International Moot Court
Mr Chairman, ladies and gentlemen,
Good morning. I am honoured to have been asked to open this session of the International Moot Court. The International Moot Court offers you an opportunity to make the brief but practical acquaintance of the judicial process as it works in various countries. Although we sometimes we have a vague idea of the judicial process, it often stems from fiction, such as what we see on television. For the picture we have of US courts, many people presumably think immediately of LA Law – just as we immediately think of ER for our image of a hospital – although for some of us, this has more to do with George Clooney.
But indeed, it is interesting and instructive to look across borders like this. As a representative of the Dutch government, I would like to illustrate this with a topical example.
An essential difference between judicial procedure in the Netherlandsand most other countries is that – with a few exceptions – administration of justice in this country is in the hands of professional judges. Dutch citizens do not have a role in the administration of justice; not as members of the jury and not as lay judges working with a professional judge.
Some time ago the question arose in Dutch Parliament: should Dutch citizens, just as those of neighbouring countries, ought not to be a part of the administration of criminal justice? This question arose from the assumption that the confidence of the population in the administration of justice is declining. Parliament then asked the Dutch Minister of Justice to investigate the desirability of introducing laypersons to the administration of justice in criminal cases.
An expert opinion was requested, the Dutch public was polled on this matter, it was discussed amongst people who work in the judiciary and enquiries were held.
The conclusion from all this research was that there are arguments in favour of participation by laypersons in the administration of criminal justice. Even so, the experts consulted only wished to recommend it if there was an urgent need for it. So far no such need has appeared.
The Minister of Justice adopted this standpoint and will discuss it with the Dutch Lower House next week. I do think you will find some of the results of the investigation to be of interest.
To start with, the confidence of the Dutch public in the administration of justice is not declining. Confidence sometimes drops in response to incidents. However, research has shown that these are brief fluctuations, and that their effect is not permanent. Moreover, the studies have not shown that the participation of ordinary citizens (in the administration of justice) would cause public confidence to rise significantly. For example, the Netherlandsand Germany, which does work with lay judges, score about the same on public confidence. Studies have also shown that when a country chooses to allow its citizens to take part in the administration of criminal justice, this is strongly rooted in its history and ideology. Countries where this is the case have proved to be quite attached to their system, even though they are well aware that it has limitations or weak points. In point of fact, many of those countries have made changes over time to limit the part played by citizens.
The Netherlandsdoes not have a tradition of citizen participation. This is reflected in the opinion of the population about involving ordinary citizens in the administration of criminal justice. The majority of the Dutch population is not in favour of laypersons taking part in the administration of justice.
When countries do work with juries or lay judges, the predominant reason behind it is the importance they attach to democratic participation in the administration of justice. But public opinion polls in this country brought to light some strong feelings in this respect:
- judicial proceedings and justice should always be independent, and
- justice should be administered by professional judges, not by laypersons.
An important drawback to the introduction of the administration of justice by laypersons is the organisation of Dutch criminal procedure. It is fully geared to the dispensation of justice by professional judges. Thanks to this, when a case is heard in court, it is often a more efficient process than in other countries.
I hope today you will be able to observe these differences yourself. The introduction of the administration of justice by laypersons would inevitably mean a very far-reaching and fundamental system reform.
So should we now conclude that our investigation of the question whether the Netherlandsought to introduce laypersons in its administration of justice has merely led to a reconfirmation of our present system? No, certainly not. It did become clear that the majority of the Dutch, even though not in favour of laypersons in the administration of justice, do wish to see citizens involved in other ways in criminal cases. Let me name three important aspects.
- First of all, people want to have more insight into the way in which the administration of justice works in practice. For example, the roles of the various actors in a case, how judges conduct their hearing of a case and how they arrive at their opinion.
- Secondly, many people tend to feel that sentences are too mild. Research has shown that citizens often favour more severe punishments than those imposed by judges. This can be explained in part by the difference between judges and laypersons when it comes to information, knowledge and experience. If citizens are given more information about a case in addition to what they can read in newspaper headlines, then they start to mete out milder punishments. But this cannot be the whole explanation. In any case, the public wants judges to give some consideration to ideas that prevail in society at large.
- Finally, the Dutch public wants to be better able to follow how a judge arrives at a ruling and a sentence.
These findings are great encouragement and a good basis for:
- informing and educating the public by:
- organising open days in courts;
- actively informing pupils at schools;
- improving and expanding the information provided on the internet;
- investigating the feasibility of cameras in courtrooms;
- pursuing an active media policy for the publication of rulings as well as broader topics involved in the dispensation of justice or the organisation of administrative justice; - making rulings more readily understandable and more accessible to the public when they are distributed on paper (Project to Improve the Statement of Grounds in Court Decisions in Criminal Judgments); and
- investigating whether the group involved in the development of parameters to be used in deciding on a sentence can be expanded to include civic and societal groups as well as the many other partners to the judicial process.
I hope that this brief look has stimulated your curiosity to become better acquainted with different judicial systems. Not to judge whether one system is better than another, but because insight into different legal systems can give rise to reflection about our own systems. And, as I have indicated, this can lead to new initiatives.
I wish all of you a very inspiring day.