Cassation : the main task of the Supreme Court

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Nature of cassation proceedings

There is an essential difference between cassation and ordinary appeals. Ordinarily, when a case is appealed every aspect of it is reconsidered and a new examination of the facts may take place if necessary. However, a court of cassation has limited freedom, especially where the facts are concerned. The Supreme Court is required by law to base its deliberations on the facts as established by the lower court.

Cassation means quashing a judicial decision on a point of law, including procedural law. The Supreme Court also monitors whether the lower court satisfied the requirements of due process.

After cassation the Supreme Court usually refers the case to a court of appeal in order to deal with the case further, since the Supreme Court itself is prohibited from considering questions of fact. The Supreme Court only passes final judgment if no significant questions of fact remain to be decided.

In general, proceedings before the Supreme Court take place almost entirely in writing. Appeal in cassation, like other legal remedies available at other courts, is subject to statutory time limits and formal provisions. Because different regulations set different time limits, no time limits for appeals in cassation in general can be given. Formal provisions include the principle of mandatory legal representation.



Mandatory representation

In civil cases parties may not act themselves at any point in cassation proceedings. Statutory provisions require them to be represented by a ‘lawyer at the Supreme Court’. Only lawyers with certain quality and experience requirements in the field of litigation in cassation can acquire the title of ‘lawyer at the Supreme Court’.
In criminal cases defendants may lodge appeals in cassation themselves but are required by law to have a lawyer submit the grounds for cassation in writing. The Public Prosecution Service is also allowed to appeal in cassation. Lawyers representing defendants in criminal cases need not be registered with the Hague bar.

In tax cases, the taxpayer or the body demanding payment may both lodge appeals in cassation and submit grounds for cassation, but may also use legal representation.

In all cases lawyers only are entitled to oral pleadings in the Supreme Court.



How the Supreme Court Works

In principle a combination of five judges of the Supreme Court rules. Some cases, depending on their nature, may be ruled by a combination of three judges. The system of consultations in chambers adopted by the Court means that in many cases judges who are not sitting on a particular panel in a particular case, can give their views on the matter at issue in chambers. These consultations in chambers take place on a weekly basis.



The chambers of the Supreme Court

The first chamber is responsible for civil cases, including commercial law and family law. This division also deals with many cases that do not fall under civil law in the strictest sense, like those pursuant to the Psychiatric Hospitals (Compulsory Admission) Act.

Criminal cases and extradition are the responsibility of the second chamber, which also handles applications for review in criminal cases.

The third chamber is concerned with tax cases.
The judges of the Supreme Court come from a variety of professional backgrounds, but primarily from the judiciary, the legal profession and universities. Some are specialists, others are generalists. 


Other tasks of the Supreme Court

The Court also deals with the Procurator General’s applications to suspend or dismiss members of the judiciary. Because the judiciary must be independent in order to carry out its duties properly, judges are appointed for life, with a mandatory retirement age of 70. They cannot therefore be suspended or dismissed against their will by the government or parliament. The Supreme Court does have the power to dismiss or suspend judges who are clearly unfit to serve or have been convicted of a serious offence. The court rarely needs to exercise this power, not only because such cases are rare, but also because the judge in question generally resigns rather than waits to be dismissed.

The Supreme Court is also responsible for investigating judges about whom the Procurator General has received complaints.