AS TO THE ADMISSIBILITY OF
Application No. 21491/93
by Beleggings- en Beheersmaatschappij
INDIANA B.V.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 29 November 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 8 December 1992
by Beleggings- en Beheersmaatschappij INDIANA B.V. against the
Netherlands and registered on 10 March 1993 under file No. 21491/93;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
23 November 1994 and the observations in reply submitted by the
applicant on 12 April 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch company with limited liability, whose
registered seat is in Rotterdam. The applicant company is represented
before the Commission by Mr. A.D. Lindenbergh, a lawyer practising in
Rotterdam.
The facts, as presented by the parties, may be summarised as
follows.
a. Particular circumstances of the present case
Since 1984, the applicant company has been the owner of a plot
of land situated in an industrial area in the municipality of
Vlissingen. Before 1984, the plot was owned by the N.V. Metaalmaat-
schappij Cracau, which, until 1974, used it as a depot for metals. From
1974 to 1980 Cracau rented the plot to the company B.V. Nickel and
Tungsten Alloy Manufacturing Co. Maxalloys, which regained metals from
waste products.
From 1979 onwards, the municipality of Vlissingen had been
negotiating with the owners of the above-mentioned plot over the
purchase thereof by the municipality.
In 1982, the municipality of Vlissingen carried out a preliminary
examination of the soil of the plot. This examination showed that the
soil and the groundwater were polluted by heavy metals and oil. In 1985
the municipality of Vlissingen instructed the company Grontmij N.V. to
carry out a formal investigation of the soil pursuant to the Interim
Act on Soil Cleaning (Interimwet bodemsanering). The results of this
investigation were made public in June 1986. On the basis of the
investigation, the Provincial Executive (Gedeputeerde Staten) of
Zeeland decided that the soil should be cleaned. In the provincial soil
cleaning programme for 1989 the plot was indicated as being subject to
the Interim Act on Soil Cleaning.
The pollution of the soil, the cleaning operation, the costs
thereof, and the liability of the applicant were important elements in
the negotiations between the municipality of Vlissingen and the owners
of the plot.
In 1988, the Ministry of Housing, Regional Planning and
Environment (Ministerie van Volkshuisvesting, Ruimtelijke Ordening en
Milieubeheer, hereinafter referred to as the "Ministry") seized the
plot for security (conservatoir beslag), and started civil proceedings
against, inter alia, the applicant company, in order to recover the
costs of the soil cleaning operation. In August 1988, in summary
proceedings (kort geding) before the President of the Regional Court
(Arrondissementsrechtbank) of The Hague, the applicant company
unsuccessfully sought to have the seizure lifted in order to be able
to sell the plot.
On 3 February 1989, the Mayor and Aldermen (Burgemeester en
Wethouders) of Vlissingen, who were put in charge by the Provincial
Executive of Zeeland of the soil cleaning operation, informed the
applicant company of their intention to start the soil cleaning
operation in 1989, and asked the applicant company for its co-
operation. The applicant company replied on 17 February 1989 requesting
a suspension of the soil cleaning operation pending the outcome of an
investigation of the soil which it had ordered from the private company
X. The applicant company further expressed its willingness to reach a
solution and asked for consultations with the municipality on the
modalities of the soil cleaning.
By letter of 20 March 1989, the applicant company's lawyer
informed the Mayor and Aldermen that the applicant company wished to
carry out the cleaning under its own management and that the company
X would act as their expert. The results of the investigation carried
out by X and the latter's proposals on the technical modalities of the
soil cleaning were added to this letter.
By decision of 28 March 1989, the Mayor and Aldermen rejected the
request for a suspension of the soil cleaning operation, and, on the
basis of Section 11 of the Interim Act on Soil Cleaning, ordered the
applicant company to admit authorised persons to their property, to
allow these persons to investigate the extent of the pollution, and to
allow the cleaning of the soil. As regards the investigation of the
soil by authorised persons, the order was declared to be immediately
enforceable.
On 26 April 1989, the applicant company lodged an appeal against
the decision of 28 March 1989 with the Administrative Litigation
Division of the Council of State (Afdeling voor de geschillen van
bestuur van de Raad van State). On 1 August 1989, the Mayor and
Aldermen submitted their memorial in reply to the applicant's appeal
(verweerschrift) to the Administrative Litigation Division.
