Recht der Werkelijkheid

Meer op het gebied van Algemeen

Over dit tijdschrift  

Meld u zich hier aan voor de attendering op dit tijdschrift zodat u direct een mail ontvangt als er een nieuw digitaal nummer is verschenen en u de artikelen online kunt lezen.

Aflevering 2, 2022 Alle samenvattingen uitklappen

Access_open Access to justice in the digital era

Trefwoorden Access to justice, Digitalization, Remote justice, Vulnerability, Dispute resolution
Auteurs Marijke ter Voert, Anna Pivaty en Enguerrand Marique

    Developments in digital technologies have induced profound changes in the way legal services and legal dispute resolution bodies operate. But little is known about how the use of digital technologies in the field of law affects access to justice (A2J) for individuals and businesses. Digital technologies are often seen as enhancing A2J. Yet, empirical research into the (presumed) advantages and disadvantages of the use of digital applications for A2J is lacking. The aim of this special issue is to contribute to the empirical evidence base.
    The various contributions demonstrate that some types of digitalization provide better A2J because they broaden ways to contact institutions, make access cheaper or enable case processing in times of emergency, such as a pandemic. Despite these positive aspects, there are also challenges related to A2J, namely negative consequences of remote communication for the quality of procedures and participation of litigants; failure of technological solutions to deliver promised benefits; and difficulties of access for persons with poor digital capabilities or in vulnerable conditions.

Marijke ter Voert
Marijke ter Voert is Professor of Empirical Legal Studies at the Faculty of Law, Radboud University Nijmegen, the Netherlands. She takes part in the Nijmegen research group on Institutions for Conflict Resolution and focuses on (extra)judicial dispute resolution, access to justice, legal professions and digitalization.

Anna Pivaty
Anna Pivaty is Assistant Professor of Criminal Law and researcher at the Nijmegen research group on Institutions for Conflict Resolution. Her focus is on empirical research in the field of criminal justice and digitalization.

Enguerrand Marique
Enguerrand Marique is Assistant Professor of International and European Law and researcher at the Nijmegen research groups on Digital Legal Studies and Institutions for Conflict Resolution.

Online dispute resolution in the public justice system

Cheaper and faster than court litigation?

Trefwoorden Access to justice, Online dispute resolution, ODR, Digitalization of justice
Auteurs Teun Geurts en Gieneke Teeuwen

    It is often assumed that online dispute resolution is cheaper and faster for people seeking justice than litigation at court. Using empirical data from the public justice system in British Columbia, we examine the fees and case processing times of the Civil Resolution Tribunal and compare these with the Provincial Court and Supreme Court. Our case study yields both promising and discouraging results. Promising results pertain to the observation that online dispute resolution within the public justice system can be cheaper and faster, but this is not the case for all people seeking justice, and significant differences within the justice system are observed. In addition, important characteristics should be accounted for, in particular in debating the introduction of online dispute resolution platform in the public justice system as a replacement for a procedure at court.

Teun Geurts
Teun Geurts is a scientific researcher at the Internally Conducted Policy Research Division of the Research and Documentation Centre (WODC). He obtained his PhD in sociology at VU Amsterdam, the Netherlands. The contribution is written in his personal capacity.

Gieneke Teeuwen
Gieneke Teeuwen is a scientific researcher at the Research and Documentation Centre of the Dutch Ministry of Justice and Security. She studied political science and international law at Leiden University. The contribution is written in her personal capacity.

