NORTIER v. THE NETHERLANDS



                    EUROPEAN COMMISSION OF HUMAN RIGHTS

                         APPLICATION No. 13924/88

                             Erik Hans NORTIER

                                  against

                              the NETHERLANDS

                         REPORT OF THE COMMISSION

                         (adopted on 9 July 1992)

                             TABLE OF CONTENTS

                                                                      Page

I.    INTRODUCTION

      (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . . . .1

      A.    The application

            (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . . .1

      B.    The proceedings

            (paras. 5-13) . . . . . . . . . . . . . . . . . . . . . . . .1

      C.    The present Report

            (paras. 14-18). . . . . . . . . . . . . . . . . . . . . . . .2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 19-47). . . . . . . . . . . . . . . . . . . . . . . . . . .3

      A.    The particular circumstances of the case

            (paras. 19-30). . . . . . . . . . . . . . . . . . . . . . . .3

      B.    Relevant domestic law

            (paras. 31-47). . . . . . . . . . . . . . . . . . . . . . . .4

III.  OPINION OF THE COMMISSION

      (paras. 48-67). . . . . . . . . . . . . . . . . . . . . . . . . . .9

      A.    Complaint declared admissible

            (para. 48). . . . . . . . . . . . . . . . . . . . . . . . . .9

      B.    Point at issue

            (para. 49). . . . . . . . . . . . . . . . . . . . . . . . . .9

      C.    The alleged violation of Article 6

            para. 1 of the Convention

            (paras. 50-67). . . . . . . . . . . . . . . . . . . . . . . .9

      CONCLUSION (para. 68) . . . . . . . . . . . . . . . . . . . . . . 12

Concurring separate opinion by Mr. S. TRECHSEL, joined

by MM. J.A. FROWEIN, H.G. SCHERMERS and

Sir Basil HALL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Dissenting opinion by Mr. J.-C. GEUS, joined by

MM. A. WEITZEL and B. MARXER. . . . . . . . . . . . . . . . . . . . . . 15

APPENDIX I   :  HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . . 17

APPENDIX II  :  DECISION ON THE ADMISSIBILITY OF

                THE APPLICATION . . . . . . . . . . . . . . . . . . . . 19

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 Dutch citizen, born in 1972.  At the time

of the introduction of the application, he was staying in an

Institution for Special Treatment, "de Overberg", in Amerongen.

The applicant was represented before the Commission by Mr. J. Sap,

a lawyer practising in Amersfoort.

3.    The application is directed against the Netherlands.  The

respondent Government were represented by their Agent,

Mrs. D.S. van Heukelom, succeeded by Mr. K. de Vey Mestdagh, both

of the Netherlands Ministry of Foreign Affairs.

4.    The applicant complains that the Juvenile Judge who

determined his case was not an impartial tribunal within the

meaning of Article 6 para. 1 of the Convention.

B.    The proceedings

5.    The application was introduced on 28 April 1988 and

registered on 9 June 1988.

6.    On 5 February 1990 the Commission decided that notice should

be given to the Government of the Netherlands of the application

and that they should be invited to submit written observations on

the admissibility and merits of the application.

7.    The Government submitted their observations on 19 April 1990.

The applicant submitted observations in reply on 13 June 1990.

8.    On 18 May 1990 the applicant was granted free legal aid.

9.    On 27 May 1991 the Commission decided to hold a hearing with

the parties on the admissibility and merits of the case.

10.   At the hearing on 9 October 1991, the Government were

represented by their Agent, Mr. K. de Vey Mestdagh, and

Mr. A. Patijn, Ministry of Justice, as adviser; the applicant was

represented by Mr. J. Sap.

11.   Following the hearing, the Commission declared the

application admissible.

12.   On 16 October 1991 the Commission requested the parties to

submit further factual information.  On 23 January 1992 the

applicant submitted the information, followed by the Government on

24 January 1992.

13.   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 of the case.  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

14.   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:

            MM.   C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  F. ERMACORA

                  E. BUSUTTIL

                  A. WEITZEL

                  H.G. SCHERMERS

                  H. DANELIUS

            Mrs.  G.H. THUNE

            Sir   Basil HALL

            Mr.   F. MARTINEZ

            Mrs.  J. LIDDY

            MM.   J.-C. GEUS

                  M.P. PELLONPÄÄ

                  B. MARXER

15.   The text of the Report was adopted on 7 July 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe,

in accordance with Article 31 para. 1 of the Convention.