On 2 August 1989, the Chairman of the Division requested an
official report (ambtsbericht) from the Environmental Management
Appeals Adviser (Adviseur Beroepen Milieubeheer, hereinafter referred
to as "Adviser") of the Ministry. The official report was submitted on
9 December 1991 by the Adviser. He concluded that the decision of the
Mayor and Aldermen of Vlissingen should be upheld and that the appeal
should be rejected.
By letter of 17 February 1992, the Administrative Litigation
Division, pursuant to Section 36 of the Act on the Council of State
(Wet op de Raad van State, hereinafter referred to as "WRS"), informed
the parties that the documents concerning the applicant company's
appeal against the decision of 28 March 1989 could be consulted until
and including 13 March 1992 at the Registry of the Council of State.
In general terms the parties' attention was drawn to the fact that a
consultation of these documents could be important in particular
insofar as an official report had been issued in the proceedings.
The Registry of the Administrative Litigation Division informed
the applicant company that its appeal would be examined in the course
of an oral hearing and that, provided that the President of the
Division would have been duly informed thereof before 21 April 1992,
it could bring witnesses and experts in order to have them examined
before the Administrative Litigation Division.
On 2 June 1992 - by that time the soil cleaning operation, the
costs of which are estimated to be about 2.000.000 Dutch guilders, had
already taken place - a hearing was held by the Administrative
Litigation Division of the Council of State. The Adviser did not take
part in this hearing. The applicant company and the Mayor and Aldermen
of Vlissingen, both represented by lawyers, pleaded their case.
The applicant company submitted, inter alia, that already in the
period between 1986 and 1988 it had offered the municipality that the
company would clean the soil and bear the costs thereof itself, but the
municipality had declined to enter into negotiations on this subject.
The company further argued that the Adviser was not independent and
impartial, that the official report should be disregarded by the
Division, and that the official report was contrary to an independent
and impartial administration of justice and therefore contrary to
Article 6 of the Convention. It proposed that an impartial expert
should be appointed and offered to advance the costs of such an expert
if the Administrative Litigation Division should decide to appoint such
an expert. It submitted that in the end the costs of the expert should
be borne by the party who would lose the case before the Division.
On 9 June 1992, the Administrative Litigation Division rejected
the appeal. It held, inter alia, that the Mayor and Aldermen had
correctly taken the position that the soil cleaning operation should
be carried out in accordance with the requirements and conditions of
the Soil Cleaning Guideline (Leidraad Bodemsanering) which is based on
the Interim Act on Soil Cleaning. It further held that the soil
cleaning method opted for by the Mayor and Aldermen (removal,
processing and replacement of polluted soil, extraction of polluted
ground water) could be considered as being in accordance with the Soil
Cleaning Guideline, whereas the soil cleaning method proposed by the
applicant company (removal of a top layer of 30 centimetres of polluted
soil, followed by a further investigation in order to determine the
subsequent procedure) could not be regarded as an acceptable
alternative from an environmental hygiene point of view. It found that
the Mayor and Aldermen, after having weighed the interests involved,
could reasonably have reached the decision complained of, including its
immediate enforceability.
In reaching this finding, the Administrative Litigation Division
also had regard to the fact that, according to a telex of
5 January 1988, the applicant company, in its negotiations with the
municipality of Vlissingen regarding the sale of the plot, had
attempted to obtain a waiver as regards its environmental
responsibilities and that, by letter of 12 April 1988, the applicant
company had informed the State Advocate (landsadvocaat) that it was
willing to clean the soil at its own expense on condition that the soil
would be cleaned according to the guidelines of an engineering company
of the applicant company's choice and that the State would not
undertake any further action against the applicant company or the
(former) directors of Maxalloys. In these circumstances the
Administrative Litigation Division accepted the Mayor and Aldermen's
finding that was not clear that the applicant company was prepared to
secure a cleaning of the soil which was acceptable from the point of
view of environmental hygiene.
In its decision, the Administrative Litigation Division made a
general reference to the official report, and the line of reasoning and
the conclusion are the same in the official report and in the Council
of State's decision. The Administrative Litigation Division did not
deal with the applicant company's submissions that the Adviser was not
independent and impartial, that the official report should be
disregarded and that the report was contrary to an independent and
impartial administration of justice as required by Article 6 of the
Convention.
b. Relevant domestic law and practice
Pursuant to the Interim Act on Crown Appeals (Tijdelijke Wet
Kroongeschillen), which was in force from 1 January 1988 until 1
January 1994, the Administrative Litigation Division of the Council of
State was competent to decide on appeals concerning, inter alia, the
application of Section 11 of the Interim Act on Soil Cleaning. No
further appeal lay against a decision by the Administrative Litigation
Division, nor could it be overruled by an administrative authority.
