Case Selection in the Supreme Court of the Netherlands – Inspired by Common Law Supreme Courts? Elaine Mak1
1. Introduction In his book Final Judgment, Alan Paterson outlines how the organisation and working methods of the Law Lords and their successor the Supreme Court of the UK have evolved over the years. He compares particularities concerning inter alia judicial appointments, the role of judicial assistants and the occurrence of dissenting opinions to the characteristics of supreme courts’ functioning in other common law jurisdictions, such as the United States, Canada and Australia. 2 From a continental-European perspective, Paterson’s analysis regarding the mechanism of leave to appeal and the collegial interaction between the Justices of the Supreme Court in this context3 is of particular interest in light of a recent procedural reform concerning case selection at the Hoge Raad der Nederlanden (Supreme Court of the Netherlands). The Hoge Raad is the final national instance in civil, criminal and tax cases in the Netherlands. It is modelled on the French Cour de cassation, meaning that the Court only decides on questions of law, not on questions regarding the facts of cases. Moreover, the Court has to give judgment in all cases which are submitted to it.4 Because of the latter characteristic, the Hoge Raad has a much larger caseload than the Supreme Courts in common law jurisdictions.5 However, two procedural mechanisms allow the Hoge Raad to deal with cases in an efficient manner and focus on relevant cases in terms of public importance and the development of the law. Article 81 of the Judiciary Organisation Act provides for the dismissal of cases with a shortened reasoning. More significantly, the new Article 80a of the Judiciary Organisation Act, which took effect on 1 July 2012, enables the Hoge Raad to dismiss certain appeals directly at the beginning of the cassation procedure.6 This article addresses the question: To what extent has the reform of the Hoge Raad’s procedure been inspired by the procedures and experiences in common law jurisdictions? The article draws on available quantitative and qualitative information from the website and annual reports of the Hoge Raad and its common law counterparts in the UK, the United States and Canada. This information is connected with Alan Paterson’s analysis regarding the Supreme Court of the UK. Moreover, reference is made to information obtained in interviews
1
Endowed Professor of Empirical Study of Public Law, in particular of Rule-of-Law Institutions, at Erasmus School of Law (Erasmus University Rotterdam). Contact:
[email protected]. 2 A Paterson, Final Judgment: The Last Law Lords and the Supreme Court, Oxford: Hart Publishing 2013, 1132 A Paterson, Final Judgment: The Last Law Lords and the Supreme Court, Oxford: Hart Publishing 2013, 113117, 255-257, 310. 3 ibid, 29-31, 66-69. 4 Judiciary Organisation Act 1827 (Netherlands) (Wet op de rechterlijke organisatie), s 79. 5 See below, section 3. 6 See below, section 2.
with Supreme Court Justices, conducted for a previous research project. 7 Firstly, the organisation and procedures of the Hoge Raad are outlined (Section 2). Next, the article continues with an analysis of the introduction and first experiences with Article 80a of the Judiciary Organisation Act (Section 3). Thirdly, a comparison is made with the existing mechanisms of case selection in the Supreme Courts of the UK, the United States and Canada (Section 4). Some concluding remarks complete the article (Section 5). 2. Jurisdiction and organisation of the Hoge Raad The Dutch judicial system is based on the French model, which was introduced in the Netherlands during the French occupation (1795-1813). 8 This explains the existence of separate highest administrative courts besides the Hoge Raad.9 At the level of final appeal, the highest administrative court with general jurisdiction is the Afdeling bestuursrechtspraak Raad van State (Administrative Jurisdiction Division of the Council of State).10 In specific fields of administrative law, final jurisdiction rests with two specialised tribunals: The Centrale Raad van Beroep (Central Appeals Tribunal) for social security and civil service cases and the College van Beroep voor het bedrijfsleven (Trade and Industry Appeals Tribunal) for cases in the field of social-economic law and cases arising under specific laws, including the Competition Act and the Telecommunications Act.11 The Hoge Raad is based at the Lange Voorhout in The Hague, occupying the monumental Huis Huguetan at Numbers 34–36 and Huis Bentinck at Number 7.12 The Court has a number of additional competences besides its main task of judging appeals for cassation in civil, criminal and tax cases. These competences include the advice to the government concerning legislative bills or reform plans for the judiciary,13 the judgment of applications for cassation in the interests of the uniform application of the law (‘cassatie in het belang der wet’),14 the judgment of applications by the Procurator-General concerning the suspension or discharge of judges,15 and the judgment of public-office offences committed by members of the States General, ministers and state secretaries.16 On 1 July 2012, a law entered into force which allows the lower courts in the Netherlands to ask the Hoge Raad for a preliminary ruling on legal questions which have arisen in a large number of similar cases. This procedure is limited to civil cases.17 In the judgment of cases, the Hoge Raad cannot review parliamentary acts in light of the Constitution.18 However, the court, like all courts in the Dutch system, is 7
E Mak, Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts, Oxford: Hart Publishing 2013. An explanation concerning the methodology of the qualitative interviewing is provided on pages 62-67. 8 E von Bóné, ‘The Introduction of the French Judicial Organisation and the Codification in the Netherlands during the French Period (1795-1813)’, in J Zlinszky (ed), Publicationes Universitatis Miskolciensis, sectio Juridica et Politica, Miskolc: Miskolci Egyetem 1995, 17-32. 9 Concerning the five highest courts in France, see John Bell’s contribution to this special issue. 10 www.raadvanstate.nl. 11 www.rechtspraak.nl. 12 Currently, a new court building is constructed near the Malieveld in The Hague. 13 Judiciary Organisation Act 1827 (Netherlands), s 74. 14 ibid s 78(1). 15 ibid s 111. 16 Constitution 1983 (Netherlands) (Grondwet voor het Koninkrijk der Nederlanden), art 119. 17 Supreme Court Preliminary Questions Act 2012 (Wet prejudiciële vragen aan de Hoge Raad), Staatsblad 2012, 65; Judiciary Organisation Act 1827 (Netherlands), s 81a. 18 Constitution 1983 (Netherlands), art 120.
