Wrong oath: splitting hair or many things again?

It happened at the beginning of July, during the swearing in of a councilor at the court in Den Bosch. Was that the text of the correct oath of office, the chairman wondered. No, as it turned out, it was the one for court officers, not judges and counselors. Two texts with small, but clear differences. It wasn’t an incident. An investigation has shown that 30 councilors have been wrongly sworn in at the Bossche court in recent years, the court said this week.

These counselors are involved in 400 criminal cases and 700 tax cases that are not yet irrevocable. These are cases in which cassation has been instituted, or that is still possible. But the total number of cases in which councilors have been wrongly sworn in is much larger.

Case of Jos B.

The first case dates back to 2003. According to a spokesperson, that was “an incident”, but wrong swearing has been happening more structurally, according to her, for about ten years. She can’t say how many cases.

The error also plays a role in the case of Jos B., convicted on appeal this year for killing Nicky Verstappen, Royce de Vries, spokesperson for the next of kin, reported. The Telegraph. Gerald Roethof, lawyer of Jos B., said in TV program On 1 that the case has to be reconsidered by other judges.

Whether that will happen is the question. In mid-September, the Attorney General will present an appeal in cassation to the Supreme Court in the interests of the law. That’s advice. The claim will discuss the possible consequences for ongoing cases, but the irrevocable aspects are also expected to be discussed. The Supreme Court will consider this later this year.

According to Geert-Jan Knoops, lawyer and professor by special appointment of the politics of international law at the UvA, two reasons are possible. He considers it most likely that the Supreme Court will argue that things went wrong here, but that the cases should not be over. “Councillors would not have passed otherwise with the proper oath. So, you might say: what is the legal disadvantage that has been done to suspects? In that case, I expect that, the Supreme Court will judge in the spirit of society.”

But, says Knoops, if you look strictly legally, you have to conclude that with an incorrect oath there is a councilor who was not authorized to hold the office. “And then the Supreme Court could annul the judicial process. But that will have major consequences, not only for the 1,100 cases that are not yet irrevocable, but also for all those other cases.”

An oath is important, says judge Frank Wieland, who sentenced Willem Holleeder to life. “Especially with councilors, everything has to go one hundred percent according to the rules. But if these things happen again, that won’t change the decision. So doing that business again is legal hair-splitting, I think you have to look at the spirit of the law.”

The mistake creates uncertainty for victims and relatives, says Victim Support Netherlands. “It is good that the judiciary is coming out. The uncertainty is not conducive to the recovery of victims.” The Council for the Judiciary says that the events put the organization on edge and work processes are examined. “But left or right: we as an organization should have done this better.”