Disciplinary measures and complaints against judges

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The Constitution

The Constitution defines the legal status of the judiciary in provisions which ensure judicial independence.

Judges are appointed by Royal Decree for life. They are dismissed by Royal Decree at their own request or when reaching the age of  70 years. They may be suspended or dismissed by the Supreme Court according to an Act of Parliament and in cases laid down by Act of Parliament.

The Constitution also sets out that the legal status of judges in other respects is regulated by Act of Parliament. This relates to questions of remuneration, holidays and leave.

Finally, the Constitution states that supervision of judges is regulated by Act of Parliament and that such supervision is to be carried out by members of the judiciary.

Disciplinary measures: warning, suspension and dismissal of judges

The constitutional provisions on these three issues are implemented in legislation as follows.

Judges are subject to the following measures: written warning, suspension and dismissal. A written warning is given by the president of the court in which the judge serves. The president is vested with the power to do so on the ground that the judge has neglected his duties or has breached specific rules, such as the confidentiality of proceedings in chambers or the prohibition against out-of-court contact with parties. If a warning has been issued and the judge again engages in the prohibited conduct, he may be dismissed. The Supreme Court only may suspend or dismiss a judge.

The legislation contains an exhaustive summary of the grounds for dismissal. There are optional and peremptory grounds. Optional grounds are conviction by final and conclusive judgment for a serious offence, a final and conclusive decision declaring bankruptcy or appointing a guardian for the judge, incapacity for work because of illness, acts which seriously prejudice the proper administration of justice, and the above-mentioned recidivism. The peremptory grounds are incapacity for work for reasons other than illness, acceptance of a post which the law considers inconsistent with being a member of the judiciary, namely a post as a lawyer or notary, and the loss of Dutch nationality.

Suspension is an order issued pending a definitive decision on dismissal. The grounds for suspension are related to those for dismissal.

The Act also contains procedural provisions. The Supreme Court takes decisions on suspension and dismissal in response to an application by the Procurator General of the Supreme Court. In case he considers to submit an application, he gives the judge in question the opportunity to express his views. The reasons for the application are submitted by the Procurator General in writing. The case is heard by the Supreme Court in chambers, at which time the judge and any witnesses may be heard. The Supreme Court hands down its decision in a judgment pronounced in public.

In the past fifty years, the Supreme Court has rarely suspended a judge and has dismissed a judge only twice. In 2008 because of illness of the judge concerned and in 2009, due to the incapacity of the concerned judge for work, due to other reasons than illness. This does not mean however that there have been no grounds for dismissal of a judge. In cases of possible dismissal, long-term incapacity for work because of illness is usually the reason and does not result in the Procurator General’s submitting an application because the judge in question normally requests that he be relieved of his duties. Several years ago, there was a case of incapacity for work other than for reasons of illness: the judge in question lacked the judicial skills needed to carry out his duties. The Procurator General submitted an application for dismissal to the Supreme Court, but the judge himself requested dismissal before the Supreme Court could hear the case. 

       

 

Prosecution of judges

Members of the judiciary do not enjoy immunity from prosecution. They are subject to the ordinary rules of criminal law, but with one exception. To guarantee that the prosecution and trial of a judge are fair, there is a special statutory regulation for determining which court is competent to judge such a case. The aim is to ensure that judges are not tried in the court in which they serve.

If a judge is suspected of committing an offence, the ordinary rules on jurisdiction may require that he be prosecuted and tried before his own court. In such a case, the Public Prosecutor of the concerned court must request the Supreme Court to designate a different court for prosecution and trial. The Public Prosecutor must submit such an application if, in his opinion, the suspicion is reasonable. The decision on whether to prosecute the judge is taken by the Public Prosecutor at the court designated by the Supreme Court.

Cases of prosecution of judges seldom arise. Over the last years, the Supreme Court has received e few requests to designate a different court. Prosecution usually involves a traffic violation or a sexual offence. There was one case of a judge who was convicted for driving while intoxicated. More than 15 years ago, another case involved a juvenile’s judge who was prosecuted for sexual abuse of minors. A few years ago there was a case of a judge who did not stop his car after having caused a traffic accident. And there has been a recent case of a judge who has been convicted for acts of violence against his partner.

One recent case has attracted a great deal of attention in the Dutch press. It involved a judge serving in the Maastricht District Court. Video tapes and computer diskettes were found in his house with images of sexual acts by minors under the age of 16. The judge was suspected of possessing child pornography, a serious offence.

Application of the normal rules on jurisdiction would have required the judge to be prosecuted and tried at Maastricht District Court, that is, the court in which he served. On the basis of the special regulation, however, the Public Prosecutor at Maastricht District Court requested  the Supreme Court to designate a different court. Immediately after the child pornography had been discovered, however, the judge submitted his resignation to the Crown, which meant that he had ceased to be a judge. The question arose as to whether designation of a different court was still relevant. The Supreme Court held that it was because in such a case also it was necessary to ensure impartial prosecution and trial. The Supreme Court ordered that the case be heard before the Arnhem District Court. Arnhem District Court considered the charge proved and handed down a suspended sentence and a fine for possession of child pornography.