allowed to decide on the conformity of acts of the Parliament with provisions of international treaties binding the state.19 The Hoge Raad currently consists of the President Maarten Feteris, who took office in November 2014,20 six Vice-Presidents, 24 Supreme Court judges and four extraordinary judges. 21 The judges are distributed over three chambers: the Civil Law Chamber, the Criminal Law Chamber and the Tax Law Chamber. Cases in these Chambers are judged by a panel of three or five judges. Some judges of the three Chambers are also members of the Court’s Fourth Chamber, which decides on cases concerning the suspension or discharge of judges, motions of disqualification of Justices in cases before the Hoge Raad and submitted complaints with the Procurator-General regarding the behaviour of judges.22 The ProcuratorGeneral’s Office at the Hoge Raad consists of the Procurator-General, the Deputy ProcuratorGeneral, 21 Advocates-General and four extraordinary Advocates-General.23 This Office provides a ‘conclusie’ (opinion) to the Court in most cases, rather like that of the AdvocateGeneral before the Court of Justice of the European Union (CJEU), and thus acts as an advisor to the Court on how to decide the questions of law raised in the case at hand. The Advocates-General work in one of the three main fields of competence of the Hoge Raad. The Court has a support staff, which is organised in the Court’s Research Service (Wetenschappelijk Bureau). Judges in the Criminal and Tax Law Chambers have personal judicial assistants. In the Civil Law Chamber, two assistants are available for all judges together. 3. Case selection at the Hoge Raad: introduction and first experiences The introduction of the new procedure of Article 80a of the Judiciary Organisation Act was welcomed by the Hoge Raad as a means to reduce its caseload and to create an opportunity to focus on the most important cassation cases. This Section briefly outlines the background to the introduction of the procedure and its main characteristics (Section 3.1). The first experiences with the procedure in 2013 provide insight into its added value for the Hoge Raad (Section 3.2.). 3.1. Introduction of the new procedure The Hoge Raad did not have the possibility to select cases until a few years ago. In 2011, the last year in which the new procedure of case selection did not yet apply, judgments were given in 610 cases by the Civil Law Chamber, in 3,868 cases by the Criminal Law Chamber and in 905 cases by the Tax Law Chamber.24 An exception to the general rules of the Court concerned the possibility for the Advocates-General in tax cases (but not in criminal or civil
19
Constitution 1983 (Netherlands), arts 93 and 94. The new Court President’s inaugural speech ‘De Hoge Raad tot 2020’ [The Hoge Raad until 2020] can be consulted at www.rechtspraak.nl. Feteris, who was Vice-President of the Hoge Raad’s Tax Law Chamber before becoming President, is the second Court President who did not obtain the office on the basis of seniority but who was nominated by his colleagues. 21 www.rechtspraak.nl. 22 www.rechtspraak.nl. 23 ibid. 24 Hoge Raad (Netherlands), Verslag over 2011, 64, available at www.rechtspraak.nl. 20
cases) to select the cases for which they will write an opinion addressed to the court.25 Furthermore, the Court had the possibility to dismiss appeals with a shortened reasoning if it considered that there were no grounds for cassation and the case did not raise any legal questions which should be answered in the interest of legal uniformity or the development of the law.26 However, these cases would still have to go through the entire cassation trajectory, and in this way took up a considerable amount of time and resources. In 2011, 337 appeals were dismissed by the Civil Law Chamber on the basis of this procedure.27 In the Criminal Law Chamber, this occurred with regard to 1,165 appeals28 and in the Tax Law Chamber with regard to 413 appeals.29 In order to improve the quality and efficiency of the cassation procedure in the Netherlands, a proposal for reform was prepared by a committee chaired by Supreme Court Justice Fred Hammerstein. This proposal, which was published in 2008, encompassed, inter alia, the introduction of a general mechanism of case selection. 30 A Bill based on the recommendations of the Hammerstein Committee was submitted to the Dutch Parliament in 2010 and accepted by the Senate in March 2012.31 The new law entered into force on 1 July 2012, and the Hoge Raad anticipated to have adapted its working methods by then.32 The new Article 80a of the Judiciary Organisation Act 1827 allows the Hoge Raad to dismiss an appeal directly at the beginning of the cassation procedure if this appeal apparently cannot lead to cassation or if the applicant apparently does not have a sufficient interest. The mechanism of case selection, as well as the procedure of preliminary rulings in civil cases, was introduced with the aim of achieving a better use of the scarce capacity of the Hoge Raad. The two mechanisms enable the Hoge Raad to focus its attention on its core tasks, meaning the judgment of cases in which the Court can contribute to the development of the law and in which its involvement is required to ensure legal protection in individual cases.33 The procedure of case selection provided in Article 80a of the Judiciary Organisation Act has the following characteristics. The appeal will be discussed and decided by a panel of three judges, of which one will act as president.34 The direct dismissal of an appeal can only occur after the Court has considered the opinion of the Procurator-General’s Office.35 This means that cases are evaluated by an Advocate-General first. If the Advocate-General concludes that a case should not be admitted on the basis of Article 80a, this conclusion is sent to the appellant who has the opportunity to submit a written response, a so-called ‘Borgers letter’.36 25
