Cassation in the interest of the law

Requests

In 2023, the Procurator General received 30 requests to initiate claims in cassation in the interest of the law, eight fewer than the year before.

In the reporting period, 26 rejection letters were sent in response to requests to initiate claims in cassation in the interest of the law, nine fewer than the year before. The most common reason for rejecting a request was that it did not concern a legal question which required clarification in view of uniformity of law or legal development. This may be because insufficient evidence was provided for the existence of divergent court decisions regarding the issue in question.

Claims and decisions

In 2023, five claims for cassation in the interest of the law were submitted. This is seven fewer than the year before. These claims concerned four civil cases and one criminal case.

In 2023, the Supreme Court also rendered a judgment in five cases for which a claim for cassation in the interest of the law was filed in 2022. These claims concerned four civil cases and one tax case.

Publication of court decisions

One of the cases in which a claim was filed in 2022 regarded the question of whether, in connection with the publication of court decisions, judicial authorities have an obligation to provide information on ongoing civil proceedings to third parties.

In its decision, the Supreme Court stated first and foremost that, besides the publication of court decisions, the right to protection of personal data is also important when answering the question of which information about civil proceedings must be disclosed to third parties. Furthermore, the Supreme Court stated that there are differences between the courts regarding how and to what extent information about ongoing civil proceedings is disclosed to third parties. In its decision, the Supreme Court provided a number of main rules for the disclosure of information on public hearings, the disclosure of decisions and the disclosure of information about the proceedings and their status. The Supreme Court also stressed that the overview of ongoing cases used by the courts must be accessible to everyone. Within the framework set out by the Supreme Court, the courts have room to further determine how all this applies in practice. In order to ensure that this rule will be applied equally, according to the Supreme Court it is up to the courts to reach a nationally uniform arrangement.

(See for the claim ECLI:NL:PHR:2022:533 and for the decision, ECLI:NL:HR:2023:658.)

Patients' right to inspection of a medical opinion

The Supreme Court also rendered a decision in 2023 in a case that was submitted in 2022 which regarded the question of whether a patient has the right to review the findings of a physician who, working at the instruction of the hospital or its liability insurance, assessed whether the treatment of the patient took place in accordance with the generally accepted rules. The patient held the hospital liable because she was of the opinion that medical malpractice had occurred in her treatment. At the instruction of the liability insurer of the hospital, a doctor of a different hospital assessed the patient's medical file. The patient wanted to inspect this doctor's opinion, but her request was refused. The patient then filed a disciplinary complaint against this doctor.

The Central Disciplinary Committee for the Healthcare Sector (CTG) found the complaint to be unfounded. The CTG ruled that the patient could not rely on the right to inspection from the section of the Dutch Civil Code that relates to medical treatment contracts, because the "nature of the legal relationship" opposes such in this case. The hospital and the liability insurer have the right to prepare their defence against the liability claim "freely and privately" and must also be able to engage a different doctor to assess the course of action without the patient being able to inspect the opinion, according to the CTG.

According to the Advocate General that submitted the claim, the CTG's conclusion was correct. However, the Advocate General deemed the legal reasoning for the CTG's ruling incorrect, because the CTG incorrectly applied several provisions from the Dutch Civil Code. The Supreme Court agreed with this.

(See for the claim ECLI:NL:PHR:2022:762 and for the decision, ECLI:NL:HR:2023:1670.)

Possibility to assess a perspective decision

In March 2023, a claim for cassation in the interest of the law was submitted regarding the question of whether a perspective decision of a certified institution (GI) can be submitted to juvenile court via the dispute resolution procedure of Article 1:262b of the Dutch Civil Code. The question was brought to the attention of the Procurator General by Expertisecentrum Partners voor Jeugd and the Minister for Legal Protection.

If a child is placed out of their home in the context of a placement under supervision by the juvenile court, the GI – as the institution responsible for the implemantation of the measure of placement under supervision and placement out of the home – may decide that returning the child to the parents is no longer in order and that the perspective of the child lies elsewhere. This decision is referred to as a perspective decision. The case law was divided on the question of whether the perspective decision could be submitted to the court, or submitted at an earlier stage, in the context of a dispute resolution procedure in the Dutch Civil Code.

The Supreme Court ruled that a perspective decision cannot be independently submitted to the juvenile court through the dispute resolution procedure. This does not affect the fact that a perspective decision may be subjected to a judicial decision if this is necessary in the context of procedures regarding decisions, measures and applications that arise from or relate to that perspective decision in whole or in part.

(See ECLI:NL:PHR:2023:310 for the claim and ECLI:NL:HR:2023:1148 for the Supreme Court's decision.)

Costs of counsel

In the reporting year, the Procurator General submitted a claim in a criminal case in order to obtain clarity on the definition and scope of the legal term "counsel" within the meaning of Article 530(2) of the Dutch Criminal Code of Procedure. The Court of Appeal ruled in this case that "counsel's fees" must also be understood to include the costs of a third person who is not a lawyer, providing professional assistance in proceedings before the Subdistrict Court. The Procurator General is of the opinion that this ruling is incorrect.

The Supreme Court ruled in line with the Procurator General's claim that counsel's fees referred to under Article 530(2) of the Dutch Criminal Code of Procedure can only refer to costs incurred by a lawyer. The lawyer must be entered in the register of The Netherlands Bar or must have been admitted as counsel in accordance with Article 37(2) of the Dutch Criminal Code of Procedure (a foreign lawyer collaborating with a lawyer registered in the Netherlands).

(See ECLI:NL:PHR:2023:78 for the claim and ECLI:NL:HR:2023:344 for the Supreme Court's decision.)

The other cases for which claims were submitted in 2023 were:

Civil Law

• The question of whether an amount of extrajudicial collection costs can be awarded in collection proceedings under Article 38(4) of the Dutch Legal Aid Act. (See ECLI:NL:PHR:2023:656 for the claim and ECLI:NL:HR:2023:1532 for the Supreme Court's decision.)
• The question of whether a judge in summary proceedings can order the sale and transfer of a community property (in this case a residence) with the intention of dividing the community of which this property is part. (See ECLI:NL:PHR:2023:106 for the claim and ECLI:NL:HR:2023:499 for the Supreme Court's decision.)
• The question of whether a court can ex officio impose a penalty in the event that visitation arrangements within the meaning of Article 1:377a of the Dutch Civil Code are not honoured. (See ECLI:NL:PHR:2023:470 for the claim and ECLI:NL:HR:2023:1459 for the Supreme Court's decision.)

Last, the Supreme Court rendered decisions in the following cases for which claims were filed in 2022:

Civil Law

• The question of whether an application of the debt restructuring scheme can be terminated early and/or whether the clean slate can be revoked if it becomes known after the judgment referred to in Article 354 of the Bankruptcy Act, but before the formal end of the debt restructuring scheme that the creditors were harmed or that there was an attempt to harm the creditors. (See ECLI:NL:PHR:2022:977 for the claim and ECLI:NL:HR:2023:455 for the Supreme Court's decision.)
• The question of whether a claim for the erasure of personal data can be granted by a civil judge in summary proceedings after the term referred to in Article 25(2) of the General Data Protection Regulation Implementation Act has elapsed. (See ECLI:NL:PHR:2022:1154 for the claim and ECLI:NL:HR:2023:1216 for the Supreme Court's decision.)

Tax law

• The question of whether the penalty scheme that applies to the tardy rendering of a decision on an application also applies to a request for an ex officio reduction of tax assessments. (See ECLI:NL:PHR:2022:690 for the claim and ECLI:NL:HR:2023:134 for the Supreme Court's decision.)