Summary

Over the past three decades due process as a normative concept in Dutch civil procedure has gained considerably in importance. More and more frequently civil courts refer to due process (or related concepts such as proper judicial procedure or proper conduct of a case) when giving the grounds for the case law rules and decisions they make, and in procedural regulations references to the requirements of due process are becoming increasingly common.

The aim of this study is to shed light on the meaning of due process as a normative concept in and for civil procedural law. Chapter 2 begins with a description of the references to due process (goede procesorde) - including references to proper judicial procedure (behoorlijke rechtspleging) or proper conduct of a case (behoorlijke procesvoering) - found in procedural regulations. Chapters 3 to 6 go on to discuss the decisions in which the Supreme Court of the Netherlands has made reference to the requirements of due process. Finally, Chapters 7 to 10 outline the requirements of due process, the factors which determine what due process requires or entails, the relationship between the requirements of due process and related doctrines, and the functions of references to due process.

A multitude of - widely varying - applications of the requirements of due process or proper judicial procedure may be found in case law. It seems that the requirements of due process function as norms both for the exercise of procedural powers by parties in proceedings and for the exercise of powers by the court. Ultimately, every procedural power should be exercised in accordance with the requirements of due process. If a party in the case acts in violation of due process, it runs the risk of its action failing to lead to the intended judicial result. If the court acts in violation of the requirements of due process, by doing soit may provide grounds for the annulment of the decision it reaches in the case.

It is not immediately obvious from the case law examined why in one instance the Supreme Court refers to due process and in another to proper judicial procedure or conduct of a case, and in fact it is impossible to draw clear-cut boundaries in the application of the requirements of due process, proper judicial procedure and proper conduct of a case (§ 7.2).

Due process can be regarded as the most important open standard of procedural law. Basically, a reference to the requirements of due process constitutes a reference to unwritten procedural law. The requirements of due process provide a basis for universal rules to supplement statutory regulations, for a particular interpretation of statutory provisions, and for decisions which deviate from a statutory regulation or restrict the exercise of legai powers.

Due process is not an independent principle of procedural law; there is no sufficiently clear definition of what it means for a procedure to meet the requirements of due process. What due process is or requires is determined by underlying principles, rules and requirements. A reference to due process should therefore be regarded as a reference to this set of requirements, but not as an independent principle (§ 7.3.2§ 73.5).

If the requirements of due process do indeed imply norms of conduct for the court, then the court, ex officio, must observe them. However, the conduct of parties in the proceedings or of the court can only be tested ex officio against these requirements if the norms of conduct for the court and the parties implied by the requirements are in the interests of public order. This is not always the case. If the requirements of due process protect only or mainly the interests of one of the parties in the case rather than the public interest of proper judicial procedure, then it can be accepted that a party renounces the protection offered by those requirements - in advance - or - in retrospect - resigns itself to shortcomings in the protection offered (§ 7.3.9).

As a rule, procedural acts which are at variance with due process do not achieve the usual and intended legai result. Apart from this, the court may see the 'winning party's' violation of the requirements of due process as a reason to order that party to pay part of the costs, in contravention of the basic legai rule. If the court disregards the requirements of due process in its treatment of a case, its decision may be reversed in an appeal case on those grounds. (§ 7.4).

A reference to the requirements of due process does not constitute an independent argument in favour of a rule or a decision, but presupposes arguments. The court must always first establish on the grounds of specific arguments what due process means or entails in a specific case. In other words, the application of the requirements of due process demands a certain degree of 'construction'. The case law examined revealed several interests which the Supreme Court aims to protect by invoking due process. They are: the interests of accessible procedure, the interests of hearing both parties, the interests of effective and expeditious administration of justice, the interests of equality of arms, the interests of arriving at the truth in legai proceedings, the interests of sufficient justification for a judicial decision, the interests of the possibility of redressing errors made in the first instance in an appeal case, and the interests of legai certainty, in the sense of predictability of the procedural law applied (§ 8.2).

There is little point in asking whether an appeal to the requirements of due process is essentially an appeal to the principles of civil procedure, since the answer to this question depends on the question of which requirements are regarded as principles of procedural law - and the answers to that question vary widely. It is more important for the court to determine as objectively as possible what due process entails. To do this it must comply with juridical views which prevail in the legal community. These views are expressed for example in law which has already been posited in legislation and legal precedents. This law expressen a certain appreciation of interests involved in the judicial procedure - both social interests and the individual procedural interests of parties in proceedings. As well as in positive law, juridical views are also expressed in legal literature and in any customs and codes of conduct which are accepted in a certain circle of people holding legal rights.

In every concrete case several conflicting interests are involved. Often juridical views on the relative importance of these interests do not point to one particular solution. The lack of compelling, unambiguous provisions means that the court has a certain latitude in determining what due process requires. However, this latitude does not include freedom ofjudgment for the court - only room for interpretation. The court must examine the points of law which have already been posited and the juridical views commonly held in the Netherlands, and then choose that solution for which, in the light of those points of law and those views, there are in its opinion the strongest arguments (§ 83.1 - § 833).