An Advocate-General interviewed for my previous research project on courts and globalisation suggested that this exception relates to the absence of mandatory legal representation in tax cases. Mak, Judicial DecisionMaking in a Globalised World, 55. 26 Judiciary Organisation Act 1827 (Netherlands), s 81. 27 Hoge Raad (Netherlands), Verslag over 2011, 71, available at www.rechtspraak.nl. 28 ibid, 83. 29 ibid, 94. 30 Hammerstein Committee, Improving Cassation Procedure (The Hague, February 2008), available at www.rechtspraak.nl. 31 Kamerstukken II 2010/2011, 32 576; Kamerstukken I 2011/2012, 32 576; Cassation Procedure Reinforcement Act 2012 (Wet Versterking cassatierechtspraak), Staatsblad 2012, 116. 32 ‘Meer aandacht Hoge Raad voor kerntaken’ (The Hague, 16 March 2012), available at www.rechtspraak.nl. 33 Hoge Raad (Netherlands), Verslag over 2013, 7, available at www.rechtspraak.nl. 34 Judiciary Organisation Act 1827 (Netherlands), s 80a(3). 35 Judiciary Organisation Act 1827 (Netherlands), s 80a(1). 36 Hoge Raad (Netherlands), Verslag over 2013, 24, available at www.rechtspraak.nl.
In case the Hoge Raad follows the conclusion of the Advocate-General, the reasoning of the judgment does not need a further substantiation besides the decision of inadmissibility in light of the criteria mentioned in Article 80a(1).37 The Hoge Raad can of course decide not to follow the conclusion of the Advocate-General and admit the case to the cassation procedure. 3.2. First experiences with the new procedure The first experiences were different for the three Chambers of the Hoge Raad. We will first consider the relative success of the new procedure in the Criminal Law Chamber and next discuss the slightly less promising outcomes in the Civil Law Chamber and Tax Law Chamber. Criminal Law Chamber The Hoge Raad in its Annual Report 2013 considered that the new procedure of Article 80a has proven its value already in the first full calendar year of its application. The Criminal Law Chamber, in particular, has benefited from the possibilities provided by this provision to handle cases which do not concern the Court’s core tasks.38 The Chamber found 868 out of 4,173 decided cases to be directly inadmissible.39 Furthermore, 828 appeals were dismissed with the shortened reasoning allowed by Article 81 of the Judiciary Organisation Act.40 With regard to criminal cases, the Hoge Raad handed down a landmark judgment already on 11 September 2012, that is: a few months after the entry into force of the selection procedure.41 In this judgment, the Court listed examples of cases which can be considered inadmissible in light of the criteria of Article 80a. These examples concern for the most part appeals which in the past were dismissed with the shortened reasoning allowed by Article 81 of the Judiciary Organisation Act.42 In 2013, the Criminal Law Chamber handed down several judgments which added further instances of inadmissibility to the list.43 Conclusions of the Procurator-General’s Office were not followed in a number of cases, including a case in which the Hoge Raad decided to depart from its case law until then.44 In other cases, the Hoge Raad did dismiss the appeal, but chose to give a more extensively reasoned judgment in order to address a legal aspect which the Court deemed important.45 The Criminal Law Chamber considered that the procedure of Article 80a was mostly used to dismiss cases focusing on questions of a factual nature. The procedure was also relevant with regard to complaints about the reasoning of decisions taken by the lower courts, including procedural decisions (for example concerning the hearing of witnesses) and decisions concerning the sentence imposed.46
37
Judiciary Organisation Act 1827 (Netherlands), s 80a(4). Hoge Raad (Netherlands), Verslag over 2013, 7, available at www.rechtspraak.nl. 39 ibid, 82. 40 ibid. 41 Hoge Raad, 11 September 2012, ECLI:NL:HR:2012:BX0132. 42 Hoge Raad, 11 September 2012, ECLI:NL:HR:2012:BX0132. 43 Hoge Raad (Netherlands), Verslag over 2013, 24, available at www.rechtspraak.nl, discussing three judgments. 44 Tongzoen II, Hoge Raad, 12 maart 2013, ECLI:NL:HR:2013:BZ2653, NJ 2013, 437. 45 Hoge Raad (Netherlands), Verslag over 2013, 25, available at www.rechtspraak.nl. 46 ibid. 38
In November 2014, the Procurator-General announced that his Office in the future will not prepare conclusions in Article 80a cases anymore. He argued that under the Judiciary Organisation Act no obligation exists for the Procurator-General’s Office to prepare conclusions in all cases. Moreover, these conclusions are no longer needed in light of the clarifications given by the Hoge Raad in its judgments concerning the types of appeals which will be found inadmissible.47 Civil Law Chamber According to the Hoge Raad, the procedure of Article 80a had less added value regarding the reduction of the Civil Law Chamber’s caseload. In 2013, 73 out of 607 cases were found to be inadmissible on the basis of Article 80a.48 A further 239 appeals were dismissed with the shortened reasoning allowed by Article 81.49 The Chamber observed in its Annual Report 2013 that other influences might be more significant for its caseload than the selection procedure. In quantitative terms, the Chamber noticed a decrease in submitted cases, which can be connected with the lower number of cases brought to the Courts of Appeal as well as with the increase of court fees for appeal and cassation procedures.50 In qualitative terms, the size and complexity of cases to be decided on the merits is still increasing. Reasons for this relate to the influence of European Union law and international treaty law and the steady number of