CASE OF DE HAAN v. THE NETHERLANDS

CASE OF DE HAAN v. THE NETHERLANDS

(84/1996/673/895)

JUDGMENT

STRASBOURG 

26 August 1997

The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.

List of Agents

Belgium: Etablissements Emile Bruylant (rue de la Régence 67,

B-1000 Bruxelles)

Luxembourg: Librairie Promoculture (14, rue Duchscher

(place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)

The Netherlands: B.V. Juridische Boekhandel & Antiquariaat

A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC ‘s-Gravenhage)

SUMMARY[1]

Judgment delivered by a Chamber

The Netherlands – impartiality of a judge presiding over a Chamber of the Appeals Tribunal called upon to decide on an objection against a decision for which he himself was responsible (sections 141 and 142 of the Appeals Act)

I.ARTICLE 6 OF THE CONVENTION

A.Applicability of Article 6

Not contested. Case concerns proceedings of the same type as the Feldbrugge case and a dispute under the same Act.

B.Compliance with Article 6 § 1

The sole responsibility for taking the decision falls to the president (or acting president) of the Appeals Tribunal, even when, as in the instant case, he does no more than ratify the opinion of the permanent medical expert.

Permanent-medical-expert procedure is not comparable to criminal proceedings in absentia in which the accused is neither present nor represented – applicant was actively involved in the establishment of the expert’s opinion which was to be the basis of the acting president’s decision.

In the present case, unlike in the Feldbrugge case, it is undisputed that the applicant had unlimited access to the Appeals Tribunal – it must accordingly be decided whether that tribunal offered the guarantees required by Article 6 § 1, in particular that of “impartiality”.

Reiteration of Court’s case-law on concept of “impartial” tribunal.

Subjective test: nothing to indicate any prejudice or bias on the part of Judge S.

Objective test: decisive feature of the case is that Judge S. presided over a tribunal called upon to decide on an objection against a decision for which he himself was responsible – also significant that the tribunal was composed of a professional judge assisted by two lay judges – no intervening decision by a higher body – applicant’s fears in this regard objectively justified.

Scope of review of the Central Appeals Tribunal insufficient to make up for the failings of the procedure before the Appeals Tribunal – possibility exists that a higher or the highest tribunal may, in some circumstances, make reparation for an initial violation of one of the Convention’s provisions – the Central Appeals Tribunal had the power to quash the decision appealed against on the ground that the composition of the Appeals Tribunal had not been such as to guarantee its impartiality and to refer the case back to the Appeals Tribunal for rehearing if necessary – it declined to do so and, as a consequence, did not cure the failing in question.

Conclusion: violation (six votes to three).

II.ARTICLE 50 OF THE CONVENTION

A.Damage

Pecuniary damage: no causal link established.

Non-pecuniary damage: finding of violation constitutes in itself sufficient just satisfaction.

B.Costs and expenses: reimbursement.

Conclusion: respondent State to pay applicant a specified sum for costs and expenses (unanimously).

COURT’S CASE-LAW REFERRED TO

10.2.1983, Albert and Le Compte v. Belgium; 26.10.1984, De Cubber v. Belgium; 29.5.1986, Feldbrugge v. the Netherlands; 23.5.1991, Oberschlick v. Austria (no. 1); 26.9.1995, Diennet v. France; 20.11.1995, British-American Tobacco Company Ltd v. the Netherlands; 10.6.1996, Thomann v. Switzerland

In the case of De Haan v. the Netherlands[2],

The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court B[3], as a Chamber composed of the following judges:

MrR. Ryssdal, President,
MrF. Matscher,
MrJ. De Meyer,
MrI. Foighel,
MrA.N. Loizou,
MrA.B. Baka,
MrM.A. Lopes Rocha,
MrD. Gotchev,
MrP. van Dijk,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy Registrar,

Having deliberated in private on 24 April and 30 June 1997,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1.  The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 4 July 1996 and by the Netherlands Government (“the Government”) on 12 September 1996, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 22839/93) against the Kingdom of the Netherlands lodged with the Commission under Article 25 by a Netherlands national, Ms Klaziena Wilhelmina de Haan, on 5 August 1993.

The Commission’s request referred to Articles 44 and 48 and to the declaration whereby the Netherlands recognised the compulsory jurisdiction of the Court (Article 46); the Government’s application referred to Articles 44 and 48. The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 6 § 1 of the Convention.

2.  In response to the enquiry made in accordance with Rule 35 § 3 (d) of Rules of Court B, the applicant stated that she wished to take part in the proceedings and designated the lawyer who would represent her (Rule 31). The lawyer was given leave by the President to use the Dutch language (Rule 28 § 3).