16.   The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

      (1)   to establish the facts, and

      (2)   to state an opinion as to whether the facts

            found disclose a breach by the State

            concerned of its obligations under the

            Convention.

17.   A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the

Commission's decision on the admissibility of the application forms

Appendix II.

18.   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.    Particular circumstances of the case

19.   The applicant was born in May 1972.  Some time before the

criminal proceedings complained of in the present case, he was

placed under the supervision of the Child Welfare Council (Raad

voor de Kinderbescherming) and was accomodated outside his own

family (uithuisplaatsing).  Around 1985/86 at the age of

13-14 years, he was convicted by Juvenile Judge M., who also

convicted the applicant in the present case, of an offence similar

to the one with which he was charged in the present case, described

below.

20.   On 30 September 1987, at the age of 15, the applicant was

arrested on suspicion of attempted rape.  During his interrogation

at the police station, he confessed having committed the offence he

was suspected of.

21.   The Public Prosecutor (Officier van Justitie) decided to

prosecute the applicant.  According to the Government, there has

been no "three way consultation" on the question whether the

applicant's prosecution was called for, in pursuance of the

practice in the Middelburg district (see para. 39 below).

22.   On 2 October 1987 the Public Prosecutor requested the

Juvenile Judge (kinderrechter) of Middelburg, who also acts as the

investigating judge (rechter-commissaris) under Article 494 of the

Code of Penal Procedure (Wetboek van Strafvordering), to detain the

applicant on remand on the ground that he might repeat the offence.

On the same day the Juvenile Judge M. granted this request.  Judge

M. also granted the request to institute preliminary judicial

investigations (gerechtelijk vooronderzoek).  Accordingly, he

ordered the applicant's detention on remand which he prolonged on

several occasions during the preliminary investigations.  The

applicant was detained on remand in the State Institution for Male

Youngsters (rijksinrichting voor jongens) "Den Hey-Acker" in Breda.

During that period, he also ordered a personality examination

(persoonlijkheidsonderzoek) of the applicant by behavioural

experts.  The applicant's detention on remand lasted about

100 days.

23.   As the defence feared that the applicant's confession at the

police station had been obtained under duress, the applicant's

representative requested Judge M. to hear a certain witness.  By

letter of 29 October 1987, Judge M. referred him to another

Juvenile Judge, Mr. W., whom he entrusted with the task of hearing

witnesses according to the current practice in the Netherlands (see

Relevant domestic law and practice).  At the applicant's

representative's request, the policemen involved were called as

witnesses before the investigating judge, Mr. W., who heard them on

22 and 23 December 1987.  These witnesses were not heard again

during the trial.

24.   It appears that Judge W. did not receive any instructions

from Judge M.  The case-file was in the latter's possession when

ordering the applicant's detention on remand and the subsequent

prolongations, i.e. on 2 October, 8 October, 10 November and

10 December 1987.  On 23 December 1987 the preliminary judicial

investigations were closed and the case-file was sent to Judge M.

for the preparation of the hearing of the case.  He therefore

became acquainted with the content of the witnesses' testimonies on

or about 23 December 1987.

25.   On 8 December 1987 the psychiatrist submitted his report

about the examination of the applicant's personality to the

Juvenile Judge M.  He recommended that the applicant should be

placed in an Institution for Special Treatment.

26.   On 17 December 1987 the applicant was summoned to appear in

court on 6 January 1988 before the Juvenile Judge M.  By letter of

5 January 1988 the applicant challenged Judge M. on the ground that

he was not impartial, as required by Article 6 para. 1 of the

Convention, because he had also taken pre-trial decisions

concerning the applicant's detention.  On 6 January 1988 the

Juvenile Judge M. declared the challenge ill-founded.

