The Fourth Division

Dismissal

Judges are appointed for life (Article 117(1) of the Constitution). This serves to safeguard the independence of the judiciary. A judge can be dismissed at his or her own request. In certain situations, the Supreme Court may dismiss 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 24 February 2023, the Fourth Division of the Supreme Court dismissed a deputy judge (ECLI:NL:HR:2023:328). The individual in question had been appointed deputy judge in the context of a judge traineeship. She had not been deployed as a deputy judge for more than two years. Her judge traineeship had ended in a negative assessment. No other reason to stop deploying the individual as a deputy judge had emerged. With reference to its 2021 judgment (ECLI:NL:HR:2021:1996), the Supreme Court held that there was a sufficiently compelling reason to dismiss the individual in question.

Disciplinary measure

In 2023, the Procurator General filed a claim with the Supreme Court for the written warning of a justice . The rules governing this action are also laid down in the Judicial Officers (Legal Status) Act. On 7 July 2023, the Supreme Court issued the written warning (ECLI:NL:HR:2023:1019). The individual in question was a justice at a Court of Appeal. With regard to a criminal case with great social impact pending before the District Court of the relevant district, she had acted in a way that undermined confidence in the authority and impartiality of the judiciary. The Supreme Court ruled that, by her actions, she had caused serious harm to the proper administration of justice and public confidence in the legal system.

Challenge cases

As a safeguard of judicial impartiality, the law provides for the possibility to submit a request to challenge a judge in a case. The party submitting a challenge request is requesting the replacement of a specific judge by another judge. The rules on challenge are part of the procedural law of all areas of law in which the Supreme Court handles cases. The Protocol on Participation in the Handling and Deliberations of the Supreme Court of the Netherlands 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 is not impartial. The premise underlying the assessment of a challenge 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).

The judgment of 14 April 2023 (ECLI:NL:HR:2023:575) states that the challenge request came from an applicant who frequently submits unsubstantiated challenge requests in tax cases and ventilates general complaints. The Supreme Court ruled that the applicant was clearly abusing the remedy of challenge and that the unsubstantiated request could not reasonably be understood as anything other than the use of the right to request challenge for purposes other than its intended purpose. The Supreme Court disregarded the challenge request and ruled, on the basis of Article 8:18(4) of the General Administrative Law Act (Algemene wet bestuursrecht), that further challenge requests from the applicant in the same case would not be considered.

In the case that led to the judgment of 7 July 2023 (ECLI:NL:HR:2023:1029), the applicant requested challenge after the applicant had been informed that judgment would be rendered, from which the applicant inferred that his request to be allowed to explain the case orally had been rejected. The applicant concluded that he was denied the opportunity to realise his right to a fair and impartial hearing of the case. The challenge request was rejected. The announcement that judgment would be rendered did not justify the conclusion drawn by the applicant.
Following the rejection, the applicant was again informed when judgment would be rendered in his case. In response, the applicant submitted a second challenge request. During the hearing of this challenge request, the applicant submitted a request to challenge the justices hearing the challenge request. This request did not meet the requirement that challenge requests be substantiated. It was not classified as a challenge request within the meaning of Article 8:15 of the General Administrative Law Act. The judgment of 17 November 2023 (ECLI:NL:HR:2023:1577) disregarded the request to challenge the justices hearing the challenge request. It also stipulated that further challenge requests from the applicant in the same case would not be considered.
Subsequently, it was found in the judgment of 22 December 2023 (ECLI:NL:HR:2023:1801) that the announcement of the judgment did not constitute evidence that the justices assigned to render judgment harboured a bias against the applicant. The second challenge request was therefore also rejected.

The judgment of 22 September 2023 (ECLI:NL:HR:2023:1289) concerned a challenge request submitted after judgment was announced. One of the reasons given for the challenge request was that it was unclear who had been responsible for the procedural decisions in the case until that communication.
During the hearing of this challenge request, the applicant submitted a request to challenge the justices hearing the challenge request. One of the reasons given for this challenge request was that the summons to the hearing had not been sent by registered post and had not reached the applicant in time. As this was not evidence that the justices involved harboured a bias against the applicant nor an objective justification to fear such bias, the request to challenge the justices hearing the challenge request was rejected in the judgment of 19 May 2023 (ECLI:NL:HR:2023:734).
Subsequently, the challenge request pertaining to the justices assigned to render judgment in the applicant’s case was rejected in the judgment of 22 September 2023 (ECLI:NL:HR:2023:1289). The challenge request did not mention any circumstances that would justify the conclusion that the justices involved were biased or that the fear thereof was objectively justified.

In five judgments of 29 August 2023 (ECLI:NL:HR:2023:1139, ECLI:NL:HR:2023:1140, ECLI:NL:HR:2023:1141, ECLI:NL:HR:2023:1142 and ECLI:NL:HR:2023:1143), the Supreme Court disregarded unsubstantiated challenge requests and ruled that further challenge requests in the case would not be considered.