3.  The Chamber to be constituted included ex officio Mr P. van Dijk, the elected judge of Netherlands nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 7 August 1996, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr F. Matscher, Mr R. Macdonald, Mr J. De Meyer, Mr I. Foighel, Mr A.N. Loizou, Mr A.B. Baka and Mr D. Gotchev (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently Mr M.A. Lopes Rocha, substitute judge, replaced Mr Macdonald, who was unable to take part in the further consideration of the case (Rule 22 §§ 1 and 2 and Rule 24 § 1).

4.  As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 § 1 and 40). Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 30 January 1997.

5.  In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 22 April 1997. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a)for the Government
MrH. von Hebel, Assistant Legal Adviser,
Ministry of Foreign Affairs,Agent,
MrJ. Wiarda, Ministry of Justice,Adviser;

(b)for the Commission
MrH. Danelius,Delegate;

(c)for the applicant
MrE.C.M. Roelvink, advocaat en procureur
practising in Groningen, Counsel.

The Court heard addresses by Mr Danelius, Mr Roelvink and Mr von Hebel.

AS TO THE FACTS

I.circumstances of the case

6.  The applicant, Ms Klaziena Wilhelmina de Haan, is a Netherlands national born in 1966 and resident in Oude Pekela.

She worked at a dry cleaner’s from 1987. In the spring of 1989 she started to develop physical complaints which caused her to take sick-leave for months at a time. It was alleged that these complaints were caused by chemical substances used in dry cleaning.

While she was not at work the applicant enjoyed sick-pay from the Occupational Association for the Chemical Industry (Bedrijfsvereniging voor de Chemische Industrie) under the Health Insurance Act (ziektewet).

7.  By a letter of 14 May 1990 the Occupational Association for the Chemical Industry informed the applicant that according to the information at their disposal she was no longer unfit for work, and that accordingly her entitlement to sick-pay would be terminated with retrospective effect from 10 May.

8.  The applicant lodged an appeal with the Groningen Appeals Tribunal (Raad van Beroep) on 22 May 1990. On 20 June she filed an additional statement setting out her grounds of appeal.

9.  The Appeals Tribunal followed the simplified procedure known as the permanent-medical-expert procedure (vaste deskundige procedure – see paragraphs 25–28 below).

10.  On 17 August 1990 the applicant was examined by a permanent medical expert (vaste deskundige) attached to the Appeals Tribunal – a general practitioner.

11.  On 11 September 1990 the acting president of the Appeals Tribunal, Judge S., dismissed the appeal.

This decision, which was typed on a pre-printed form, contained the following reasoning:

“In his opinion, which was received at the registry of the Appeals Tribunal on 6 September 1990, the expert reached the conclusion that on and after the date to which the decision appealed against relates the applicant was not unfit for work ...

The Appeals Tribunal considers that it should accept this opinion.

In view of this opinion, as well as the other documents contained in the case file, it must be held that in the decision appealed against the respondent authority acted correctly in deciding to discontinue the applicant’s sick-pay.”

12.  On 26 September 1990 the applicant filed an objection (verzet). This caused the decision of the president to lapse provisionally (section 142 (3) of the Appeals Act – see paragraph 29 below).

She filed a statement of the grounds on which her objection was based on 19 November 1990. The grounds of her objection went to the merits of the case.

13.  The applicant received an invitation to take part in a hearing set for 8 August 1991.

By a letter of 24 July addressed to Judge S., the applicant’s lawyer stated that he had learnt that Judge S. would officiate as president of the Chamber of the Appeals Tribunal constituted to hear the case and announced his intention of challenging him.

14.  At the hearing the applicant’s lawyer submitted a written note dated the day before requesting that Judge S. withdraw and, in the alternative, challenging him. It was not alleged that Judge S. was subjectively biased, but doubts were expressed as to his objective impartiality in view of the fact that he had given a decision in the case earlier, based on evidence contained in the case file.

15.  The Chamber of the Appeals Tribunal withdrew to consider the applicant’s challenge in camera. The discussion was presided over by a judge who was not a member of the Chamber (section 62 of the Appeals Act – see paragraph 33 below).

Judge S. did not withdraw. It was decided to reject the challenge, pursuant to the internal policy of the Groningen Appeals Tribunal (see paragraph 34 below).

The Chamber of the Appeals Tribunal thereafter resumed the hearing in the same composition.

16.  On 21 August 1991 the Appeals Tribunal held the objection to be unfounded.

17.  The applicant filed a further appeal (hoger beroep) to the Central Appeals Tribunal (Centrale Raad van Beroep) on 6 September 1991.

Relying specifically on Article 6 of the Convention, she complained about the rejection by the Appeals Tribunal of her challenge of Judge S., stating that the latter had lacked objective impartiality. She asked that the case be referred back to the Appeals Tribunal for a rehearing (see paragraph 36 below) under the presidency of a different judge.

As an alternative submission, she asked that her entitlement to sick-pay after 10 May 1990 be recognised.

18.  The Central Appeals Tribunal rejected the applicant’s further appeal on 26 April 1993.

In so far as its judgment concerned the applicant’s challenge of Judge S., it referred to another judgment delivered the same day in which the same problem of functional impartiality was addressed.

