MCGONNELL v. THE UNITED KINGDOM

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 28488/95

Richard James Joseph McGonnell

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 20 October 1998)

28488/95- i -

TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1‑15).............................................1

A.The application

(paras. 2‑4).........................................1

B.The proceedings

(paras. 5‑10)........................................1

C.The present Report

(paras. 11‑15).......................................2

II.ESTABLISHMENT OF THE FACTS

(paras. 16‑44)............................................3

A.The particular circumstances of the case

(paras. 16‑26).......................................3

B.Relevant domestic law

(paras. 27‑44).......................................4

III.OPINION OF THE COMMISSION

(paras. 45‑69)............................................8

A.Complaints declared admissible

(para. 45).................................................8

B.Points at issue

(para. 46).................................................8

C.As regards the independence and impartiality

of the Royal Court

(paras. 47-63).............................................8

CONCLUSION

(para. 64)................................................11

D.As regards the absence of reasons for the decision

of the Royal Court

(paras. 65-66)............................................11

CONCLUSION

(para. 67)................................................11

E.Recapitulation

(paras. 68-69)............................................11

DISSENTING OPINION OF Mr E.A. ALKEMA ...............................12

CONCURRING OPINION OF Mr N. BRATZA ................................13

APPENDIX:DECISION OF THE COMMISSION AS TO THE

        ADMISSIBILITY OF THE APPLICATION...................14

I.INTRODUCTION

1.The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.The applicant is a British citizen, born in 1955 and resident in Guernsey.

3.The application is directed against the United Kingdom.  The respondent Government were represented initially by their Agent, Mr D. J. Bentley and then later by his successor, Ms. S. Langrish, both of the Foreign and Commonwealth Office, London.

4.The case concerns the proceedings before the Royal Court in Guernsey in which the applicant applied for, and was refused, planning permission for change of use of land owned by him.  The applicant invokes Article 6 para. 1 of the Convention.

B.The proceedings

5.The application was introduced on 29 June 1995 and registered on 9 September 1995.

6.On 27 November 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. 

7.The Government's observations were submitted on 23 April 1997 after an extension of the time-limit fixed for this purpose.  The applicant replied on 18 June 1997.

8.On 15 January 1998 the First Chamber relinquished jurisdiction in the case to the Plenary Commission.  On 22 January 1998 the Commission declared admissible the applicant's complaint under Article 6 para. 1 of the Convention.  It declared inadmissible the remainder of the application.

9.The text of the Commission's decision on admissibility was sent to the parties on 30 January 1998 and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 6 March 1998, to which the applicant replied on 16 May 1998.

10.After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

11.The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MMS. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMF. MARTINEZ

C.L. ROZAKIS

MrsJ. LIDDY

MML. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENI

C. BÎRSAN

P. LORENZEN

E. BIELINAS

E.A. ALKEMA

M. VILA AMIGÓ

MrsM. HION

MMR. NICOLINI

A. ARABADJIEV

12.The text of this Report was adopted on 20 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13.The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14.The Commission's decision on the admissibility of the application is annexed hereto.

15.The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

A.The particular circumstances of the case

16.In October 1982 the applicant purchased a vinery (glasshouses) and a plot of land.  In 1983 he applied for permission to build a dwelling on the land.  Permission was refused and he lost an appeal in May 1984.

17.In May 1986 the applicant, who was in financial difficulties, moved to live in a flower packing shed on his property as a temporary measure.  His problems were compounded by frost and hurricanes in 1987 - 1989, which destroyed part of his glasshouses together with the crops.

18.On 28 June 1990 a Detailed Development Plan Number 6 (DDP No. 6), under Section 6 (1) of the Island Development (Guernsey) Law 1966 as amended ("the 1966 Law"), was approved.  This plan covered the applicant's land.

19.Prior to the approval of DDP No. 6 there was a Public Planning Inquiry, in accordance with section 10 of the 1966 Law.  At that inquiry, the applicant was represented by an advocate.  The applicant's representations that he be allowed a dwelling place on the land were rejected by the Inspector, on the basis that a dwelling would be an intrusion into the agricultural/horticultural hinterland.

