STANDARDS OF DUE PROCESS APPLICABLE IN THE DUTCH CARIBBEAN

September 07, 2010 3:41 PM

The Supreme Court applies strict standards

In respect of the standards of due process applicable in the Netherlands Antilles and Aruba, the European Convention for the Protection of Human Rights and Fundamental Freedoms (EVRM) applies, including article 6, which safeguards the right of due process.

The first sentence of article 6 EVRM reads as follows: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.

The requirement of a ‘fair hearing’ has been consistently interpreted by the European Court of Human Rights to encompass the general principles of due process, including the principle that both parties should be allowed adequate possibilities of presenting their case and to respond to presentations by the opposing party.

The Supreme Court of the Kingdom of the Netherlands applies strict standards regarding due process, both in respect of judgments rendered in the Netherlands and in respect of judgments rendered in the Netherlands Antilles or Aruba, and it scrupulously reviews the application thereof. For example, in its decision of 8 February 2008 (LJN BB6196; Netherlands Jurisprudence 2008, 92), the Supreme Court reversed a decision by the Joint Court of Appeals of the Netherlands Antilles and Aruba on the grounds that a party had belatedly (four days prior to the pleadings) submitted exhibits to the court. The Supreme Court repeating the applicable standard:

“The judgment [by the court of appeals] is incorrect in the event that the appeals court has failed to recognize that the judge in civil proceedings is only allowed to decide on the basis of documents in respect of which the opposing party has had sufficient opportunity of examining the same and of commenting thereupon and that this fundamental rule of hearing both sides of the argument also applies in respect of examining and commenting upon documents which were submitted at the occasion of the court session during which these were under discussion or (briefly) prior thereto. (…) In the event the appeals court has not failed to recognize the foregoing, it has failed to adduce sufficient reasons for the finding implied in its decision that the owners [the parties appellant in the cassation proceedings] were afforded sufficient opportunity of examining the exhibits and commenting thereupon (…)”.

Karel Frielink
Attorney (Lawyer) / Partner

7 September 2010