Challenging a judge in the Netherlands: how wraking works

Challenging a judge in the Netherlands is called wraking: a party asks for a judge hearing its case to be replaced because of facts or circumstances that could harm judicial impartiality. The request is decided not by the judge concerned but by a separate three-judge panel of the same court, the wrakingskamer. It is regulated in articles 36 to 41 of the Code of Civil Procedure, articles 512 and following of the Code of Criminal Procedure and articles 8:15 and following of the General Administrative Law Act.

A challenge is a limited and specific instrument. It is not a complaint about a judge, not a route to a different outcome and not an appeal against rulings you dislike. It asks one question only: can this judge still be seen as impartial in this case? This article explains the grounds, the timing, the procedure before the wrakingskamer, what happens to your case in the meantime and why the decision cannot be appealed.

What a challenge is, and what it is not

Every party is entitled to have its case heard by an independent and impartial tribunal. That entitlement is guaranteed by article 6 of the European Convention on Human Rights and worked out in Dutch procedural law through two mirrored instruments. Wraking is the request by a party to have a judge replaced. Verschoning is the reverse: the judge asks to be released from the case, for the same kind of reasons, before anyone raises the point.

The statutory formula is the same in all three procedural codes: a judge hearing a case may be challenged on the ground of facts or circumstances that could harm judicial impartiality. In civil proceedings this is article 36 of the Code of Civil Procedure, in criminal proceedings article 512 of the Code of Criminal Procedure, and in administrative proceedings article 8:15 of the General Administrative Law Act. The instrument covers every judge dealing with the case, including a single judge, the members of a full bench, an investigating judge and the judges of an appeal court; members of the wrakingskamer itself can in principle also be challenged.

What a challenge is not is equally important. It is not directed against the public prosecutor, against opposing counsel or against court staff. It is not a means of obtaining a review of a procedural decision: the fact that a judge refused an adjournment, rejected a witness or ruled against you on an interim point is in itself not a ground, because the remedy against such rulings is appeal in the main case. And it is not a disciplinary complaint; complaints about a judge’s conduct follow the court’s complaints procedure and do not lead to replacement.

When can a judge be challenged?

The starting point in the case law is that a judge is presumed to be impartial, unless exceptional facts or circumstances indicate otherwise. Two tests are applied alongside each other. The subjective test asks whether the judge in fact holds a personal conviction or interest that stands in the way of an impartial assessment; personal bias is rarely provable and is rarely alleged. The objective test asks whether, apart from the judge’s personal attitude, there are circumstances that give rise to a fear of partiality that is objectively justified. Appearances therefore count, but a party’s subjective feeling of unease is not enough on its own.

In practice, the circumstances that lead to a successful challenge fall into a small number of categories.

• A personal, family or business relationship between the judge and a party, a witness or a lawyer in the case.
• An interest of the judge in the outcome, including a financial or professional interest.
• Earlier involvement with the same dispute in another capacity, for example as a lawyer, adviser or decision-maker.
• Statements during the hearing that suggest the judge has already made up their mind on a point that is still to be decided.
• Side activities of the judge, which are recorded in the public register of ancillary positions, that touch directly on the subject of the case.

Earlier judicial involvement is a category that needs care. The mere fact that the same judge decided an earlier case between the same parties, or gave an interim decision in this case, does not make that judge partial; Dutch law expressly allows a judge to continue with a case after an interim ruling. It becomes a ground only where the earlier decision contained a firm view on precisely the point that still has to be decided.

How and when to file a challenge

Timing is the requirement on which most challenges fail. Under article 37 of the Code of Civil Procedure the request must be made as soon as the facts or circumstances have become known to the applicant, and the equivalent rules in criminal and administrative proceedings say the same. If you discover during the hearing that the judge knows the other party, you raise it there and then; waiting to see how the hearing develops and challenging afterwards is fatal to the request. A challenge is possible for as long as the case is still being dealt with, and no longer: once the final decision has been given, the route is an appeal against that decision.

The request must be in writing and must state the grounds. In criminal proceedings it can also be made orally once the hearing has started, and in practice a civil or administrative hearing will be interrupted so that the request can be recorded. All the facts and circumstances relied on must be put forward at the same time; you cannot hold one ground in reserve for a second attempt. A repeat challenge of the same judge is only considered if it rests on facts that became known after the first request.

Filing a challenge suspends the case immediately. Article 37 of the Code of Civil Procedure provides that the hearing of the case is suspended as soon as the request is made, and the same applies in the other procedures. In urgent matters the presiding judge can still take measures that cannot wait, but the substance of the case stops until the wrakingskamer has ruled.