20.Within DDP No. 6 the applicant's land was zoned as "Developed Glasshouse Area" and the adjoining land was zoned as a "White area".

21.In September 1990 the applicant submitted to the Island Development Committee (IDC) a retrospective application for permission to convert his packing shed within the area zoned "Developed Glasshouse Area" into a dwelling.  The application for change of use was refused in July 1991.  The IDC requested the applicant to cease using his shed as a dwelling within 3 months.  Due to his financial position the applicant stayed in his shed.  In October 1991, when his debts had risen to over 100,000, the applicant sold part of the land and glasshouses, but kept the shed and a plot of land alongside it.

22.In March 1992 the applicant pleaded guilty in the local Magistrates Court to a charge of illegal change of use of the shed.  He was fined 100.  No further order was made against him.

23.In June 1993 the Royal Court of the Island of Guernsey ordered the applicant to vacate the shed and restore it back to a packing shed within 3 months.

24.On 10 August 1993 the applicant wrote to the IDC, once again asking for a change of use of the packing shed.  His representative's letter of that date underlined that the applicant would continue to work in the glasshouses which he still rented, that the exterior of the property would not be changed at all, that the applicant would comply with building regulations, that the future use of the building would not be prejudiced by permission to change the use, and that the use of the building as a dwelling would not derogate from any visual amenity. On 25 October 1994 the IDC, having previously conducted a site visit, refused to agree to the change of use.  Its letter of 26 October 1994 gave as a reason:

"The site is located within a Developed Glasshouse Area and the Committee's written statement of policy makes no provision for the form of development proposed."

25.The applicant appealed to the Royal Court.  At the hearing on 6 June 1995, the applicant was represented by Advocate Perrot.  The Royal Court sat as a full court and was presided over by the Bailiff.  Advocate Perrot accepted that the written statement provided for no development other than Developed Glasshouse of the area, but submitted that there were nevertheless reasons in the case to permit the change of use: the external appearance of the building would not change and there would be no future prejudice to the horticultural use of the land, such that it was unreasonable for the IDC to take an unduly narrow view of what it allowed under the DDP.  The Bailiff then summed up the applicant's complaints to the Jurats, instructing them that it was for the IDC to satisfy the Jurats that the IDC's decision was reasonable, rather than the reverse. 

26.The appeal was dismissed on the same day.  The Jurats were unanimous in their finding that the decision of the IDC was a reasonable one.  The decision recites the grounds of appeal, but gives no reasons.

B.Relevant domestic law

27.Land use in the island of Guernsey is controlled by the provisions of the Island Development (Guernsey) Law 1966, as amended ("the 1966 Law"). 

Section 6 (1) of the 1966 Law provides for the preparation of:

"Detailed Development Plans, indicating the manner in which the Island Development Committee (IDC) proposes that land should be used (whether by development or otherwise) and the stages by which such development should be carried out."

Section 6 (3) of the 1966 Law states that such plans may:

"define areas in respect of which the Committee recommends that permission for development in pursuance of the provisions of Part III of this Law -

(i) should not be granted,

(ii) should not be granted unless by reason of special considerations relating to the site it would be unreasonable for such permission not to be granted,

(iii) should, subject to the provisions of Part III of this Law, be granted ...".

28.A Detailed Development Plan (DDP) has legal effect when approved by the States of Deliberations (the Guernsey legislature). Prior to approval of a DDP a Public Planning Inquiry may be held.

29.Interested parties are permitted to make representations to the Inspector at a Public Planning Inquiry either in person or by an advocate of the Royal Court, or other prescribed person.  The procedure at the Planning Inquiry is at the discretion of the Inspector.  He has power to summon and examine all persons as he thinks fit; require any such person to answer any question or furnish any information or produce any document; take statements from all persons he may think fit and enter and inspect any premises he deems necessary for the purposes of the inquiry.

30.After holding a Planning Inquiry the Inspector prepares a written report containing his recommendations on the DDP or proposals for alteration and submits the report to the IDC.

31.A DDP has a duration of five years under section 7 of the 1966 Law, and within that period Section 8 of the 1966 Law requires the IDC to review the Plan.