Before 1 January 1988 such appeals were decided by the Crown (Kroon),
i.e. the Queen and the responsible Minister or Ministers.
The procedure before the Administrative Litigation Division was,
until 1 January 1994, governed by the rules set out in Sections 26-62a
of the Act on the Council of State (WRS).
The members of the Administrative Litigation Division, whose
number is determined by the Crown but cannot be less than five
including the President of the Division, are chosen by the Crown from
amongst the members of the Council of State, upon the proposal of the
Minister of Internal Affairs, after consultation of the Minister of
Justice and upon the recommendation of the Council of State (Section
27 WRS).
The members of the Council of State are appointed for life by the
Crown, upon the proposal of the Minister of Internal Affairs, after
consultation of the Minister of Justice and on the recommendation of
the Council of State. They are dismissed by the Crown at their own
request or when they have reached the age of seventy years. They can
also be dismissed or suspended by decision of the Council of State in
accordance with the rules and procedures set out in Sections 11-13a of
the Judicial Organisation Act (Wet op de Rechterlijke Organisatie)
(Sections 3 and 3a WRS).
Section 7 of the WRS deals with functions and professional
activities the exercise of which are incompatible with membership of
the Council of State.
Before taking up their duties, new members of the Council of
State take the oath, the wording of which is set out in Section 8 of
the WRS. In the oath they solemnly declare that they shall abide by the
obligations of independence and impartiality in the exercise of their
functions as member of the Council of State.
Section 32 (c) of the WRS, in its wording at the relevant time,
provides, insofar as relevant, as follows:
[Dutch]
"1. De Voorzitter van de Afdeling (voor de geschillen van
bestuur) wint de nodige ambtsberichten in. Hij doet daarvan
mededeling aan Onze Minister, wie de zaak aangaat.
2. Het overheidsorgaan, aan hetwelk een ambtsbericht is
gevraagd, zendt dit onder bijvoeging van de zich onder zijn
berusting bevindende tot het geschil betrekkelijke stukken - voor
zover dit niet in strijd is met enige wettelijke bepaling tot
geheimhouding - aan de voorzitter door tussenkomst van deze
Minister.
3. Ook indien Onze Minister geen ambtsbericht is gevraagd, kan
hij zijn ambtsbericht en stukken bijvoegen.
4. De voorzitter kan een termijn stellen, waarbinnen de
ambtsberichten worden uitgebracht."
[translation]
"1. The President of the (Administrative Litigation) Division
requests the necessary official reports. He informs Our Minister
concerned of this.
2. The public body, which has been requested to submit an
official report, will send this report together with the
documents in its possession which relate to the dispute - insofar
as this is not contrary to any statutory provision providing for
secrecy - to the president via this Minister.
3. Also when Our Minister has not been asked for an official
report, he can add his official report and documents.
4. The president may set a time-limit for the submission of
official reports."
In the Government's Memorandum of Reply (Memorie van Antwoord)
to the Lower House (Tweede Kamer) during the parliamentary discussion
on the adoption of the Interim Act on Crown Appeals (Tweede Kamer-
stukken 1986-1987, 19 497, nr. 5, pp. 11-13), the Government stated as
regards the compatibility of official reports with the requirements of
Article 6 para. 1 of the Convention, inter alia:
[Dutch]
"Wij wensen in genen dele af te doen aan het beginsel dat de
Afdeling voor de geschillen van bestuur in volle vrijheid tot
haar beslissingen moet kunnen komen. (...) De rechter is in geen
enkel opzicht gebonden aan dat standpunt (het ambtsbericht). Haar
onpartijdigheid zal niet in het geding kunnen komen doordat zij
kan beschikken over een mogelijk relevant standpunt van een
instantie die geen partij is bij het geding (...) de Afdeling
bepaalt zelf welke adviezen zij langs welke weg wenst in te
winnen. Het wordt aan de rechter overgelaten te beoordelen welke
waarde en welk gewicht hij aan de ingewonnen ambtsberichten,
onder meer vanwege het ontbreken van voldoende onafhankelijkheid
van de desbetreffende instantie, mag toekennen. De rechter kan,
indien hij de afhankelijkheid van degene die het ambtsbericht
uitbrengt ten opzichte van één van de procespartijen te groot
acht, zo nodig advies inwinnen bij een andere instantie."
