Disciplinary measures and complaints against judges
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.