cases concerning significant interests.51 Tax Law Chamber Concerning the Tax Law Chamber, 132 cases out of a total number of 888 cases decided in 2013 were considered to be directly inadmissible on the basis of Article 80a of the Judiciary Organisation Act.52 Cassation proceedings in these cases took 175 days on average, which is much less than the average of 307 days for cases judged on the basis of Article 81 of the Judiciary Organisation Act.53 Two groups of cases which stood out concerned: 1) requests for the reopening of a case which were not backed up by the presentation of a novel element; 2) specific types of tax law cases in which factual aspects are predominant or in which the statutory law grants appeal only to a limited extent. Other judgments of direct inadmissibility concerned evidently unfounded complaints about the reasoning of judgments and evidently incorrect views regarding the meaning of the applicable law.54 On the basis of Article 81 of the Judiciary Organisation Act, 317 appeals in tax cases in 2013 were dismissed with a shortened reasoning.55 Assessment of experiences The numbers presented in Table 1 demonstrate the effects of the new procedure of Article 80a of the Judiciary Organisation Act on the number of appeals which had to be decided on the merits by the Hoge Raad. 47
Procurator-General’s Office, 16 December 2014, ECLI:NL:PHR:2014:2304. Hoge Raad (Netherlands), Verslag over 2013, 80, available at www.rechtspraak.nl. 49 ibid. 50 ibid, 10. 51 ibid, 10-11. 52 ibid, 84. 53 ibid, 41. 54 ibid. 55 ibid, 84. 48
Cases decided Article 81 Article 80a Total 80a and 81
Civil 610
2011 Criminal 3,868
Tax 905
Civil 607
2013 Criminal 4,173
Tax 888
337 -
1,165 -
413 -
239 73
828 868
317 132
337
1,165
413
312
1,696
449
Table 1: Impact of Article 80a on the Hoge Raad’s decision-making
The overview clarifies that the new procedure has not had a significant effect on the total number of appeals which could be dismissed without a judgment on the merits in the Civil Law Chamber and in the Tax Law Chamber of the Hoge Raad. Both Chambers still had to judge approximately 51% of the total number of cases on the merits. Nonetheless, both Chambers might save time because of the shift of about one third of their dismissals to the shorter procedure of Article 80a instead of that of Article 81. The Criminal Law Chamber has benefited most, as it was able to dismiss 40% of the total number of appeals on the basis of Articles 80a and 81 together in 2013. In 2011, the Criminal Law Chamber dismissed only 30% of the appeals on the basis of Article 81. 4. Comparison with Supreme Courts in common law jurisdictions To what extent can the procedural reform at the Hoge Raad be considered successful in terms of achieving a selection of the most significant cases for judgment on the merits? Where did the Hoge Raad look for inspiration during the ‘design phase’ of the new procedure of case selection? A comparative legal perspective can give guidance for answering these questions. Indeed, in light of the proposal of the Hammerstein Committee,56 an interest developed within the Hoge Raad itself concerning the functioning of systems of case selection in other European countries. The Hague Institute for the Internationalisation of Law (HiiL)57 was considered a helpful provider of contacts with judges in foreign jurisdictions and a helpful organiser of exchanges concerning institutional questions. On the topic of case selection, HiiL and the Hoge Raad organised a seminar in The Hague in April 2010, reuniting judges of the Hoge Raad and their counterparts from France, Finland, Spain and Denmark.58 The interest in the practices of highest courts in other continental-European jurisdictions can be understood in light of their shared civil law background. Nonetheless, the selection of cases is a much more prominent feature of final appeal in common law jurisdictions, where it is a core element of the procedure at the Supreme Courts. Therefore, it is interesting to analyse whether the procedural reform at the Hoge Raad was in some way influenced by the common law practice. Firstly, we will consider the comparability of jurisdiction and organisation of the Hoge Raad and the Supreme Courts of the UK, the United States and 56
Hammerstein Committee, Improving Cassation Procedure. www.hiil.org. 58 HiiL, ‘Managing Workloads at Highest Courts through Case-Selection’, www.hiil.org/insight/managing-workloads-at-highest-courts-through-case-selection. 57
available
at
Canada (Section 4.1). Next, the analysis compares the experiences with case selection procedures in these three common law courts with the recent experiences of the Hoge Raad (Section 4.2). Finally, the context of case selection is taken into account by addressing the influence of counsel and judges on the functioning of the available mechanisms (Section 4.3). 4.1. Jurisdiction and organisation Some notable differences exist regarding the jurisdiction and organisation of the Supreme Courts of the UK, the United States and Canada in comparison with the Hoge Raad, including the competence to judge questions of fact, the number of judges, the available judicial assistance and the caseload that the courts have to deal with. In particular, judges of the Supreme Courts in the three common law jurisdictions are supposed to be generalists, whereas internal specialisation is formalised in the Hoge Raad’s Chambers.59 Furthermore, the Hoge Raad benefits from a large research staff and assistance from the ProcuratorGeneral’s Office and its internal Research Service. The common law Supreme Courts have a limited number of judicial assistants in comparison. However, the high caseload of the Hoge Raad entails that judges can spend relatively little time on each case when compared to their common law counterparts.60 The