Prosecution of judges

Members of the judiciary do not enjoy immunity from prosecution. They are subject to the ordinary rules of criminal law, but with one exception. To guarantee that the prosecution and trial of a judge are fair, there is a special statutory regulation for determining which court is competent to judge such a case. The aim is to ensure that judges are not tried in the court in which they serve.

If a judge is suspected of committing an offence, the ordinary rules on jurisdiction may require that he be prosecuted and tried before his own court. In such a case, the Public Prosecutor of the concerned court must request the Supreme Court to designate a different court for prosecution and trial. The Public Prosecutor must submit such an application if, in his opinion, the suspicion is reasonable. The decision on whether to prosecute the judge is taken by the Public Prosecutor at the court designated by the Supreme Court.

Cases of prosecution of judges seldom arise. Over the last years, the Supreme Court has received e few requests to designate a different court. Prosecution usually involves a traffic violation or a sexual offence. There was one case of a judge who was convicted for driving while intoxicated. More than 15 years ago, another case involved a juvenile’s judge who was prosecuted for sexual abuse of minors. A few years ago there was a case of a judge who did not stop his car after having caused a traffic accident. And there has been a recent case of a judge who has been convicted for acts of violence against his partner.

One recent case has attracted a great deal of attention in the Dutch press. It involved a judge serving in the Maastricht District Court. Video tapes and computer diskettes were found in his house with images of sexual acts by minors under the age of 16. The judge was suspected of possessing child pornography, a serious offence.

Application of the normal rules on jurisdiction would have required the judge to be prosecuted and tried at Maastricht District Court, that is, the court in which he served. On the basis of the special regulation, however, the Public Prosecutor at Maastricht District Court requested  the Supreme Court to designate a different court. Immediately after the child pornography had been discovered, however, the judge submitted his resignation to the Crown, which meant that he had ceased to be a judge. The question arose as to whether designation of a different court was still relevant. The Supreme Court held that it was because in such a case also it was necessary to ensure impartial prosecution and trial. The Supreme Court ordered that the case be heard before the Arnhem District Court. Arnhem District Court considered the charge proved and handed down a suspended sentence and a fine for possession of child pornography.

Although no special criminal law provisions, except for the one regarding the designation of a different court, are in force, the fact that the accused is a judge may play a role in determining the sentence. In this case, when handing down a suspended sentence of imprisonment together with a fine, the Arnhem District Court considered the fact that the suspect had held a position in which he should have set an example to others. The fact that the press had already “convicted” and harassed him was also a circumstance taken into account.