143. It is not compulsory to engage the services of counsel: unlike under civil and criminal law, litigants in the administrative courts may conduct their own case.
144. As stated above, the State provides legal aid either in the form of financial assistance or the assignment of counsel: the conditions governing eligibility are laid down by law. In most cases people receiving legal aid have to make a contribution, which is reimbursed if the individual concerned wins his case. In this administrative law is no different from civil and criminal law.
145. Finally, it is important to note that a government body is obliged to indicate whenever it issues an order how and within what period objections should be lodged. The same applies to court judgements. In this way, those concerned are always fully informed of the possibility of appeal.
146. In contrast to proceedings under civil law, the aim of administrative proceedings is the objective discovery of truth. In this administrative law resembles the criminal law. In principle, the court confines itself to an assessment of the individual's complaint; nevertheless, it can also go beyond the complaint itself in order to ascertain what the order or decision should be in law. The court plays an active role during proceedings, which may lead to the appeal being declared well founded on grounds other than those submitted by the appellant. However, it is unusual for the court to give a judgement which is less favourable to the appellant than the original decision of the government body (reformatio in peius). The basis for this is the belief that the individual should not be worse off after lodging an appeal with the court, otherwise this would deter people from applying to the courts.
147. Lodging an objection with the government body in question may well lead to a less favourable outcome in certain cases. Such a decision can, however, be the subject of an appeal to the courts. The government body may also in certain circumstances pay compensation.
148. In contrast to criminal and private law, in administrative law proceedings all means of evidence are in principle permitted; furthermore, the allocation of the burden of proof is a matter for the court, and dependent on the specific circumstances, rather than being laid down by law. The general rule which applies in civil procedural law of "he who claims shall provide proof" does not, on the whole, apply in administrative procedural law. In general, it is sufficient for the appellant to establish a plausible case, following which the government body has to provide cogent reasons supporting the opposite view. In this way the courts can adopt a flexible approach to questions of evidence and the burden of proof.
149. The protection afforded by the administrative law in the Netherlands derives from a balanced system with very specific characteristics which enables the courts to settle administrative disputes in an effective manner. A special feature is the preliminary stage in which objections may be lodged with the government body in question prior to appeal proceedings before the courts, which expedites the process. Those wishing to avail themselves of legal protection encounter few if any obstacles. Examination in the light of treaty provisions is a common feature.
150. Chapter 4 of the Constitution is entirely devoted to government institutions fulfilling an advisory role to the Government, and to a lesser extent also to Parliament. Pre-eminent among these institutions is the Council of State, which was set up in 1531. During the period of the Republic of the United Provinces, the Council of State was an executive and advisory body to the States General. It was partly responsible for the executive functions of the confederation of the seven provinces. When the Kingdom of the Netherlands was created the Council of State became an advisory body to the Sovereign. In the early years of the Kingdom the same function was fulfilled by the Council of Ministers and the cabinet council. There was no clear division of responsibilities, however. The introduction of ministerial accountability changed this. The Council of State survived as the only advisory body to the Government in which the Sovereign and ministers met together.
151. The Constitution outlines a few main points concerning the composition, organization and powers of the Council of State. More detailed rules are to be found in the Council of State Act (Wet op de Raad van State). The Sovereign is President of the Council of State, a role which today is purely ceremonial. The Sovereign does not have a vote in the Council. The same applies to the heir to the throne, who automatically has a seat on the Council after attaining the age of 18.
152. The Council of State further comprises a Vice-President, who in practice chairs the meetings, and up to 28 members. In addition up to 14 part-time associ