Chapter 6

The Netherlands

Arno R. Lodder, Anja Oskamp and Ronald van den Hoogen

6.1          Introduction

After tentative plans in the 1970s, the actual use of computers in criminal proceedings really started in the 1980s. At the beginning of this century, viz., 2003, most parts of the judicial organization are automated, or, to put it differently, are supported by Information Technology (IT). As far as civil and administrative procedures are concerned a similar development can be recognized.

6.2          IT support for judges concerning sentencing decisions

Both the acknowledgment of the inconsistency problem and the need for judicial sentencing that does not depend too much on prosecution policy, have resulted in the developed of a statistical system for the Judiciary (NOSTRA), inspired by the Scottish Sentencing Information System (Hutton et al., 1996). It delivers statistical figures relating to sentences passed in previous cases that are considered to be alike on the basis of limited concepts.[1] Because the number of concepts is rather small, sometimes a retrieved case is not relevant because of other concepts that have not been taken into account. Therefore, the information which judges obtain from the system needs to be seen in perspective. The technical evaluation of the system has not been very positive.[2] The technical as well as the organizational management of information needs to be improved.

     The lack of information concerning the reasons why colleagues decide to impose a specific sentence is considered to be a possible cause of the inconsistency in judicial sentencing. In order to provide judges with better information about sentencing (considerations) in like cases, the Ministry of Justice supported a project that resulted in an advanced retrieval system for similar cases: IVS (E.W. Oskamp 1998).[3] The system uses many concepts to determine whether cases are similar. IVS very efficiently retrieves and presents the arguments and considerations used for the sentences which are imposed in similar cases.

     At the end of 1999 the CST (Consistent Sentencing) project started, whose objective was to develop a database that will be easier to use and maintain than IVS. Two years later, this database was presented. The characteristics used by E.W. Oskamp were reduced to a minimum, but included basically the criteria type of offence, first offender, and the age of the offender. The database can currently be used by judges via Intranet, but in the coming years the judiciary wants to make the database available to attorneys as well as the general public.

6.3          IT support for the prosecutor concerning sentencing requests

In 1989 an Act was introduced, known as ‘de Wet Mulder’ (The Mulder Act), that deals with the automated handling of certain traffic violations. For example, in cases of driving through a red light or exceeding the speed limit, almost without human intervention this violation automatically results in a pre-printed giro credit slip that is sent to the violator.

     A more recent initiative is the support of the public prosecution service by a decision support system. In general, the prevention of inconsistent sentencing leads to measures to attach fixed penalties to specific offence descriptions. Naturally, IT is an important tool to support this objective of consistency. The public prosecution service has introduced prosecuting guidelines and their application is supported by the rule-based (decision tree) decision support system BOS (POLARIS 1997). This system provides advice to the prosecutor as to which sentence should be demanded.[4] The prosecutor needs to answer certain questions about the facts and circumstances of the case, e.g., ‘the amount of money stolen’, ‘the use of a weapon’ or ‘the violence used towards the victim’. The system translates those answers (e.g., ‘more than EUR 1000’, ‘yes’, ‘little’) into points and percentages. At the end the system converts the points and percentages into a particular sentence to be demanded from which the prosecutor can only deviate only if he has sound reasons therefor.[5]

     As of December 2002 the BOS program can be downloaded via <www.om.nl/bos>.

6.4          IT support for judges IN determining damages

A program called DOLOR has been on the market since the late 1980s. It can be used by judges for determining damages, in particular concerning personal injuries. DOLOR is a commercial program, published by the ANWB (The Dutch Road Users’ Association) This program provides details on amounts of damages awarded by the courts and published in the journal Road Traffic Law (in Dutch: Verkeersrecht). It contains abstracts from case law on damages. It is possible to search the cases using various described criteria. This year a new and modern version of the DOLOR program will be published by the Dutch publisher Kluwer. There is no information available as to whether this program is presently being used by judges.

6.5          Management information to evaluate the productivity and/or quality of judges

In the mid-1990s a program called RAPSODY was introduced to generate management information. It derives information from the administrative systems that are used by the Judiciary (see infra 6.12: COMPAS (criminal proceedings), BERBER (administrative proceedings), and ‘Civiel Rechtbank’ (civil proceedings). Besides periodical overviews of a number of cases that have come before the courts and their outcome, it is also possible to formulate an individual query. In the latter case information is generated upon demand. In criminal proceedings a system called CEBRA is used to output on demand. A special server is used to answer the SQL-like queries that can be sent by e-mail using the CEBRA system.