32.In connection with "Developed Glasshouse Areas" the DDP provides:

"Development within these zones for other purposes will not be permitted but further modernisation and glasshouse consolidation will not be resisted.  Obsolete glasshouses in these areas may be demolished so that the land may revert to open horticultural or agricultural use until required again for horticultural development."

33."White areas" are defined as being reserved for agricultural use and/or visual amenity. In such areas development will in general be prohibited, and whilst in specific situations developments may be approved there will be a presumption in favour of retaining the present use of land and buildings.

34.Development is defined in section 40 of the 1966 Law as "the carrying out of any building engineering, mining or other operation in, on, over or under land and includes the making of any material change in the use of any building or land".

35.By section 14 (1) of the 1966 Law, written permission must be obtained from the IDC for the carrying out of any development of land.  Under section 17 the IDC must take into account any relevant DDP.  Departures from a DDP are permitted by Section 18 if:

"in the opinion of the Committee, it is a departure of a minor nature not warranting specific reference to the States under the provisions of section 8."

36.By section 26 of the 1966 Law, a person has a right of appeal from a decision of the IDC concerning a change of use, to the Royal Court.  An appeal may be made on the ground that the decision of the Committee was "ultra vires or was an unreasonable exercise of its powers".

The Composition of the Royal Court

37.When sitting as a full court, the Royal Court is presided over by the Bailiff or in his absence the Deputy Bailiff or a Lieutenant-Bailiff.  The Court consists of not less that seven out of the twelve Jurats.

The Bailiff

38.The Bailiff is appointed by the Sovereign and holds office during Her Majesty's pleasure.  He is the President of the Royal Court and President of the Court of Appeal, spending the majority of his time discharging judicial functions.  By convention, he is a senior qualified lawyer.

39.The role of the Bailiff as the President of the Royal Court is to determine questions of law and to direct the Jurats on the relevant law and as to the matters which they should consider in determining issues of fact.  The directions of the Bailiff are delivered orally in open court, whereupon the Jurats retire to consider their decision in private.

40.The Bailiff is also the President of the States of Deliberation (the Island legislature), and President of the States of Election (an electoral college responsible for appointing the jurats). Within both of these roles he has no original vote, but does hold a casting vote in the event of equality of votes.

The States of Deliberation consists of the following members:

(a)The Bailiff;

(b)12 Conseillers;

(c)The Law Officers of the Crown (i.e. Her Majesty's Procureur and Her Majesty's Comptroller);

(d)33 People's Deputies;

(e)10 Douzaine Representatives.

The States of Election consists of the following members:

(a)The Bailiff;

(b)The 12 Jurats;

(c)12 Conseillers;

(d)The 10 Rectors;

(e)The Law Officers of the Crown;

(f)33 People's Deputies;

(g)34 Douzaine Representatives.

41.The Bailiff is also the head of the administration of the Island.  It is through the Bailiff that official communications between the Island's administration, Her Majesty's Government and the administrations of the other islands are channelled.  He chairs four States Committees, namely the States Appointments Board (dealing with senior civil service appointments - this does not include any of the personnel of the IDC), the Emergency Council (charged with determining whether a state of emergency should be declared), the Legislation Committee (which is charged with ensuring that legislation is drafted in accordance with resolutions of the States of Deliberation) and the Rules of Procedure Committee which deals with the procedure of the States of Deliberation and Election.  The Bailiff takes no part in day to day decision making by States Committees.  In particular, he takes no part in the deliberations of the IDC.

Jurats

42.Once appointed by the States of Election, a Jurat holds office until he reaches 70 years of age.  His period of office may be extended to the age of 75 with the approval of his colleagues.  By the second proviso to section 5 (1) of the Royal Court of Guernsey (Miscellaneous Reform Provisions) Law, 1950, a Jurat can only be dismissed by Her Majesty, although the Bailiff can call upon a Jurat to resign.