Although no special criminal law provisions, except for the one regarding the designation of a different court, are in force, the fact that the accused is a judge may play a role in determining the sentence. In this case, when handing down a suspended sentence of imprisonment together with a fine, the Arnhem District Court considered the fact that the suspect had held a position in which he should have set an example to others. The fact that the press had already “convicted” and harassed him was also a circumstance taken into account.

      

 

Complaints about treatment by a judge

Under a statutory complaints regulation anyone who has a complaint about the way he has been treated by a judge can request the Procurator General at the Supreme Court to apply to the Supreme Court for an investigation of the act concerned.

The act must have been performed by a judge in the course of his duties. For example, the Supreme Court has ruled that certain actions of a briefing judge during a press conference about a criminal case constitute an official act against which a complaint can be lodged, even if he did not hear the case himself.

If the Procurator General decides to submit a complaint to the Supreme Court, the case is dealt with by a special division of the Supreme Court. The case is heard in chambers. The Supreme Court hears the complainant and the judge concerned and may also question witnesses. It then passes judgment. The judgment contains its findings concerning the complaint and its opinion on the merits. The complaints regulation does not provide for sanctions.

The judgment is not given in public. It is sent to the complainant, the judge in question, the court to which he is attached and the minister of Justice. A version of the judgment with all names deleted is published.

Complaints about court decisions and the grounds on which they are based are expressly precluded by the complaints regulation. Court decisions include not only final judgments but also every decision concerning the handling of a case that a judge takes in the course of the proceedings.

In practice, however, most complaints against judges do relate to court decisions. Such complaints cannot therefore be considered within the framework of the regulation. The only way to challenge such decisions is by instituting a legal remedy, such as an appeal.

Some court decisions are not open to appeal either, e.g. the decision of a presiding judge not to assign a certain lawyer to a defendant as counsel. The defendant will simply have to accept this.

The regulation therefore covers only complaints about treatment by a judge. The Procurator General does not submit all complaints to the Supreme Court. Feelings of dissatisfaction can usually be dispelled by the president of the court in question having a talk with the judge and the complainant. The complaint is then set aside on the grounds that there are no satisfactory reasons to proceed.

An example of this was a complaint about a judge who, at the start of a session, discussed the previous weekend’s football results with the other party’s lawyer, as a result of which the complainant felt he had been thrown off balance. Another example concerned the long delay between the time at which a person had been summoned to appear and the time at which the case was actually heard.

When a standard of conduct needs to be established, the Procurator General does submit the complaint to the Supreme Court. In one case, for example, someone complained about a judge who had announced that he would report to the police offences committed by the parties to a civil case. These offences had come to his knowledge because one of the parties had told him about the offences at a public hearing to support her position. The Supreme Court declared that the complaint submitted by the Procurator General was well founded. It ruled that judges were not at liberty to report offences, because the right to a fair trial means that parties must feel free to bring to the judge’s notice all facts that they believe may be relevant to the decision. The situation is different in the case of offences that the judge is legally obliged to report (i.e. abuse of office).

The complaints regulation has existed since 1982. Since the introduction of the regulation, the Procurator General has submitted eight complaints to the Supreme Court. The number of complaints has declined in recent years. The Procurator General used to receive an average of 100 complaints a year. But in 2004 the number was 48 only. This is due to the introduction of a first-line complaints regulation covering the lower courts – the district courts and appeal courts – as per 1 April 2001. This uniform internal regulation allows complainants to address themselves directly to the management of the court to which the judge in question is attached. Only after having exhausted this remedy they can approach the Procurator General.

The new regulation is wider in scope in that it allows complaints not only about judges but also about other court employees.

      

 

Impartiality

Judges must always be impartial. Even the suspicion of not being impartial must be avoided.

If during a lawsuit a judge finds that there are circumstances which could harm his impartiality, he should request to be relieved of the case. But the public prosecutor and the accused or a party in a civil lawsuit can also challenge a judge because of doubts about his impartiality.

A separate panel of the court will then have to decide whether the request or the challenge is reasonable. If it is, the judge will be replaced by a colleague.

Judges must of course try to prevent such situations from occurring. If a judge beforehand senses that there might be a reason for doubting his impartiality, he should excuse himself and not take the case.

During the last decade, the number of judges being challenged has increased. This does not necessarily show that judicial integrity is on the decline. The importance of even the appearance of partiality to be avoided has been emphasized by the European Court of Human Rights. The tendency is probably also due to a decreasing acceptance of traditional authority in general.