That judgment contained the following reasoning:

“The Central Appeals Tribunal construes the [relevant] case-law of the European Court of Human Rights ... in the sense that the possibility of a violation of the guarantee of judicial impartiality is accepted if the judge participating in the determination of the legal question in the principal proceedings [hoofdgeding] has been involved in preparatory decisions which were independent in nature and had a purport of their own, and which generally fall to be taken on the basis of a global or provisional view of the main issue in the principal proceedings and which in general cannot be reconsidered when the main issue is dealt with.

The procedure according to the Appeals Act, as called into question by the applicant, concerns a judge who, within a single instance on appeal, within the framework of continuous judicial construction [rechtsvinding] in the stage before as well as after the objection, which, if filed in due time, causes the preceding decision to lapse in accordance with section 129 [of the Appeals Act], is involved in a decision with the same purport, given in relation to the same legal question and on the basis of the same standards.

In view of these essential differences the Central Appeals Tribunal is of the opinion that no violation of judicial impartiality can be found on the basis of the criteria which may be deduced from the above-mentioned case-law of the European Court of Human Rights. The Central Appeals Tribunal will not address the question whether the Court’s case-law, which has been formed in the field of criminal law, may be transposed to other fields of law without further ado.”

II.RELEVANT domestic law and practice

19.  The following is a rendering of the relevant domestic law and practice at the time of the events complained of.

A.Relevant social-security legislation

20.  The Health Insurance Act sets up an insurance scheme which is compulsory for all employees (section 20). Under this scheme, an employee has a right to sick-pay in the event of inability to perform his or her work due to illness, pregnancy or disability (section 19). In the event of illness or disability the employee may receive sick-pay for a period of up to fifty-two weeks (section 29 (2)). Provision for illness or disability continuing beyond this period was made under a different Act, the Occupational Disability Insurance Act (Wet op de arbeidsongeschiktheidsverzekering), which is not relevant to the present case.

21.  Pursuant to section 2 of the Social Security (Organisation) Act (Organisatiewet sociale verzekeringen) it falls to the occupational associations to implement certain social-security legislation, including the Health Insurance Act.

One occupational association exists for each of the various sectors of economic life. An occupational association is an association (vereniging) under private law set up by employers’ and employees’ organisations considered by the Minister of Social Affairs and Employment (Minister van Sociale Zaken en Werkgelegenheid) to be sufficiently representative of the sector concerned; its purpose is defined as being to implement the relevant social-security legislation, it must be a non-profit-making body and its statutes must satisfy certain requirements (section 4 (1) of the Social Security (Organisation) Act).

An employer is automatically a member of the occupational association corresponding to the sector of the economy to which the work carried out by his employees belongs (section 7 (1) of the Social Security (Organisation) Act).

B.The Appeals Tribunals

22.  The Appeals Tribunals – which have in the meanwhile been abolished (see paragraph 38 below) – were the judicial bodies with jurisdiction to rule at first instance on disputes concerning most social- security legislation, including the Health Insurance Act (at the relevant time, section 75 of the Health Insurance Act).

23.  A Chamber of an Appeals Tribunal comprised three members. Its president was always a judge appointed for life: the president of the Appeals Tribunal concerned or a vice-president or acting president (sections 5 and 116 (1) of the Appeals Act). The other two members were appointed for six years by the Minister of Justice, from lists of persons put forward by organisations of employers and employees (sections 9 and 10).

24.  In addition, every Appeals Tribunal had a number of permanent medical experts at its disposal. These were physicians (section 131 of the Appeals Act). They were appointed for one year at a time by the Minister of Justice (section 132 (1)). Upon appointment, they swore that they would report according to their conscience (section 133). They were not allowed to be connected to any organisation concerned with social-security matters, or to act as permanent medical experts in cases in which they had previously been involved in another capacity (section 134).

C.The permanent-medical-expert procedure

25.  In the event of a dispute between an occupational association and an employee with regard to the latter’s fitness for work, the permanent-medical-expert procedure provided for by the Appeals Act was followed (section 75 (2) of the Health Insurance Act).

26.  When an appeal was lodged against a decision of an occupational association concerning an employee’s fitness for work, the president of the Appeals Tribunal appointed a permanent medical expert (section 135 of the Appeals Act). The registry of the Appeals Tribunal informed the occupational association in question of the lodging of the appeal; the occupational association was then required to submit the relevant documents in its possession, normally within three days (section 136). These were included in the case file, which was then forwarded to the permanent medical expert.

27.  The permanent medical expert was required to consult the physician who had examined the appellant on behalf of the occupational association and the physician who had treated the appellant, unless it appeared from the case file that their opinions corresponded to his own; he also examined the appellant (section 137).

He then drew up an opinion which he submitted to the president of the Appeals Tribunal (section 140).