[translation]
"We do not wish in any way to depart from the principle that the
Administrative Litigation Division must be able to reach its
decisions in all liberty. (...) The judge is not bound in any way
by that opinion (the official report). Its impartiality cannot
be questioned on the ground that it may have at its disposal a
possibly relevant point of view of a body which is not a party
to the dispute (...) the Administrative Litigation Division
itself will decide what opinions are required and how to obtain
them. It is left to the judge to assess the value and weight of
the official reports thus sought, inter alia, having regard to
a lack of sufficient impartiality of the body concerned (which
issued the report). The judge may seek advice from another body,
if he finds that the body which issues the official report is too
closely connected with one of the parties to the dispute."
Considering that the Administrative Litigation Division favoured
a position of advisers as independent as possible, the Minister of
Housing, Regional Planning and Environment, in his decision (besluit)
of 12 September 1988 with retroactive effect as from 1 January 1988,
provided the Adviser with an independent position within the Ministry.
According to this decision the Adviser shall independently sign
official reports (Section 2 of the decision) in his capacity of Adviser
(Section 3 of the decision) and will send official reports directly to
the Administrative Litigation Division (Section 5 of the decision).
In proceedings before the Administrative Litigation Division, the
parties may submit such documentary evidence as they consider necessary
(Section 34 WRS) and, unless the parties do not find this necessary,
a public hearing will be held in the course of which the parties can
argue their case (Sections 38, 38a and 45 WRS). The parties have the
right, as does the President of the Administrative Litigation Division,
to call witnesses and experts provided the President has been informed
in time of this wish and these persons' particulars, to put questions
to them and to comment on any evidence given (Sections 41, 46 and 48
WRS).
The Administrative Litigation Division deliberates in camera
(Section 51 WRS), it may carry out on-site inspections (Section 52
WRS), ask for additional official reports on which the parties may
comment (Section 54 WRS) and hold further hearings (Section 55 WRS).
As from 1 January 1994, the Interim Act on Crown Appeals is no
longer in force. As from that date an administrative appeal against
decisions under the Interim Act on Soil Cleaning lies directly with the
Administrative Law Division of the Council of State, which replaced the
Administrative Litigation Division. This change took place jointly with
the entry into force on 1 January 1994 of the General Administrative
Law Act (Algemene Wet Bestuursrecht), which lays down new uniform rules
of administrative law procedure. According to Section 36 of the present
Act on the Council of State, the new uniform rules laid down in Chapter
8 of the General Administrative Law Act, with certain exceptions, also
apply to proceedings before the Administrative Law Division. Under
Section 8:47 of the General Administrative Law Act, which also applies
to proceedings before the Administrative Law Division, the court may
seek expert opinions.
COMPLAINTS
1. The applicant company complains under Article 6 para. 1 of the
Convention that its appeal before the Administrative Litigation
Division of the Council of State was not determined by an independent
and impartial tribunal, as the Division obtained an official report,
which was decisive for its decision, from an expert who could not be
considered independent and impartial, since he was employed as Adviser
of the Ministry. The Ministry had a direct financial interest in the
outcome of the proceedings before the Administrative Litigation
Division: it paid for the soil-cleaning operation, it seized the
property of the applicant company and it started a lawsuit against the
applicant company in order to recover the costs of the soil cleaning
operation.
2. The applicant company further complains under Article 6 para. 1
of the Convention that it did not receive a fair hearing and that the
principle of equality of arms has been violated, in that the
Administrative Litigation Division did not seek the advice of an
independent and impartial expert, whereas the applicant company had
offered to pay the expenses of such an independent expert.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 8 December 1992 and registered
on 10 March 1993.
On 2 September 1994, the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
23 November 1994, after an extension of the time-limit fixed for that
purpose. The applicant company replied on 12 April 1995, also after an
extension of the time-limit.
THE LAW
The applicant company complains under Article 6 para. 1
(Art. 6-1) of the Convention that its appeal before the Administrative
Litigation Division of the Council of State was not determined by an
independent and impartial tribunal.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, states:
"In the determination of his civil rights and obligations
... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal".