27.   The applicant appealed to the Regional Court

(Arrondissementsrechtbank) of Middelburg which, on 22 January 1988,

confirmed the decision of the Juvenile Judge and also rejected the

challenge.  It held that the Juvenile Judge could be considered as

an impartial judge because of the special circumstances of the

penal procedure for juveniles.  It observed that this procedure has

an important pedagogical character and that the respective measures

should be as coherent as possible.  No appeal was possible against

the decision of the Regional Court (Article 518 para. 4 of the Code

of Penal Procedure).

28.   At the hearing on 25 January 1988, the applicant confirmed

the statement he had made to the police on 30 September 1987 and

thus admitted having committed the offence he was charged with.

The charge was proved and accordingly he was placed in "de

Overberg", an Institution for Special Treatment for young

offenders, on the basis of Article 77k of the Penal Code (Wetboek

van Strafrecht) as requested by the Public Prosecutor.

29.   In 1990 Judge M. prolonged the applicant's confinement in the

Institution on the basis of Article 77r para. 3 of the Penal Code.

On 30 November 1990 the applicant was released.

30.   According to the parties there is no indication of any

tension or animosity between Judge M. and the applicant.

B.    Relevant domestic law and practice

31.    Dutch juvenile penal law (including procedural law) applies

to minors between the age of 12 and 18 years (Articles 486 and 487

of the Code of Penal Procedure). Juveniles are tried by one single

judge of a Regional Court (Arrondissementsrechtbank) acting as a

Juvenile Judge.  At the same time, according to Article 494 of the

Code of Penal Procedure, he acts as an investigating judge.

32.   Article 494 provides as follows:

      "Art.494. In afwijking van artikel 168 treedt de

      kinderrechter op als rechter-commissaris."

      "Art.494. By way of exception to Article 168 the Juvenile

      Judge acts as investigating judge."

33.   Article 168 stipulates:

      "Art.168. 1. In elke rechtbank zijn één of meer rechter-

      commissarissen belast met de behandeling van strafzaken.

       2. Zij worden uit de leden der rechtbank door het

      gerechtshof voor de tijd van twee jaren benoemd, nadat de

      procureur-generaal en de voorzitter der rechtbank zijn

      gehoord, en zijn op verzoek weder dadelijk benoembaar.

       3. Zij kunnen op hun verzoek om gewichtige redenen vóór de

      afloop van hun diensttijd door het gerechtshof worden

      ontslagen, nadat de procureur-generaal en de voorzitter der

      rechtbank zijn gehoord."

      "Art.168. 1. In each Regional Court one or more investigating

      judges shall deal with penal cases.

       2. They will be chosen by the Court of Appeal among the

      members of the Regional Court for a period of two years,

      after the Procurator-General and the President of the

      Regional Court have been heard, and they can be immediately

      reappointed upon request.

       3. They may be discharged at their own request for

      compelling reasons by the Court of Appeal before expiry of

      their term of office, after the Procurator-General and the

      President of the Regional Court have been heard."

34.   Article 496 furthermore entrusts the Juvenile Judge with the

preliminary investigations and thus empowers him to decide on the

detention on remand of a minor and on prolongation of such

detention. This provision reads as follows:

      "Art.496. 1. Met het gerechtelijk vooronderzoek is de

      kinderrechter belast, tenzij de zaak tevens een of meer

      verdachten betreft die op het tijdstip warop de vervolging

      tegen hen is aangevangen de leeftijd van achttien jaren

      hebben bereikt, en naar het aanvankelijk oordeel van de

      officier van justitie en de kinderrechter niet voor splitsing

      vatbaar is.

       2. In zaken, waarin de kinderrechter het gerechtelijk

      vooronderzoek instelt, wordt hij als rechter-commissaris,

      belast met het gerechtelijk vooronderzoek, aangemerkt."

      "Art.496. 1. The Juvenile Judge is charged with the

      preliminary judicial investigations, unless the case involves

      one or more suspects who have reached the age of eighteen at

      the moment the prosecution against them started, and in the

      initial opinion of the Public Prosecutor and the Juvenile

      Judge the case cannot be split.

       2. In cases where the Juvenile Judge opens preliminary

      judicial investigations, he shall be regarded as

      investigating judge charged with the preliminary judicial

      investigations."

