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AS TO THE ADMISSIBILITY OF
Application No. 13924/88
by Erik Hans NORTIER
against the Netherlands
The European Commission of Human Rights sitting in private on
9 October 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A. WEITZEL
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ RUIZ
Mrs. J. LIDDY
MM. J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 April 1988
by Erik Hans NORTIER against the Netherlands and registered on 9 June
1988 under file No. 13924/88;
Having regard to;
- the observations submitted by the respondent Government on 19
April 1990 and the observations in reply submitted by the applicant on
13 June 1990;
- the submissions of the parties at the hearing on 9 October
1991;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch national, born in 1972. He is
presently staying in an Institution for Special Treatment (Inrichting
voor Buitengewone Behandeling), "de Overberg", in Amerongen, the
Netherlands. He has no professional occupation. Before the
Commission he is represented by Mr. J. Sap, a lawyer practising in
Middelburg, the Netherlands.
A. PARTICULAR CIRCUMSTANCES OF THE CASE
The facts as submitted by the parties may be summarised as
follows.
The applicant had already been confronted with the Juvenile
Judge, Mr. M., before the facts of the present case took place. At a
certain period of time the applicant was placed under the supervision
of the Child Welfare Council (Raad voor de Kinderbescherming) and was
accomodated outside his own family (uithuisplaatsing). Around 1985 or
1986 the applicant was convicted by Mr. M. of an offence similar to the
one in the present case.
On 30 September 1987 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. It appears
that from that moment the applicant chose to remain silent until the
end of the trial. On 2 October the Public Prosecutor (Officier van
Justitie) requested the Juvenile Judge (kinderrechter) of Middelburg,
who also acts as the investigating judge (rechter-commissaris) on the
basis of Article 494 of the Code of Penal Procedure (Wetboek van
Strafvordering), to detain the applicant on remand and to institute
preliminary judicial investigations (gerechtelijk vooronderzoek). On
the same day the Juvenile Judge granted both requests. Accordingly,
Mr. M. ordered the applicant's detention on remand which he prolonged
on several occasions during the preliminary investigations. In 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.
As the defence feared that the applicant's confession at the
police station had been obtained under duress, it had the policemen
involved called as witnesses before the investigating judge. However,
Mr. M. entrusted this task to another Juvenile Judge, Mr. W., according
to the current practice in the Netherlands (see Relevant domestic law
and practice). These witnesses were not heard again during the trial.
It is not clearly established whether the "three way
consultation" on the question whether the applicant's prosecution was
called for took place (see Relevant domestic law and practice).
However, on 17 December 1987 the applicant was summoned to
appear in court on 6 January 1988 before the same Juvenile Judge, Mr.
M. By letter of 5 January 1988 the applicant challenged the Juvenile
Judge 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 declared the challenge ill-founded.
The applicant appealed to the Regional Court
(Arrondissementsrechtbank) of Middelburg which, on 22 January 1988,
confirmed the decision of the Juvenile Judge and equally rejected the
challenge. It held, inter alia, that the Juvenile Judge could be
considered as an impartial judge because of the special circumstances
of the penal procedure for juveniles. It explained moreover that this
procedure has an important pedagogical character, whilst it is also
important 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).
On 25 January 1988 the applicant was convicted and sentenced.
He was placed in "de Overberg", an Institution for Special Treatment
for young offenders.
In 1990 Mr. M. prolonged the applicant's confinement in the
Institution on the basis of Article 77r para. 3 of the Penal Code
(Wetboek van Strafrecht). This measure will automatically expire when
the applicant will reach the age of 21 (Article 77r para. 1 of the
Penal Code), i.e. in the present case on 13 May 1993, unless he is
released in the meantime.
B. RELEVANT DOMESTIC LAW AND PRACTICE
Under Dutch juvenile penal law (including procedural law), one
single judge of a Regional Court (Arrondissementsrechtbank) acts as
Juvenile Judge. At the same time, according to Article 494 of the Code
of Penal Procedure, he acts as an investigating judge. Article 496
entrusts him furthermore with the preliminary investigations and thus
empowers him to decide on the detention on remand of a minor and on an
eventual prolongation of this detention. However, following the De
Cubber judgment, 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 investigations. In principle the Juvenile Judge in charge
of the case will however retain the competence to order the detention
on remand and its possible prolongation(s) or to release the accused.