28.  The president of the Appeals Tribunal, or an acting president as the case might be, gave a reasoned decision which was pronounced in public (section 141).

D.Objections before the Appeals Tribunal

29.  Both the appellant and the occupational association could file an objection with the Appeals Tribunal against the decision of the president (section 142 (2) of the Appeals Act).

As a consequence of the filing of such an objection, the decision objected against lapsed unless the objection was eventually held to be inadmissible or unfounded (section 142 (3)).

30.  Before the Court’s judgment in the case of Feldbrugge v. the Netherlands (judgment of 29 May 1986, Series A no. 99), such an objection could only be based on certain formal grounds (ibid., p. 10, § 19).

After that judgment the presidents of the Appeals Tribunals established a policy guideline pursuant to which appellants were informed that they could file an objection on any grounds desired (Nederlands Juristenblad – Netherlands Law Review – 1986, p. 869).

31.  The objection proceedings involved a hearing in camera before a Chamber of the Appeals Tribunal (section 142 (2) and (6)).

A decision dismissing the objection had to be reasoned (section 142 (7)).

E.Challenges of members of Chambers of Appeals Tribunals

32.  Pursuant to section 61 (1) of the Appeals Act, a party to proceedings before an Appeals Tribunal was entitled to challenge a member of the Chamber called upon to hear the case “on the ground of facts or circumstances which might prevent [the member concerned from forming] an impartial opinion” (die een onpartijdig oordeel zouden kunnen belemmeren). A member of the Chamber was entitled to withdraw for the same reason (section 61 (2)).

33.  After a hearing of the party concerned, the challenge was decided on in camera by the other members of the Chamber, chaired by the president of the Appeals Tribunal or his or her deputy. No appeal lay against the ensuing decision (section 62 (1) of the Appeals Act).

34.  It appears from the decision in the present case (see paragraph 15 above) that the Groningen Appeals Tribunal had an internal policy under which objections against decisions which had lapsed as a result of the filing of the objection were normally dealt with under the presidency of the acting president who had given the original decision unless no further appeal was possible.

F.The Central Appeals Tribunal

35.  The Central Appeals Tribunal was, and is, composed entirely of judges appointed for life (section 32 of the Appeals Act). At the relevant time it always sat in Chambers of three (section 39). Its hearings are public (section 64).

G.Further appeals to the Central Appeals Tribunal

36.  A further appeal against the decision or judgment of an Appeals Tribunal lay to the Central Appeals Tribunal, unless the law provided otherwise (section 145 of the Appeals Act).

The procedure normally involved a complete re-examination of the case, including a hearing (section 148). The Central Appeals Tribunal could confirm the decision of the Appeals Tribunal, with different reasoning if necessary, or do what the Appeals Tribunal ought to have done (section 149); it could also refer the case back to the Appeals Tribunal if it saw fit (section 150).

37.  However, according to section 75 (2) of the Health Insurance Act, no appeal lay against a decision given by an Appeals Tribunal in objection proceedings such as those in issue.

In its judgment of 24 July 1958 (Rechtspraak Sociaal Verzekeringsrecht (Social Security Law Reports, RSV) 1958, no. 102) the Central Appeals Tribunal nevertheless opened the possibility of a further appeal in such cases if it appeared that rules of a formal nature had not been followed, if incorrect standards had been applied, or to the extent that the decision appealed against was unreasonable.

H.Subsequent legal developments

38.  The General Administrative Law Act entered into force on 1 January 1994.

It replaced the Appeals Tribunals by administrative-law divisions of the Regional Courts (arrondissementsrechtbanken).

39.  An employee who does not wish to accept the decision of an occupational association concerning his or her fitness for work may file an objection (bezwaarschrift) to that body (section 7:1 of the Administrative Law Act).

An appeal lies to the Regional Court (section 8:1). The Regional Court may appoint a medical expert to examine the appellant (section 8:47 (1)). It must hold a hearing, unless the parties to the case waive their right to be heard (sections 8:56 and 8:57).

A further appeal lies to the Central Appeals Tribunal (section 18 of the Appeals Act, as amended). The restrictions set out in paragraph 37 above no longer apply.

PROCEEDINGS BEFORE THE COMMISSION

40.  Ms de Haan applied to the Commission on 5 August 1993, complaining that she had not had a hearing before an impartial tribunal within the meaning of Article 6 § 1 of the Convention.

41.  The Commission declared the application (no. 22839/93) admissible on 18 May 1995. In its report of 15 May 1996 (Article 31), it expressed the unanimous opinion that there had been a violation of Article 6 § 1 of the Convention. The full text of the Commission’s opinion and of the concurring opinion contained in the report is reproduced as an annex to this judgment[4].

FINAL SUBMISSIONS TO THE COURT

42.  The Government concluded their memorial by expressing the opinion that there had been no violation of Article 6 of the Convention.

