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Decreasing role of the judiciary: is replacing the judge possible and desirable?

Judges are increasingly often replaced by other bodies. Less serious criminal cases are dealt with by the police, the public prosecutor or administrative bodies, instead of by the judge. Citizens also often first have to use a mediator or try to solve the problem themselves before they can call upon a judge.
Is replacing the judge possible and desirable?

Other bodies usually work faster than the judge and are cheaper as well. But do they do the job as well as the judge would? Are they just as independent, and do they offer just as much legal protection?

The risks of devolving judicial tasks

In the article entitled The decreasing role of the judiciary: is replacing the judge possible and desirable? (article in Dutch), NSCR researcher Marijke Malsch ascertains which judicial tasks can be taken over by other bodies. She claims that this development is associated with many risks: other bodies provide fewer guarantees than the judge; the chances of incorrect decisions are higher in criminal cases; and the citizen enjoys less legal protection.

Truth finding at risk

The judge is subject to a wide range of legal requirements when determining what actually happened in a case. For other bodies, that applies to a far lesser extent. Consequently, the "truth finding" can be put at risk. Research has revealed that in criminal cases, the defendant is incorrectly declared guilty more often when a judge is not involved. Furthermore, judicial procedures are public, whereas procedures at other bodies usually are not. It is therefore harder to monitor these bodies well.

Another important task of the judge is legal protection, especially that of vulnerable citizens. If the judge plays a less prominent role, then the legal protection is also put at risk. As the compensation for lawyers’ costs is decreasing and court registry duties are increasing, people are going to court less often. Consequently, they miss a significant part of their legal protection.

The judiciary must once again acquire a central role

Finally, judges are independent, while some of the other bodies are not. For example, the police and the public prosecutor depend on the Ministry of Justice and Security, whereas, in principle, that is not the case with judges. In the article, Malsch argues that the judiciary must once again acquire a central role in judging cases. Citizens must once again acquire easy access to the judge, and the judiciary must be strengthened.

Publication details and further reading

Malsch, M. (2018). De afnemende rol van de rechtspraak: is vervanging van de rechter mogelijk en wenselijk? Rechter in de marge? Justitiële verkenningen, 4 (pp. 49-63).
Malsch, M. (2017). Is het totaal meer dan de som der delen? Toezicht op strafvorderlijk overheidsoptreden. Nederlands Juristenblad, 43 (pp. 3132-3137).

Prof. Marijke Malsch LL.M.

Senior Research Fellow

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