Ultimately the result of the applying the requirements of due process is largely determined by the circumstances of the case. It would be difflcult to draw up in advance an exhaustive list of circumstances which, in view of the interests involved, might be relevant to the determination of what due process entails. However, the case law examined shows that some circumstances are always relevant - for instance, the nature and subject of the proceedings, the magnitude of the interests involved in a claim or petition, any justifled expectations which may have been created, and any culpability with respect to certain elements of procedural conduct. In addition, it may be assumed that the relationship between the parties will also have an impact on what is expected from each of them on the grounds of due process (§ 83.4).

Case law reveals that the application of the requirements of due process has much in common with the application of Article 6 of ECHR, the requirements of reasonableness and fairness, the doctrine of the forfeiture of rights, the doctrine of the abuse of power and the doctrine of unlawful acts. In order to define a basis for the standardization of procedural conduct as precisely as possible, it would be helpful to be able to distinguish clearly between the requirements of due process and these doctrines. The requirements of due process have a broader scope of application than Article 6 ECHR, which is applicable only to civil procedures which involve the determination of civil rights and obligations. Moreover, Article 6 ECHR is directed to the Contracting States, and in particular to the courts, and therefore, unlike the requirements of due process, does not directly impose obligations on parties in the proceedings. Article 6 ECHR has a stronger 'normative power' than the requirements of due process. As a rule, a formal statute which is incompatible with Article 6 must be regarded as inapplicable because it is invalid. The consequences of requirements of due process can only be that in a speciflc case, in view of the special circumstances of that case, a legal provision is not applied. The normative scope of the requirements of due process is wider than that of Article 6 ECHR. Violation of Article 6 ECHR always also constitutes violation of the requirements of due process. However, the requirements of due process also represent other principles and juridical views as well as the requirements contained in Aaide 6 ECHR, which in fact states only the minimum requirements. Within the boundaries drawn by Aaide 6 ECHR, further requirements can be specified by invoking due process. Thus violation of the requirements of due process does not necessarily mean incompatibility with Aaide 6 ECHR (§ 9.2).

However, in legai literature it has been argued that the requirements of reasonableness and fairness which govern the substantive legai relationship between the parties prior to proceedings have an impact on the proceedings and partly coincide with, or even take the form of requirements of due process. But this argument overlooks the fact that reasonableness and fairness as norms of conduct have their roots in the law of obligations, and specifically in contract law, and that in the course of time the concept of reasonableness and fairness has acquired certain connotations through countless concrete applications in relationships between creditors and debtors. The procedural context is so different from the context of the law of obligations that it is impossible to attribute significance to reasonableness and fairness for the way procedural powers should be exercised. Moreover, the unwritten law which contains the standards for the procedural conduct of parties in litigation is fundamentally different in character from the unwritten law which sets standards for the conduct of parties in the context of the law of obligations. The requirements of due process imply standards not only for the way parties should behave towards one another, but also standards for the conduct of the parties towards the court and for the conduct of the court towards the parties. The relationship between the court and the parties is determined by the court's task and the public interests involved in judicial procedure. These are completely different factors from the factors which determine the legai relationship between the parties in the context of property law. Drawing a distinction between the requirements of due process and the requirements of reasonableness and fairness means recognizing this difference.

In the context of property law, the Supreme Court refers to the forfeiture of rights if, in accordance with the standards of reasonableness and fairness, claiming a certain right is incompatible with the way the person holding the right has behaved previously. For this principle to be applied, it is required that there are special circumstances as a consequence of which either the other party has been led to expect that the person holding the right would no Jonger claim the right, or the position of the other party would be unreasonably disadvantaged or burdened if the person holding the right were to claim the right. The fact that forfeiture of rights in proprietary relationships which are governed by reasonableness and fairness is based on that same reasonableness and fairness does not in itself exclude forfeiture of rights being based on due process in a procedural context. If the exercise of a procedural power is deemed inadmissible in view of the requirements of due process on the grounds that the person holding the right has by previous conduct created justified expectations that he or she will no Jonger claim that right or on the grounds that in view of previous conduct the exercise of that power unreasonably disadvantages or burdens the position of the other party, this can be seen as a procedural application of the doctrine of forfeiture of rights. Moreover, the criteria of justified expectation' and 'unreasonable disadvantage' leave sufficient scope for taking the procedural context into account. It may be assumed that in procedural law, characterized as it is by conflict and distrust, it will be less likely that justified expectations or unreasonable disadvantage can be demonstrated than in contract law, which is characterized by joint interests and mutual trust (§ 9.4).

The requirements of due process, the doctrine of forfeiture of rights and the doctrine of abuse of power have in common that in the administration of justice they are used as grounds deriving from unwritten law for restricting the exercise in a specific case of procedural powers to which certain parties are entitled. The prohibition against abuse of procedural power can be regarded as a requirement of due process. In Article 3:13 of the Dutch Civil Code three criteria are listed which can be used to prove that abuse of power has occurred. Abuse of procedural power constitutes a special category of cases in which a power has been exercised contrary to the requirements of due process. Abuse of procedural power always constitutes violation of the requirements of due process, but the reverse is not the case. The exercise of a power contrary to the requirements of due process only constitutes abuse of power if the criteria for abuse are fulfilled. In order to establish clear concepts and a clear distinction between the doctrine of abuse of procedural powers and the requirements of due process, the term 'abuse of power' should be restricted as much as possible to cases which meet the criteria listed in Article 3:13 Para 2 of the Dutch Civil Code (§9.5).