35.   However, following the De Cubber judgment (Eur. Court H.R.,

judgment of 26 October 1984, Series A no. 86), the Regional Courts

reached an informal agreement that a Juvenile Judge confronted with

a minor denying all charges will entrust another Juvenile Judge

with hearing witnesses during the preliminary judicial

investigations.  In principle the Juvenile Judge in charge of the

case will however retain the competence to order the detention on

remand and its prolongation or to release the accused.

36.   Article 67 para. 3 of the Code of Penal Procedure, which

applies in both adult and juvenile penal law, stipulates that

detention on remand can only be ordered in cases of serious

indications against the suspect (ernstige bezwaren tegen de

verdachte).  In this respect, the Memorandum in Reply (Memorie van

Antwoord) accompanying a Bill for amendment of the statutory

provisions governing detention on remand (Stb. 1973, 509) states

that there is serious evidence implicating the suspect when for the

investigating judge "it is prima facie likely (aannemelijk) that

the suspect has committed the offence for which detention on remand

is demanded."

37.   However, according to Article 67a para. 3 of the Code of

Penal Procedure, detention on remand cannot be ordered if, there is

a serious possibility that in the case of a conviction, no

unconditional prison sentence or measure will be imposed or if the

length of the detention on remand is likely to exceed the length of

the prison sentence or the measure.  Detention on remand usually

takes place in special homes for youngsters.

38.    The prosecution of a minor is initiated by the Public

Prosecutor.  However, Article 493 of the Code of Penal Procedure

stipulates that the Public Prosecutor who wishes to drop charges

against a minor must first seek the authorisation from the Juvenile

Judge.  If, on the other hand, the Public Prosecutor wishes to

proceed with the prosecution, the Child Welfare Council must

provide him with information concerning the minor's personality and

his living conditions and it must also be heard on the desirability

of prosecution according to Article 495 of the Code of Penal

Procedure.

39.   In order to implement these provisions effectively, the

general practice is that the Juvenile Judge, the Public Prosecutor

and the Child Welfare Council meet and decide on the prosecution of

the minor concerned.  This so called "three way consultation"

(driehoeksoverleg) takes place without the presence of the minor or

his representative and without them being informed about it.  In

the Middelburg district, however, this practice has been abandoned

as being unnecessary as it appeared that the Public Prosecutor

always proceeds with the prosecution.

40. Preliminary judicial investigations are instituted by the

investigating judge at the request of the Public Prosecutor

(Article 181 of the Code of Penal Procedure).  During these

investigations, the Juvenile Judge in his capacity of investigating

judge may order that the minor be placed in a remand centre

(observatiehuis) or mental hospital to have his personality

examined (Articles 496 c-e of the Code of Penal Procedure).  He can

also order the detention on remand, the further detention on remand

and prolongations thereof. Furthermore he can hear the suspect,

witnesses and experts (Article 185 of the Code of Penal Procedure).

The investigating judge closes the preliminary judicial

investigations when he considers them to be completed (Article 237

of the Code of Penal Procedure).

41.   The Juvenile Judge also acts in the capacity of the Judges'

Council Chambers (Raadkamer), according to Article 488 of the Code

of Penal Procedure.  In this capacity, he may have to decide on an

appeal by the Public Prosecutor against a detention he has ordered

himself.

42.   After the closure of the preliminary judicial investigations

by the Juvenile Judge, the Public Prosecutor summons the minor

(Article 258 of the Code of Penal Procedure) before the Juvenile

Judge.  The hearing takes place in camera (Article 500 f of the

Code of Penal Procedure).

43.   After the Public Prosecutor's final conclusions

(requisitoir), the minor has the right to make a final submission.

The Juvenile Judge then delivers the final decision in which he may

order placement in an Institution for Special Treatment if the

charges against the minor have been proved.  According to

Article 77k of the Penal Code, this measure can be imposed on a

minor who suffered from a mental deficiency or a mental illness

when committing the offence he is charged with.

44.    The Juvenile Judge delivers his decision orally.  Unless an

appeal is filed against this decision or unless the minor or his

representative so requires, no detailed text of the judgment is

drafted, but only a notice of oral judgment (aantekening mondeling

vonnis).  In such cases no detailed procès-verbal of the hearing is

drawn up either.