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 when it appears from the facts or the
circumstances that there are "serious objections" (ernstige bezwaren)
against the suspect. 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 are "serious objections" 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."
The decision to prosecute a minor is effected on the basis of
a special procedure. Article 493 of the Code of Penal Procedure
stipulates that the Public Prosecutor who wishes to drop charges
conditionally resp. unconditionally against a minor must first consult
resp. obtain the authorisation from the Juvenile Judge. However, if
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 given
the opportunity to give advice on the desirability of prosecution
according to Article 495 of the Code of Penal Procedure.
In order to implement these provisions effectively, it is now
practice 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.
At the trial stage the Juvenile Judge also acts in the capacity
of the Judges's Council Chambers (Raadkamer). In this capacity, he may
have to decide on an appeal against a detention he has ordered himself.
These special provisions, except Article 67 of the Code of
Penal Procedure, do not apply in adult penal law. The reason for this
difference is to be found, according to the Dutch legislator, in
pedagogical considerations and in the need of coherence and optimal
co-ordination in cases involving minors.
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.
It is proposed, inter alia, that the Juvenile Judge will no longer be
acting as an investigating judge pursuant to the De Cubber judgment,
but that 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.
COMPLAINTS
The applicant complains that he did not receive a hearing
before an impartial tribunal, because the Juvenile Judge who decided
in his case 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. He
invokes Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 April 1988 and registered
on 9 June 1988.
On 5 February 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the application
with regard to the issue under Article 6 para. 1 of the Convention
concerning a fair hearing before an impartial tribunal.
The Government's observations were received by letter dated 19
April 1990 and the applicant's observations by letter dated 13 June
1990.
On 27 May 1991 the Commission decided to invite the parties to
a hearing on the admissibility and merits of the complaint under
Article 6 para. 1 of the Convention that the Juvenile Judge is not an
impartial tribunal.
The hearing took place on 9 October 1991.
The parties were represented as follows:
For the Government:
- Mr. K. de VEY MESTDAGH of the Ministry of
Foreign Affairs, Agent
- Mr. A. PATIJN, Legislative Counsellor,
of the Ministry of Justice, Adviser
For the applicant:
- Mr. J. SAP, lawyer practising at Middelburg, Counsel
THE LAW
The applicant complains that he did not have a hearing before
an impartial tribunal, since the Juvenile Judge who dealt with his case
had also acted as an investigating judge during the preliminary
investigations in which he took several decisions regarding the
prolongation of the applicant's detention on remand. In this respect
he relies on Article 6 para. 1 (Art. 6-1) of the Convention, which
reads insofar as relevant:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a .... hearing ... by an ...
impartial tribunal ..."
The Commission notes that the parties agree on the applicability
of Article 6 (Art. 6). The Commission considers in this respect that
the present case involves the determination of a criminal charge
having regard to the nature of the offence and the measure imposed on
the applicant.
The applicant argues that 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. file an objection against the summons), his procedural position is
made subordinate to the pedagogical character of juvenile penal law. It
follows that the minor has the impression that his case has already been
decided at the pre-trial stage.
The Government submit that the deviations from adult penal law
are justified by the paramount importance of 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.
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 who has different functions and powers than the Dutch
Juvenile Judge.
The Government refer to the Hauschildt judgment in which it has
been decided that the mere fact that a judge has participated in a trial
after having taken decisions in the pre-trial period of the same case
does not in itself support the conclusion that he is not impartial. As
there are no exceptional circumstances allowing a different conclusion,
the Government is 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) of the Convention.
The Government finally submit that in the present case the
Juvenile Judge concerned could anyhow not be accused of lack of
impartiality, since he had witnesses heard during the preliminary
judicial investigations by another Juvenile Judge and therefore he had
taken no effective part in the investigation of the facts.
The Commission, having regard to the parties' submissions under
Article 6 (Art. 6) of the Convention concerning the alleged partiality
of the Juvenile Judge, considers that this complaint raises complex
issues of fact and law which can only be resolved by an examination of
the merits. This application cannot, therefore, be declared manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention. No other grounds for inadmissibility have been
established.
For these reasons, the Commission, by a majority
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)