43.Jurats do not form part of the States of Deliberation, although a Jurat may be a member of certain Committees of the States, such as the Lifeboat Committee and the Legislation Committee.  However Jurats are not eligible to serve on the States Committee for Home Affairs, the Gambling Control Committee or any States Committee which administers legislation, the provisions of which include a right of appeal to the Royal Court against a decision of the Committee. Thus Jurats may not be members of the IDC, although they used to preside over planning enquiries prior to the adoption of DDPs.  This is no longer current practice.

Appeal from the Royal Court

44.An individual has a right to petition the Judicial Committee of the Privy Council, sitting in London, for special leave to appeal to the Judicial Committee against the decision of the Royal Court.  However, such leave is only given if the Judicial Committee is satisfied that the case raises either a far reaching question of law or a matter of dominant importance.

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

45.The Commission has declared admissible the applicant's complaints:

-that the Royal Court was not an independent and impartial tribunal, and

-that the absence of reasons in the decision of the Royal Court was incompatible with the requirements of a fair hearing.

B.Points at issue

46.The issues to be determined in the present case are:

-whether the Royal Court was an independent and impartial tribunal within the meaning of Article 6 para. 1 of the Convention;

-whether the absence of reasons in the decision of the Royal Court is compatible with the requirements of a fair hearing within the meaning of Article 6 para. 1 of the Convention.

C.As regards the independence and impartiality of the Royal Court

47.The applicant complains under Article 6 para. 1 about the proceedings and the lack of independence and impartiality of the Royal Court.

48.Article 6 of the Convention provides, so far as relevant, as follows:

"1.In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ..."

49.The Government submit that the applicant at no point had a right to make use of his land for residential purposes.  The shed which he made his home was situated in a zone classified as a "Developed Glasshouse" area and thus, except in special circumstances, residential use was not permitted.  In these circumstances the Government argue that the proceedings, which ended with the Royal Court's decision of 6 June 1995, did not determine the applicant's civil rights or obligations within the meaning of Article 6 of the Convention.

50.The Government argue in the alternative that the Royal Court did comply with the requirement of an "independent and impartial tribunal" in accordance with Article 6 para. 1 of the Convention.  In particular they note that in his role as the President of the Royal Court, the Bailiff acts judicially and not in any sense as part of the executive.  The Bailiff has no original vote in the States of Deliberation and the States of Election but has a casting vote in the event of an equality of votes and by convention he votes to maintain the status quo ante.  Further, the Jurats are not members of the States of Deliberation and may not be members of the IDC. 

51.The applicant does not agree that the Royal Court constituted an "independent and impartial tribunal" for the purposes of Article 6 para. 1 of the Convention.

52.The Commission recalls that the civil "limb" of Article 6 para. 1 of the Convention applies to disputes over a "right" which can be said, at least on arguable grounds, to be recognised in domestic law.  The dispute must be genuine and serious, and may relate not only to the existence of a right, but also to its scope and the manner of its exercise.  The result of the proceedings must be decisive for the right in question (see Eur. Court HR, Zander v. Sweden judgment of 25 November 1993, Series A no. 279-B, p. 38, para. 22).

53.In the present case, the applicant owned the land at issue, but had no right to use it for residential purposes.  He could, however, arguably claim that he should be allowed to live in the shed, because it was open to the Guernsey authorities to find that his request amounted to nothing more than a departure from the DDP of a minor nature which should be granted.  The applicant was therefore involved in a dispute over whether he had a right to live in his shed or, alternatively, over the extent of his right to use his property.  The outcome of the proceedings was decisive for the above rights.  The Commission therefore finds that Article 6 para. 1 is applicable to the facts of the present case.

54.The Commission must determine whether the Royal Court constituted an "independent and impartial tribunal" within the meaning of Article 6 para. 1 of the Convention.

55.As a preliminary point, the Commission would recall that in the case of Jon Kristinsson v. Iceland, it did not accept the Icelandic Government's contentions that the combination of investigative and judicial power in one person was compatible with Article 6 of the Convention due to the special historical and geographical conditions obtaining in Iceland (Jon Kristinsson v. Iceland, No. 12170/86, Comm. Rep. 8.3.89, paras. 43 and 49-58, in Eur. Court HR, Series A no. 171-B; the case settled before the Court).  In the present case, the Commission finds no reasons related to the historical or geographical conditions in Guernsey which could affect its reasoning in this regard.