45.   The departure from adult penal law in the Articles 487-509 of

the Code of Penal Procedure which govern juvenile penal law finds

it reason, according to the Dutch legislator, in pedagogical

considerations and in the need of coherence and optimal

co-ordination in cases involving minors.

46.   On 21 September 1989 a Bill was tabled to amend the juvenile

penal law in order to bring it more into line with adult penal law.

Pursuant to the De Cubber judgment it is proposed that the Juvenile

Judge shall no longer be acting as an investigating judge, but he

should nevertheless retain the competence to order detention on

remand, which competence the Dutch legislator considers to be in

accordance with the Hauschildt judgment (Eur. Court H.R., judgment

of 24 May 1989, Series A no. 154).

47.   The Bill further proposes that the Judges' Council Chambers

will order the pre-trial detention (voorlopige hechtenis) and

decide on the appeal filed by the Public Prosecutor against such an

order.  The Juvenile Judge would be able to sit in the Chamber but

would no longer be empowered to act as an investigating judge.  He

will nevertheless retain the competence to order the detention on

remand (bewaring).  Moreover, it is proposed to abolish the three

way consultation.

III.  OPINION OF THE COMMISSION

A.    Complaint declared admissible

48.   The Commission has declared admissible the applicant's

complaint that the Juvenile Judge who determined his case was not

impartial.

B.    Point at issue

49.   Accordingly, the issue to be determined is whether there has

been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

C.    The alleged violation of Article 6 para. 1 (Art. 6-1) of the

Commission

50.   Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows:

      "In the determination of ... any criminal charge against

      him, everyone is entitled to a ... hearing ... by an

      independent and impartial tribunal ...".

51.   The applicant complains that he did not receive a hearing

before an impartial tribunal, because the Juvenile Judge who

determined the charge against him had also acted as an

investigating judge during the preliminary judicial investigations

in which he took several decisions regarding the prolongation of

the applicant's detention on remand.

52.   According to the applicant, since different functions have

been reunited in the Juvenile Judge, he cannot be expected to be

objective when determining the criminal charge.  Moreover, as some

of the procedural guarantees of adult penal law are not available

to a minor (e.g. objection against the charge), his procedural

position is made subordinate to the pedagogical character of

juvenile penal law.  Thus the minor has the impression that his

case has already been decided at the pre-trial stage.

53.   The Government submit that the deviations from adult penal

law are justified by the educational aspect of juvenile penal law

and the importance of ensuring, in the interests of the child, that

the various decisions taken are optimally co-ordinated.  This is

achieved by means of one single judge who is thus enabled to come

to know the suspect's personality as well as all the details of the

case.

54.   The Government furthermore submit that the De Cubber judgment

is of no relevance to the present case since it concerns the

investigating judge in Belgium whose functions and powers differ

from those of the Dutch Juvenile Judge.

55.     The Government submit that, according to the Hauschildt

judgment, the mere fact that a judge has participated in a trial

after having taken decisions during the investigation does not in

itself support the conclusion that he is partial.  Finding no

exceptional circumstances allowing a different conclusion in the

present case, the Government are of the opinion that the applicant

did have a fair hearing by an impartial tribunal within the meaning

of Article 6 para. 1 (Art. 6-1).  In any case, the Juvenile Judge

concerned could not be accused of partiality, since he had

witnesses heard during the preliminary judicial investigations by

another Juvenile Judge and therefore took no effective part in the

investigation of the facts.

56.   The Commission first recalls that the existence of

impartiality for the purposes of Article 6 para. 1 (Art. 6-1) of

the Convention must be determined according to a subjective test

and also to an objective test (Eur. Court H.R. Hauschildt judgment,

loc. cit., para. 46).

57.   As to the subjective test, the applicant has not alleged that

the Juvenile Judge acted with personal bias.  In any event, the

personal impartiality of a judge must be presumed until there is

proof to the contrary and in the present case there is no such

proof.

58.   Under the objective test, it must be determined whether there

are ascertainable facts which may raise doubts as to Judge M.'s

impartiality.  This implies that in deciding whether there was a

legitimate reason to fear that he lacked impartiality, the view of

the accused was important but not decisive.  What is decisive is

whether such fear can be held objectively justified

(ibid. para. 48).

