The Fourth Division

Dismissal and partial dismissal

Judges are appointed for life (Article 117(1) of the Constitution). This serves to safeguard the independence of the judiciary. A judge may be terminated at their own request. In certain cases, the Supreme Court may terminate 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 (Wet rechtspositie rechterlijke ambtenaren).

On 26 April 2024, the Fourth Division of the Supreme Court reduced the working hours of a senior judge who was partially incapacitated for work due to illness but was otherwise fit for work. This concerned partial dismissal on account of incapacity for work (ECLI:NL:HR:2024:656). In a judgment of 13 September 2024, full dismissal was granted to a senior justice who was incapacitated for work due to illness (ECLI:NL:HR:2024:1158).

Processing of personal data by courts

On 24 May 2024, the Supreme Court ruled in a case concerning the processing of personal data in the context of the E-archive, an internal case-law database that contains non-anonymised court judgments ECLI:NL:HR:2024:741). In response to complaints he had received, the Procurator General had filed a claim asking the Supreme Court to investigate how the court administrations, as controllers within the meaning of the General Data Protection Regulation (GDPR), had processed the complainant's personal data in the context of the E-archive. The Procurator General’s claim was also for the Supreme Court to investigate whether the design of the E-archive met the standards set by the GDPR.

Regarding the first part of the claim, the Supreme Court found the complainant's complaints about the inclusion of non-anonymised judgments of two District Courts in the E-archive to be well-founded. It held that the administrations of those District Courts had not acted as controllers in accordance with the transparency requirement of Article 5(1)(a) GDPR. In response to the second part of the claim, the Supreme Court investigated whether the design of the E-archive met the standards of the GDPR on the date the claim was filed. The Supreme Court could not answer that question in the affirmative. However, it did rule that the information provided on rechtspraak.nl about the E-archive had met the transparency requirement of the GDPR from the autumn of 2022.

Challenge cases

As a safeguard of judicial impartiality, the law confers the right to submit a request challenging a judge. A party that does so is asking for a particular judge to be replaced by another one. The rules on this are part of procedure in all three areas of law in which the Supreme Court handles cases. The Protocol on Participation in the Handling and Deliberations of the Supreme Court provides additional rules for the handling of a challenge request pertaining to one of the members of the Supreme Court.

A challenge request must state why the applicant believes that the judge in the case concerned is not impartial. The premise underlying the assessment of a substitution request is that a judge must be presumed to be impartial by virtue of their appointment, unless exceptional circumstances arise that provide compelling evidence that the judge harbours a bias against the person filing the request or that the applicant has objective grounds to fear such bias (ECLI:NL:HR:2018:1770).

In the case that led to the judgment of 9 February 2024 (ECLI:NL:HR:2024:219), the applicant had submitted a challenge request in respect of "the judges' chambers" after the applicant was informed that judgment would be rendered. In response to questioning, the applicant stated at the oral hearing that his challenge request only pertained to one member of the court in chambers, on the grounds that that justice had ruled on a previous appeal in cassation in another case brought by him. After the President of the challenge chamber had informed the applicant at the end of the oral hearing that the challenge chamber could only rule on the challenge request, the applicant filed a request challenging the challenge chamber itself. In his request, he merely stated that one of the members of the challenge chamber was from a certain law firm, and the reason he was referring to a previous challenge case was that there were now justices in the challenge chamber who had been challenged in it. This request did not meet the requirement that challenge requests be substantiated. The request was therefore not classified as a challenge request within the meaning of Section 8:15 of the General Administrative Law Act (Algemene wet bestuursrecht) and the Supreme Court declined to consider it. At the end of the oral hearing, the applicant also filed a request challenging the President of the Supreme Court. In the judgment referred to above, the Supreme Court ruled that the applicant’s request in this regard was a clear abuse of the challenge remedy. The applicant had based his request on facts and circumstances that he knew or should have known to be incorrect, and on assertions that he should have expected beforehand to have no chance of success. The Supreme Court also declined to consider that challenge request and, on the basis of Section 8:18(4) of the General Administrative Law Act, ruled that it would not consider any further challenge requests from the applicant in that particular case.

The aforementioned request against one of the members of the challenge chamber also did not meet the requirement that a challenge request be substantiated and was therefore not regarded as a challenge request within the meaning of Article 8:15 of the General Administrative Law Act and was also disregarded by judgment of 1 March 2024 (ECLI:NL:HR:2024:292).

The Supreme Court judgment of 22 March 2024 (ECLI:NL:HR:2024:481) concerned a challenge request submitted after the applicant was informed that judgment would be rendered. The applicant was invited by letter to provide oral substantiation of his challenge request. The applicant returned this letter marked "Not available". He was subsequently sent a letter informing him that his response was understood to mean that he did not wish to avail himself of the opportunity to substantiate the request orally, and that the request would continue to be considered. The letter was received by or on behalf of the applicant. He did not appear at the hearing of the challenge request. The Supreme Court dismissed the request. The announcement of the judgment had not provided any indication that the justices who were to hand it down were biased. The applicant had also raised procedural objections, but they did not justify the conclusion that the challenged justices were biased against the applicant or that there was any objectively justifiable fear of that.

In the case that led to the judgment of 5 April 2024 (ECLI:NL:HR:2024:526), a challenge request was filed on behalf of the applicant. The notice containing that request only provided unspecific information about other positions held by the justices concerned and judgments they had handed down in other cases, but no other specific facts or circumstances implying any obstruction to judicial impartiality in the handling of the appeal in cassation or showing that there was any objectively justifiable fear of that. The Supreme Court dismissed the request, ruling that a challenge request does not meet the reasoning requirement if it lacks substantiation. That is the case if it can be unequivocally established that the request does not specify any fact or circumstance from which any obstruction of the judge in question’s judicial impartiality may be inferred or showing that there is an objectively justifiable fear of that. Given that such a request cannot be regarded as a challenge request within the meaning of Section 8:15 of the General Administrative Law Act, the challenge chamber may decline to consider it without holding a hearing in that regard (on the basis of Article 2.3.2, opening words and (a) of the Protocol for the participation in the handling and deliberations of the Supreme Court of the Netherlands). This interpretation is also in line with the case law of the European Court of Human Rights, the main rule of which a challenge request must not be omitted applies solely in the event that it "does not immediately appear to be manifestly devoid of merit".

The judgment of 26 April 2024, ECLI:NL:HR:2024:666, states that the applicant's interested party had submitted a challenge request, among other things, by posting a notice in the Supreme Court's web portal. A few days later, the interested party posted an additional notice in the web portal. The interested party was subsequently invited to substantiate the challenge request at the oral hearing, but failed to appear. The Supreme Court held that what had been put forward by the interested party in the first notice posted in the web portal did not justify the conclusion drawn therefrom by the interested party that the justices concerned were biased, nor that there was an objectively justified fear thereof. The notice posted in the web portal thereafter did not lead to a different opinion, if only because, on the basis of Article 8:16(3) of the General Administrative Law Act, all facts or circumstances must be presented at the same time, so that there is no room for the submission of further grounds. The challenge request was rejected.

In the judgment of 22 November 2024, ECLI:NL:HR:2024:1717, the Supreme Court dismissed a challenge request based on objections of an organisational, procedural and general nature. According to the applicant, he had made several requests in the main case that had not been responded to and that must be decided on first, before judgment could be rendered. The Supreme Court ruled that the objections raised could not, by their nature, lead to the conclusion that the justices concerned were biased against the applicant, nor that there was an objectively justified fear thereof. Additionally, the applicant did not raise any argument specifically relating to the justices in respect of whom he filed the challenge request.