The applicant’s lawyer, speaking at the hearing, asked the Court to hold that there had been a violation of Article 6 of the Convention and to award the applicant just satisfaction as claimed.

AS TO THE LAW

I.ALLEGED VIOLATION OF ARTICLE  6 § 1 OF THE CONVENTION

43.  The applicant alleged that the Chamber of the Appeals Tribunal called upon to deal with her case had not been an “impartial tribunal”. She relied on Article 6 § 1 of the Convention, which provides, inter alia:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by an ... impartial tribunal ...”

The Commission considered that there had been a violation of that provision. The Government contested this.

A.Applicability of Article 6

44.  It was not contested that the case concerned the determination of civil rights and obligations and that Article 6 was thus applicable.

The Court recalls that in its Feldbrugge v. the Netherlands judgment of 29 May 1986 (Series A no. 99) it found Article 6 § 1 to be applicable under its civil head to proceedings of the type here in issue concerning a dispute under the same Act (loc. cit., pp. 11–16, §§ 25–40).

B.Compliance with Article 6 § 1

1.Arguments before the Court

45.  The applicant, with whom the Commission concurred, relied on the fact that Judge S., sitting as a single judge in the permanent-medical-expert procedure (see paragraphs 25–28 above), had first given a decision on the merits of her case after examining all the evidence contained in the case file. Judge S. had then presided over the Chamber of the Appeals Tribunal
called upon to examine her objection against that same decision. This meant, in the view of the applicant and the Commission, that Judge S. could not be considered objectively impartial.

This failing was not capable of being redressed at a later stage of the proceedings, as an appeal to the Central Appeals Tribunal was only possible on limited grounds which did not include the ground that an erroneous view had been taken of the medical evidence.

46.  In the view of the Government the present case fell to be distinguished from the cases in which the Court had found Article 6 § 1 to have been violated by judges’ taking part in proceedings after having been involved in the same proceedings at an earlier stage. In those cases the judge in question had been called upon to give a separate preparatory decision involving a provisional opinion of the merits of the case, and had thus exercised different judicial functions at several discrete stages of the case.

Here, on the other hand, one and the same judge had sat twice in the same capacity, first alone, then as acting president of a Chamber, at a single instance.

Moreover, Judge S.’s first decision had lapsed automatically as a result of the lodging of the objection, which meant that Judge S. was not bound by that decision and an entirely new decision on the merits of the case had been called for. Unlike the decision in the permanent-medical-expert procedure, this second decision had been given after a comprehensive consideration of the case following the submission of written pleadings and an oral hearing.

In the Government’s view the case was akin to that of Thomann v. Switzerland (judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III), in which the Court had found no violation of Article 6 § 1, given that in both cases a decision on the merits had been given by the same judge or judges, first in the absence of the person concerned, then after a hearing in that person’s presence.

In addition, the Court had found no violation of the impartiality requirement in the Diennet case (Diennet v. France judgment of 26 September 1995, Series A no. 325-A), even though three of the seven members of the disciplinary section of the National Council of the Ordre des médecins to whom the case had been referred by the Court of Cassation following an appeal on points of law had taken part in the decision appealed against.

Finally, the applicant had had the benefit of an appeal before the Central Appeals Tribunal. This appeal had redressed any failings that might be found in the first-instance proceedings. The Central Appeals Tribunal had been able fully to consider the applicant’s complaint under Article 6 § 1 and, after dismissing it, had come to the conclusion that the Appeals Tribunal had not applied incorrect standards in deciding the merits of the case.

2.The Court’s assessment

47.  The Court observes the following features of the permanent-medical-expert procedure under the Appeals Act.

Firstly, the sole responsibility for taking the decision falls to the president (or acting president) of the Appeals Tribunal, even when – as in the instant case – he does no more than ratify the opinion of the permanent medical expert (see the above-mentioned Feldbrugge judgment, p. 17, § 44).

Secondly, unlike the Government, the Court takes the view that the permanent-medical-expert procedure is not comparable to criminal proceedings in absentia in which the accused is neither present nor represented, such as were considered in the above-mentioned Thomann judgment. The procedure here in issue involved a medical examination of the applicant. She was in a position to make any comments she considered appropriate, albeit to a medical expert and not to a judge. She was thus actively involved in the establishment of the expert’s opinion which was to be the basis of the acting president’s decision.

48.  In the present case, unlike in the Feldbrugge case (loc. cit., pp. 17 –18, § 44), it is undisputed that the applicant had unlimited access to the Appeals Tribunal (see paragraph 30 above).

It must accordingly be decided whether that tribunal offered the guarantees required by Article 6 § 1, in particular that of “impartiality”.

49.  The Court recalls that, when the impartiality of a tribunal for the purposes of Article 6 § 1 is being determined, regard must be had not only to the personal conviction and behaviour of a particular judge in a given case – the subjective approach – but also to whether it afforded sufficient guarantees to exclude any legitimate doubt in this respect (see, among other authorities, the above-mentioned Thomann judgment, p. 815, § 30).