59.   In the De Cubber case the European Court of Human Rights

noted, in regard to Belgian law, a number of significant

differences between the functions of an investigating judge and

those of a trial judge and considered that the impartiality of a

court could give rise to legitimate doubts when these two functions

are entrusted to the same person (Eur. Court H.R., De Cubber

judgment, loc. cit., paras. 29-30).

60.   In Dutch law the Juvenile Judge has in principle the double

task of acting as an investigating judge and of subsequently ruling

on the charge brought against the suspected young offender.  In the

light of the De Cubber judgment the compatibility of such a system

with Article 6 (Art. 6) of the Convention is doubtful.  In any case

the Commission cannot find that it could be justified by the

special considerations which may apply in regard to the trial of

juveniles.  Indeed the guarantee of impartiality in Article 6

(Art. 6) is a fundamental guarantee, and it would not seem

acceptable that young persons who are brought to trial should be

deprived of that guarantee or that it should only to a limited

extent apply to them.

61.   However, the question in the present case is not whether the

Dutch system as such is in conformity with Article 6 (Art. 6), but

whether the way it was applied in regard to the applicant gave rise

to legitimate doubts as to the impartiality of the Juvenile Judge

M.

62.   It is important to note in this regard that, when the

applicant's lawyer asked for a certain person to be heard as a

witness during the preliminary judicial investigations, he was

referred by Judge M. to another Juvenile Judge, Mr. W., who in fact

heard two persons as witnesses at the request of the applicant's

lawyer.  The Government have pointed out that Judge W. was also

responsible for deciding whether any further witnesses should be

heard.

63.   Moreover, the Commission notes that in the present case there

was no so-called "three way consultation" between the Juvenile

Judge, the Public Prosecutor and the Child Welfare Council, which

is otherwise a normal practice in juvenile cases in the Netherlands

(cf. para. 39 above).

64.   Nor could the fact that Judge M. ordered the applicant's

detention on remand or the prolongation of that detention on a

number of occasions be a sufficient reason to doubt his

impartiality, since in the Hauschildt case the European Court

accepted that, except in special cases, the fact that a trial judge

has, at the pre-trial stage, made decisions on the detention on

remand of the accused does not justify fears as to his impartiality

(Eur. Court H.R., Hauschildt judgment, loc. cit., para. 50).  No

special circumstances which could lead to a different conclusion

have been shown to exist in the present case.

65.   According to information supplied by the Government, it was

Judge M. who granted the Public Prosecutor's application for

preliminary judicial investigations with the aim of having

psychological tests carried out on the applicant and who appointed

a psychiatrist to carry out these tests.  However, the Commission

cannot find that these decisions, which were of a rather formal or

procedural character, were such as to create any doubts about Judge

M.'s impartiality during the subsequent proceedings.

66.   It does not appear that Judge M. took any other initiatives

in regard to the preliminary judicial investigations or that he

even participated actively in carrying out any investigatory

measures.  The decisions on the applicant's detention on remand

were all taken at the request of the Public Prosecutor and after a

hearing in which the applicant participated.  It may be added that,

since the applicant had made a confession, no extensive preliminary

judicial investigations were apparently required in order to

establish the facts.

67.   In view of the above, the Commission is satisfied that the

criminal charge against the applicant was determined by an

impartial tribunal within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

      Conclusion

68.   The Commission finds by 12 votes to 3 that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

Secretary to the Commission            President of the Commission

    (H.C. KRÜGER)                           (C.A. NØRGAARD)

                            Separate concurring

                    opinion of Mr. TRECHSEL, joined by

           MM. J.A. FROWEIN, H.G. SCHERMERS and Sir Basil HALL

      While I am in agreement with the conclusion reached by the

majority of the Commission, I find it important to set out the line

of arguments which are, in my view, decisive.  In the De Cubber

case, the European Court of Human Rights found that a person who

had previously acted as investigating judge could not be regarded,

in the same case, as an impartial judge on the merits.  In the

present case the question arises whether the same principle applies

in proceedings concerning juvenile delinquents.

      In this respect I accept the view that, as a rule, minors are

entitled to the same protection of their fundamental rights as

adults.  This does, however, not exclude that their specific

situation in life, in particular their limited ability to assume

full responsibility for their social behaviour, is taken into

account in applying the Convention.  Thus, the requirement of fair

proceedings set out in Article 6 may fall to be seen in a different

light with regard to juvenile delinquents.