The Commission notes in the first place that the parties do not
dispute the applicability of Article 6 para. 1 (Art. 6-1) of the
Convention. Having regard to the close connection between the
proceedings at issue and the consequences of their outcome for the
applicant company's pecuniary rights and its economic activities, the
Commission finds that these proceedings concerned a dispute over a
right which was "civil" in nature. The proceedings at issue therefore
fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention
(cf. Eur. Court H.R., Ortenberg judgment of 25 November 1994, Series
A no. 295-B, p. 48, para. 28 and Procola judgment of 28 September 1995,
Series A no. 326, para. 39).
Insofar as the applicant company complains that the
Administrative Litigation Division of the Council of State cannot be
regarded as an independent and impartial tribunal within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission
recalls that in order to establish whether a body can be considered
"independent", regard must be had, inter alia, to the manner of
appointment of its members and their term of office, to the existence
of guarantees against outside pressures and to the question whether the
body presents an appearance of independence. As to the question of
impartiality, a distinction must be drawn between the subjective test,
whereby it is sought to establish the personal conviction of a given
judge in a given case, and the objective test, aimed at ascertaining
whether the judge offered guarantees sufficient to exclude any
legitimate doubt in this respect (Eur. Court H.R., Langborger judgment
of 22 June 1989, Series A no. 155, p. 16, para. 32).
Having regard to the manner of appointment, the term of office
and the rules on dismissal and suspension of members of the Council of
State, the Commission finds no reason to doubt the independence of the
Administrative Litigation Division of the Council of State.
As regards the question whether the Administrative Litigation
Division was impartial, the Commission first notes that the applicant
has not expressed any doubt as to the personal impartiality of the
members of the Administrative Litigation Division.
As to the objective test, it must be determined whether there are
ascertainable facts which may raise doubts as to the impartiality of
the court. In this respect even appearances may be of a certain
importance. What is at stake is the confidence which the courts in a
democratic society must inspire in the public. It follows that, in
deciding whether in a given case there is a legitimate reason to fear
that a court lacks impartiality, the parties' opinion is important but
not decisive. What is decisive is whether a party's fear can be
regarded as objectively justified (Padovani judgment, loc. cit., p. 20,
para. 27).
The Commission finds that such an objective justification is
lacking in the present case. The fear of lack of impartiality is based
on the fact that the Administrative Litigation Division based its
decision on an official report from an expert employed by the Ministry,
which, according to the applicant company, had a direct financial
interest in the outcome of the proceedings.
The Commission recalls in this respect that the mere fact that
experts are employed by the administrative authority which is involved
in a case does not justify fears that such experts are unable to act
with proper neutrality. To hold otherwise would often place
unacceptable limits on the possibility to obtain expert advice (see
Zumtobel v. Austria, Comm. Report 30.6.92, Eur. Court H.R., Series A
no. 268-A, para. 86; Eur. Court H.R., Brandstetter judgment of 28
August 1991, Series A no. 211, p. 21, para. 44).
The Commission is, therefore, of the opinion that the fact that
the Administrative Litigation Division sought advice from such an
expert belonging to the staff of the Ministry is in itself insufficient
for an objective justification of the fear that the Administrative
Litigation Division was not an impartial tribunal. There is no other
element in the case which could cause doubts as to its impartiality.
It remains to be examined, however, whether the Adviser's report
was dealt with in a fair manner so as to give the applicant the
opportunity to argue against it and to present other expert advice.
In this respect the applicant company complains that, in the
proceedings before the Administrative Litigation Division, it did not
receive a fair hearing as required by Article 6 para. 1 (Art. 6-1) of
the Convention in that the Administrative Litigation Division did not
seek the advice of an independent and impartial expert, although the
applicant company had offered to pay the expenses of such an
independent expert.
The Government emphasise that the Adviser is an impartial expert.
He has an independent position and has been entrusted with final
authority in issuing official reports. He focused not only on the facts
of the dispute, but also dwelt on the relevant policy as it had been
pursued in order to allow the court to make a sound assessment of the
dispute. There was, however, no question in this regard of any
"propagation" of the policy pursued by the Ministry.