50.  As regards the subjective aspect of such impartiality, there was nothing to indicate in the present case any prejudice or bias on the part of Judge S., and indeed the applicant did not suggest otherwise.

There thus remains the objective test.

51.  The decisive feature of the case is that Judge S. presided over a tribunal called upon to decide on an objection against a decision for which he himself was responsible (see paragraph 47 above). It is also significant that the tribunal was composed of a professional judge assisted by two lay judges.

Unlike in the Diennet case, there had been no intervening decision by a higher body.

The situation is more akin to that obtaining in the case of Oberschlick v. Austria (no. 1) (judgment of 23 May 1991, Series A no. 204), in which a judge who had participated in the judgment at first instance also participated in the hearing of an appeal against the same judgment.

Against this background the Court finds that the applicant’s fears in this regard were objectively justified.

52.  Nonetheless no violation of Article 6 § 1 could be found if the decision of the Appeals Tribunal was subject to subsequent control by a judicial body that had full jurisdiction and did provide the guarantees of Article 6 (see, inter alia and mutatis mutandis, the Albert and Le Compte v. Belgium judgment of 10 February 1983, Series A no. 58, p. 16, § 29; more recently, the British-American Tobacco Company Ltd v. the Netherlands judgment of 20 November 1995, Series A no. 331, pp. 25–26, § 78).

53.  In its Feldbrugge judgment the Court noted that decisions of an Appeals Tribunal in proceedings such as those here in issue were not subject to appeal save, as had been held in the case-law of the Central Appeals Tribunal, in the event of non-observance of rules of a formal nature. The scope of review of the latter tribunal was held by the Court to be insufficient to make up for the failings of the procedure before the Appeals Tribunal (loc. cit., p. 18, §§ 45-46).

It does not appear that this situation had changed substantially by the time the Central Appeals Tribunal was called upon to consider the appeal brought by the applicant (see paragraph 37 above). In particular, the Central Appeals Tribunal was not able to reassess the medical evidence and thus to decide itself the issue in dispute.

54.  However, the possibility exists that a higher or the highest tribunal may, in some circumstances, make reparation for an initial violation of one of the Convention’s provisions (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, p. 19, § 33).

The Central Appeals Tribunal had the power to quash the decision appealed against on the ground that the composition of the Appeals Tribunal had not been such as to guarantee its impartiality and to refer the case back to the Appeals Tribunal for rehearing if necessary (see paragraphs 36 and 37 above). However, it declined to do so and, as a consequence, did not cure the failing in question.

55.  In conclusion, there has been a violation of Article 6 § 1 of the Convention.

II.APPLICATION OF ARTICLE 50 OF THE CONVENTION

56.  Article 50 of the Convention provides as follows:

“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”

A.Damage

57.  The applicant asked the Court to award her, by way of pecuniary damages, the sums to which she claimed to be entitled under the relevant social-security legislation. These came to a total of 58,327 Netherlands guilders (NLG). In addition, she claimed interest on these sums, to an amount of NLG 33,165.61. The total claimed under this head thus came to NLG 91,492.61.

In the alternative, she claimed identical sums by way of non-pecuniary damages.

58.  The Government argued that it was far from clear that the outcome of the case would have been any different had Judge S. not been involved in the objection proceedings. Furthermore, it could not be shown that, even if the applicant’s entitlement to sickness benefits had been recognised, her claims would have been accepted in their entirety.

The Delegate of the Commission did not comment.

59.  The Court cannot speculate as to what the outcome of the domestic proceedings might have been if the composition of the Appeals Tribunal in the objection proceedings had been in accordance with Article 6. No causal link has been established between the violation found and the pecuniary damage alleged and the applicant’s claim under this head must be rejected.

60.  No reasons have been given why any award should be made for non-pecuniary damage. Furthermore this part of the applicant’s claims is identical to that for pecuniary damage.

In these circumstances the Court finds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which the applicant may have suffered.

B.Costs and expenses

61.  The applicant claimed a total of NLG 33,794.88 including value-added tax in respect of costs and expenses incurred both in the domestic proceedings and before the Strasbourg institutions.

62.  The Government did not contest this sum. The Delegate of the Commission did not comment.

63.  The Court awards the sum claimed under this head, minus 14,553 French francs paid by the Council of Europe by way of legal aid.

