Going to cassation: the Supreme Court
The Supreme Court is the highest court in the Netherlands in the areas of civil, criminal and tax law. If you file an appeal in cassation, the Supreme Court assesses whether the lower court – usually the Court of Appeal – has applied the law correctly on the basis of the facts established by that court and whether its decision was sufficiently reasoned. In other words, cassation proceedings are not a complete rehearing of the entire case. Nor does the Supreme Court conduct its own investigation of the facts.
If you intend to submit to a court decision on the facts or the interpretation of procedural and other documents to Supreme Court, there needs to be an incomprehensible finding on the issue in question. A finding can only be incomprehensible in terms of cassation if the argument is that the lower court could not possibly have reached its decision based on the substance of the documents before it or the other facts reviewed by it.
Another requirement of cassation proceedings is that you have to have an interest in your complaints. This means that, if your complaints succeed, they should also be able to lead to a different outcome of the proceedings. Consequently, complaints which do not attack the essence of the judgment or that which take issue against judgments that are not unfavourable to you have no chance of success.
Defence and cross-appeal in cassation
Another possibility is that the other party to the proceedings appeals the case in cassation. You or your lawyer will then receive an initiating document that sets out that party’s grounds for the appeal. A cassation lawyer can advise you on their chances of their success and the need to put forward a defence.
If the judgment in question also contains decisions that are unfavourable to you as a defendant, you can challenge them by issuing your own appeal in cassation. This cross-appeal in cassation is filed along with your defence in cassation.
Further course of the cassation proceedings
Cassation proceedings can involve either claims or applications. A claim case is usually a cassation appeal against a judgment, while an application case is a cassation appeal against a decision. Both proceedings are commenced by means of an initiating document which must set out the full grounds of the appeal in cassation. Accordingly, unlike in appeal cases, an appeal in cassation cannot be filed by means of a so-called ’empty’ initiating document.
If the Supreme Court finds the cassation appeal admissible, the defendant in cassation can respond to the complaints by filing a defence. In claim cases, this usually contains just a single line moving for the appeal in cassation to be dismissed. If the defendant files a cross-appeal in cassation, the defence must also contain the grounds of that cross-appeal.
In a claim case, the parties then simultaneously exchange written submissions three or four months after the defence. At that point, the claimant can explain its complaints in cassation by referring to the relevant case law, literature and other legal sources. In its written submissions, the defendant can set out a substantive defence against the complaints in cassation and explain any complaints in its cross-appeal in cassation. The parties can respond to each other’s written submission by submitting a reply or rejoinder two weeks after the exchange of written submissions.
The course of proceedings is different in application cases. The initiating document has to set out all the complaints, with a full explanation of them and with reference to the relevant case law, literature and other legal sources. The defendant must then immediately set out its entire defence in a defence statement. Any complaints in a cross-appeal also have to be fully set out and explained in that statement. The claimant can then issue its own defence statement containing a substantive response to any complaints in the cross-appeal.
Following the written phase, the documents are then sent to the Procurator General’s Office at the Supreme Court, after which, in most cases, the Advocate-General issues his or her opinion on behalf of the Procurator General, usually four to five months later. This opinion on the case to the Supreme Court is non-binding. Two weeks are then allowed for a response, which is known as a “Borgersbrief”. The Supreme Court then normally issues its decision another three or four months later.
Decision in cassation
If the Supreme Court rules that the lower court’s decision should be set aside, there are two possibilities: in most cases, the Supreme Court refers the case to another lower court, but in some cases it disposes of the case itself. If the Supreme Court refers the case to another court, that court will then adjudicate the case taking into account the Supreme Court’s decision. If the Supreme Court disposes of the case itself, it will issue a final judgment. That then brings the proceedings to an end.
If the Supreme Court rules that the appeal in cassation should be dismissed, it may provide substantive reasons for its decision. However, the Supreme Court also has the option of dismissing the appeal in cassation (or part of it) by referring to Section 81 of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). In such cases, the Supreme Court does not give substantive reasons for its ruling, but simply provides the standard reasoning that the appeal in cassation does not raise any questions relevant to the unity or development of the law.