A glance at the relevant case law shows that in the field of civil procedure relatively little significance can be attributed to the concept of an unlawful act. Nevertheless, the question arises whether procedural conduct which is contrary to the requirements of due process also constitutes an unlawful act in the sense of Article 6:162 of the Dutch Civil Code. An action which violates the requirements of due process does not necessarily also constitute an action which violates a legal obligation. The obligations arising from the requirements of due process often turn out to be obligations which if disregarded lead only to the action in question being invalid. An act is an unlawful act in the sense of Article 6:162 of the Dutch Civil Code only if it constitutes a violation of a legal obligation or abuse of a procedural power. If an act of the court has violated the requirements of due process, then according to settled case law from the Supreme Court it seldom leads to liability of the State on the grounds of an unlawful act. To date the only principle which the Supreme Court has deemed to be such a fundamental legal principle that if it is violated the State is liable for any ensuing damage is the principle of hearing both parties. However, other principles which might be seen in the same light, especially in view of Article 6 ECHR, are the principle of impartiality and independence of the court, the principle of equal treatment of both parties, and the principle of adjudication within a reasonable time (§ 9.6).

The last chapter of this book discusses the functions of references to due process. It appears that for regulators a reference to due process is a means of giving the court more freedom to take all the circumstances of a specific case into account in reaching an appropriate decision in that case. The impossibility of providing a clearly defined regulation which would be appropriate in the multitude of possible cases in which it would have to be applied may be a reason for the regulator to give the court this free-dom by referring to due process. For the court a reference to due process seems to serve as a formal legitimisation of decisions or extralegal rules and as a substantive argument for those decisions or rules. The formal legitimising function consists of the reference to due process being presented as a legal ground. The court asserts that the decision it has made or the rule it has formulated is based on unwritten procedural law. A reference to due process is sometimes also used by the court as a substantive argument, but an appeal to due process for this purpose is problematic. The concept of 'due process' suffers from 'argumentative poverty'. It is precisely the nature of what due process entails or involves which needs to be established more clearly in the court's decision. Decisions which refer only to due process as the grounds on which they are based are in fact ungrounded. Finally, it seems that for parties in proceedings the requirements of due process, because of their lack of substantive definition, are ideally suited to serve as a legal ground for gaining the procedural legal result they desire, if there is no statutory basis for that result. Moreover, by invoking the requirements of due process they can attempt to 'break open' the statutory regulation of procedural law (§ 10.2).

The normative functions of the requirements of due process in relation to written law can be divided into supplementary, interpretive and restrictive functions. In a general sense the requirements of due process supplement the statutory regulation of procedural law with the rule that the conduct of parties in proceedings and the judicial procedure of the court must comply with the requirements of due process. In addition, the requirements of due process appear to serve as a basis for extralegal powers and extralegal obligations. The interpretive function of the requirements of due process is manifested in decisions in which the court's interpretation of a certain provision depends partly on what the requirements of due process entail in general or in the specific case in question. Finally, by invoking the requirements of due process the court can put constraints on the exercise of a power which exists in the abstract and derives from the law. Likewise, the requirements of due process may also mean that a legal rule which in its own terms is applicable to the case in question is not applied in view of the circumstances of the case.

It would be difficult to underestimate the importance of due process as a normative concept in the operation of procedural law. The large number of case law rules based on due process included in the Code of Civil Procedure when procedural law was reviewed in 2002 is a good indication of that importance.

Several objections can be raised against the use of due process as a normative concept. The main objection is the unpredictability ensuing from this use for parties in proceedings. This unpredictability is not very compatible with the formal and regulatory nature of procedural law, which is partly governed by public law, and the of-ten contentious relationship between parties in proceedings. In view of these objections, legislators should be cautious with references to the requirements of due process. As a rule, more speciflc criteria should be chosen. Moreover, the court should exercise caution in invoking the requirements of due process as a ground for imposing restraints on the exercise of parties' procedural powers (§ 10.4).

However, in general the role of the requirements of due process in civil procedure can be seen as positive. The requirements of due process function as grounds for 'tailormade' procedure in the court, as grounds for departure from written rules in cases where the court considers this appropriate in view of the circumstances of the case, and also as grounds for decisions and rules which are geared to new needs and reflect social changes and altered legal views. To a certain degree references to the requirements of due process prevent procedural law from becoming rigid and outdated. Furthermore, a reference to the requirements of due process is evidently also a way of inducing parties to conduct 'responsible litigation', i.e. to conduct themselves in a way which is conductive to vigorous, efficient, effective and fair proceedings.

Translation: J. Harvey