Hoge Raad, like the French Cour de cassation on which it was modeled, very much resembles the Court of Appeal of England and Wales with regard to competences of review, composition and caseload. Moreover, as a result of the mechanism of leave to appeal, the Court of Appeal in fact is the final court in most civil and criminal cases arising in England and Wales. However, cases which require legal interpretation more often than not have public importance and will mostly make it to the final instance, even in the British system of case selection by the Supreme Court. In this sense, the Hoge Raad’s tasks of development of the law and guaranteeing legal protection in the final instance are more similar to the tasks of the UK Supreme Court than the Court of Appeal of England and Wales. Indeed, when focusing on similarities, the Hoge Raad and common law Supreme Courts share the role of guardian of the uniformity of the law, protector of fundamental rights and developer of the law in the domestic legal context.61 The task concerning the development of the law is apparent in the criteria for case selection of the common law Supreme Courts, which include the need for clarity on the interpretation of the law. This task can also be identified in the jurisdiction of the highest courts in civil law systems. Indeed, the courts of cassation cannot decide questions concerning the facts of cases, but have solely been entrusted the deciding of legal questions.62 In the globalised legal context, this task of developing the law has gained new momentum through the development of legal exchange between the highest national courts and courts in other jurisdictions. From interviews with judges, a picture emerged of shifting patterns of authority and autonomy, which materialise in horizontal and vertical communication63 between courts.64 The mechanism of case selection 59
Information about the procedure of selection and appointment of judges and on the demands of specialisation in each of the chambers of the Hoge Raad has been made available to the public, see www.rechtspraak.nl. 60 See below, section 4.2. 61 Mak, Judicial Decision-Making in a Globalised World, 67, 69-83. 62 See above, section 1. 63 AM Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99. 64 Mak, Judicial Decision-Making in a Globalised World, 78-83.
aims to enable the Hoge Raad to focus more on its core tasks as a national highest court. This emphasis on the judgment of ‘cases that matter’ might have as a consequence that the Hoge Raad’s practice and its visibility in society will come to resemble the common law Supreme Courts more. The exchange of ‘best practices’ with these courts might further stimulate this development. 4.2. Experiences with case selection An analysis of the mechanisms of leave to appeal in the Supreme Courts of the UK, Canada and the United States provides insight into the criteria for admission of cases and on the number of judgments handed down by these Courts. 65 This information can then be connected to the analysis of the Hoge Raad’s procedures based on Articles 80a and 81 of the Judiciary Organisation Act. Supreme Court of the UK Concerning the UK Supreme Court, appeal is possible in cases where leave to appeal has been granted by the lower court—in most cases this is the Court of Appeal of England and Wales—or where a case has been admitted by the Supreme Court itself. The criterion for case selection is the ‘general public importance’ of arguable points of law.66 Applications for permission to appeal are decided by a panel of three judges. Generally, the panel considers only the written applications. However, occasionally an oral hearing is organised. During the Court’s 2013-2014 term, this occurred once.67 The Supreme Court’s financial year runs from April until March.68 Between 1 April 2013 and 31 March 2014, 229 applications for permission to appeal were submitted and 81 were granted. The Supreme Court heard 120 appeals and judgments were given in 115 cases.69 In 56 of the decided cases, the appeal was allowed.70 Supreme Court of Canada Cases can come to the Supreme Court of Canada if leave to appeal is granted by a panel of three judges on the Court. Leave to appeal is only given if a question of public importance is at stake or if an important legal issue is concerned which warrants the consideration of the Court.71 Beside the cases selected through the leave-to-appeal system, the Supreme Court also decides on ‘as of right’ appeals (including certain serious criminal cases, and appeals from provincial references), and on questions referred to it by the federal government.72 65
See ibid, 37-45 concerning the number of cases handled by the Supreme Courts in previous years. www.supremecourt.uk/about/role-of-the-supreme-court.html. 67 Supreme Court of the UK, Annual Report and Accounts 2013-2014, 24, available at https://www.supremecourt.uk/docs/annual-report-2013-14.pdf. 68 This time period corresponds with the Supreme Court’s financial year, which is defined by s 54(3) of the Constitutional Reform Act 2005. Section 54(1) of this Act provides that ‘[a]s soon as practicable after each financial year, the chief executive of the Supreme Court must prepare a report about the business of the Supreme Court during that year’. 69 Supreme Court of the UK, Annual Report and Accounts 2013-2014, 24, available at https://www.supremecourt.uk/docs/annual-report-2013-14.pdf. 70 ibid, 26. 71 Supreme Court Act 1985 (Canada), ss 40(1) and 43(3). 72 ibid ss 35.1–39 and 53. 66
