2019 highlighted

Key duties of the Supreme Court

In our State under the rule of law, the judiciary is one of the three powers of state, in addition to the legislature and the executive. The balanced combination of these three powers of state is referred to as the trias politica. The legislature sets out the framework, and the executive branch applies and enforces that framework. Courts resolve impasses that arise, where necessary interpreting the applicable rules and thus also contributing to the development of the law. To that end, the Supreme Court plays an important and responsible role within the judiciary, that being the court of last resort in civil, criminal and tax matters. The crux of the public duty with which the Supreme Court is charged is the promotion of the development and uniformity of the law and the protection of individual rights.

Whenever possible, the Supreme Court strives to formulate its decisions in a specific case so that they provide guidance not just to the parties to that case, but also to others in comparable cases. That offers legal practitioners and society certainty and prevents new disputes. When a case involves important social issues regarding which either no clear rules exist or regarding which certain rules are unclear, it is sometimes the Supreme Court that must resolve the resulting impasse. This is referred to as the development of the law.

In recent years, the Supreme Court has increasingly considered the development of the law to be its key duty. This has given rise to some concerns. Some posit that the protection of individual rights will be the price paid for the Supreme Court’s focus on developing the law. Such a supposition presumes that the protection of rights is somehow opposed to the uniformity and development of the law.

Some examples:

Peter Souren (@petersouren) November 16, 2019
De @HogeRaad is al jaren nauwelijks geïnteresseerd in rechtsbescherming in individuele zaken. Het voortbouwend appel maakt dat hoven nauwelijks nog zelfstandig onderzoek doen. Onderzoek in eerste aanleg dus doorslaggevend. Is dan nog sprake van een eerlijk proces ex art. 6 EVRM?

Website: https://avdrlegalflix.nl/rechtsontwikkeling-en-rechtsbescherming-in-civiele-cassatiezaken/
From interview Financieele Dagblad November 8, 2019:  https://fd.nl/weekend/1322885/topadvocaat-we-zijn-al-gezwicht-voor-geweld

The role of a court of cassation entails that the public interest in the uniformity and development of the law assumes an important place in its administration of justice. The general lines drawn in its cases affect the protection of the rights of many more people than are involved in a particular case. The Supreme Court also rules on the issues presented by each specific case within the limits of its judicial duty as a court of cassation. That, by definition, constitutes the protection of individual rights: the issuing of rulings regarding the rights and obligations of those involved in the relevant case. The Supreme Court never refuses to rule on an issue because it is not legally appealing. Looked at in that way, the protection of individual rights has always been part of the Supreme Court and has never fallen by the wayside. It may happen, however, that if the Supreme Court decides that the defendant in a criminal case does not have a certain right, that decision will be the subject of critical responses which view and present it as a failure to protect that particular defendant’s rights. But that is merely a substantive evaluation of the decision. The Supreme Court has done what it must in such a case: render a decision in the specific, individual case after reviewing the grounds for cassation that have been asserted. That is the legal protection that the Supreme Court – just like any other court – offers.

The legal-development perspective is primarily relevant to the substantiation of the Supreme Court’s rulings. The more relevant a ruling will be to other cases, the harder the Supreme Court works to substantiate that ruling. In contrast, when it comes to rulings that will have no relevance for the uniformity or development of the law, the Supreme Court may, and regularly does, avail itself of the provisions of Article 80a or 81 of the Dutch Judiciary Organisation Act and refrain from providing substantive grounds for those rulings. These are cases in which the appeal in cassation is unfounded or in which the party in question has a clearly insufficient interest in that appeal. Such rulings will therefore not jeopardise the rights of that party. There are thus two distinct aspects of the Supreme Court’s task: protecting rights through rulings and developing the law through substantiation. The Supreme Court assesses the substance of each case, including those for which it declines to provide substantive grounds. This was emphasised again in a ruling rendered by the Criminal Division of the Supreme Court in 2019 regarding the disposal of cases with the application of Article 80a or 81 of the Dutch Judiciary Organisation Act (see Supreme Court 12 November 2019, ECLI:NL:HR:2019:1732). In other words, the protection of rights is anything but a secondary concern. Rights are protected even in cases in which a defendant’s complaints fail. The core of the protection of rights consists of the analysis based on legal criteria, regardless of whether the outcome favours the appellant.

This is illustrated below in the discussion of one or more rulings rendered in each discipline in 2019. In these rulings, the Supreme Court protected individual rights without initiating major legal developments.


The lame dressage horse
If someone purchases an item which proves to be defective after delivery, Article 7:23 of the Dutch Civil Code requires the submission of a complaint to the seller “within a reasonable period of time”. If the purchaser is a consumer, the reasonable period of time does not start to elapse until the purchaser discovers the defect.

The Supreme Court held that the Court of Appeal had applied these rules incorrectly in this case. The case centred on the purchase of a horse. Prior to delivery, the horse had been examined by a vet, at which time a photograph was taken. According to the examining vet, no defects were present. After delivery, the horse had trouble walking. The purchasers initially engaged the services of an equine massage therapist, but the horse’s condition did not improve. After several months, the purchaser had the horse examined by a vet. That veterinarian indicated that defects may have been visible in the photo taken prior to delivery. The purchasers submitted a claim to the seller, who asserted that the purchasers should have submitted a complaint earlier. The Court of Appeal ruled in favour of the seller. Because the purchasers did not report the defects in a timely fashion, the seller was unable to examine the horse, or arrange for the horse to be examined. He was therefore unable to form an opinion about the complaints or recommend any measures to be taken.