      In fact, the administration of justice in the case of a minor

follows different guidelines compared to that concerning adult

offenders.  The emphasis lies not on the task of the tribunal to

establish the criminal guilt of the defendant and to mete out

retributive punishment, but on establishing the facts and in

particular the state of development of the minor's personality and

to select, as the case may be, the educative measure most

appropriate for his case.

      In this context, I note that the Convention itself reflects

the special situation of minors in Article 5 para. 1 (d) where it

refers to "the detention of a minor by lawful order for the purpose

of educational supervision or his lawful detention for the purpose

of bringing him before the competent legal authority".  This sub-

paragraph establishes a lex specialis with regard to

Article 5 para. 1 (a) and (c) in that the "lawful order" need not

necessarily be the result of "conviction by a competent court" and

the specific formal guarantees of Article 5 para. 3 do not apply

(although, in application of the principle of proportionality,

limits in time must also be set to the "preventive detention" of

minors).

      It is true that Article 6 - with the exception of the second

sentence in para. 1 (exclusion of the press and public where the

interests of juveniles so require) - does not provide for special

rules regarding juveniles.  However, many (although not all)

experts in the field of proceedings against minors regard it as

very important to organise these proceedings in such a way that the

defendant can gain confidence in the person representing the

authority.  It is regarded as harmful if a new, hitherto unknown

magistrate appears at every turn of the proceedings.  Under this

perspective it is regarded as harmful if the final decision is not

taken by the person who was previously in charge of the

investigation.

      I am well aware of the fact that it may be difficult to

decide whether, in a particular case, it is justified to apply

special rules for juvenile defendants or not.  In this regard,

different factors may be of importance, such as the age and state

of development of the minor, the punitive element of the sanction

envisaged and the question whether the defendant admits the facts

or not.

      In view of the controversy to which these issues may give

rise, I am convinced that the Convention must be read as leaving to

the High Contracting Parties a wide margin of appreciation as to

how to organise and structure their procedure for juvenile

defendants.

      As far as the present case is concerned, I hold it to be of

importance that the applicant was under the age of sixteen at the

time of the attempted rape and of the decision on its legal

consequences.  He was thus well below the age of full criminal

responsibility, i.e. eighteen.  Furthermore, the measure adopted,

the placement in an Institution for Special Treatment for young

offenders, was clearly of an educative character.  Finally, the

applicant had consistently admitted to having committed the facts

he was suspected of.

      I attach some weight also to the fact that judge M. had not

taken any investigating initiatives which the applicant could have

considered to be directed against him and that no "three way

consultation" had taken place (cf. para. 39 above).  While it is

true that judge M. ordered the applicant's detention on remand or

the prolongation of that detention, no special circumstances such

as those which were decisive in the Hauschildt case have been shown

to exist in the present case.

        Opinion dissidente de M. J.-C. GEUS à laquelle se rallient

                        MM. A. WEITZEL et B. MARXER

      Je partage entièrement l'opinion de la majorité de la

Commission selon laquelle, d'une part, le mineur qui est l'objet

d'une accusation en matière pénale et peut subir une mesure

privative de liberté doit, comme un adulte, bénéficier de toutes

les garanties prévues à l'article 6 de la Convention et, d'autre

part, le système néerlandais ne semble pas offrir toutes ces

garanties.

      Il ne m'est cependant pas possible de me rallier aux

conclusions de la majorité dans le présent cas.

      Je constate en effet que la Commission a estimé, en se

fondant sur les circonstances propres à la présente affaire, que

malgré les critiques qu'appelle le système néerlandais au regard de

l'article 6, il n'y avait pas eu de violation de cette disposition.

      Me fondant notamment sur les arrêts DE CUBBER (série A

n° 86), HAUSCHILDT (série A n° 154), LANGBORGER (série A n° 155) et

BORGERS (série A n° 214), j'estime que cette approche est erronnée.