The Government further submit that, apart from the submission of
an official report, the Adviser did not participate in the proceedings
at issue. Nor did the Ministry participate in these proceedings. Given
that the decision challenged by the applicant company only concerned
its obligation to co-operate in the soil cleaning operation, that the
provincial authorities decide on soil cleaning operations and determine
the priorities of such operations and that the Ministry has never tried
to acquire the applicant company's property, the Government argue that
the Ministry had no interest in the outcome of the proceedings at
issue. The fact that the Ministry sought to secure the recovery of the
costs of the soil cleaning operation, the possibility to recover such
costs from, inter alia, the owners of a cleaned plot being provided for
by Section 21 of the Interim Act on Soil Cleaning, does not alter this
as this action, which gave rise to civil proceedings in the present
case, is completely separate from the administrative powers held by the
provincial and municipal authorities as regards the implementation of
the Interim Act on Soil Cleaning. The Administrative Litigation
Division is, moreover, entirely free to determine how much value it
attaches to an official report.
The Government further point out that, although the Interim Act
on Soil Cleaning does not provide for an obligation to consult the
party concerned nor a right for the party concerned to conduct a soil
cleaning operation itself, it may be inferred from the parliamentary
procedure regarding this Act that an administrative body should first
find out whether the party concerned is willing to co-operate in the
soil cleaning or to carry out the soil cleaning itself. According to
the Government it was not unreasonable, in view of the applicant
company's attitude towards the soil cleaning operation since 1982 - in
particular the absence of sound, serious and timely proposals by the
applicant company concerning the manner in which the soil cleaning
operation should be carried out - that the municipality of Vlissingen
took the view that there was no willingness of the applicant company
to co-operate in a sound clean-up operation.
The Government finally submit that, in the proceedings before the
Administrative Litigation Division, the applicant company only
submitted its objections to the official report and its offer to
appoint an independent adviser and to advance the costs involved at a
very late stage, i.e. at the hearing on 2 June 1992. It did not avail
itself of the possibility of submitting its own report in reaction to
the official report which had been made accessible to the parties
between 17 February and 13 March 1992, or of bringing witnesses and/or
experts to the hearing on 2 June 1992 in order to have them examined
before the Administrative Litigation Division or, provided the other
party had not objected to this, of presenting new items of evidence at
the hearing of 2 June 1992.
The applicant company submits that, although the Administrative
Litigation Division is formally not obliged to seek an official report
and is not bound by it, a study has shown that in 67% of the
environmental cases brought before the Division in 1988 and 1989 an
official report was sought and that in 69,7% of the cases in which an
official report was obtained the findings in the decision of the
Administrative Litigation Division fully coincided with the findings
in the official report. The applicant company, therefore, finds it
evident that official reports have a great influence on the findings
of the Administrative Litigation Division in environmental cases.
As regards the use of experts, the applicant company argues that
in procedural law a distinction is made between an expert appearing for
a party and an expert appointed by the court. An expert appearing for
a party is approached by one of the parties in order to advise on a
question formulated by this party. If the advice given is not to its
liking, the party is free not to use this advice and to seek another
expert. An expert appointed by the court is approached by the court and
requested to advise on one or more specific questions. The parties
determine in consultation with the court which expert should be
approached. This expert is deemed to provide impartial and independent
advice.
The applicant company submits that the Adviser is an expert
appointed by the court and that this Adviser - in whose official report
the facts of the case are considered in the light of the applicable
statutory provisions, the policy pursued is taken into account and a
conclusion is reached as regards the outcome of the proceedings -
cannot be regarded as independent and impartial. The Adviser is
employed by and works in the building of the Ministry, is appointed by
the Minister of Housing, Regional Planning and Environment and derives
his internal independent position from the Minister. Given the relation
of power, the Minister can easily influence the contents of the
official report. The applicant company is of the opinion that the
Adviser's final authority in issuing reports referred to by the
Government offers an insufficient guarantee for autonomy or
independence.
The applicant company refutes the Government's argument that the
Ministry had no interest in the matter. It submits that the Ministry
is accountable to parliament for environmental matters, it has an
interest in ensuring that environmental policy can be enforced. In this
respect the applicant company emphasises that the outcome of the
proceedings was decisive for the question whether the Ministry could
subsequently recover the costs of the soil cleaning operation from the
applicant company.