C.Default interest

64.  According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 5% per annum.

FOR THESE REASONS, THE COURT

1.Holds by six votes to three that there has been a violation of Article 6 § 1 of the Convention;

2.Holds unanimously that the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered;

3.Holds unanimously

(a)that the respondent State is to pay to the applicant, within three months, NLG 33,794.88 (thirty-three thousand seven hundred and ninety-four Netherlands guilders and eighty-eight cents) in respect of costs and expenses, minus 14,553 (fourteen thousand five hundred and fifty-three) French francs to be converted into Netherlands guilders at the rate of exchange applicable on the day of delivery of the present judgment;

(b)that simple interest at an annual rate of 5% shall be payable from the expiry of the above-mentioned three months until settlement;

4.Rejects unanimously the remainder of the applicant’s claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 August 1997.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 § 2 of the Convention and Rule 55 § 2 of Rules of Court B, the following separate opinions are annexed to this judgment:

(a)dissenting opinion of Mr De Meyer;

(b)dissenting opinion of Mr van Dijk, joined by Mr Matscher.

Initialled: R. R.
Initialled: H. P.

DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

The fact that Judge S., having first decided the case under the simplified procedure (alone and on the basis of documentary evidence), subsequently sat with two lay judges on the tribunal which, after hearing the applicant, ruled on her objection to Judge S.’s decision, does not in my view suffice to justify holding that there has been a violation of the principle of impartiality.

The judge’s position was hardly any different in substance to that of the members of the Basel-Stadt Criminal Court in the case of Thomann v. Switzerland[5].

Save where a person is acting as judge in his own case, which is not here in issue, objective impartiality (or partiality) is, as my colleague Mr van Dijk[6] so clearly explains, something of a contradiction in terms. In practice, it is far too often an illusion which leaves judges (and their decisions) open to criticism prompted by the – generally relatively subjective – anxieties (doubt, apprehension, fear) of litigants (or at least some litigants).

DISSENTING OPINION OF JUDGE VAN DIJK,
JOINED BY JUDGE MATSCHER

I voted against the finding that Article 6 has been violated in this case. I agree that the Groningen Appeals Tribunal did not act in the most appropriate and desirable way and ought to have avoided the procedural course of events which gave rise to misgivings on the part of the applicant. That does not necessarily mean, however, that the minimum standard of fairness required by Article 6 has not been met.

On the whole, the Court has been rather strict in the application of the objective-impartiality test which it developed under Article 6 § 1, as indeed it has been in general in its interpretation and application of Article 6. The main problem with applying the test is constituted by the fact that the concept of “objective impartiality” is a contradiction in terms. Partiality is in fact a purely subjective approach. Consequently, the application of the objective-partiality test by the Court, after it has found that there are no indications of subjective partiality, makes it necessary for the Court to choose between appearance and reality. Although the Court has emphasised that “in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive” (see the Piersack v. Belgium judgment of 1 October 1982, Series A no. 53, p. 16, § 31, and the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, § 48), the Court has nevertheless in several cases laid considerable stress on the subjective perception of the accused or other party to the proceedings, thus giving the application of the objective-impartiality test a predominantly subjective character (see, in particular, the Borgers v. Belgium judgment of 30 October 1991, Series A no. 214-B, p. 32, § 26).

In its more recent case-law the Court has placed somewhat more emphasis on the objective element of the test. In its Bulut v. Austria judgment of 22 February 1996 (Reports of Judgments and Decisions 1996-II, p. 378, § 33) the Court held that even if a particular situation might give rise to misgivings on the part of the accused as to the impartiality of the judge, it depended on the circumstances of each particular case whether these misgivings should be considered objectively justified.

As was rightly observed by the Delegate of the Commission and the Government’s Agent, what is in issue in the present case is neither the situation where a judge has previously taken a decision in the same case in another capacity nor the exercise of judicial functions in successive instances, but the situation of a judge who sat twice in the same capacity at the same instance. Therefore, the restraint in applying the objective-

impartiality test which the Court showed in its Diennet v. France judgment of 26 September 1995 would seem to be of special relevance to this case. There the Court held that “no ground for legitimate suspicion can be discerned in the fact that three of the seven members of the disciplinary section had taken part in the first decision” (Series A no. 325-A, p. 16, § 38). The Court referred to its Ringeisen v. Austria judgment of 16 July 1971, where it had held that “it cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority” (Series A no. 13, p. 40, § 97). In its Thomann v. Switzerland judgment of 10 June 1996 the Court repeated these observations and added that “judges who retry in the defendant’s presence a case that they have first had to try in absentia on the basis of the evidence that they had available to them at the time are in no way bound by their first decision. They undertake a fresh consideration of the whole case; all the issues are examined in adversarial proceedings with the benefit of the more comprehensive information that may be obtained from the appearance of the defendant in person” (Reports 1996-III, p. 816, § 35).

In my opinion the present case, although it is not a criminal case, is, mutatis mutandis, within the same margins. I fail to see that a judgment by default such as was in issue in the Thomann case is significantly more incomplete and provisional than a decision in a simplified procedure as is here in issue. Indeed, in the Thomann case the applicable Swiss law provided that the investigation of a case concerning a suspect who was absent must be conducted with the same degree of thoroughness as if he had been present and that, if there was insufficient evidence to secure the accused’s conviction, the proceedings were to be stayed, the grounds for applying for a retrial, moreover, being restricted (see paragraphs 19, 23 and 24 of the judgment).