Si "justice must be seen to be done", le fait que "justice has been

done" est dépourvu de pertinence lorsqu'il s'agit d'apprécier selon

une démarche objective si le "tribunal" était impartial.  En pareil

cas, il faut prendre en compte "des considérations de caractère

fonctionnel et organique" (arrêt DE CUBBER précité, par. 26).  Si,

en principe, il n'y a pas lieu d'examiner in abstracto la

législation pertinente (arrêt HAUSCHILDT précité, par. 45), un tel

examen s'avère indispensable lorsque l'apparence de partialité

alléguée résulte de compétences attribuées par la loi à un

magistrat et non de la manière dont il les a exercées (cf. mutatis

mutandis, l'arrêt BORGERS précité).

      Dans tous les cas, et donc dans la présente affaire, le juge

de la jeunesse néerlandais, étant à la fois juge d'instruction et

juge du fond en vertu des articles 494 et 496 du Code de procédure

pénale, a acquis, de par les fonctions qui lui sont confiées par la

loi, une connaissance exhaustive du dossier constitué par lui ou

sous son entière responsabilité, avant que se tienne l'audience sur

le fond, au cours de laquelle les droits de la défense devraient

pourtant avoir leur pleine signification, ce qui ne saurait être le

cas si le juge s'est formé par avance son opinion.  Le critère

fondamental retenu par la Cour dans l'arrêt DE CUBBER (par. 29) est

donc ici présent.  En outre, dans cette dernière affaire, le

tribunal était composé de trois juges dont un seul avait acquis la

connaissance du dossier en raison des fonctions qu'il avait

exercées antérieurement, alors que le juge de la jeunesse

néerlandais statue sur le fond en tant que juge unique.  Ceci a

également pour conséquence que le contrôle de légalité des "mesures

accomplies ou ordonnées par le juge d'instruction" est effectué par

ce juge lui-même.

      Bien plus, non seulement le même magistrat était le juge

d'instruction et le juge unique du fond, mais il a encore ordonné

seul la mise en détention préventive du requérant et a prolongé

cette mesure.  Sans doute, sauf circonstances particulières, une

telle mission n'implique pas que des appréhensions quant à

l'impartialité du juge soient justifiées (arrêt HAUSCHILDT précité,

par. 50 et 51).  Je note à cet égard que l'article 67 par. 3 du

Code de procédure pénale néerlandais exige des charges sérieuses à

l'encontre de l'accusé pour qu'il puisse être placé en détention

préventive, et surtout que c'est le même magistrat qui statue en

"appel" sur ses propres décisions en la matière.

      Dès lors, le juge de la jeunesse cumule, sans contrôle

juridictionnel, un tel nombre de pouvoirs qu'il doit nécessairement

avoir acquis, avant l'audience au fond, une connaissance non

seulement  approfondie mais bien exhaustive des données de

l'affaire q'il va juger seul.  Selon la démarche objective, il ne

peut donc, en aucun cas, être considéré comme le "tribunal

impartial" qu'exige l'article 6 par. 1 de la Convention.

                                APPENDIX I

                          HISTORY OF PROCEEDINGS

Date                                    Item

___________________________________________________________________

28  April 1988                          Introduction of application

9 June 1988                             Registration of application

Examination of admissibility

5 February 1990                         Commission's decision to

                                        invite the Government to

                                        submit their observations

                                        on the admissibility and

                                        merits of the application

19 April 1990                           Government's observations

18 May 1990                             Applicant granted free

                                        legal aid

13 June 1990                            Applicant's observations in

                                        reply

27 May 1991                             Commission's decision to

                                        invite the parties to an

                                        an oral hearing

9 October 1991                          Oral hearing on

                                        admissibility and merits,

                                        Commission's decision to

                                        declare the application

                                        admissible.

Examination of the merits

16 October 1991                         Parties invited to submit

                                        further information

9 December 1991                         Decision of admissibility

                                        communicated to the parties

23 January 1992                         Applicant submits

                                        information

24 January 1992                         Government submit

                                        information

15 February 1992                        Consideration of the

                                        state of the proceedings

7 July 1992                             Commission's deliberations

                                        on the merits and final

                                        vote

8 July 1992                             Commission's further

                                        deliberations on the

                                        merits

9 July 1992                             Adoption of the Report

 

Full & Egal Universal Law Academy