As regards the Government's observation that the applicant
company could have submitted a counter-report, the applicant company
states that the point was that it wanted the Administrative Litigation
Division, in consultation with the parties, to appoint an independent
expert and that it was not able to make this request until the hearing
on 2 June 1992. It further submits that the Administrative Litigation
Division did not seek advice from the Adviser on specific questions and
that the official report can be interpreted as a draft judgment. In the
absence of specific questions, it was difficult for the applicant
company to assess which questions an expert should answer. Moreover,
given that it took the Adviser almost 21/2 years to draw up the official
report, the applicant company considers that it cannot reasonably be
expected from it to produce a properly argued counter-report in the
short period available.
The Commission notes in the first place that the Ministry, which
employs the Adviser, was not a party to the proceedings at issue which
concerned the lawfulness of the decision of the Mayor and Aldermen of
Vlissingen. It is true that the Ministry could be considered to have
a certain interest in the outcome of the proceedings, but this
concerned the question whether the costs of the soil cleaning should
be borne by public funds or whether they could be recovered from the
owner of the cleaned plot. This question formed the object of a
different set of proceedings.
There may be some doubts as to whether the Adviser could be
regarded as fully independent of the Minister given their hierarchical
relationship. However, in matters of this kind it would not seem
unnatural that a court may ask for advice from an expert who holds a
central position in the state structure and has special knowledge and
experience of the implementation of the applicable rules and
guidelines. There is no reason to believe that the Adviser failed to
act with proper neutrality in the present case. The Commission also
recalls in this respect the case-law as regards the use of experts
employed by an administrative authority which is in a certain way
involved in proceedings (cf. Eur. Court H.R., Bönisch judgment of 6 May
1985, Series A no. 92, p. 15, para. 32; Brandstetter judgment of 28
August 1991, Series A no. 211, p. 21, para. 44; and Zumtobel v.
Austria, Comm. Report 30.6.92, Eur. Court H.R., Series A no. 268-A, p.
22, para. 86).
The Commission notes that, in proceedings before the
Administrative Litigation Division, the parties may submit such
documentary evidence as they consider necessary and, unless the parties
do not find this necessary, a public hearing will be held in the course
of which the parties can argue their case. The Commission further notes
that parties have the right to call witnesses and experts, to put
questions to them and to comment on any evidence given.
The Commission recalls that, as a general rule, it is for the
national courts to assess the evidence before them (cf. Eur. Court
H.R., Vidal judgment of 22 April 1992, Series A no. 235-B, p. 32, para.
33), but the Commission may ensure that the presentation of evidence
was fair. The effect of Article 6 para. 1 (Art. 6-1) of the Convention
is, inter alia, to place the domestic courts under a duty to conduct
a proper examination of the submissions, arguments and evidence adduced
by the parties, without prejudice to the domestic courts' assessment
thereof (Eur. Court H.R., Van de Hurk judgment, Series A no. 288, p.
19, para. 59).
The Commission notes that the applicant company did not seek to
submit any other expert opinion before the hearing before the
Administrative Litigation Division and did not seek the attendance of
its own experts or witnesses at this hearing in order to have them
heard before the Administrative Litigation Division. Only at the latest
possible stage - namely at the hearing on 2 June 1992 - the applicant
company criticised the position of the Adviser and the official report
and requested the Administrative Litigation Division to appoint another
expert in consultation with the parties.
In these circumstances the Commission considers that the
applicant company did not avail itself of the opportunity which it had
to contest the contents of the Adviser's report and to present
alternative expert advice. The Commission also considers that the
implied refusal by the Administrative Litigation Division of the
applicant company's request to appoint another expert, made at a very
late stage of the proceedings, cannot be considered to have deprived
the applicant of a fair hearing within the meaning of Article 6 para.
1 (Art. 6-1) of the Convention.
The Commission finds no indication that the applicant company was
prevented from making full submissions on the question of the necessity
and the modalities of the cleaning of the soil or that it was placed
in a disadvantaged position vis-à-vis its adverse party. It was
provided with ample opportunity to state its case, to submit evidence
and to challenge the official report or the submissions made by the
opposing party, both orally and in writing. Moreover, there is no
reason to believe that the Administrative Litigation Division failed
to take the parties' submissions, arguments and evidence into account
when taking its decision in the present case.
The Commission is, therefore, of the opinion that the
Administrative Litigation Division was in the present case an
independent and impartial tribunal within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention and that the proceedings before
the Litigation Division were in conformity with the requirements of
that provision.
It follows that the application is to be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy