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Netherlands: Mandatory Digital Litigation Extended to Asylum and Detention Cases

(June 15, 2017) According to the Dutch Ministry of Security and Justice, beginning on June 12, 2017, a new system of simplified, digital litigation will be used for all asylum and detention cases handled by all courts in the Netherlands and, as of September 1, the new system will be required for claims cases requiring legal representation in the courts in the province of Gelderland and elsewhere in central Netherlands. (Further Introduction of Mandatory Digital Litigation (May 4, 2017), Ministry of Security and Justice website.)  Digital litigation in summons proceedings for civil cases before the Supreme Court commenced earlier, on March 1, 2017.  (Id.)

The new measures are set forth in a decree of implementation promulgated on April, 24, 2017, and published in the official gazette, Staatsblad (Stb.), on May 4, 2017.  (Id.; Decision of 24 April 2017 Determining the Date of Entry into Force of Various Parts of the Law of 13 July 2016 Amending the Code of Civil Procedure and the General Law of Administrative Law Relating to Simplification and Digitization of Procedural Law (Stb. 2016, 288), the Law of 13 July 2016 Amending the Code of Civil Procedure Relating to the Simplification and Digitization of Procedural Law in Appeal and Cassation (Stb. 2016, 289), the Simplification and Digitization Procedural Law Enforcement Act, the Decision on Digitization of Civil Procedural Law and Administrative Law, and the Simplification and Digitization of Procedural Law Adaptation Decree (Decree), OVERHEID.NL (in Dutch).)

KEI: Digitialization and Simplification

The Decree is another step in the process of phasing in acts and decrees that are part of the country’s nationwide “Quality and Innovation in the Legal System” (Kwaliteit en Innovatie rechtspraak, or KEI) program. (Further Introduction of Mandatory Digital Litigation, supra; Programma Kwaliteit en Innovatie (KEI) van de Rechtspraak, RECHTSPRAAK (last visited June 7, 2017).) The KEI program of digitizing and simplifying court procedures is a means for the judiciary to modernize the handling of cases, enabling parties to communicate with the court registry online and initiate proceedings online.  In the view of the Ministry of Justice and Security, “KEI is crucial for a fast and accessible legal system that is in keeping with the times.” (Further Introduction of Mandatory Digital Litigation, supra.)

The KEI-related legislation and decrees introduce a new, digital, basic procedure to replace both existing summons procedures and application procedures; the new digital procedure can be extended to include other procedural actions if necessary.  (Chantal Blokker-Schipper, KEI: Digitization of the Justice System, STIBBEBLOG (Oct. 16, 2015).)  The new single application procedure, the “process introduction,” unlike the original summons, “no longer requires the involvement of a bailiff” and thus there is the possibility of informal service. (Id.)  Litigation using the digital system will be required of professional parties, such as lawyers and bailiffs.  (Id.)

Under KEI, civil case procedures are also simplified, so that the basic procedure “consists of one written round, one round of oral arguments in court and finally the judgement,” with oral arguments as the core procedure early in the process, allowing early access by the judge to the parties involved. The judge will generally issue a decision within six weeks of the oral arguments. (Further Introduction of Mandatory Digital Litigation, supra.)  For complex cases, “judges can supplement the basic procedure with an additional written or oral round,” giving the judge “more influence over the course of the procedure, allowing them to better respond to the needs of the litigants on a case-by-case basis.”  (Id.)  KEI also introduces additional legal deadlines for both parties and the courts to perform specific procedural actions and tightens existing deadlines. (Blokker-Schipper, supra.)

KEI Rollout

Implementation of KEI is to occur in five phases in a defined timeline. (Peggy Hulsbergen Henning-Awater & Chantal Blokker-Schipper, The Start of KEI: Introduction of Digital Litigation, STIBBEBLOG (Dec. 12, 2066).)  Initially, a six-month adjustment period was agreed upon to enable legal professionals to familiarize themselves with the changes introduced by KEI, with implementation of the legislation to begin on February 1, 2017; however, the judiciary and the Dutch Bar Association agreed to take at least two extra months and thus begin the mandatory phase of digital litigation no earlier than April 1, 2017.  (Id.)

The five phases (with the time frame for rollout, with dates adjusted for the two-month delay), are:

  • first instance procedures with mandatory legal representation: no earlier than June 1, 2017, starting with a pilot in the courts of Gelderland and central Netherlands; introducing mandatory digital litigation nationwide five months later, no earlier than November 2017; and with the Supreme Court’s digital platform to begin April 1, 2017 (it began March 1, as was indicated above);
  • claims on appeal: no earlier than November 2017, beginning with a pilot at one court and mandatory digital litigation introduced nationwide in all appeal courts in April 2018;
  • claims without mandatory legal presentation: a pilot at two courts planned for autumn 2018, with the nationwide rollout expected five months later, in March/April 2019 (digital litigation is only mandatory for legal entities and professional attorneys, not for people who litigate without representation);
  • application procedures: beginning in June 2019, first with a pilot project, then nationwide to commence in November 2019, whereupon combined procedures (claim and application in one) may be used;
  • preliminary relief proceedings: a pilot and then the nationwide rollout scheduled for June 2019. (Henning-Atwater & Blokker-Schipper, supra.)

The Decree and the KEI Program

As the title of the new decree indicates, it provides dates of entry into force for the relevant parts of five elements of the KEI program:

  • The Law of 13 July 2016 Amending the Code of Civil Procedure and the General Law of Administrative Law Relating to Simplification and Digitization of Procedural Law (Stb. 2016, 288),
  • the Law of 13 July 2016 Amending the Code of Civil Procedure Relating to the Simplification and Digitization of Procedural Law in Appeal and Cassation (Stb. 2016, 289),
  • the Simplification and Digitization Procedural Law Enforcement Act (Stb. 2016, 290),
  • the Decision on Digitization of Civil Procedural Law and Administrative Law (Stb. 2016, 292), and
  • the Simplification and Digitization of Procedural Law Adaptation Decree (Stb. 2016, 293).  (Decree, Explanatory Note.)

Two other legislative elements of the KEI program are the Kingdom Implementation Act on Simplification and Digitization of Procedural Law and Extension of Preliminary Questions (Stb. Nr. 291 (July 21, 2016), OVERHEID.NL (in Dutch) and the Kingdom Adaptation Decree on Simplification and Digitization of Procedural Law (Stb. No. 294 (July 21, 2016), OVERHEID.NL (in Dutch).  (Id.)