Tech & Rights

Mega Settlements Erode Rule of Law in the Netherlands

The Dutch judiciary wants to stop mega settlements between companies and the Office of the Public Prosecutor that are reached behind closed doors.

by Nederlands Juristen Comité voor de Mensenrechten
Photo: Aldas Kirvaitis

Every year, a large number of lawsuits are settled out of court. The Office of the Public Prosecutor then negotiates a settlement with a party that has broken the law. Big companies are also able to reach agreements with prosecutors behind closed doors, in so-called mega settlements. According to the judiciary, this practice must be stopped as soon as possible. But why? Here are three questions about mega settlements.

What is the problem with mega settlements?

The cases are not adjudicated by a judge. Everyone in the Netherlands must comply with the law. If someone is suspected of a crime, a judge has to find whether they are guilty and if so what their punishment should be. This happens in public, so that society can see what the consequences of criminal behavior are.

The public should have confidence in the fact that if the law is broken, the perpetrators are subject to due process of law, including police investigation, prosecution, and sentencing in court. If judges are sidelined and settlements are made in private, there is no transparency. This is detrimental to confidence in the rule of law.

Do public prosecutors not handle settlements professionally?

Public prosecutors work with integrity and professionalism when making settlements, but judges must be able to test these agreements for accuracy. In cases that have an important impact on society, it is important that that the public is able to determine what the action being taken is and see what consequences there are to punishable behaviour. That is only possible to a limited extent if public prosecutors handle extremely large criminal cases with transactions.

What has to change?

Public prosecutors have been taking on more tasks because the criminal justice system is sometimes slow, and cases sometimes take a long time to come to court. In response to this, legislators have given public prosecutors more authority. However, things need to change now. Instead of settling more and more cases out of court, it is high time that the entire criminal justice system is improved, so that sidelining criminal judges is no longer necessary. Citizens have the right to a properly functioning legal system. Only then can judges fulfil the role assigned to him by the rule of law: assessing, judging and consequently punishing appropriately and transparently.