56.In determining whether a body can be considered to be 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 a subjective test, which concerns the conviction of a judge in a given case, and an objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur. Court HR,  Langborger v. Sweden judgment of 22 June 1989, Series A no. 155, p. 16, para. 32 with further references).

57.As to the question of the subjective impartiality of the Royal Court, the Commission notes the Government's submission that there is no suggestion of actual personal bias by any member of the Royal Court in the determination of the applicant's case and the applicant has not argued any personal bias on the part of the members of the Royal Court.  The Commission therefore sees no reason in the present case to doubt the personal impartiality of the Bailiff or the Jurats.

58.As to the independence of the Royal Court, the Commission notes that the Bailiff is appointed by the Sovereign and holds office during Her Majesty's pleasure subject to a retirement age of 70 years.  The Bailiff's irremovability does not have "formal" recognition in law but is dependent on direction by Her Majesty.  Further, the Bailiff has no role in the IDC, and is not involved in the appointment of the civil servants who make up the IDC.  The Jurats are appointed by the States of Election (the electoral college responsible for electing Jurats) and hold office on a permanent basis with a retirement age of 70 years which can be extended to 75 years subject to the agreement of their colleagues.  A Jurat may only be dismissed by Her Majesty and not by the executive.  There are thus a number of guarantees of structural independence and impartiality. 

59.  However, these objective guarantees of independence and impartiality do not satisfy the requirements of Article 6 para. 1 taken alone.  In addition, the case-law requires the body to present "an appearance of independence", and there must be sufficient guarantees "to exclude any legitimate doubt" as to the impartiality of the judge (see the aforementioned Langborger judgment, p. 16, para. 32).  The Commission will consider these issues together (see Eur. Court HR, Incal v. Turkey judgment of 9 June 1998, Reports 1998-.., p. .., par. 65).

60.  The Commission notes the plethora of important positions held by the Bailiff in Guernsey.  The Bailiff presides over the States of Election, (where he has a casting vote), the States of Deliberation (the Island legislature, where he also has a casting vote), the Royal Court and the Court of Appeal.  He is the head of the administration of the Island and presides over four States Committees including the Appointments Board, the Legislation Committee (which deals with the drafting of legislation) and the Rules of Procedure Committee.  The Commission also notes that the Jurats, who decide the cases before the Royal Court, are appointed by the States of Election and that the Bailiff is the President of the States of Election and has a casting vote in the event of an equality of votes. The Commission further notes that no appeal lay against the decision of the IDC beyond that of the Royal Court and that therefore the Royal Court was the final - and, indeed, the sole - court for the applicant's case. 

61.The position in the present case was therefore that when the applicant appeared before the Royal Court on 6 June 1995, the principal judicial officer who sat on his case, the Bailiff, was not only a senior member of the judiciary of the Island, but was also a senior member of the legislature - as President of the States of Deliberation - and, in addition, a senior member of the executive - as titular head of the administration presiding over a number of important committees.  It is true, as the Government point out, that the Bailiff's other functions did not directly impinge on his judicial duties in the case and that the Bailiff spends most of his time in judicial functions, but the Commission considers that it is incompatible with the requisite appearances of independence and impartiality for a judge to have legislative and executive functions as substantial as those in the present case.  The Commission finds, taking into account the Bailiff's roles in the administration of Guernsey, that the fact that he has executive and legislative functions means that his independence and impartiality are capable of appearing open to doubt.

62.The Commission finds that, in the light of its finding regarding the Bailiff, it is not necessary to examine separately the role of the Jurats.

63.The Commission accordingly finds that, in the present case, the Royal Court did not satisfy the requirements of independence and impartiality and that there has been a breach of Article 6 para. 1 of the Convention.

CONCLUSION

64.The Commission concludes, by 25 votes to 5, that in the present case there has been a violation of Article 6 para. 1 of the Convention as regards the question whether the Royal Court is an independent tribunal.

