Supreme Court of the Netherlands

Kingdom of the Netherlands
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The Supreme Court of the Netherlands (Dutch: Hoge Raad der Nederlanden pronounced [ˈhoːɣə raːd dɛr ˈneːdərlɑndə(n)], literally "High Council of the Netherlands") is one of the highest courts of the Netherlands, Curaçao, Sint Maarten and Aruba.^[2] The Court was established on 1 October 1838 and sits in The Hague, Netherlands.^[3]

The jurisdiction of the Supreme Court is limited primarily to civil, criminal and administrative cases, the latter type being shared with the adjudicative division of the Council of State, the Central Appeals Tribunal (Centrale Raad van Beroep) and the Trade and Industry Appeals Tribunal (College van Beroep van het bedrijfsleven). The Court has the authority to quash rulings by appellate courts (a procedure known as cassation) and thereby establishes case law, but only if the lower court applied the law incorrectly or the ruling lacks sufficient reasoning. The facts determined in the lower court are not reviewed and are accepted as correct.^[4] According to Article 120 of the Constitution, the Court may not rule on the constitutionality of laws passed by the States General and treaties. With the exception of Sint Maarten, the Court has thus no competence for judicial review with respect to the Constitution.^[5][6]

The Supreme Court currently consists of 36 judges: a president, 6 vice-presidents, 25 justices (raadsheren, literally "Lords of the Council") and 4 justices in exceptional service (buitengewone dienst).^[7] All judges are appointed for life, until they retire at their own request or mandatorily at the age of 70.^[8]

History

The development of cassation in the Netherlands was heavily influenced by the French during the Batavian Revolution at the end of 18th century. The establishment of the Supreme Court on 1838 brought an end to the Grote Raad van Mechelen and its successor the Hoge Raad van Holland, Zeeland en West-Friesland, which both served as high appellate courts.^[3]

Authority

In the Netherlands a case is first heard by one of the ten district courts (rechtbanken). Afterwards, either side may appeal to one of the four courts of appeal (gerechtshoven). Finally, either party may file a cassation appeal to the Supreme Court.

Composition

Justices of the Supreme Court are appointed by royal decree, chosen from a list of three, advised by the House of Representatives on the advice of the Court itself. The justices are, like every other judge in the Netherlands, appointed for life, until they retire at their own will or after reaching the age of 70. Upon reaching the age of 60, a justice may change status to exceptional (also known as special) service, with the effect that the justice no longer plays a full role at the Court.

The Supreme Court is divided into four chambers: the first or civil chamber, the second or criminal chamber, the third or tax chamber and the fourth or 'ombuds' chamber. The members of the fourth chamber are chosen ad hoc, but will include the President of the Court.^[8]

Current justices

As of January 2016, the first three chambers are composed as follows:^[8]

Second World War

During the German occupation, the Supreme Court kept functioning. In November 1940 the occupiers forced the president, Judge L. E. Visser, to resign because he was Jewish. Visser's colleagues did not protest. The members who remained also signed a compulsory declaration about Aryans.

After the liberation, people reproached the Court for a weak and legalistic attitude. The Court wished above all to guarantee the continuity of its jurisdiction and not to become involved in politics. However such chances as there were to take a stand on principle against the Germans were largely missed. The Justices either omitted to give a moral example or felt they were not in a position to do so.^[9] This was demonstrated in a so-called "Test sentence", (Supreme Court, 12 January 1942, NJ 1942/271), in which the Supreme Court ruled that a Dutch judge could not contest the decrees of the occupying force on the basis of international law, in particular the 1907 regulation prescribed for a country at war. In this the Supreme Court followed the advice of the barrister-general A. Rombach. The judgment concerned a case in which a man was sentenced by the economic judge for an "economic offence" (the purchase of pork without valid coupons). The counsel for the accused, P. Groeneboom, argued in his defense before the Supreme Court on 27 October 1941 that the judge had the authority to challenge the regulations of the occupying force on the basis of the regulation prescribed for a country at war, the decree of the Führer and the first regulation of the government commissioner. When the Supreme Court (in a judgment of 12 January 1942) denied the possibility of contesting rules issued by the German government, the Netherlands followed what was the rule in Germany and Italy too. On the basis of two emergency measures Hitler had the authority to issue incontestable rules, and the legal establishment acknowledged not it was not allowed to challenge "political" measures. "Political" in this case was what the political authorities considered to be political. In Italy the Court of Appeal recognized the free authority of Mussolini and the judge's lack of authority to control it.^[10] Meihuizen says about the Dutch test sentence: "A sentence with far-reaching consequences because with this, barristers were not given the chance to bring before the judge the question of the validity of legislation which had been issued by or on behalf of the occupier."^[11]:85 The Supreme Court defended this sentence in retrospect with the conjecture that the Germans would never accept their decrees being contested and might have intervened in a negative way with the legal establishment, resulting in a further diminishing of citizens' legal protection.^[9]

In 1943 the seat of the Supreme Court was temporarily moved from The Hague to Nijmegen. With the liberation of Nijmegen in September 1944, this led to a situation in which, although the seat was on liberated ground, most of the Justices found themselves still in occupied territory. After the war, there was not much done to clear matters; lawyers who had collaborated with the Germans generally kept their jobs or got important other positions. A crucial role in this affair was played by J. Donner, who became president of the Supreme Court in 1946.^[9]

References

External links

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