Right of complaint (external authority)

Anyone who has a complaint about the way in which a judicial officer charged with the administration of justice has comported themselves towards him or her in the performance of their duties may submit this complaint to the Procurator General at the Supreme Court. Such a complaint must regard the conduct of a judge; the substance of a judicial decision is expressly excluded.

The influx of complaints remains high in comparison to the years prior to 2021. Not only are there more complainants, more individual complainants are complaining about multiple judges and proceedings.

In 2022, the Procurator General received 108 complaints. By comparison: 106 complaints were submitted in 2021. All but 7 of the 108 complaints were settled in 2022. Three of those were settled at the start of 2023. In addition, another 20 complaints from 2021 were settled in 2022.

Complaint categories

As in recent years, a large share of the complaints handled in 2022 concerned a judicial decision. In 68 of the complaint cases settled in the reporting period it was argued, among other things, that the complainant did not agree with a judicial decision.

Judicial decisions sometimes regard the order at a hearing. In one case, for example, an attorney had a coughing fit during a hearing held at the start of the COVID-19 pandemic. The attorney stated that the coughing fit had nothing to do with a COVID-19 infection. Given the coughing fit, the judge nevertheless requested the attorney to take a seat at the back of the courtroom. The attorney did not wish to do so, arguing that it would render him unable to provide his client with adequate representation. The judge decided that the attorney could participate in the hearing by telephone from another courtroom, while his client remained in the original courtroom. The Procurator General – as well as the governing board of the District Court – concluded that the complaints were directed at the judge’s decisions, which regarded the order at the hearing. In so concluding, the Procurator General noted that the complainant’s discomfort with the course of events was understandable.

Another case involved a complaint about the lack of a decision on a claim in a criminal case seeking damages on behalf of two injured parties. The Procurator General was also requested to render decisions on the claims that had been submitted. The Procurator General concluded that the complaints concerned a judicial decision, or rather the lack thereof. After all, the complaint was about the District Court’s decision which had been laid down in a judgment. With regard to the request for the Procurator General to render decisions on the claims, the Procurator General concluded that he does not have any responsibilities or authority regarding specific disputes or proceedings that would permit him to intervene in the proceedings or to revise or otherwise change their outcome. The Procurator General did note, however, that the lack of a decision on the complaints of the injured parties was unfortunate and that those parties’ dissatisfaction was understandable.

One complaint centred on the court’s declining to consider all the information that the complainant submitted and that the complainant considered relevant to the formation of the decision. In this context, as well, the Procurator General concluded that the complaint regarded the formation of a judicial decision.

Another complaint regarded the course of the oral arguments in a case that was handled digitally. The complainant – who was acting as an attorney in that case – submitted a complaint in their own name regarding the way they had been treated by the relevant judge. During the oral arguments, the judge remarked that there was not much to the case and that it was essentially taking up judicial resources that would be better utilised otherwise. That remark prompted the attorney to challenge the judge. This challenge was rejected by the challenge chamber. The Procurator General concluded – as did the governing board of the Court of Appeal – that the complaints regarding the treatment by the judge were the same as those put forward as grounds for the challenge request, regarding which the court rendered a decision. For that reason, the Procurator General concluded that the complaint regarded a judicial decision. The complaint about the lack of judicial impartiality was not handled because the law provides the separate provision to challenge a judge in connection with such complaints. Pursuant to the provisions of Article 13b(1)(f) of the Judiciary (Organisation) Act, the Procurator General is not obliged to grant the request in such cases. The Procurator General superfluously remarked that there was also the option of initiating an appeal or an appeal in cassation arguing that the contested judgment could not be allowed to stand due to the violation of the fundamental right to have proceedings heard by an impartial court.

Another category of complaints includes those regarding how a court conducts itself towards a complainant, and specifically whether any boundaries of what is considered to be proper behavior have been exceeded. In one case, the complainant complained to the management board of the Court of Appeal about the way in which a justice conducted themselves and their attitude towards the complainant. The complainant asserted that the justice had laughed at him when the complainant expressed his intention to challenge the justice. The justice denied that this had occurred. The management board of the Court of Appeal held that there was an insufficient basis for further investigating whether the justice’s conduct towards the complainant was unprofessional. In light of the circumstances of the case, the Procurator General also concluded that there was an insufficient basis for further investigation.

