Right of complaint (external authority)

The influx of complaints remains high in comparison to the years prior to 2023. Not only are there more complainants, more individual complainants are complaining about multiple judges and proceedings.

In 2023, the Procurator General received 121 complaints. By comparison: 108 complaints were submitted in 2022. All but 9 of the 121 complaints were settled in 2023. Six of those were settled at the start of 2024. In addition, another 10 complaints from 2022 were settled in 2023.

Two complainants raised the same legal question in their complaints. The Procurator General informed these complainants that he intends to submit the relevant legal question to the Supreme Court in one of the complaint cases.

Complaint categories

Complaints regarding a judicial decision

As in recent years, a large share of the complaints handled in 2023 concerned a judicial decision. In 67 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.

The term "judicial decision" does not pertain solely to the final decision in a case. Other decisions by a court cannot be complained about in the complaints procedure either. For example, one complaint pertained to the fact that the Court of Appeal had not relied on the correct data, as determined by the District Court in its judgment. Supposedly, the Court of Appeal also violated due process by not ordering the parties to appear at the hearing after the statement of defence. In addition, the Court of Appeal wrongly classified the defendant in the first instance as the appellant, allegedly. The (deputy) Procurator General reminded the complainant that the determination of the facts, the decision to hold an oral hearing and the designation of the procedural roles of the parties are considered judicial decisions or are based on judicial decisions. The statutory complaints procedure is not intended to reassess or change the decisions of a court. The (deputy) Procurator General therefore could not take up the complaints.

Another complaint regarded the District Court's rejection of the complainant's request to have the investigation take place at a closed hearing. The Procurator General explained that the general legal principle dictates that hearings must be held in open court. The law provides that a court can determine that an investigation will take place behind closed doors either in full or in part. This means that the complaint was directed against a judicial decision. The Procurator General therefore could not take up the complaint. In addition, this complainant complained on behalf of another person whose cases were also being heard at that hearing. The Procurator General remarked that in accordance with the statutory complaints procedure, a complaint must be related to an action by the court in respect of the complainant. Even in the event that there were an action by a court in the performance of its judicial function, this cannot be considered an action in respect of the complainant. For that reason alone, the Procurator General cannot take up that complaint either.

In a different case, a complaint was lodged with regard to a court that had rendered a decision granting a care authorisation on the basis of the Compulsory Mental Healthcare Act (Wvggz). The complainant was of the opinion that the course of action violated the principles of due process and that all this was intertwined with the provisions of Article 6 ECHR on the one hand and related to the judge's treatment of the complainant on the other hand. The (deputy) Procurator General provided an explanation on how the Wvggz operates. He remarked that the Wvggz gives the court authority to hear the person involved at the accommodation where the person involved resides and that the judge is not obliged to wear a gown at such hearings. Further, the judge determines the order at the hearing. This includes determining how the hearing is conducted and the extent to which a person is given the opportunity to express their thoughts on a care authorisation. The court also has an obligation to determine ex officio whether other, less radical alternatives than a care authorisation are available. The (deputy) Procurator General remarked that this means that the complaints by the complainant on the proceedings and the decision relate to decisions made by the court. Such complaints cannot be taken up by the (deputy) Procurator General.

Another complaint pertained to the fact that the judge allegedly denied in two judicial substitution proceedings that certain notices to the complainant were made by, on behalf of or in consultation with her. The first notice was allegedly made to the complainant when he asked for a postponement shortly before the hearing because he had tested positive for COVID-19. The complainant stated that the court clerk informed him that the hearing would still take place and that the judge had allegedly said: "Enough is enough". The second notice followed the complainant's request for an order to assign a lawyer under the legal aid arrangements. The court clerk informed the complainant that the judge did not want to issue this order. The complainant challenged the judge after both notices. The complainant alleged that the judge lied in the judicial substitution proceedings by stating that the court clerk's statements were not made by her, on behalf of her or in consultation with her. Both judicial substitution requests were denied by the chamber hearing the judicial substitution request. The (deputy) Procurator General noted that the complainant and the judge evidently have different opinions on what actually occurred. In both cases, the chamber hearing the judicial substitution request concurred with the judge and rejected the complainant's requests. If a decision by a judicial body was rendered against which there are no legal remedies with regard to the complaint, the (deputy) Procurator General has no obligation to take up the complaint. The (deputy) Procurator General saw no reason to deviate from that rule and did not take up the complaint.

Complaints about a court's actions

Another category of complaints includes those regarding a court's actions in respect of a complainant, and specifically whether any boundaries have been exceeded.

In a case complaining about the court's conduct, the complainant thought the judge uninterested, intimidating and disparaging. The complainant also felt that the judge had not prepared well enough for the hearing and examination of the witness and the complainant. This complaint was in part the result of the complainant's belief that the other party was guilty of perjury, forgery of documents and lying, which allegations the court did not address. In addition, at the start of the examination of the complainant and the witness the judge stated that he did not prepare any questions. The Procurator General ruled that the complaint regarding the judge's failure to address the statements that the other party was guilty of perjury, forgery of documents and lying was a complaint about a judicial decision. No complaints can be lodged about that. The only way to challenge a decision by a court is to appeal it. In addition, the Procurator General ruled that the judge's mere notice at the beginning of the witness examination that he did not prepare any questions does not mean that the judge was not interested or prepared with regard to the hearing of the case. Furthermore, the Procurator General did not see further evidence to support the correctness of the complainant's claim that the judge was uninterested, intimidating or disparaging, or that he was unprepared.