Concerning the Supreme Court of Canada, the number of applications for leave to appeal which were granted between 2004 and 2014 fluctuated between 9 and 15 per cent of the applications submitted to the Court.73 In 2013, 510 new cases were filed. These concerned 491 applications for leave to appeal and 18 appeals as of right. In 2013, 529 applications for leave to appeal were submitted to panels of the Court for decision and 53 appeals were granted. The Court heard 75 appeals over 65 hearing days, and handed down 78 judgments.74 The appeal was allowed in 39 cases and dismissed in 39 other cases.75 The judgment was unanimous in 53 cases, and split in 25 cases.76 The entire procedure, from the application for leave to appeal until the rendering of the Court’s judgment, on average took almost 18 months.77 Regarding Canada, an interviewed judge 78 indicated that the Supreme Court of Canada mostly leaves civil cases to the Court of Appeal of Québec, even though the Supreme Court has competence to decide on appeals from these cases. This observation is corroborated by the court statistics, which show that a relatively lower number of applications for leave to appeal are accepted from Québec than from some of the other provinces. The reason for this, according to the interviewed judge, is related to the Canadian cultural context, and the respect which the Supreme Court wants to show with regard to judgments by the Québec courts. Supreme Court of the United States The US Supreme Court only reviews a small amount of cases, which are considered to have particular public importance. The majority of appeals from federal trial courts’ judgments are dealt with by the Circuit Courts of Appeal, established by the Judiciary Act 1925.79 Cases can be brought to the Supreme Court through the procedure in an original action, authorised appeals from US district court decisions, the procedure on a certified question, and the procedure on a petition for an extraordinary writ (such as a writ of prohibition, a writ of mandamus, or a writ of habeas corpus).80 Most cases reach the US Supreme Court on the basis of its jurisdiction on writ of certiorari. In these cases, the Court has discretion to allow or dismiss appeals. The criterion for issuing a writ of certiorari is that compelling reasons exist for allowing the appeal. In principle, this will be considered to be the case if a ruling of the Supreme Court on the interpretation of the law is required, for example if a conflict has arisen between the case law of lower courts in the US judicial system.81 An interviewed judge indicated that policy implications might be a further factor taken into account by the judges when considering if a case should be admitted. On the basis of a list of selected cases made
73
Supreme Court of Canada, Statistics 2004 to 2014, 4, available at http://www.scc-csc.gc.ca/casedossier/stat/pdf/doc-eng.pdf. 74 ibid. 75 ibid 8. 76 ibid 9. 77 ibid 4. 78 See the project mentioned above (note 7). 79 Judiciary Act 1925 (43 Stat 936) (US). 80 Supreme Court Rules 2010 (US), rr 17–20. 81 ibid r 10.
by the Chief Justice, with a possibility for Associate Justices to make additions, potential cases are discussed. A case is accepted if at least four judges agree to want to hear this case.82 The caseload of the US Supreme Court has increased over the years. Hearings take place during terms which run from October to late June.83 Currently, more than 10,000 cases per year are on the docket, including carryover cases, of which about 100 are admitted for plenary review. After oral arguments in these selected cases, the Court issues written opinions in about 80 to 90 cases.84 During the Court’s 2013 Term, 8,806 cases were filed, review was granted in 93 cases and 78 cases were disposed of in signed opinions.85 Although cases concerning fundamental rights attract a lot of attention, many cases judged by the Supreme Court are about other issues, such as the structure of government, federalism and the separation of powers.86 Comparison of experiences Table 2 presents an overview of the numbers regarding case selection in the three common law Supreme Courts. 2013a Applications for leave to appeal Admissions Judgmentsb
UK 229
Canada 529
United States 8,806
81 115
53 78
93 78
Table 2: Impact of leave-to-appeal mechanisms on common law Supreme Courts a For the UK, the time period taken into account is 1 April 2013-31 March 2014 b This number includes also the judgments on appeals which were admitted before 2013
The overview demonstrates that amongst these three Supreme Courts the impact of case selection is highest in the Supreme Court of the United States, which accepted only about 1% of the applications for leave to appeal in 2013. The Supreme Court of Canada admitted 10% of the appeals and the Supreme Court of the UK admitted 35%. Taking into account the statistics of these courts regarding previous years, these percentages have remained stable over the past couple of years.87 When comparing the experiences in the Hoge Raad and in the three common law Supreme Courts, the mechanisms in all of the examined courts seem to provide effective means of 82
L Denniston, ‘Is the “Rule of Four” Fully Intact?’ (Yale Law School panel discussion ‘Important Questions of Federal Law: Assessing the Supreme Court’s Case Selection Process’, Washington, DC, 18 September 2009), available at www.law.yale.edu/documents/pdf/Clinics/Lyle_Denniston.pdf. 83 28 USC s 2. 84 See www.supremecourt.gov/about/justicecaseload.aspx. 85 Chief Justice Roberts (US Supreme Court), 2011 Year-End Report on the Federal Judiciary, 13, available at www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf. 86 A statistical analysis of the cases dealt with by the Supreme Court during a term is published annually in Harvard Law Review. Concerning 2013, see ‘The Supreme Court 2013 Term: The Statistics’ (2014) 128 Harvard Law Review 401. 87 See the available information on the websites of the Supreme Courts and the Harvard Law Review analysis regarding the US Supreme Court. See also Mak, Judicial Decision-Making in a Globalised World, 42-45.