In another case, the complainant submitted a complaint to the management board that a justice had been hostile and had coerced a settlement of the case. The management board sought a response from the justice. The justice did not consider her conduct as having been hostile and indicated that she had issued a preliminary ruling, with all the reservations inherent therein, with the consent of the parties’ attorneys. The management board wrote that it was customary for a preliminary ruling to be issued and that, in that context, sometimes opinions were expressed that are more favourable to one party than to the other. There was nothing indicating that the preliminary ruling constituted unreasonable pressure to settle the case. Given this, the management board concluded that there was an insufficient basis for concluding that the complainant had been mistreated. In light of the circumstances of the case, the Procurator General concluded that there was no basis for him to investigate the complaint further.

Another application involved a complaint from a litigant regarding the manner in which the judge had requested him to wear a face mask after the hearing concluded, which manner he perceived to be unnecessarily cutting. The application argued that, at the time, wearing a face mask was not mandatory, but it was only urgently recommended. One impediment in the case was that the complaint was submitted to the management board eleven months after the hearing, as a result of which the judge, when asked, could no longer specifically recall how they had requested the complainant to wear a face mask. The Procurator General concluded that it was not reasonable to assume that any further investigation would lead to a different outcome. The complainant’s letter to the management board indicates that the complainant advised the judge about the advisory nature of the COVID-19 measures in force at that time, that the prosecutor seconded that advice and that the judge did not repeat the request. When settling the complaint, the management board expressed that the mere fact that the judge advised the complainant to wear a face mask – in accordance with the measures that applied to the judiciary at that time – did not lead to the conclusion that the judge’s conduct was improper. The Procurator General concluded that the complaint had been handled and settled properly by the management board and that there was no reason to initiate a new investigation into the complaint.

Another case involved a complaint about the course of a hearing that was held digitally, during which the judge interrupted the complainant and disconnected the complainant from the digital hearing environment. The acting Procurator General – as well as the management board – concluded that denying someone the right to be heard involves a judicial decision concerning procedure. The acting Procurator General also found that there was no factual basis for the second part of the complaint. Upon being asked, the judge informed the management board that the image of him painted by the complaint was inaccurate. According to the judge, the complainant had continued to speak even after the judge had repeatedly stated that he had been sufficiently informed. At a certain point, the judge indicated that he would mute the audio if the complainant continued to speak. Given that the complainant continued to speak, the judge attempted to mute the audio and mistakenly disconnected the complainant from the hearing environment. The judge then attempted to reconnect the complainant to the digital hearing environment by asking the attorney to ring the complainant. That attempt was unsuccessful. In any case, the judge emphasised that he did not refuse to allow the complainant to rejoin the digital hearing environment. The acting Procurator General concluded that this part of the complaint had been properly handled and settled and that the decision was not incorrect. For this reason, the acting Procurator General concluded that there was no reason to pursue the investigation.

A complainant must also have a sufficient interest in a complaint. A complainant complained about an opinion piece authored by a judge that was published in a daily newspaper. The complainant argued that this piece harmed the credibility of the judge as a juvenile court judge and the credibility of their case law and that the judge undermined the judicial impartiality of all juvenile court judges and the credibility of the judiciary. From what the complainant wrote, the acting Procurator General could not see that the publication involved any connection between the complainant and the conduct of the judge or that the complainant had a sufficient interest in complaining about the publication. The acting Procurator General also concluded that there was an insufficient basis for the ex officio submission of a claim to the Supreme Court requesting an investigation within the meaning of Article 13c of the Judiciary (Organisation) Act. He pointed out that, outside the courtroom, a judge was free to express his or her opinion on societal phenomena, although this freedom was not without boundaries (see ECLI:NL:HR:2014:510). The opinion piece was written by the judge in her capacity as a private citizen. The judge explained why they wrote the piece, stating that it should be considered as a contribution to a societal debate. The judge primarily discussed the statutory grounds for removing a child from their home, but did not address any individual cases. It was unmistakably an opinion piece. That mere fact is generally insufficient to give rise to reasonable doubt about the fair and impartial adjudication of a case.

Claims

No complaints in the reporting period prompted the submission of a claim with the Supreme Court for conducting a further investigation into the conduct of a judge.