Complaints about treatment by a judge

Under a statutory complaints regulation anyone who has a complaint about the way he has been treated by a judge can request the Procurator General at the Supreme Court to apply to the Supreme Court for an investigation of the act concerned.

The act must have been performed by a judge in the course of his duties. For example, the Supreme Court has ruled that certain actions of a briefing judge during a press conference about a criminal case constitute an official act against which a complaint can be lodged, even if he did not hear the case himself.

If the Procurator General decides to submit a complaint to the Supreme Court, the case is dealt with by a special division of the Supreme Court. The case is heard in chambers. The Supreme Court hears the complainant and the judge concerned and may also question witnesses. It then passes judgment. The judgment contains its findings concerning the complaint and its opinion on the merits. The complaints regulation does not provide for sanctions.

The judgment is not given in public. It is sent to the complainant, the judge in question, the court to which he is attached and the minister of Justice. A version of the judgment with all names deleted is published.

Complaints about court decisions and the grounds on which they are based are expressly precluded by the complaints regulation. Court decisions include not only final judgments but also every decision concerning the handling of a case that a judge takes in the course of the proceedings.

In practice, however, most complaints against judges do relate to court decisions. Such complaints cannot therefore be considered within the framework of the regulation. The only way to challenge such decisions is by instituting a legal remedy, such as an appeal.

Some court decisions are not open to appeal either, e.g. the decision of a presiding judge not to assign a certain lawyer to a defendant as counsel. The defendant will simply have to accept this.

The regulation therefore covers only complaints about treatment by a judge. The Procurator General does not submit all complaints to the Supreme Court. Feelings of dissatisfaction can usually be dispelled by the president of the court in question having a talk with the judge and the complainant. The complaint is then set aside on the grounds that there are no satisfactory reasons to proceed.

An example of this was a complaint about a judge who, at the start of a session, discussed the previous weekend’s football results with the other party’s lawyer, as a result of which the complainant felt he had been thrown off balance. Another example concerned the long delay between the time at which a person had been summoned to appear and the time at which the case was actually heard.

When a standard of conduct needs to be established, the Procurator General does submit the complaint to the Supreme Court. In one case, for example, someone complained about a judge who had announced that he would report to the police offences committed by the parties to a civil case. These offences had come to his knowledge because one of the parties had told him about the offences at a public hearing to support her position. The Supreme Court declared that the complaint submitted by the Procurator General was well founded. It ruled that judges were not at liberty to report offences, because the right to a fair trial means that parties must feel free to bring to the judge’s notice all facts that they believe may be relevant to the decision. The situation is different in the case of offences that the judge is legally obliged to report (i.e. abuse of office).

The complaints regulation has existed since 1982. Since the introduction of the regulation, the Procurator General has submitted eight complaints to the Supreme Court. The number of complaints has declined in recent years. The Procurator General used to receive an average of 100 complaints a year. But in 2004 the number was 48 only. This is due to the introduction of a first-line complaints regulation covering the lower courts – the district courts and appeal courts – as per 1 April 2001. This uniform internal regulation allows complainants to address themselves directly to the management of the court to which the judge in question is attached. Only after having exhausted this remedy they can approach the Procurator General.

The new regulation is wider in scope in that it allows complaints not only about judges but also about other court employees.