According to the Supreme Court, this ruling by the Court of Appeal could not be allowed to stand. The Court of Appeal erred in summarily holding that on the basis of the examination photo that was taken at the time of purchase, the purchasers were already aware after the treatment by the equine massage therapist that the horse was defective when it was delivered. The purchasers had argued that this became clear to them only after the vet had examined the photo. The Court of Appeal should have addressed that argument.

The Supreme Court vacated the Court of Appeal’s judgment and charged a different court of appeal with ascertaining whether the horse had a defect at the time of delivery which was impermissible under the terms of the purchase agreement.

Supreme Court 15 February 2019, ECLI:NL:HR:2019:228


Dismissal of reliance on self-defence by a visually handicapped appellant who had been harassed by a group of youths lacked sufficient grounds
This case centred on grievous bodily harm perpetrated by a visually handicapped boy. The boy was waiting for his mother at the station in Zaandam because his handicap made it impossible for him to leave on his own. While waiting, he was subjected to harassment by a group of three boys, in response to which the boy stabbed one of the three boys in the arm. The Court of Appeal rejected the defendant’s reliance on self-defence on appeal, and upheld his conviction for grievous bodily harm. The Court of Appeal held that the statements of the witness(es), the defendant and the victim did not indicate that the case involved an immediate, unlawful attack on the person or property of the defendant, which is required for a successful reliance on self-defence. The Supreme Court found this reasoning incomprehensible, given one witness’ statement about the harassment and the grabbing of the visually handicapped defendant’s arm.  The Supreme Court vacated the Court of Appeal’s decision and referred the case back to the Court of Appeal for readjudication.

Supreme Court 12 February 2019, ECLI:NL:HR:2019:209

Doubt about offender identity articulates the importance of examining witnesses by the defence
This case centred on the following issues. On 3 June 2015, the customs administration seized a shipment of goods consisting of 3 pallets of 36 boxes each from a company’s transport area and sent the shipment to the Netherlands Forensic Institute to be tested for trace evidence. The test revealed that the packages from which samples had been taken contained amphetamines. The District Court acquitted the defendant of having issued the order to transport the shipment. The Court of Appeal declared that the charges had been proved. The defendant was convicted of, among other things, having deliberately transported 1,447 kilograms of amphetamines outside Dutch territory and was sentence to serve 7 years in prison. The defendant appealed this conviction in cassation. One of the complaints in cassation regarded the Court of Appeal’s rejection of requests to examine witnesses. The defendant’s counsel submitted a timely request to hear 13 witnesses because (i) there were various uncertainties regarding the question of whether the pallets identified by one or more witnesses were part of the cargo which the defendant had offered for shipment and whether the substances tested by the NFI originated from the cargo which the defendant offered for shipment and (ii) those uncertainties were not eliminated by documents relating to the course of events surrounding the finding and inspection of the relevant pallets, boxes and samples and the testing of same. The Supreme Court held that the Court of Appeal erred in rejecting the request to examine witnesses, since there was some doubt as to whether the pallets which the witness(es) identified at the transport company’s premises and which contained the 1,477 kilograms of amphetamines were part of the cargo offered by the defendant. The key issue in this judgment: when the facts are in doubt, the defence generally has a crucial interest in examining witnesses.

Supreme Court 1 October 2019, ECLI:NL:HR:2019:1485


Owner is an interested party in tenant’s appeal of WOZ value assessment relating to subsidised rental home
The determination of the value of immovable property based on the WOZ Act – the Dutch Valuation of Immovable Property Act – is not just relevant for the levy of municipal property tax. The determination of that ‘WOZ value’ is also relevant to schemes that are unrelated to tax. The broader use of the WOZ value does sometimes result in uncertainty.

The issue in this case was the determination of the value of a subsidised rental home. The tenant disagreed with the decision determining the WOZ value, which decision was addressed and sent to him. Specifically, the WOZ value also affects the maximum amount of rent to be paid.

In tax cases, only the person to whom the WOZ value assessment is addressed can object to that assessment and then lodge an appeal with the tax court. In the case of a subsidised rental home, the Dutch Residential Tenancies Rents Implementation Act applies. In such a case, the owner/landlord may also have an interest in the tenant’s proceedings regarding the WOZ value set out in an assessment addressed to the tenant due to the possible influence that decision may have on the amount of rent to be paid. The owner/landlord himself may also initiate proceedings regarding the WOZ value. In that case, the tenant may also have an interest in the outcome of those proceedings, for example in connection with the maximum rent. In these situations, the owner/landlord and the tenant have opposing interests.

In the case in question, in which the tenant wanted the WOZ value lowered, the District Court and the Court of Appeal offered the owner/landlord the opportunity to participate in these proceedings, apparently by applying Article 8:26(1) of the Dutch General Administrative Law Act. This statute provides that an administrative court may, either on its own motion or in response to a request by a party, afford interested parties the opportunity to participate in such proceedings. This provision has not been declared applicable to tax matters in cassation before the Supreme Court. That would mean that the owner/landlord in this case would not be afforded the opportunity to advance his interests in this case by asserting why he believed the tenant’s appeal in cassation to be unfounded.

The Supreme Court ruled as follows in its judgment. The Dutch Residential Tenancies Rents Implementation Decree provides, among other things, that the determination of a WOZ value may also be relevant to establishing the maximum amount of rent. When the legislature implemented the Decree, it did not address the consequences proceedings instituted by a tenant could have for an owner/landlord and vice versa. The Supreme Court considered this sufficient reason to allow the owner/landlord in the case in question to participate in the proceedings in cassation. 

Supreme Court 13 September 2019, ECLI;NL:HR:2019:1315