D.As regards the absence of reasons for the decision of the Royal Court

65.The applicant also complains under Article 6 of the Convention about the absence of formal reasons for the rejection of his appeal by the Royal Court. 

66.In the light of the its conclusion under Article 6 para. 1 (para. 64 above), the Commission considers that it is not necessary to determine separately whether this complaint discloses a violation of Article 6 para. 1 of the Convention in the present case.

CONCLUSION

67.The Commission concludes, by 25 votes 5, that it is not necessary to examine separately whether there has been a violation of Article 6 para. 1 of the Convention in respect of the applicant's complaint about the absence of reasons from the decision of the Royal Court.

E.Recapitulation

68.The Commission concludes, by 25 votes to 5, that in the present case there has been a violation of Article 6 para. 1 of the Convention as regards the question whether the Royal Court is an independent tribunal (para. 64).

69.The Commission concludes, by 25 votes to 5, that it is not necessary to examine separately whether there has been a violation of Article 6 para. 1 of the Convention in respect of the applicant's complaint about the absence of reasons from the decision of the Royal Court (para. 67).

        M. de SALVIA                        S. TRECHSEL

         Secretary                       President

      to the Commission                   of the Commission

(Or. English)

DISSENTING OPINION OF Mr E.A. ALKEMA

In contrast to the majority of the Commission, I entertained from the outset doubts as to the present case's admissibility and wondered whether the applicant has properly exhausted domestic remedies.  It has not been established that he effectively challenged the Bailiff's impartiality and/or independence during the domestic proceedings nor that such challenge would be of no avail under Guernsey law.  On the other hand I agreed with the Commission's finding that the conditions for an appeal from the Royal Court to the Judicial Committee of the Privy Council are too strict to make that a practicable and effective remedy.

If challenged, the Bailiff could have been replaced by his Deputy or one of his Lieutenants provided that neither of them had participated in the preceding decision-making process, i.e. the approval of the Detailed Development Plan or in the decision of the Island Development Committee.  Although the Bailiff's Lieutenants are appointed by the Bailiff himself, there is no indication that the Lieutenant's office lacks impartiality or independence.  Neither is there an indication that the Jurats, the other members of the Royal Court, do not meet the standards of Article 6 para. 1.

It is submitted here that the above approach of a procedural nature may serve as well to approach the material question underlying the merits.  Of course, maintaining the rule of law is essential also in small insular communities such as Guernsey.  For that purpose it is not, however, necessary to require that such societies have similar elaborate constitutional structures as generally are to be found in states of an ordinary size.  Careful consideration should be given to the peculiarities of small scale societies and to both the specific disadvantages and benefits such scale may entail for the proper functioning of the body politic.  In that respect, contrary to the majority (see para. 56), I am of the opinion that, in virtue of Article 63 para. 3 due regard should be given to "local requirements" of territories whose international relations have been transferred to a High Contracting Party.

In such an - often delicate - situation the State responsible for those relations should be free in the ways and means in which it implements the Convention.  In the instant case it ought to have the choice between diverse options like: recognizing the challenging of the Bailiff as an effective recourse, reorganizing the constitutional competencies of his office or facilitating an "external" appeal (i.e. lying outside Guernsey) to the Privy Council.

(Or. English)

CONCURRING OPINION OF Mr N. BRATZA

While I see force in the argument advanced in the Dissenting Opinion of Mr Alkema that the Convention should not be interpreted in such a way as to impose on a small island community such as Guernsey elaborate constitutional structures similar to those which exist in large States, I am unable to accept that this can justify a departure from the requirement in Article 6 that a tribunal should be independent and impartial and, in particular, that it should present an appearance of independence (see eg. the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 15, para. 37).

In my view these requirements were not met for the reasons given in the opinion of the majority of the Commission. I wish, however, to make clear that my view is confined to cases such as the present, where the proceedings in which the Bailiff sits in a judicial capacity relate to the acts or decisions of the Executive - in this case, the refusal of the IDC to grant permission for a change of use. Different considerations would in my view apply where the Bailiff sat in cases involving a dispute between private parties, in which there was no lack of the requisite appearance of independence.

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