dealing with cases which do not have public importance and which are not important with regard to the development of the law. The mechanisms of leave to appeal of the three common law Supreme Courts enable these courts to focus on limited numbers of cases. By contrast, the number of cases to be decided on the merits by the Hoge Raad remains high, even when taking into account the higher number of Justices of the Court compared to the Supreme Courts of the UK, the United States and Canada. The Civil Law Chamber and Tax Law Chamber decide more than 50% of submitted appeals on the merits and the Criminal Law Chamber about 60%. The reason for this is that the Hoge Raad has to assess appeals on the basis of a minimum requirement for admission, that is: whether the appeal apparently cannot lead to cassation or the applicant apparently does not have a sufficient interest. The Supreme Courts in the examined common law jurisdictions can be more selective and choose to admit only the cases of the greatest public and legal importance. Still, the procedure of Article 80a has led to a considerable reduction of the appeals to be judged on the merits in criminal cases at the Hoge Raad.88 Also, the procedure of Article 80a of the Judiciary Organisation Act reduces the time spent on cases and, in this way, provides the Hoge Raad with a better means for handling cases efficiently than the means that existed before the procedural reform. 4.3. Influence of counsel and Justices on case selection The functioning of mechanisms of case selection can be better understood by also considering the practices of the highest courts in light of the context of legal procedures. In this regard, the influence of counsel and of Supreme Court Justices on the admission of cases to appeal is significant. Influence of counsel Alan Paterson has pointed out that counsel have an important role in obtaining leave to appeal with the UK Supreme Court. The experience and shared knowledge of counsel with other members of the legal community have taught them how legal questions should be framed.89 The influence of counsel is highlighted by the difference with the experience at the US Supreme Court. There, 80% of the writs of certiorari are sent by prisoners who are not assisted by a lawyer and these petitions are most often judged to be inadmissible.90 Interestingly, the alleged poor quality of appeals for cassation was one of the reasons for the introduction of the procedure regarding a judgment of direct inadmissibility at the Hoge Raad. In the parliamentary proceedings concerning the introduction of Article 80a of the Judiciary Organisation Act, attention was drawn to the increasing number of clearly inadmissible appeals and appeals which are not suited for cassation.91 Some appeals do not meet the legal requirements or evidently cannot lead to cassation. Other appeals, in particular in the area of criminal law, concern questions of fact rather than legal questions or they present new facts in cassation. Finally, some appeals demonstrate a lack of knowledge
88
See above, section 2. Paterson, Final Judgment, 29. 90 ibid, 30. 91 Kamerstukken II 2010/11, 32 576, nr. 3. 89
concerning the meaning of the applicable statutory law or concerning relevant existing case law.92 It might be expected that specialised counsel are more skilled at bringing admissible appeals to courts of final appeal. Concerning the Supreme Court of Canada, former Justice Ian Binnie has observed that the Justices ‘suffer from the absence of a specialised Supreme Court bar’.93 This is illustrated by an example provided by an interviewed Justice of the Supreme Court of Canada, who recalled a case in which counsel could not produce a relevant definition of a legal term during the hearing of the appeal and did not know how to classify a number of examples based on related cases.94 With regard to the Hoge Raad, a restriction regarding representation applies only in civil cases, where parties have to be represented by counsel admitted to the bar at the Hoge Raad.95 Admission to the bar is regulated by the Dutch Bar Association and requires the passing of a theoretical exam and an aptitude test.96 Admitted lawyers have to handle a certain number of cases per year in order to remain members of the bar at the Hoge Raad.97 A reason for the deficiencies in appeals for cassation in criminal cases might be that all members of the Dutch bar are allowed to litigate at the Hoge Raad. Moreover, the assistance of counsel is not even required in criminal cassation cases.98 This is similar in tax cases.99 However, the Criminal Law Chamber of the Hoge Raad observed that the overview of judgments of inadmissibility in 2013 did not demonstrate that some lawyers were involved in inadmissible cases more often than others.100 This would suggest that the development of expertise with cassation cases, which some counsel in criminal cases do have, is not an essential factor regarding the chances of admission of the appeal. As an explanation, it was suggested by the Hoge Raad that the procedure of Article 80a of the Judiciary Organisation Act focuses on the content of the case rather than on the quality of the presented legal arguments. A case can be dismissed for absence of a sufficient interest of cassation, even if the case raises a relevant legal issue.101 Experienced counsel at the Hoge Raad might have a similar problem as their peers in the UK. There, the absence of a thorough reasoning of decisions of inadmissibility of the UK Supreme Court makes it difficult for counsel to improve the drafting of their petitions.102 This seems true for the practice at the Hoge Raad as well.
