On April 16 2013, the Court of Appeals in Arnhem held an oral hearing in what appears to be the final episode of the high profile Chipshol-case. The hearing dealt with the public prosecutor’s decision to refrain from pressing charges of corruption against two ex-judges. In these instances, Dutch criminal law provides that an affected party can register a complaint against the prosecutor. If the evidence presented gives rise to a reasonable suspicion, the court can order the prosecutor to pursue the case.
From a private law-perspective, another interesting question emerges from this case: does the briber who has induced a judge to issue a verdict in his favour, have the option to ask for restitution of the bribe—for example if the bribe has not produced the desired result? Evidently, a contract to influence a judgement for money is void, for offering and accepting a bribe clearly is immoral behaviour. But does this entail a right to recovery for the giver, based on the fact that the law cannot condone the transfer of money on immoral grounds?
Although the significance of this question is rather limited—the relevant article of the Dutch Civil code is rarely cited and cases where judges are bribed are scarce, to which a fine rating on the Bribe Payers Index bears witness—it is still a question that has been debated across the centuries, and with varying outcomes.
Most continental European countries have adopted the approach taken by Roman law to this case, with the result that the giver cannot recover what has been paid, if he himself has been tainted by any immoral act or wrongdoing. Only two countries, both in the periphery of Europe, have declined to incorporate the Roman rule into their legal systems and have instead contrived their own scheme. In Finland and the Netherlands, as a general rule, an action for recovery is allowed.
As a starting point, Roman law takes the view that what had been paid based on an immoral cause, was subject to recovery with an action called the condictio ob turpem vel iniustam causam—literally the restitutionary action for immoral or illegal payments. For instance, when one had been extorted to pay money in order to prevent someone from killing a man, the law allows for an action of recovery.
There is, however an exception to this rule, which is often summarized by the maxim in pari turpitudine melior est causa possidentis. Although the saying is of Medieval origin, it can be traced to a text by the Roman lawyer Paulus (Digest 12,5,8), and it means that where both the giver and the recipient have acted in a morally reprehensible way, an action for recovery is bound to fail. Although the recipient could of course never have claimed performance on the basis of a void contract, now that he has received performance, he is entitled to keep it.
The reason behind this exception is that it is seen as inequitable to give an action to someone who had acted in a reprehensible way himself; the law left things as they were and the courts, consequently, did not intervene. So, as Paulus (D. 12,5,3) points out, if one had paid a judge in order to influence the course of justice, an action for recovery of the bribe was not allowed.
As Ulpian reminds us (D. 12,5,2,2), when someone with a winning cause of action had paid a judge for handing down the right judgement, some held the opinion that the in pari turpitudo-rule would not apply and recovery should be allowed. Eventually, this discussion was put to rest in 212 when Caracalla decided that the giver should be denied an action for recovery in all instances—without regard to the legal merits of the judgement.
As set out above, Dutch law (and Finnish law, for that matter) has not followed the Roman example: the in pari delicto-rule is not incorporated in the Civil code (neither in the old code of 1838, nor the new one of 1992). Instead, the general rule prevails, that a payment based on a void contract can be recovered. In principle, even where both parties were at fault, the performances made on the basis of an immoral contract, can be reversed.
A narrowly-defined exception is only accepted where one of the performances cannot be reversed and it would be inappropriate for a court to set a price on this performance (article 6:211 of the Dutch civil code). A common example where restitution would not be allowed under this rule, is the hitman who has followed through on his job.
As may be expected, this rule has elicited fierce criticism, as it produces the result—in private law, that is—that the hitman who has finished his job can keep his money, whereas he is liable in a restitutionary claim if he shows repentance and finds himself unable to stick to the agreement. This, Dutch legal authors have argued, is a serious objection against the narrow scope of the exception.
As it turns out, as much as Dutch and Roman law differ in their respective approaches to cases where both parties have engaged in morally reprehensive behaviour, the gap between both systems is somewhat smaller than may appear at first glance. For even if a restitutionary claim would not be barred by the exception of article 6:211, it is still possible that the claim would be checked by the general principles of reasonableness and fairness (article 6:2 section 2), always at hand in cases like these.
Well, what does this entail for the claim to recover a bribe from the judge who had been bought off? Again, due to the deplorably high level of law-abidingness in the Netherlands, there is a lack of precedents concerning this situation. But it appears that a judgement that has been handed down under the influence of a bribe can be considered to constitute an irreversible performance, as article 6:211 demands (a fraudulent act by the judge does in itself not give rise to a repeal of the verdict (article 382 of the Code of civil procedure)), so that an action for recovery fails on this ground.
But even where the judgement has not yet been delivered, and the exception of 6:211 consequently does not apply, it appears that it would be unreasonable for the courts to lend themselves to the claim to demand the return of the bribe. Private law should leave things as they are. Thus, one arrives at an outcome that is strikingly similar to Roman law.
A just outcome?
But as it appears to be equally unreasonable for the corrupt judge to keep the money, one might finally ask, to whom does the bribe belong?
The ‘Goudse Bouwmeester'-case gives a solution. A municipal architect had according to a prior agreement received 35,000 guilders to issue a permit. To appease the city council and to obtain an honourable discharge, he had handed this sum to the municipality. However, having changed his mind, the architect tried to recover the sum, arguing that he was under no obligation to hand it over.
This line of reasoning failed, and the supreme court (NJ 1926, 777) decided that, by showing remorse and handing over the sum, the architect had fulfilled a moral duty. Accordingly, his action to recover did not succeed. So, we can conclude that where a civil servant receives a sum of money as a bribe, it is, as a matter of decency, his moral duty to hand over this sum to the community. In doing so, the most equitable result is reached.