How the wrakingskamer deals with the request

The request is decided by a multi-judge chamber of the same court in which the challenged judge does not sit. That is the wrakingskamer, and its composition is the core safeguard of the procedure: the judge whose impartiality is questioned neither decides the question nor takes part in the deliberation. The chamber deals with the request as soon as possible, because the main case is on hold.

Before the chamber hears the matter, the challenged judge is given the opportunity to respond. Two outcomes are possible at that stage. The judge may acquiesce in the request, which the law expressly permits; in that case the judge is replaced without any decision on whether the challenge was well founded, and the case simply continues with a different judge. Or the judge submits a written response, usually explaining the context of the statement or relationship complained of.

If the matter goes to a hearing, the applicant, the other parties and the challenged judge are invited to be heard. The hearing is normally public and short, and it is limited to the impartiality question; it is not an opportunity to argue the merits of the underlying case. The chamber gives a reasoned decision, in most cases immediately or within a few days, and decisions of wrakingskamers are published on rechtspraak.nl.

The chamber has one further power that is worth knowing about. Where the procedure is being misused, it may decide that a further challenge request in the same case will not be dealt with at all; this is stated in the decision itself. That power exists precisely because a challenge suspends the proceedings, and repeated requests can otherwise be used to bring a case to a standstill.

What a decision means for your case

If the challenge is upheld, the judge is replaced and the case is continued by another judge. Where the hearing had already begun, it is generally started again before the new judge, since a decision may only be based on what the deciding judge has heard. That costs time, and in criminal cases it can affect the planning of the trial, but it is the necessary consequence.

If the challenge is rejected, the same judge resumes the case from the point where it was suspended. In principle nothing else changes: the judge is not obliged to withdraw, and the fact that a challenge was made may not be held against the party that made it. Where the challenge was filed in the middle of a hearing, the court will usually continue on a new date.

The delay is real either way, and it is the main strategic consideration. In proceedings where speed is the point, such as interim relief or a hearing on detention, a challenge that is unlikely to succeed costs more than it can deliver. Where the ground is genuine, however, the delay is the price of a decision that will stand.

No appeal against the decision of the wrakingskamer

There is no legal remedy against a decision on a challenge. That is stated in so many words in article 39 of the Code of Civil Procedure, in article 515 of the Code of Criminal Procedure and in article 8:18 of the General Administrative Law Act: no appeal, no cassation, no other remedy. For many years an exception was accepted where the appeal was based on so-called breaking grounds, for example the claim that the rules had been applied in a way that missed their purpose. In its judgment of 21 June 2024 (ECLI:NL:HR:2024:918) the Supreme Court departed from that case law and held that the exclusion of remedies in challenge cases also bars appeals on breaking grounds.

That does not leave a party without any recourse. Objections about the impartiality of the court can still be raised in the appeal or cassation against the final judgment in the main case, in which the complaint is that the case was not heard by an impartial tribunal within the meaning of article 6 of the European Convention on Human Rights. In other words, the point is not lost; it is dealt with later, and in the context of the decision that actually affects you.

When a judge withdraws without being asked

The counterpart of a challenge is a judge’s own request to be released from the case, verschoning, regulated in articles 40 and 41 of the Code of Civil Procedure and in the parallel provisions of the other codes. The grounds are the same facts or circumstances that could harm impartiality, and the request is likewise decided by a chamber in which the judge concerned does not sit. In practice this is how most potential impartiality issues are dealt with: the court checks the parties, the lawyers and the subject matter in advance, and reallocates the case before anyone has to raise it. Parties are informed if this happens.

What to weigh before you file

Begin with the facts, not with the feeling. Write down precisely what was said or what relationship exists, when you learned of it and from what source. A challenge stands or falls on concrete, verifiable circumstances; a request built on dissatisfaction with the course of the hearing will be rejected and will have cost weeks.

Then consider three questions. Is the ground one that Dutch law recognises, or is it in truth an objection to a ruling, for which the remedy is appeal? Is the request being made at the first possible moment? And is the point strong enough to justify suspending the case, given that a rejected request leaves you before the same judge? A lawyer with experience of the court concerned can usually answer these quickly, and often the better route is to ask the court a factual question first, for instance about a side activity recorded in the public register, before anything formal is filed.

Finally, keep the request business-like. The wrakingskamer assesses circumstances, not tone, and a factual, narrowly formulated request is both more persuasive and less likely to be treated as misuse. For the wider context of proceedings in the Netherlands, see our indexes of Dutch civil law guides and Dutch criminal law guides.

Law & More advises parties in civil, criminal and administrative proceedings in the Netherlands, including on whether a challenge is the right step and how to formulate one. If you are considering a challenge, or you have received a decision of a wrakingskamer and want to know what it means for your case, please contact us.