Digitalizing Welfare: The role of encounters in supporting marginalised citizens’ access to rights in the Danish welfare state

Trefwoorden Digitalisation, Welfare state, Encounters, Social marginalisation
Auteurs Stine Piilgaard Porner Nielsen en Ole Hammerslev

    Digitalisation of the public sector is advocated for as an efficient and responsive approach to the delivery of public services. In this article, we analyse the role of digitalisation from a bottom-up perspective as we zoom in on socially marginalised citizens’ access to welfare rights in the context of the digitalised Danish welfare state. In the Danish welfare state, the authority and responsibility to distribute welfare support rest mainly with the municipalities which thus play a significant role in the public sector infrastructure when it comes to ensuring efficient responses to citizens’ social problems. Yet, research suggests that citizens who lack legal and digital capabilities related to accessing welfare support in a digitalised welfare state may face challenges in this process. Drawing on observations of encounters between socially marginalised citizens and social workers who as intermediaries assist the citizens in the process of gaining access to welfare rights, and on semi-structured interviews with both parties, the article suggests that encounters between socially marginalised citizens and intermediaries can be decisive for citizens’ ability to access rights in the digitalised space of the welfare state.

Stine Piilgaard Porner Nielsen
Stine Piilgaard Porner Nielsen conducts socio-legal research which focuses on welfare state regulation and marginalised citizens’ encounters with welfare professionals.

Ole Hammerslev
Ole Hammerslev’s research focuses on legal professions, welfare states regulation, and the organisation and regulation of legal aid.

Access to administrative justice in the digital era: contact possibilities and the personal encounter in public ombuds institutions worldwide

Trefwoorden Public ombuds, Mixed methods, Access to justice, Digital transformation, Global comparative study
Auteurs Julia Dahlvik

    This paper contributes to the relatively new field of research at the intersection of digitalization, access to justice, and administrative justice by exploring how the digital transformation shapes citizens’ access to public ombuds institutions worldwide. I empirically explore the possibilities citizens have both in the analogous and the digital sphere to access public ombuds in order to complain about maladministration or mistreatment by public bodies. I build on the literature on inequality in the digital state and access to justice as well as on institutional and service design, including personal encounters, and its role in shaping access to (administrative) justice. The study is based on a mixed-methods design, including qualitative interviews with and a survey among ombuds staff of member institutions of the International Ombudsman Institute as well as the quantitative analysis of all members’ websites. Since there has been no empirical data of this scope available to date, this paper presents first descriptive findings which future research can build on.

Julia Dahlvik
Julia Dahlvik is a sociologist and interpreter. Julia currently holds a lecturer position at the University of Vienna and is a project researcher at the Austrian Academy of Science in a project on "Interethnic Coexistence in European Cities".

Remote access technologies, clinical evaluations of people-in-prison and digital vulnerability

Trefwoorden Remote access technologies, Psychiatric and psychological clinical assessment, Prisoners, Digital criminal justice, Vulnerability
Auteurs Carolyn McKay

    Psychiatric and psychological clinical assessment reports are presented in Australian courts for a range of significant legal proceedings including sentencing; when the state seeks to extend detention or supervision orders of high-risk offenders; and in mental health proceedings. In these contexts, clinical assessments play an epistemic role in constructing people-in-prison and, increasingly, medical professionals are conducting these assessments using remote access technologies such as audiovisual links. This article examines how digitalization processes in the criminal justice system are altering modes of conducting assessments of a vulnerable population: people-in-prison. Despite the growing ubiquity of remote clinical assessments of people-in-prison, this article finds, through content analysis of court decisions and a theoretical framework of digital criminology and digital vulnerability, some reservations regarding the remote mode.

Carolyn McKay
Carolyn McKay is Senior Research Fellow at The University of Sydney Law School, Co-Director at the Sydney Institute of Criminology and Chief Investigator at the Australian Research Council ‘The Digital Criminal Justice Project: Vulnerability and the Digital Subject’ (2021-2024).

The lawyer as a key player in guaranteeing access to justice in the digital era

Trefwoorden Lawyers, Digitalization of judiciary, Access to justice, Migrants, Criminal law
Auteurs María Bruquetas-Callejo, Marieke Dubelaar en Karen Geertsema

    In this article the role of the lawyer in criminal law, immigration detention law and asylum law is analysed in the context of digitalization measures during the COVID-19 lockdowns in the Netherlands.

María Bruquetas-Callejo
María Bruquetas-Callejo is Research Fellow at the Center for Constitutional Law and Center for Migration Law and Sociology of Law at the Radboud University Nijmegen. Her research deals with the sociological analysis of laws and policies in the field of migration.