In a different case, the complaint was that the justice had not looked at the entire case file and that she allegedly forced the complainant to settle with the other party. Another complaint alleged that the justice shouted at the complainant and that the justice was biased. The complainant had first submitted the complaint with the Court of Appeal. The court administration sought a response from the justice. The justice indicated that after hearing the case, an attempt to settle between the parties and a second adjournment of the hearing, the Court of Appeal rendered a preliminary judgment. Both parties wanted this. Furthermore, the justice did not identify with the picture painted of her and of the hearing. She further explained this. The court administration wrote to the complainant that the proper treatment of the parties is considered of great importance within the Court of Appeal. The court administration found that the complainant's experience does not match the justice's experience. This does not detract from the fact that the court administration was genuinely sorry that the complainant perceived the justice's actions as unpleasant. Within the organisation, the complainant's letter has  prompted reflection and feedback. The Procurator General considered that the court administration apparently expressed with this that the complaint was insufficiently supported by evidence to further investigate the complainant's statement about improper treatment. The Procurator General was of the opinion that the court administration properly handled and resolved the complaint, so there was no need for them to open a new investigation.

One complaint case regarded a complaint about a judge who did not wear a face mask in the indoor public area of the court building, despite the fact that wearing a face mask was mandatory in such spaces at the time. In response to the complaint, the court administration wrote to the complainant that it found that the complaint was justified on the basis of internal information. The court administration wrote that the judge deeply regretted going into the public space without a face mask and that she was aware that she had therefore failed in her exemplary role. The court administration concurred with this and wrote that the issue had been properly dealt with internally. However, the court administration did not decide on any disciplinary measure. The court administration further wrote that this expressly did not mean that it did not sympathise with the fact that the complainant – given his medical condition – was concerned about his health and that the court administration underestimated his condition. The court administration apologised for the course of events, also on behalf of the judge. The Procurator General was of the opinion that the complaint regarding the judge's failure to wear a face mask was handled diligently and he did not consider the assessment of the complaint to be incorrect. The complainant therefore had insufficient interest in the Supreme Court investigating his complaint.

The statutory complaints procedure provides that complaints may be lodged only on the conduct of a judge when they are exercising their judicial function. In one complaint case a complaint was lodged against the president of a district court. The complainant had received two letters from the court clerk on behalf of the administrative judge hearing the case. These letters stated that due to an abuse of rights the court would in principle no longer institute proceedings if the complainant relied on inability to pay with regard to the court fee owed. The court subsequently did not take the appeal he wanted to lodge into consideration. The complainant felt this violated the right of access to justice and lodged a complaint with the court administration. The court administration informed the complainant that he effectively asked the court administration to assess whether these letters, the content of which was based on a judicial decision, were lawfully sent to the complainant. This was not possible, because that would mean the court administration entering the judicial domain. The Procurator General informed the complainant that in so far as the complaint is about the president's conduct in her role as president of the court and chair of the court administration, the complaint does not concern behaviour by the president in her capacity as a judge. That is why the Procurator General cannot take up the complaint. In so far as the complaint was aimed against the decision of the administrative judge hearing the case to not initiate proceedings, the complainant is essentially complaining about a judicial decision. No complaints can be lodged about that.

A complainant must also have a sufficient interest in a complaint. One complaint case included a complaint about the fact that the court administration refused to appoint a judge in administrative law proceedings. This allegedly involved a refusal of a court to hear a case. The complainant had complained to the court administration before, stating that no judge had been appointed to hear his case yet. The court administration then informed the complainant that in the preliminary phase the course of the proceedings is shaped by a general team including judges. Which judge will hear the substance of the case is decided only after the preliminary phase is completed. The court administration wrote that this decision had not yet been made in the complainant's proceedings. In response to the complaint that the court administration refused to appoint a judge, the Procurator General remarked that this did not happen in this case. He referred to the court administration's response, which stated that the judge that will be hearing the complainant's case will be appointed after the preliminary phase is completed. Since that case was still in the preliminary phase, that decision had not yet been made. The Procurator General stated that in view of this response, the complainant reasonably did not have sufficient interest in an investigation within the meaning of Article 13a of the Judiciary (Organisation) Act. In so far as the complainant complained about the court's refusal to hear the case, the Procurator General remarked that no such thing happened in this case. A court refuses to hear a case if the court refuses to render a decision on a case before it. This regards a situation wherein no decision is rendered at all or the decision is constantly postponed. This situation did not occur in this case.

In another case, a complaint was lodged regarding the course of events in a subdistrict court hearing. The complainant complained that the judge refused to explain why an earlier decision rendered by a different judge was incorrect, that the judge did not allow him to explain his views and that the judge had stated that he would not be engaging in an argument with the complainant. The Procurator General found that these complaints regarded judicial decisions, on which no complaints can be lodged. In addition, the complainant complained that the judge had said "Goodbye (name complainant)" on several occasions when he wanted to make another comment. That complaint did regard the judge's behaviour towards the complainant in the performance of his duties. The court administration's response to that complaint included that the judge had asked the complainant to leave the room after the ruling, because the judge had to hear the next case. The complainant made little effort to leave and continued to comment on what he felt was a wrong decision. The judge then once again urged the complainant to leave. The complainant eventually complied with this request. In an effort to interrupt the complainant's persistent objections against the ruling, the judge had indeed clearly said "Goodbye sir" once or twice. The court administration wrote that it sympathised with the fact that this course of events had been unpleasant for both the complainant and the judge, but did not think that the complainant had been treated unfairly in these circumstances. The Procurator General found the court administration's handling of the case to be diligent and did not think its assessment was incorrect. Therefore, there was no reason for the Procurator General to open a new investigation into the case.

Claims

Two complaints in the reporting period prompted the submission of a claim with the Supreme Court for launching a further investigation into the conduct of a judge. The Procurator General intends to submit the legal question at the heart of these two complaint cases to the Supreme Court in 2024.