Recusal of a judge
A judge may be recused if there are facts or circumstances that could compromise their impartiality. This does not only apply to situations in which the judge is actually biased. Even the appearance of partiality may be sufficient. However, the bar is set high: the fear of bias must be objectively justified.
What is recusal?
Recusal is a procedure to have a judge replaced on the grounds of (the appearance of) partiality. The rules are set out in Articles 36 to 39 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering).
The basic principle is that a judge is presumed to be impartial by virtue of their appointment. Recusal is therefore not a standard means of replacing a judge if the proceedings are not going as desired. For a recusal application to be successful, there must be exceptional circumstances that provide strong evidence of partiality or the appearance thereof.
Two criteria: subjective and objective impartiality
When assessing a challenge, a distinction is made between two criteria:
- Subjective bias relates to the judge’s personal convictions or attitude: is the judge actually biased?
- Objective (appearance of) bias relates to facts and circumstances which, in the eyes of an objective observer, justify a fear of bias.
Both forms may constitute grounds for recusal. In practice, successful recusal requests are usually based on an objective appearance of bias, as subjective bias is rarely proven.
What requirements must a challenge meet?
A challenge must meet the following formal requirements:
- Timeliness: the request must be made as soon as the facts or circumstances giving rise to the challenge become known to the applicant.
- In writing or orally: in principle, the application is submitted in writing. It may also be made during a hearing.
- Statement of reasons: the request must set out the facts and circumstances giving rise to the (fear of) bias.
- Concentration of grounds: all facts and circumstances supporting the request must be put forward at the same time.
What are the consequences of recusal?
As soon as a recusal is lodged, proceedings in the main case are suspended. The judge against whom the recusal has been lodged must refrain from further involvement in the case. Only actions for which postponement is not justified, in exceptional cases, may still be carried out.
The application is heard by a special panel of judges, of which the judge against whom the challenge is made is not a member. Both the applicant and the judge are heard.
What does this mean in practice?
Recusal is an important tool that safeguards fair trial proceedings, but it stands no chance of success if it is only used to delay proceedings. Furthermore, only a small proportion of recusals requested are granted: just 2–4%.
Challenge is a specific legal remedy. The guidance of a solicitor is essential in this regard. Do you have any questions about recusal? We would be happy to discuss this with you.
