Access to Justice as a Fundamental Right in the Dutch Legal Order
NETHERLANDS REPORTS TO THE FIFTEENTH INTERNATIONAL CONGRESS OF COMPARATIVE LAW, pp. 395-420. E.H. Hondius, ed., Antwerpen/Groningen: Intersentia Rechtswetenschappen.
26 Pages Posted: 27 Jul 2011
Date Written: 1998
The right of access to justice has not been laid down as a constitutional right as such. The Dutch legal order also does not provide for constitutional review. Both factors contribute to the absence from case-law of the right of access to justice. During the course of this century the ordinary courts assumed jurisdiction in cases against the administration on the ground of tort law and claims such as undue payment. This case - law finally laid the foundations for a system on the basis of which everyone has access to the ordinary courts in order to resolve a dispute involving the administration and/or administrative action, unless an equally effective special judicial process supported by sufficient safeguards exists. The relationship between the civil courts' jurisdiction and the competence of the administrative courts still needs to be decided upon by the Supreme Court.
In legal practice, interim injunction proceedings play a significant part in civil proceedings and pre-trial remedies in administrative cases. With respect to time, subject matter and available remedies, civil courts have given a wide interpretation to their jurisdiction in interim injunction proceedings. The result is that the collection of debts often takes place by means of interim injunction proceedings and fundamental points of law can be brought before the courts within a relatively short time.
In this article there will be a further examination of the following subjects: the formal basis of the right of access to justice in the Dutch legal order and the substantial difficulties in its realization.
Keywords: right of access, justice, constitutional, jurisdiction
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