The judiciary is getting a more human face. Judges are given more freedom to consider the individual interests of citizens in lawsuits against the government. The principle that a judge should not sit in the driver’s seat and should exercise restraint in legal conflicts between citizens and government is less rigidly applied. In administrative law cases where important interests of citizens are at stake, the courts must assess in more detail whether a decision taken by the government has been taken ‘proportionately’.
That is the core of three rulings on Wednesday by the so-called Grand Chamber of the judiciary department of the Council of State. The judgments are leading for administrative justice in the Netherlands. Judges from the Administrative Jurisdiction Division, the Central Appeals Board and the Appeals Board sit in that Chamber. Their statements are intended ‘to promote the development of law and legal unity’.
Last May, the Grand Chamber dealt with three cases such as test case for case law on how far judges can go in individual assessment when fundamental rights of citizens are at stake. Two cases concerned evictions by order of the mayor, one about illegal room rental in Amsterdam. In all three cases, it was assessed whether lower courts had sufficiently taken into account the personal circumstances of the victims of the crime.
The rulings and the new weighting criteria are a direct result of the Allowances Affair. At that time, not only the Tax and Customs Administration was under fire, but also the administrative judge, because the controversial decisions of the tax authorities were always adopted in proceedings.
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Since then, the judiciary, with the Council of State in the lead, has been investigating its own role in the Allowance Affair. The administrative courts promised to find out whether judgments might have been ‘too strict’ in more areas and whether it was not possible in the future to arrive at ‘responsive justice’, whereby judgments would be ‘more people-oriented’.
For example, on Wednesday an individual eviction procedure was ordered by the mayor of Harderwijk after drug trafficking was detected, a test case before the Grand Chamber, with the question whether the judgment was ‘people-oriented’. And whether the administrative judge had made a sufficient distinction between ‘suitability, necessity and balance’ of contested government decisions.
Random criterion
According to the Chamber, Wednesday’s rulings “explicitly” distance themselves from the “arbitrary criterion” used in case law: the judge may not sit in the driver’s seat. According to the Grand Chamber, the extent to which administrative judges are now allowed to let go of that criterion depends on the individual case. Judges must choose between “all variants from full to reluctant”. The more important the interests and the more serious the adverse consequences for citizens and ‘if the decision infringes human rights’, then the administrative court will ‘assess more intensively’.
For the Harderwijk housing closure case itself, this means that the mayor must again prove whether he could reasonably have evicted that family. And whether the consequences for the family after eviction are in proportion to the purpose of the closure: to prevent drug trafficking and nuisance. A lower court must now reassess the eviction case, partly on the basis of the criteria for responsive justice drawn up by the House.
In two other things on which the House made a decision on Wednesday (one also concerned house closures, the other about illegal room rent in Amsterdam), the Grand Chamber applied the same principles of responsive justice. With reference to the ruling in that Harderwijk case.