The court system in The Netherlands
The procedure in civil actions in The Netherlands
The attorney-at-law
Proceedings can prove complicated for litigants. In order to take full advantage of the opportunities provided by the law they should be assisted by an attorney-at-law. An attorney also ensures that the proceedings take place in an orderly and efficient manner. In most cases it is therefore compulsory under the law for both parties (i.e. both the plaintiff and the defendant) to be represented by an attorney.
This is known as the principle of compulsory legal representation. It applies to almost every civil case which comes before the District Courts, the Courts of Appeal and the Supreme Court. A private individual may represent himself in proceedings in the subdistrict sector, but since even here matters can become complicated the person would be well advised to seek the expert help of an attorney, particularly if the other party has done so.
The work of an attorney-at-law is not confined to advocacy in the courts. Initially, in fact, an attorney tries to prevent a legal action. He gives an opinion or attempts to reach a settlement with the other party. After all, a court case takes a long time and is both difficult and expensive for most people. If a court action cannot be avoided, the attorney puts his client's point of view into legal language. He challenges what the lawyer representing the other party has stated, and may address the court in his client's defence. He also advises his client how he can best conduct himself in court.
Civil action
A party wishing to commence civil proceedings will in first instance start at the District Court (Rechtbank). Because justice is administered in three steps, there are three tiers of courts. A case which starts before the District Court may be appealed to the Court of Appeal (Gerechtshof) and finally to the Supreme Court (Hoge Raad) in cassation proceedings. The Supreme Court occupies a special position in the Dutch legal system. It is the highest court in the Netherlands, which means that a decision of the Supreme Court is final and it is impossible after that to turn to any other court with this same problem.
Fact-based justice
The District Court and the Court of Appeal are 'triers of fact', which is to say that these courts examine the matters brought before them to the full extent. This examination means in any event that the courts will establish what the facts of the dispute are. The the District Court and the Court of Appeal thus engage in gathering the facts; they endeavour to establish as far as is possible what exactly is wrong.
Misapplication of the law
The Supreme Court is not a trier of facts. It is its task to examine whether the lower courts, the triers of facts, have done their work properly. In other words, the Supreme Court supervises the correct application of the law by the lower courts. The result of this duty is that a party cannot request the Supreme Court to re-examine the facts. If a party disagrees with the decision of the highest trier of facts, he may be able to bring the dispute before the Supreme Court, but he can then only state that the court of appeal has not looked properly at the civil law and consequently has given an incorrect decision. In that case we speak of a 'misapplication of the law'.
Legal representation at the Supreme Court
The parties cannot appear themselves at the Supreme Court. If they wish the Supreme Court to give a decision, they can only do so by engaging the services of a specialized lawyer, as they will need to know a great deal about civil law to be able to demonstrate that the three judges sitting in a District Court or Court of Appeal have misapplied the law. A party to proceedings cannot be expected to have this knowledge. The lawyer will set down his legal arguments in writing explaining the legal point of view of the party.