Marieke Dubelaar
Marieke Dubelaar is Professor of Criminal Law and Criminal Procedure at Radboud University in Nijmegen, the Netherlands. Her research focuses on dispute resolution in criminal cases.

Karen Geertsema
Karen Geertsema is Associate Professor, Migration Law at Radboud University. Her research focuses on the role of courts in Dutch migration law.

Digitalizing the commercial courts: between promises and pitfalls

Trefwoorden Commercial courts, Electronic procedure, Digitalization of justice, Legal professions, Court practitioners
Auteurs Lisa Pelssers en Christophe Dubois

    Various authors have been conceiving digitalization as a way to modernize justice and improve legal issues, i.e. address delays, increase legal security and make justice cheaper and accessible for all. Such normative and techno-determinist discourse has justified several central and integrated projects carried out in Belgium since 1998, all of which have successively failed. In 2015, the former minister of justice changed his strategy: his plan called for the cooperation of legal professions and for their enrolment in the design, development and implementation of digital tools. This is how the Central Solvency Register, named RegSol (or the Register) was designed, developed and launched within the commercial courts in April 2017. The enrolment of legal professions seemed to be the solution to finally “modernize” the Belgian justice system after 20 years of trying. RegSol was supposed to make justice faster, more accessible and transparent. In this article, we show how and why most of these promises have not – yet – been fully met. Our research draws on two case studies conducted in a big (Alpha) and in a small (Delta) commercial court between November 2021 and February 2022. It shows that the various obstacles identified in the design and development phases hindered, to a certain extent, the platform’s potential to make justice more efficient and accessible. Everyday reality for court practitioners is not yet fully in line with the political promises. RegSol’s impact remains ambiguous: while simplifying tracking processes and centralizing information, it also entails new challenges.

Lisa Pelssers
Lisa Pelssers holds a master’s degree in International Business, specializing in Strategic Corporate Finance, from Maastricht University and a second master’s degree in Conflict Prevention and Management Engineering from the University of Liege and the Haute École de la Province de Liège. She is a PhD candidate and lecturer at the Centre de Recherches et d’Interventions Sociologiques (CRIS). Her current research focuses on the digitalization of justice and, more specifically, on the role of digital devices in the redefinition of practices, knowledge and interactions between actors involved in law-making.

Christophe Dubois
Christophe Dubois holds a PhD in Sociology from Sciences Po Paris and ULiège (2009). After studying prison policies and organizations, he is now interested in the digitalization of law and justice. He is the author or co-author of more than 30 scientific articles and a founding member of the non-profit organization OpenJustice.be.

Remote justice in urgent family hearings during COVID-19: climbing the ladder of legal participation

Trefwoorden Remote justice, COVID-19, Family hearings, Interviews, Participation
Auteurs Anne Janssen

    During the first six weeks of the pandemic, hearings in Dutch (urgent) family cases continued online to minimize the spread of coronavirus. Courts would therefore contact litigants using a telephone, Skype or hybrid format, which created all kinds of participation challenges. This article researches to what extent litigants were able to effectively participate during these digital hearings, based on a qualitative analysis of 15 interviews with lawyers, judges and representatives of childcare institutions involved in digital and hybrid hearings during COVID-19. This qualitative analysis applies McKeever’s remote justice framework, the so-called ‘ladder of legal participation’, which measures litigant participation by focusing on their emotional, intellectual, practical and attitudinal barriers during hearings. An application of McKeever’s framework shows the variety of legal participation in urgent family hearings, as well as how a digital environment is able to change the participation barriers of traditional courtroom hearings. In order for litigants to climb the participation ladder, a more nuanced, sociological understanding of all participation levels is needed.

Anne Janssen
Anne Janssen is a PhD Candidate at Utrecht University, Montaigne Centrum voor Rechtstaat en Rechtspleging. Her research focuses on vulnerable litigants in civil procedure.