The rule of law

Several participants underlined their appreciation of the EU rule of law review mechanism, which acted as a catalyst for debates at national level and in relation with the EU. Participants in this session expressed fears that the strong rule of law culture established in the Netherlands might fade away, given the political direction that the country was taking after the 2023 general election. It was explained that several anti-constitutional measures (notably in the area of migration policy) had appeared in the manifestos of the political partiesthat were in the negotiations on a possible future government coalition. In a country normally characterised by the self-restraint of the executive in its relations with the judiciary, the point was made that the appointment of judges ultimately depended on the executive and legislative arms of government, and this called for caution regarding possible future attempts by politicians to influence the judiciary. The setting of minimum thresholds for penalties in law was mentioned as another example of politicians’ restrictions on judges’ autonomy. It was also regretted that some politicians tended to comment on judicial decisions. Several participants underlined the fact that the quality of justice had been severely affected by the disproportionate workload faced by judges and other judicial personal. This was the result of sizeable budgetary cuts in recent years, which had led to a shortage of judiciary staff; this in turn had had an impact on the time and attention devoted to cases. It was felt that the judiciary was facing a generational challenge, with difficulties in recruiting new judges to compensate for an aging judicial profession. Participants believed that alternative mechanisms like mediation or “agreements for the sake of judicial economy” (when the public prosecutor and the defence agreed on a joint proposal to submit to the judge in order to settle a criminal case) could marginally reduce the backlog of cases, but that the general approach to justice should never affect the right to legal remedy. As far as administrative justice was concerned, one participant remarked that the childcare benefits scandal had led to jurisprudence reinforcing the necessity and proportionality assessments in administrative matters. Several participants considered that the polarisation of society had led to an increase in pressure on judges and lawyers. A rhetoric was growing which associated lawyers with their clients’ alleged crimes, for example associating them with organised crime or the so-called “asylum industry”. Participants explained that threats were multiplying on- and off-line, from third parties and also sometimes from lawyers’ clients, and that this could on occasion lead to physical attacks (a lawyer was murdered in 2019). Lawyers and judges expected more action by the authorities to ensure their protection and raise awareness about their roles. Participants also hoped for better guarantees to be offered on access to justice. One participant explained that funds for legal aid depended on political arbitration carried out annually on the budget allocated to justice matters. A long-term plan was called for to secure an adequate level of funding for legal aid over several years. It was acknowledged that there had been a previous re-evaluation of funding for legal aid, but it was also felt that this increase had already been cancelled out by inflation. One participant observed that legal aid also needed to be extended to cover administrative procedures and the preliminary phases before the opening of a court case – given that the lack of legal aid in the childcare benefits scandal had also contributed to the scale of its impact. One participant expressed regret at the fact that the confidentiality of lawyer-client contacts had been under pressure because of developments in the working methods of the Public Prosecution Service, which tended to infringe on the principle of confidentiality in the conduct of investigations. It was also pointed out that prisoners’ contacts with the outside world, including with their lawyers, had become very strictly limited in high security prisons. The Dutch authorities noted that the confidentiality of lawyer-client contacts would be one of the aspects examined in an upcoming review of the criminal procedure code.

One participant considered that, despite the Open Government Act, there was still too much of a delay in accessing documents, sometimes because of bureaucratic slowness, but sometimes also because of a supposed culture of secrecy. The Dutch authorities explained that they were aware of this issue and that the lack of public confidence that this had created had been identified in independent audits. They pointed to a number of measures taken to address the issue and promote a genuine open government culture, including targeted training for civil servants. One participant observed that the Netherlands had recently reached its lowest ever score in the Corruption Perceptions Index, which denoted a worrying trend. It was felt that the Netherlands was lagging behind its neighbours as regards lobbying transparency and interest representation. The Dutch authorities announced that they were reviewing their tools for the transparency of interest representation in the context of the European discussions on the Defence of Democracy package. Another participant acknowledged that the EU “Whistle-blowers” Directive had been transposed into national law, but called for more action to increase socio-psychological and financial support for whistle-blowers and to prevent retaliation against whistle-blowers in companies. The participant also expressed regret at the fact that the Netherlands had not done enough to reduce the risk of money laundering, notably in the area of transparency regarding ultimate beneficial owners. Yet another participant expressed regret at the lack of investigations into the potential involvement of Dutch companies in corruption abroad. The Dutch authorities announced that the dedicated corruption investigation team of the Fiscal Intelligence and Investigation Service had recently been doubled in size.