Neither the efforts of the Delegate of the Commission to distinguish the two procedures nor the arguments given by the majority to underline the distinction made have convinced me. In both cases the judge who gives the first decision does so on the basis of all available information and evidence, but at the same time he is fully aware that he may be called upon to reconsider his decision if that decision is objected against on the ground that the person concerned was not heard at a trial. If that is the case, the examination of the case will start afresh and in the presence of the person concerned, and a new decision will be taken on the basis of not only the information and evidence which was already available but also any new information or evidence that may emerge. Accordingly, the main aspects which distinguish the present case and the Diennet, Thomann and Ringeisen

cases from the cases in which the Court reached the conclusion that prior involvement of a judge impaired his impartiality in an objective sense are precisely that (a) here the previous decision did not have irreversible consequences and could be reconsidered by the same judicial authority at the same instance; (b) the judge was aware of that when he took his decision; and (c) the second decision was not in the nature of an appeal or revision, but of a continuation or reopening of the examination of the case at the same instance: “a fresh consideration of the whole case” (Thomann judgment cited above, p. 816, § 35).

Although it would certainly have been preferable had the judge who took the first decision not sat in the Chamber dealing with the case after the hearing, the applicant had, in my opinion, no reasonable ground for questioning Judge S.’s impartiality. In this case, too, “one must ... look beyond the appearances ... and concentrate on the realities of the situation” (De Jong, Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 23, § 48). Of course, Judge S. had formed an opinion about the case before the hearing and had made it known to the applicant. That does not imply that he no longer offered sufficient guarantees that in participating in the Chamber he based his opinion solely on the law and the facts; foreknowledge is not the same as bias.

It is true that the Court in its De Cubber v. Belgium judgment of 26 October 1984 considered the fact that a judge has acquired before the hearing a particularly detailed knowledge of the file as a factor which might make his impartiality suspect in the eyes of the accused (Series A no. 86, p. 16, § 29). On the other hand, it held in its Saraiva de Carvalho v. Portugal judgment of 22 April 1994: “His detailed knowledge of the case did not mean that he was prejudiced in a way that prevented him from being impartial when the case came to trial” (Series A no. 286-B, p. 39, § 38). To quote the Commission’s report in the Thomann case: “The professional training and experience of the judges ensures that their findings in the context of the proceedings in the accused’s absence would not predetermine their taking and evaluation of the evidence and appreciation of all relevant circumstances in the ensuing new examination of the charges in the accused’s presence” (paragraph 71). The same confidence would seem to be justified in the present case. And, indeed, the applicant herself did not claim that Judge S. had actually been biased in her case.

Even if one were to assume that Judge S. was inevitably influenced by his first decision, as does Commission member Schermers in his concurring opinion, the fact remains that he constituted a minority in the Chamber of
three which decided the case after the objection. The mere fact that the two other members of the Chamber were lay judges did not mean per se that Judge S. had a preponderant influence in the Chamber. In fact, given the technical issues involved the contrary may well have been the case. However, this remains a matter of pure speculation. In its Ettl and Others v. Austria judgment of 23 April 1987 the Court indicated that in cases where issues of great complexity were at issue, the participation of lay judges with special expertise with regard to those issues “enabled them to reach balanced decisions, having regard to the various interests at stake” (Series A no. 117, p. 18, § 40).

In conclusion, although both Netherlands law as applicable at the time and the “policy” of the Groningen Appeals Tribunal (see paragraph 35 of the judgment) certainly do not deserve our admiration, in view of the reality behind the appearance in this case and in view of what I consider to be the most directly relevant case-law of the Court, and given the need to maintain a degree of consistency in the case-law, I find that there has been no violation of Article 6. When the Court takes too casuistic an approach in its objective-impartiality test, basing distinctions on elements the distinctive character of which is not self-evident, it does not serve legal certainty and fails to give the necessary guidance to the national courts and legislatures (see the separate opinion of Judge De Meyer in the above-mentioned Bulut case and the concurring opinion of Judge Martens in the case of Fey v. Austria, judgment of 24 February 1993, Series A no. 255-A, p. 16).

[1].  This summary by the registry does not bind the Court.

[2]Notes by the Registrar

.  The case is numbered 84/1996/673/895.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[3].  Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[4].  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1997), but a copy of the Commission's report is obtainable from the registry.

[5].  Judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III.  See also my separate opinions in the Bulut v. Austria case (judgment of 22 February 1996, Reports 1996-II, p. 365, §§ 2–18) and in the Ferrantelli and Santangelo v. Italy case (judgment of 7 August 1996, Reports 1996-III, p. 954) and, as to the similarities between the Thomann and the De Haan cases, see M.I. Veldt, Het EVRM en de onpartijdige strafrechter, Gouda 1997, p. 131.

[6].  See next page.

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