Year: 1998
Type: book-chapter
Abstract: Introduction: the Dutch debate on access to justice 'Access to justice' has long been neglected as a potential subject for discussion in the Netherlands.With regard to criminal law and civil law, the independent and impartial administration of justice was provided for by virtue of the Constitution and 'organic' laws (laws which are required by the Constitution and which govern the/organization of the State), amongst other things.The guarantees provided by Article 6 of the European Convention on Human Rights/hereinafter ECHR) were considered to be amply available in the Dutch legal order.With regard to administrative law, for reasons of principle no choice had been specifically made at the end of the last century for the administration ofjustice.For a long time there were several different forms of independent administration ofjustice (mostly special administrative courts) and of appeal to a higher administrative body (administratiejberoep), such as the Council of State and the provincial executive on a decentralized level, and the Crown on the central level. 1 Influenced by the case-law of the European Court of Human Rights, in the mid-eighties a debate developed in the Netherlands concerning the realization of access to justice.This debate 'No one may be prevented against his will from being heard by the courts to which he is entitled to apply under the law'.This so-called ius de non evocando was adopted in 1983 in Chapter 1 of the Constitution, which deals with fundamental rights.Before 1983 this provision had been placed in the Chapter on the judiciary.Article 17 contains a negatively formulated guarantee of access to justice."Some authors have argued for a restrictive interpretation of Article 17,9 but a stand against this narrow approach can be found in the recognition of this right as a fundamental right by the constitutional legislator in 1983, when it was placed in Chapter 1 of the Constitution.'?The meaning of Article 17 was discussed on the occasion of the approval by Parliament of the Eems-Dollard Treaty between the Netherlands and Germany.The result of this treaty was that in certain circumstances interested parties could no longer rely on access to relevant procedures, partly because German administrative law does not provide for access to the courts for interested Dutch parties.The outcome of these parliamentary debates appears to be that Article 17, unlike Article 6 ECHR, does not contain the right of access to a court.Article 17 requires that existing access to the courts must not be frustrated.11Article 17 provides a guarantee against the executive power and the ordinary legislator, not against the formal legislator (the Government and Parliament introducing Acts of Parliament).Restricting access to the courts by the formal legislator is not forbidden by Article 17. 12
Institution: Leiden University
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W6989188916