92
Paterson, Final Judgment, 31. K Makin, ‘Justice Ian Binnie’s exit interview’ Globe and Mail (Toronto), 23 September 2011. 94 Mak, Judicial Decision-Making in a Globalised World, 121. 95 Code of Civil Procedure (Netherlands) (Wetboek van Burgerlijke rechtsvordering), ss 407(3) and 426a(1). 96 Lawyers Act (Netherlands) (Advocatenwet), s 9j and 9k; Dutch Bar Association, Verordening op de advocatuur [Lawyers Regulation], s 4.2.2. 97 Dutch Bar Association, Verordening op de advocatuur [Lawyers Regulation], s 4.2.1. 98 Code of Criminal Procedure (Netherlands) (Wetboek van Strafvordering), s 427. 99 General Tax Act (Netherlands) (Algemene Wet op de Rijksbelastingen), s 28. 100 Hoge Raad (Netherlands), Verslag over 2013, 26, available at www.rechtspraak.nl. 101 ibid. 102 Paterson, Final Judgment, 31. 93
Influence of Justices Alan Paterson’s analysis of the experience with the leave to appeal mechanism in the UK demonstrates that over the years fine-tuning has occurred regarding the composition of the Appeal Committees within the Supreme Court. In particular, the convention was established that specialisms of the Justices are taken into account.103 This practice has the advantage of enabling the use of available expertise amongst the judges in the assessment of the admissibility of specific types of cases. The risks of a monopoly on admissions in specific fields and of conflicts between two Appeal Committees on related legal issues have been remedied in the Supreme Court by allowing all Justices to comment on permissions to appeal.104 In the Hoge Raad, specialisation is institutionalised because of the division between the three Chambers. Furthermore, expertise on specific subfields of civil law, criminal law or tax law is taken into account in the selection and appointment of new Justices.105 The importance given by the Hoge Raad to the availability of expertise within the Court suggests that this expertise is taken into account in the assignment of Justices to panels for the judgment of cases on the merits. This idea is corroborated by the practice at the Procurator-General’s Office, where specialised Advocates-General are assigned to cases in their field of expertise.106 Further research is required to test this hypothesis and to investigate whether specialisms are taken into account also with regard to the assignment of Justices to panels for the assessment of admissibility of appeals. A final consideration regards the influence that Justices can have on the legal questions brought before them. After all, the courts of final appeal can only engage in the development of the law on the basis of individual cases submitted by parties. The mechanism of applications for cassation with the Hoge Raad in the interests of the uniform application of the law (‘cassatie in het belang der wet’) forms an exception to this principle. However, this mechanism is only rarely used.107 Alan Paterson has argued that the British judges sometimes make strategic use of pending cases or the instrument of the dissenting opinion to encourage litigants to bring appeals concerning specific legal questions.108 He mentions the criticism expressed by Justices in several cases with regard to the ‘mirror principle’ laid down in Ullah concerning the relationship between the national courts and the European Court of Human Rights.109 Since Justices of the Hoge Raad cannot publish dissenting opinions, it seems more difficult for individual judges in the Netherlands to provoke new cases in this way. Further research of the Hoge Raad’s case law or interviews with Justices might clarify whether examples exist of cases in which the Dutch Supreme Court has used pending cases to stimulate appeals addressing specific questions of law.
103
ibid, 68. ibid, 68-69. 105 www.rechtspraak.nl. 106 Consider inter alia the conclusions of Advocate-General Vino Timmerman in cases in the field of company law and Advocate-General Feer Verkade in the field of intellectual property law. 107 Hoge Raad (Netherlands), Verslag over 2013, 53-55, available at www.rechtspraak.nl. 108 Paterson, Final Judgment, 66-67. 109 ibid, 67. 104
5. Conclusion This article has analysed the possible influence of practices of case selection in common law Supreme Courts on the recent procedural reform at the Hoge Raad in the Netherlands. The analysis allows connecting experiences in a continental-European legal system with insights from Alan Paterson’s Final Judgment regarding organisational reform and its implications on the judicial work at the level of courts of final appeal. Case selection is a significant example of the possible convergence of working methods between national highest courts in the Western world. The Hoge Raad’s ambition to strengthen its role concerning the development of the law and the protection of individual rights fits the traditionally greater visibility and influence in public debate of the Supreme Courts of the UK, the United States and Canada.110 Still, the moderate nature of the Dutch procedure of leave to appeal requires the Hoge Raad to take on many more cases than its common law counterparts. Moreover, the effects of the procedural reform have been limited so far and only seem to have had a real impact on the handling of criminal cases. Therefore, it remains to be seen to what extent the Dutch Supreme Court will be able to invest more time and effort in the judgment of the cases of the greatest importance for society and for the development of the law.
110
The introduction of the possibility of dissenting opinions might be a further step in this direction. However, currently no consensus exists in the Netherlands regarding a procedural reform introducing this possibility. Mak, Judicial Decision-Making in a Globalised World, 135-136.
