by Caroline Raat
Readers who watched the massive peace demonstrations in the 1980s in the Netherlands on TV may remember the term Hollanditis, the American term to describe the resistance against nuclear arms that spread like a virus. In those days, the Netherlands boasted on a liberal, righteous and exemplary image. The reminiscence is still heard in loud Dutch comments on Eastern European ways of dealing with the Rule of Law. The question is if these comments are also applicable on the Dutch Rule of Law, that seems to crumble rapidly. This blog is a translation of an article on the dissemination of a report of the parliamentary commission on December 17 2020, titled “Unprecedented Injustice”. In the ‘benefits affair’, innocent people were wrongfully accused of fraud and financially and mentally ruined. Up till this day, they have not been compensated. It concluded that people’s constitutional principles were harmed, not only by parliament in its legislative and controlling capacity, but also by government, the executing tax office and the judiciary system.
The latter is unique, because criticism of the judge is not done in The Netherlands. Public officials refer to a wonderful fifth place in a rule of law index that means nothing. The Dutch criticise the Polish Constitutional Court, even though the Netherlands does not even have such an institute. As of today, shall we stop being complacent and observe with former National ombudsman Brenninkmeijer that the Dutch rule of law system is eroding?
The ‘benefits affair’ is iconic for what can go wrong in the administration of justice – in which citizens should be protected against the whims of government. It would be strange, however, if this affair is unique; experts see it happen much more often. However, as with the parents who became victims of a crazy benefit system, nobody notices, the judge least of all. Citizens who have never had to deal with justice think that the judge is ‘proactive’. He or she conducts his or her own investigations, requests documents and is not impressed by any of the parties. There are indeed judges of that kind – especially cantonal court judges, some of which have popular TV-shows.
Test cast on file tampering
However, the administrative judge is usually not proactive, but ‘leans back’: He works with what the parties submit. In many cases, the burden of proof of facts and circumstances lies with the underlying civil party. That is an impossible task if the government does not give him the documents – not even after a Freedom of Information request procedure – and does not send them to the judge either. At the moment, I am conducting trial proceedings on behalf of a client on file tampering. The ‘B file’ (the process file that the government sends to the court) is used by the judge, the ‘A file’ (the file including the notice of appeal that the citizen sends, and all documents that are exchanged later) is treated in a stepchildly manner. These documents are not ordered, and often not read by the judge.
For example, I learnt from an honest court clerk that the digitally submitted documents, which end up in a failing system, are printed out at home. If the court clerk or judge tosses them away, or forgets to take them to court, they do not get the official file, and that does not benefit a level playing field! Many governments and its law firms speculate that thus, governments can very easily be proved right. They leave out pieces from the ‘B file’ and leave out important facts in their defense statement, speculating that the judge doesn’t notice. And indeed, the judge does not see it, unless his clerk is very attentive.
This is exactly what happened in the trial case. I pointed this out to the court several times, but the government was not questioned about this unfairness. In the court ruling, I read that the documents I had submitted to refute ‘facts’ that were stated by the government were not even mentioned. Are they still gathering dust at the clerk’s home?
A good example
Since ‘responsive government’ has been the latest fashion in constitutional law, we hear judges say: as long as the citizens have been heard, and we have explained the situation, then they will be satisfied. Sometimes that is all a citizen needs, but that is not enough when he is sure that the facts are wrong, and that is why the court ruling is wrong! In such a case, the citizen would really prefer a somewhat longer but careful procedure, instead of a ‘pleasant and swift trial’.
As has been pointed out, legal procedures can also go well. In a case in which quite a few people have been ruined by a malafide investment company that illicitly raised taxes for a public body – which has now been abolished for good reasons – and that went bankrupt before that tax had to be refunded to the people, they were rejected by court for a long time: “you should not sue the government, but the trustee in bankruptcy.” So they were, just like the parents in the ‘benefits affair’, left with poverty, loss, years of stress and procedures.
Until 2012, judge Van Zutphen – the current National Ombudsman – thought: I might stretch the legal system, but I have to help these entrepreneurs. According to his ruling, the government should never have gone along with this company and had to pay the people. The government got a slap on the wrist and that that is the way it should be.
The result – truth and justice – counts
Dutch citizens need a canton-like judge in cases against the government. Also at the Council of State, where the Administrative Jurisdiction Division is populated by ‘state councils’ – not by judges – that (still too often) have a background as an administrator or working for the government’s law firm. Because of this background, they unintentionally have an administrative bias. They think in the interest of government and they do not always notice that the government is not doing its job properly, as is evident from the ‘benefits affair’. That should no longer be allowed.
So, what does this mean? The judiciary must become proactive again in dealing with administrative and constitutional cases. Responsiveness is a good start, but not enough. The judge must study files in an earlier stage, read all documents carefully, and if any cases are missing, request the documents. This means that the judge should ‘improve’ rather than ‘speed up’, as the judiciary itself states.
Judges should focus on delivering quality in finding the truth, and not dogmatically clinging to ‘unwritten rules about the burden of proof’. They should walk the extra mile, not only in ‘interesting cases’, but always. And above all, they should never think: the government will probably be right. The government should be regarded as an ordinary party, just like everyone else, which must be approached with exactly the same level of trust and distrust in an unbiased and impartial fashion.
If we do not succeed in making this happen, I suggest the Netherlands keeps its big mouth shut about Poland from 2021 onwards.
The author, dr. Caroline Raat LLM, MA is an author, researcher and lecturer in the field of constitutional law and public administration and expert in integrity issues.
Photo: Renske Leijten, one of the MPs, also a member of the parliamentary committee of inquiry, which plays an important role in the benefits affair.