     Judges generally do not like their performance to be evaluated by quantitative means such as management information. Judges fear that the use of management information could force them to work faster and thereby less accurately. This is not an unrealistic fear, because of the fact that courts are nowadays funded according to the number of cases they handle.

6.6          On management, funding, design, and evaluation

Since 1 January 2001 the Netherlands has had, like other European countries, a Council for the Judiciary. This Council is responsible for the development of the IT infrastructure and applications for the courts. The management of a particular court, including the decisions to use specific tools is still in the hands of each court individually. This is also the case for the funding of systems, as well as for their design and evaluation.

     It is interesting to note the difference between the courts and the Public Prosecution Service. The latter is more subject to general and co-ordinated management than the Judiciary. The Ministry of Justice is responsible for the general management of the Public Prosecution Service. For the Public Prosecution Service certain systems have been developed, like COMPAS, that are generally used by all Public Prosecution offices. The spin-off of these systems are systems that are also used by judges for specific tasks. An example is the ARC system that is used by the investigating magistrate. But verdicts are also constructed with the help of data contained in COMPAS, for which a separate entry (SAS) is used by the judges. Another interesting observation is that the (management) organization of the police force resembles the (management) organization of the Judiciary. Police forces in the various districts are quite autonomous. However, the use of co-ordinated systems is limited for the police. The degree of IT support varies among the various police districts and depends on the management of a particular district. Systems are developed according to the initiative of a specific (group of) forces. The same is true for judges. The NOSTRA system for example (see supra 6.2), is an initiative of the northern circuit.

     Databases have traditionally been developed and exploited by publishers. The initiative, design and evaluation have always been controlled by those publishers. They have also taken the necessary financial risk. This has been a natural consequence of the fact that in the Netherlands the publication of case law and of legislation has traditionally been in the hands of commercial publishers (Bovens, p. 28). This means that they could decide on the prices for their services, and what is to be published and what not. Recently this seems to have changed. When the ADW (Algemene Databank Wet- en regelgeving[6]) was published electronically, it gave rise to some commotion because of the fact that it had been exploited by a publisher and that one had to pay for its use (Verkade 1998). A special service called JUSTEX should co-ordinate the automated deliverance of case law and a special internet site (<www.rechtspraak.nl>) has since 1999 published cases according to specific guidelines. The latter has not been developed for the courts, but for public use. Also, since 2002 a special site called Wetten.nl has been open to the public, and includes all Dutch legislation, including Ministry guidelines.

     Together with the establishment of the new Council, a new nationwide service organisation for the Council for the Judiciary, the Public Prosecutions Office and – on behalf of the Supreme Court – the Ministry of Justice has been formed, the ICTRO (ICT for the Judicial Organisation).

     ICTRO is in charge of maintaining the IT infrastructure for the judiciary and the prosecution service. They install and maintain hardware, they maintain and develop software applications and they provide training, but, generally speaking, policies are not directed at developing entirely new initiatives, but to make use of what others have already developed. The organisation has been set up as a service of the Ministry of Justice, but the Ministry has transferred ownership to the Council and the Prosecution Service. Assignments are given by internal contracts. This means that the Council for the Judiciary and the Public Prosecutions Department are able to supervise IT services and the development of specific IT applications.

     The Judiciary has its own agency for developing new Internet and web-based applications, called BISTRO (Bureau Internet Systemen en Toepassingen Rechterlijke Organisatie). Other new IT developments will largely be realised through outsourcing. In order to steer these efforts, the Council is in the process of setting up a program management organisation.

     Recently, a Project entitled ‘Proeflokaal ICT’ has been set up to gain an insight, on a structural basis, into the possibilities of ICT for supporting the judiciary.

6.7          Sentencing systems for judges and prosecutors

The movement for fairer and more consistent sentencing in the Netherlands led to the development of several JDSSs that are already or shortly will be used by the Public Prosecution Service and the Judiciary. The systems that have been so far developed are meant to be used by the Public Prosecution Service on the one hand, and the judges on the other.

     The different role of the judge (independent) and the public prosecutor (belonging to the executive branch) must be reflected in the IT support. The rule-based system BOS is appropriate for the public prosecution service (formalized guidelines). The judge, however, may be more ably assisted by a different method of support: quick and easy access to information on the case at hand, instead of a database containing previous cases.

6.8          On the mandatory use of systems

The difference in organization between the Judiciary and the public prosecutors is also reflected in the mandatory use of systems. In theory, it is easier to oblige the public prosecution service to use specific systems. The general management task of the Ministry of Justice enhances this. The autonomy of the courts, in the present situation, does not make such an obligation possible. In practice we can see, however, that it is not so easy to actually effectuate the use of systems. That also means co-operation between local management. They have to take measures to compel the use of the system. According to our information the BOS system is not used on a general basis by all Public Prosecutions Offices.

