THE HAGUE, Netherlands (CN) – Despite some hiccups, the Dutch judicial system is finding its way during a coronavirus-induced lockdown.
“We’re all in this together,” said criminal defense attorney Jeroen Soeteman of the Amsterdam firm Jebbink Soeteman, a surprisingly positive assessment of the judiciary from a man who describes himself as “the last man standing between the public prosecutor and his clients.”
The Dutch court system has, in principle, been closed since March 17 in light of the Covid-19 pandemic. Some exceptions have been made for urgent matters and while the Council for the Judiciary has set general guidelines, the decisions about whether to move forward with cases and how to do that has largely been left up to individual judges.
“We have had some complaints from lawyers, but mostly about individual judges who wouldn’t or couldn’t be flexible enough,” said a court official who wished to remain anonymous.
“I tell my clients that I think the courts are doing everything they can,” said bankruptcy lawyer Martijn Dellebeke from The Hague firm GMW. Bankruptcies, along with guardianships, restraining orders and pretrial detention hearings are among the issues deemed urgent amid the outbreak.
Despite a mostly positive attitude among Dutch legal experts, after three weeks of closure, cracks are beginning to show. On Friday, Soeteman, as the chairperson for the Dutch Associations of Criminal Defense Lawyers, called for the courts to be reopened, a move also supported by The Netherlands Bar Association.
“Justice is necessary and vital even during this crisis,” the bar association wrote in a statement.
Both groups had, on March 15, called for the courts to be shut, a move that the government didn’t make until two days later, despite already closing bars, restaurants and schools.
One of the issues is the lack of consistency. Though the judiciary has put forward general guidelines, the implementation is left to the country’s eleven district courts and individual judges.
“Every courtroom is different,” said Amsterdam lawyer Richard Korver, who predominantly represents victims. “I’ve had hearings postponed, I’ve had Zoom calls, I had one case last week where the judge had six mobile phones on speaker in front of her.”
High-profile cases, including the trial of four men charged with the downing of flight MH17 have gone forward in person, though without the press or public present.
“Justice must not just be done, it must be seen to be done,” said Sidney Smeets of the Amsterdam firm Spong, quoting the famous British case R v Sussex Justices, ex parte McCarthy, which established the idea that the mere appearance of bias can be sufficient to overturn a verdict. “It is important for the public and journalists to be allowed to be present because this helps to guarantee a fair trial.”
The lack of consistency can be seen even in individual cases.
“I think it’s wrong if the public prosecutor is present in the courtroom, but the defense lawyer is not,” said Job Knoester of The Hague firm KVAK, who specializes in handling so-called TBS cases, where the defendant is suffering from a mental illness.
Some of Knoester’s clients have been asked to appear by phone or video, while the public prosecutor is physically present. Lawyers like Knoester have also been asked to advise their clients by phone, rather than in person, when they have been arrested by the police.
“I can tell my client to shut their mouth, but over the phone, I have less control,” he said.
Knoester isn’t only worried about his clients, he’s also concerned about his colleagues. Under the Dutch legal aid system, lawyers are paid a fee when a case is completed. This system has been under financial pressure for years and a strike of legal aid lawyers was narrowly avoided last year when the Ministry of Justice coughed up an extra 45 million euros ($48 million).
Without cases moving forward, they aren’t being completed and therefore lawyers aren’t being paid.
“This is going to be a problem,” Knoester said.
The capacity of the Dutch court system was already under stress before Covid-19 arrived. In March, the public prosecutor’s office announced that 22,700 cases had been postponed, including some 2,000 involving serious, violent crimes. On average, criminal cases in the Netherlands take 14 months before a trial is held, but in some instances victims had to wait three or four years.
“Corona is only putting more pressure on the system,” said Soeteman, the criminal defense attorney.
The government announced a plan at the end of 2019 to combat this backlog. Twenty-nine million extra euros ($31 million) was made available to expedite proceedings, the ministry was aggressively recruiting new staff and administrative changes were made to simplify procedures.
“Most people understand it’s an extreme period,” said Knoester. Many of his clients are in health care facilities, which are also experiencing restrictive measures. Patients are no longer allowed to take leave, for fear they will contract the disease and expose the other patients. Libraries and sports facilities have been closed.
“These are really important for the success of a patient’s treatment,” Knoester said.
Following Soeteman’s call to reopen, the Dutch judiciary announced it will expand which cases can be considered urgent and thus continue.
“We are aware of the impact of this situation on the cases and the people behind them, and we will do everything we can to deal with the cases that cannot forward now as soon as possible,” the Council for the Judiciary said in a statement.
The council also announced measures to improve the virtual capacity of the court, including expanding the ability to hold hearings via video and a new electronic submission system for documents.
“They need to look for creative solutions,” Knoester said of the facilities where inmates are being held. “But while it seems like a lifetime, it’s only been weeks.”