The Procurator General of the Supreme Court

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Main task: Advisory opinions

The most important task of the Procurator General and the advocates general of the Supreme Court is to provide the Court with independent advice - so called advisory opinions - on how to rule in the proceedings before them.  An advisory opinion generally reviews the facts upon which the Supreme Court must base its judgment, the legal questions the Court must answer, the decision of the court whose judgment is being appealed in cassation, scholarly opinion and existing case law. In addition, a number of possible solutions are sometimes presented. In civil cases and part of the criminal cases an advisory opinion is required. There is no such requirement in tax cases. The Supreme Court is free to concur with or differ from the advisory opinion. The advisory opinions are published together with the judgments on www.rechtspraak.nl.

The special responsibilities of the Procurator General are:

       

Complaints against members of the judiciary

Complaints of improper behaviour on the part of judges must be submitted to the Board of the judge’s court. In case of disagreement with the procedures at this Board, a further complaint can be lodged with the Procurator General of the Supreme Court. Court decisions are excluded from this procedure, since they are open to appeal and possibly to appeal in cassation.

 

Suspension and dismissal of judges

Judges are appointed for life. The Judiciary (Organization) Act sets a compulsory retirement age of 70. Judges may not be suspended or dismissed by the government or parliament.

Still, situations may arise in which it is necessary to suspend or dismiss a judge, for instance if the judge in question is no longer physically or mentally capable of performing his duties or if he has been convicted of a serious offence. In such situations, the Procurator General is empowered by law to submit an application for suspension or dismissal to the Supreme Court.

The Supreme Court decides on applications for suspension or dismissal.

       

 

Cassation in the interest of the uniform application of the law

Cassation decisions are important both in terms of monitoring the correct application of the law in given cases and in terms of creating new law. It is often the Supreme Court which has the final say in legal questions of the utmost social importance. Sometimes, however, such urgent legal questions remain outside the terms of reference of the Supreme Court. This is because of the peculiar nature of appeals in cassation: it is the uniformity and development of justice as a whole which is at stake, yet whether an application for such an appeal is made depends on individual interests. Only if the losing party in a case believes that an appeal in cassation can be won and is therefore prepared to devote time and money to lodging such an appeal can the Supreme Court pass judgment. If no appeal in cassation is lodged it cannot assess the legal question involved, no matter how important it may be.

Cassation in the interest of the uniform application of the law is intended to solve this problem. When it is in the public interest to address a particular legal question, the Procurator General is empowered by law to lodge such an appeal in cassation to the Supreme Court. The Procurator General receives requests from the public prosecution service, other courts, government and semi-government agencies, businesses, individuals and lawyers. What those making the request often fail to realize is that even in those cases where the Supreme Court quashes a judgment in the interest of the uniform application of the law, the rights and the position of the parties, as established in the judgment that has been quashed, do not change. The unsuccessful party remains unsuccessful and the successful party successful.

       

 

Prosecution of public office offences

A longstanding provision of the Constitution stipulates that occupants of high office (members of parliament, ministers and state secretaries) are to be tried by the Supreme Court for offences committed in the course of their duties. A ten-judge court hears cases of this kind. In such cases the Supreme Court is the court of first and last instance. This means that no appeal, in cassation or otherwise, from the Court’s decision is possible. The Procurator General of the Supreme Court is responsible for the prosecution of persons charged with public office offences. It should be noted that the Procurator General cannot institute criminal proceedings of this kind. Rather, they must be instituted by royal decree or by a resolution of the Lower House of parliament. This has never yet taken place.