THE NETHERLANDS: JUDGES EXPRESS THEIR FRUSTRATION ON STATE COUNCIL JURISPRUDENCE

Jelle Kroes
Everaert Immigration Lawyers
kroes@everaert.nl

The jurisprudence of the Dutch State Council is tainted with bias and formalism, at the expense of the fundamental rights of immigrants, in particular asylum seekers. This is the conclusion of a survey undertaken by Mr. Kees Groenendijk, retiring Professor at Nijmegen University.

Mr. Groenendijk's impressive retiring speech on 25 April 2008 contained part of the survey and immediately raised the debate on the controversial case law of the State Council's judiciairy department (the Afdeling rechtspraak of the Raad van State). Most national newspapers commented sharply. More importantly, the Labor party (PvdA) have called for an intervention from the Minister of Justice, followed by a public hearing, appeals supported by most parliamentary parties.

Mr. Groenendijk and his successor Mrs. Ashley Terlouw interviewed 24 immigration judges working at the District courts on a no-name basis. A number of the interviewees admitted to be in moral conflict with themselves. Some regret to not have stood up more clearly against the State Council. Their main concern is the strict line in the State Council's case law in which the facts of the case rarely seem to make a difference, and formal arguments appear to be decisive. The statistics are indeed remarkable. In 90% of the cases, the appeal turns out negatively for the asylum seeker. In only 4% of the cases the State Council sees a point in arranging a court hearing, the rest is decided purely on the basis of the file. In other administrative cases the number of court hearings is 84%.

The report of the survey is published under the title "A vicious process" (Een venijnig proces). The controvery is not new. Since 2001, District Court judgements can be appealed against with the State Council. Until then, District courts ruled in first and final instance. Soon after the first appeal judgements came through, allegations of bias and excessive formalism were expressed by lecturers and practitioners on a wide scale. However, the State Council continued its strict line. This time the debate has reached a political level, and it seems likely that fundemental changes to the system of legal remedies can no longer be avoided.

Amsterdam, 2 May 2008