BREAK THROUGH IN DUTCH LEGAL PROCESS BEFORE SUPREME COURT
Karim Aachboun is responsible for a trailblazing development in civil procedural law in that he managed to lodge a cassation appeal for his client with the Dutch Supreme Court without involving a cassation lawyer, invoking case law on overturning appeal and cassation prohibitions, pursuant to a decision on a challenge against a subdistrict court.
Karim Aachboun works as a legal advisor and tax expert at his consultancy firm TaXeCo, based in the Zuidas district of Amsterdam. During his career, he has assisted major clients throughout the world, including Louis Vuitton Moët Hennessy and FC Barcelona players. Furthermore, he played an important strategic role in bringing the European head office of the Israeli chemical giant ICL to the Netherlands. The opening of their office was attended by Prime Minister Mark Rutte, who spoke warm words on that occasion.
The proceedings
On 3 November 2021, Aachboun brought a cassation appeal in a civil matter pursuant to a challenge against a subdistrict court. When this happens, the Dutch Supreme Court must first assess whether the cassation appeal passes the initial selection process. For this reason, Aachboun initially received a letter from the Supreme Court stating that the cassation appeal would be disallowed because he was not a cassation lawyer.
Aachboun disagreed and argued that if there is a ground for overturning appeal and cassation prohibitions in challenge proceedings (on appeal) against a subdistrict court, an exception should be made in respect of mandatory representation in cassation appeals under Article 6 ECHR. After all, the Court of Appeal had already allowed Aachboun’s appeal in the proceedings aimed at overturning the appeal and cassation prohibition. The Supreme Court subsequently agreed, as evidenced by a letter granting Aachboun permission to continue the cassation proceedings. In this connection, Aachboun requested the district court to stay the main proceedings so as to prevent his client from losing their interest in these cassation proceedings.
At some point, a problem arose in issuing the invoice for the payment of the court fees, because the Justice Service Centre has no system for this kind of situation. An IT specialist had to be called in so that the system could be modified. On 26 November 2021, Aachboun received a letter from the cause list judge, informing him that the Procurator General’s Office would assess the cassation appeal and that this would mark the start of the cassation proceedings.
According to the Supreme Court’s website, the average processing time for cassation proceedings is 360 calendar days. Despite this lengthy processing time, the Advocate General delivered an opinion on 17 December 2021. In view of the normally lengthy processing time of proceedings before the Supreme Court, the alacrity with which these proceedings are being dealt with suggests that the Supreme Court has given this matter high priority.
After receiving the Advocate General’s opinion, Aachboun requested the Supreme Court for permission to file what is known as a ‘Borgers’ letter, i.e. a substantive response to the Advocate General’s opinion, within the next two weeks. Initially, the Supreme Court refused this request. Aachboun disagreed, indicating that this would constitute a violation of the fundamental principle of hearing both sides of the argument. On the following day, Aachboun was informed both by telephone and in writing that he was free to submit a Borgers letter to the Supreme Court within the next two weeks. It is unknown as yet what Aachboun will argue in his Borgers letter.
This is a unique development in Dutch legal history where challenges against a subdistrict court are concerned. Although non-cassation lawyers have lodged cassation appeals with the Supreme Court in the past (see HR:2015:3633, HR:2018:1786, HR:2020:2090 and HR:2020:800), those cassation proceedings did not concern a ground for overturning appeal and cassation prohibitions in a challenge against a subdistrict court.
Aachboun himself observes: “It is important for legal development in the Netherlands that legal practitioners have clarity on this point. That is what matters to me. On this occasion, I would like to thank two people in particular for my legal training: the late professor F.H.M. Grapperhaus (the father of outgoing Minister Grapperhaus) and Ad Aerts (former senior partner at KPMG Meijburg & Co).”
After speaking to lawyer Cor Hellingman on the telephone, he told me that he considered this to be a very special situation, seeing that these cassation proceedings concern a challenge against a subdistrict court.
