The Fourth Division
In addition to the Civil Division, Criminal Division, and Tax Division, the Supreme Court has a fourth division. The fourth division handles complaints against judicial officers and cases regarding the suspension and dismissal of judicial officers who are appointed for life. Only the Procurator General at the Supreme Court can initiate such cases with the Supreme Court. Furthermore, the fourth division handles applications dealing with the challenge of a Supreme Court justice. The fourth division consists of the President of the Supreme Court, three Vice Presidents of the Civil Division, Criminal Division, and Tax Division, and a number of justices from those divisions.
The fourth division rendered decisions in five cases in 2023. One case concerned the dismissal of a judge, while the other four related to requests to challenge members of the Supreme Court.
Dismissal case
Judges are appointed for life (Article 117(1) of the Constitution). This serves to safeguard the independence of the judiciary. A judge can be dismissed at their own request. In certain cases, the Supreme Court may dismiss a judge in response to a claim submitted by the Procurator General at the Supreme Court. The rules governing these actions are laid down in the Judicial Officers (Legal Status) Act. On 23 September 2022 (ECLI:NL:HR:2022:1310), the fourth division of the Supreme Court, in response to a claim submitted by the Procurator General, granted the request to dismiss a judge on the basis of the judge's (complete) incapacity for work due to illness.
Challenge cases
To safeguard judicial impartiality in a case, the law provides for the possibility to submit a request to challenge a judge. Challenge requests aimed at a member of the Supreme Court are dealt with by the fourth division of the Supreme Court. If a challenge request is granted, the judge in question will be replaced by a different judge. If a challenge request is rejected, the judge challenged will continue to hear the case. The right to challenge a judge is legally enshrined in the procedural law governing all three fields of law in which the Supreme Court handles cases.
In cases which require legal representation by an attorney, the request to challenge a judge must come from the attorney. In other cases, a party or an interested party can file the challenge request themselves.
On 23 December 2022 (ECLI:NL:HR:2022:1939), the Supreme Court held that an application by the applicant themselves to challenge a member of the Criminal Division was inadmissible. In appeals in cassation in criminal cases, a suspect must be represented by an attorney, and the law provides for no exception to this mandatory representation when it comes to the submission of a challenge request.
A request to challenge a judge may only regard the judges that hear the case. On 1 April 2022 (ECLI:NL:HR:2022:492), the Supreme Court held that a request to challenge a cause-list judge who only pronounced the decision but did not adjudicate the case itself was inadmissible.
The premise underlying the assessment of a challenge request, is that a judge must be presumed to be impartial by virtue of their appointment, unless exceptional circumstances arise that provide compelling indications that they harbour a bias against the person filing the request or that the applicant has objective grounds for suspecting such bias.[1]
The challenge request that led to the decision of 1 April 2022 (ECLI:NL:HR:2022:492) not only regarded the cause-list judge, but also the members of the Tax Division that had handled the case. The Supreme Court rejected the request to challenge those members because the substantiation for the challenge request did not cite any circumstances that amounted to a compelling indication of bias or any objectively justified fear of such bias. The challenge request stated, among other things, that the members of the Tax Division who were challenged based themselves exclusively on the taxpayer's name, but the request did not cite any factors that would justify such a statement.
The Protocol for the participation in the handling and deliberations of the Supreme Court of the Netherlands provides additional rules for handling a challenge request pertaining to one of the members of the Supreme Court. On the basis of this protocol, among other things, the fourth division need not hold a hearing in order to render a decision to refuse to take a challenge request into consideration, for example if the request is unsubstantiated. This was the case in the decision of 11 February 2022 (ECLI:NL:HR:2022:213), in which the challenge request only referred to the fact that the deciding judges had rendered a decision in previous proceedings before the Supreme Court which was unfavourable to the applicant. This was not an explanation on the applicant’s part as to why this would impair judicial impartiality in the present case. The request did not satisfy the rules on substantiation.
In the case of repeated challenge requests or some other form of abuse of the power to submit such requests, the Supreme Court may determine that a subsequent challenge request will not be taken into consideration. That determination must be stated in the decision. This was the case in the decision of 9 December 2022 (ECLI:NL:HR:2022:1847) in which the applicant had submitted two challenge requests in a single tax case.
[1] Supreme Court 25 September 2018, ECLI:NL:HR:2018:1770, para. 4.2.1.
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