6.9          Theoretical legal issues

IT support for administrative tasks has already existed for a long time in the Judiciary. From a more recent date stems the use of decision support systems (e.g., BOS) and automated decision-making (e.g., Mulder). The validation of these types of systems is important, because these systems decide themselves or support those who have to take such decisions. Although in the past attention has been paid to the issue of validation (Kracht, De Vey Mestdagh and Svensson 1990, Weusten 1993), this topic has recently gained renewed attention (e.g., De Vey Mestdagh 1999, Oskamp 1999).

     The question of in what way the principles of traditional dispute settlement can be realized in an electronic environment is something that needs serious consideration over the next couple of years. There are currently initiatives by the EU on electronic dispute settlement (both by traditional courts and alternative dispute resolution).

     The Dutch government is still working on the implementation of the data protection directive (95/46/EC). Privacy is an issue that influences the exchange of data between the different parties in the judicial chain. The exchange of data concerning a suspect between the police and the public prosecution service is a delicate issue. More in general, the question is who should be allowed to obtain information on suspects and/or convicted criminals and under what conditions. Precise guidelines and independent supervision are necessary on this point.

6.10       Theoretical ICT issues

One of the theoretical ICT issues is the question to what extent for the administration of cases, distributed local databases linked to one another through general indices should be used. The alternative would be a central database.

     It is generally acknowledged that access to files and information independent from the location where a judge or prosecutor is located at a certain moment is desirable. The question here is how the remote access can be realized, and can a high level of security still be guaranteed. Since it is to be expected that criminal organizations will increasingly shift their activities to the electronic environment (cyber crime), it goes without saying that the growing expertise in ICT among criminals will have repercussions on the level of security that needs to be effectuated.

     The use of advanced technologies, like data mining, intelligent agents, speech recognition and knowledge systems will become more and more integrated in the ICT of the Judiciary.

6.11       Completely digitized procedures

A so-called Document Information System (DIS) is currently being developed by the Public Prosecution Service. A DIS contains scanned and stored documents relating to criminal cases and enables authorized users to work with original documents simultaneously.[7] That authorization is to be regulated within an intranet environment. A spin-off of the Document Information System is an automatically generated ‘electronic file’: an electronic version of what is normally contained in a paper file. Within the Judiciary several pilot studies have been carried out with files on a CD-ROM. It has been shown that the efficiency of recovering relevant facts concerning a specific case improved, especially if a sizeable case was concerned. However, collecting information on a case on a hardly amendable CD-ROM is not the way in which it will be done in the future. Therefore other non-permanent information carriers like regular data bases are more suitable.

     The DIS can produce electronic files and these files can be transported to various information systems. However, it must be regulated who has read or has access and to what part of the available information. Some parts should be accessible to the prosecutor, whereas other information should be accessible to the judge only. In the possible absence of legal prescriptions, agreements have to be made as to which of the mutations by the judge are accessible for the prosecutor and vice versa. In order to produce electronic files in an efficient way, again a uniform structure of information is essential. If the judge at first instance has decided a case that is stored in an electronic file, eventually other courts must be able to access that electronic file. In case of appeal, the court of appeal handling the case will not only have the right to access the information on the electronic file, but also the right to add relevant new information.

     It should be noted that already at the beginning of the 1990s, and maybe even before then, the term paperless office was being used. However, realization of the electronic file should not to be expected in the very near future. In mid-1999 the pilot schemes of the DIS project were not really successful (Lodder, Oskamp and Duker 2000).

6.12       The state of automation

The general state of automation of the Judiciary is reasonably satisfactory.

     In criminal proceedings, the core of the administrative systems is COMPAS, which was introduced in the late 1980s. The central concept of this administrative system is a criminal case. For each new case a file is added to the system, even if there is already another case with the same suspect. Lack of knowledge concerning other cases related to the same person has in the past led to failures, for example suspects being summoned at their home address while they were actually serving a term of imprisonment. To prevent such errors a system called VIPS (Reference Index Criminal Law) has been developed. By means of a unique number this system connects the data of a person stored in criminal proceeding systems with external systems like the registration of inhabitants by the municipalities. The VIPS system has already been operational since the mid-1990s, but its actual use is somewhat disappointing. The successor of COMPAS is currently being developed and takes a person, not a case, as its starting point. Building upon the idea of VIPS, different cases relating to the same person are stored in one file instead of separate files. Note that the COMPAS system is primarily meant for use by the public prosecution service. The judges have separate access to the system by means the ARC and SAS systems.

