Strasbourg, 18 November 2002
CCJE (2002) 35
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Netherlands
Questionnaire on the conduct, ethics and responsibility of judges
· Article 12 of the Judiciary Organization Act: judicial officers to whom the administration of justice has been assigned are not allowed to consort with parties or their lawyers, procurators or authorized representatives concerning contested matters whatsoever which are related to them or concerning disputes of which they are certain or have presumption that these will brought before the court on behalf of them;
· Articles 44 and 45 of the Legal Status of Judicial Officers Act: these articles mention some functions, which cannot be fulfilled by judicial officers, such as lawyer, procurator, civil-law notary and functions within the public body if the performance of these functions is incompatible herewith;
· The possibility of a challenge is provided for in Article 36 of the Code of Civil Procedure, Article 512 of the Code of Criminal Procedure and Article 8:15 of the General Administrative Law Act;
· The possibilities of excusal are provided for in Articles 40 and 41 of the Code of Civil Procedure, Article 517 of the Code of Criminal Procedure and Article 8:19 of the General Administrative Law Act;
There is no such thing as a code of ethical behaviour or a code of excusal for judges at this moment. A working group of the NVvR (Netherlands Association for the Judiciary) has conducted an inquiry on the advisability of such a code of excusal. The result of this inquiry was that the majority of the Dutch judges have the opinion that a certain form a code of excusal is indeed advisable. A further inquiry on and more detailed elaboration of the form, contents and possible binding effect of such a code of excusal are being conducted by a new working group at this moment.
Articles 44 and 45 of the Legal Status of Judicial Officers Act: these articles mention some functions, which cannot be fulfilled by judicial officers, such as lawyer, procurator, civil-law notary and functions within the public body if the performance of these functions is incompatible herewith;
The judge can be challenged on grounds of facts or circumstances, which could be detrimental to the judicial impartiality. A distinction between subjective and objective impartiality is made in the case law. Subjective impartiality is related to the personal attitude of the judge. The criterion applied to this is that the judge must be believed to be impartial by virtue of his appointment, unless an exceptional circumstance arises, which results in a weighty evidence for the judgement or unless there is a fear that a judge is prejudiced against a person seeking justice. However, the fear of the judge’s subjective bias must be objectively justified. The relevant aspects in the testing of the objective impartiality, regardless of the personal attitude of the judge, are the facts and circumstances, which form the grounds on which the fear that a judge is prejudiced is based. In this matter the appearance of bias is also important.
Pertaining to criminal law the Criminal Code is also applicable to a Dutch judge, just like to all other Dutch citizens. An Article, which is especially designated for a judge, is also inserted in the Criminal Code, which is Article 364, in which bribe-taking by the judge is made punishable. The text to the letter of this Article reads as follows:
A judge who accepts a gift or a promise knowing that this is done to exercise influence on the decision of a case subject to his judgement, will be punished with an imprisonment for a term not exceeding 9 years or a fine of the fifth category. If the gift or promised is accepted with the knowledge that this is done to obtain a sentence in a criminal case the judge will be punished with an imprisonment for a term not exceeding 12 years or a fine of the fifth category.
In accordance with Article 42 of the Legal Status of Judicial Officers Act the State is exclusively reliable to third party for the damage caused to the said third party by a judicial officer in the fulfilment of his duty and for which he himself otherwise should be held liable for in accordance with the law. The judge is not reliable to the State for the above-mentioned damage and the damage he causes to the State in the fulfilment of his duty, unless the damage is a result of his intentional act or omission or his deliberate recklessness.
A judicial officer is not liable for the damage resulting from a judicial decision.
Can judges be subject to disciplinary measures? If so, under which circumstances, what is the manner in which the proceedings are to be conducted, who/what is the competent authority or the appropriate authority, which measures can be taken?
In accordance with Article 46c of the Legal Status of Judicial Officers Act a disciplinary measure, in the form of a warning in writing, can be taken against a judicial officer appointed for life, in case he neglects the dignity of his duties, his official acts or duties, violates the rules, in which he is forbidden to practise his profession or in which he is imposed an obligation to observe secrecy. A disciplinary measure can also be imposed if the judicial officer violates the rule not to consort with parties or their representatives.
A measure of dismissal can be taken if, in acts or omissions, he causes serious damage to the procedure during the dispensation of justice or to the confidence placed in this.
Also in case of repeated behaviour, which has resulted in a written warning, a measure of dismissal can be taken.
The measure of a warning in writing will be taken by the president of the body in question or by the president of the court of appeal, in the case of a president of the court of law, and by the president of the Supreme Court, in the case of the president of a court of appeal. With regard to the members of the public prosecutor’s office at the Supreme Court the procurator general of that body is competent. Dismissal can only be imposed by the Supreme Court.
A disciplinary measure will only be taken after the judicial officer is given the opportunity to express his views verbally or in writing. A report of the latter will be drawn up and signed by the judicial officer involved. If the judicial officer refuses to do so, then this will be stated in the said report together with the reasons, if any.