     In administrative procedure the BERBER administrative system was introduced at the beginning of the 1990s. Also in civil proceedings an administrative system is used, known as ‘Civiel Rechtbank’ (cf., Weusten et al., 1999, p. 115).

     There is, however, still quite a discrepancy between the possible use of implemented systems and their actual use. For instance, the Ministry of Justice does have a Document Information System, but this system is only used to monitor the physical location of paper files. The reference in the system is either to the person who has the paper file at a particular moment, or to the archive. No electronic copies of the files can be retrieved when using the system. Another example is the BOS system, its use being obligatory for Public Offenders since April 1999. From inside information which we have obtained concerning two courts, it appeared that at the beginning of 2000 in one court the system had never be used, and in another court it was used only occasionally. We do not have the feeling that the situation in the other 17 courts will be totally different.

     If we are talking about automation nowadays, we cannot discount the Internet. The Ministry of Jusitice has quite an informative site (<www.minjust.nl>), and also the Public Prosecution Service has its own site (<www.openbaarministerie.nl>). Via <www.rechtspraak.nl> information can be obtained about the courts’ organisation and concerning the different procedures. On the national site guidelines for civil and administrative proceedings are published. Each court also publishes its organisational rules and various guidelines concerning different types of proceedings, and guidelines concerning costs. The courts publish a selection of their case law and a calendar of court sessions. Also the additional offices of judges are published on the courts’ web site.

     Via <www.openbaarministerie.nl> various information is made available to the public. The site also offers information about the administrative handling of minor offences, news, dossiers on special cases and guidelines for what degree of punishment can be demanded in most categories of cases.

6.13       Bibliographical references

Bovens, M.A.P. (1998), De digitale rechtsstaat: beschouwingen over informatiemaatschappij en rechtsstaat (inaugeral address), Utrecht.

De Vey Mestdagh, C.N.J. (1999), ‘Validatie van juridische informatiesystemen’, in: A. Oskamp and A.R. Lodder (red.), Informatietechnologie voor Juristen – Handboek voor de jurist in de 21ste eeuw, Deventer, Kluwer, pp. 161-177.

Duker, M.J.A. and A.R. Lodder (1999), ‘Sentencing and Information Management: consistency and the particularities of a case’, Proceedings of the Seventh International Conference on Artificial Intelligence and Law, ACM, New York, pp. 100-107.

Hutton, H. et al. (1996), A Sentencing Information System for the Scottish High Court, The Scottish Office, Central Research Unit.

Koers, A. (1999), Driemaal is scheepsrecht (inaugeral address), Utrecht.

Kracht, D., C.N.J. de Vey Mestdagh and J.S. Svensson (1998), Legal Knowledge Based Systems: An overview of criteria for validation and practical use, Lelystad, Koninklijke Vermande.

Lodder, A.R., A. Oskamp and M.J.A. Duker (2000), Informatietechnologische ondersteuning binnen het Strafprocesrecht (ITeR-rapport 36), Den Haag, SDU.

Oskamp, A. (1998), Rechtsinformatica: vooruitzien in de informatiemaatschappij (inaugeral address), Deventer, Kluwer.

Oskamp, A. (1999), ‘Voorwaarden voor juridische IT-gebruik: beoordeling vooraf, tijdens en na ontwikkeling’, in: A. Oskamp and A.R. Lodder (red.), Informatietechnologie voor Juristen – Handboek voor de jurist in de 21ste eeuw, Deventer, Kluwer 1999, pp. 145-160.

Oskamp, E.W. (1998), Computerondersteuning bij straftoemeting, de ontwikkeling van een databank, Arnhem, Gouda Quint 1998.

POLARIS (1997), Project Ontwikkeling Landelijke Richtlijnen Strafvordering, Brochure ter introductie van de POLARIS-richtlijnen, Den Haag, Openbaar Ministerie Voorlichtingsdienst, Paleis van Justitie.

Verkade, D.W.F. (1998), ‘Het contract is een schande’, Computerrecht 1998/3, pp. 104-105.

Weusten, M.C.M. (1993), ‘Validation: the key concept in maintenance of legal KBS’, Proceedings of the Fourth International Conference on Artificial Intelligence and Law, New York, Association of Computing Machinery (ACM) 1993.

Weusten, M.C.M. et al. (1999), Inleiding in de juridische informatica, Deventer, Kluwer.