Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 22839/93

Klaziena Wilhelmina de Haan

against

the Netherlands

REPORT OF THE COMMISSION

(adopted on 15 May 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

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

B. The proceedings

(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-31). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17-25) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(paras. 26-31) . . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 32-49). . . . . . . . . . . . . . . . . . . . . . . . 6

A. Complaint declared admissible

(para. 32) . . . . . . . . . . . . . . . . . . . . . . . 6

B. Point at issue

(para. 33) . . . . . . . . . . . . . . . . . . . . . . . 6

C. As regards Article 6 para. 1 of the Convention

(paras. 34-48) . . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION

(para. 49) . . . . . . . . . . . . . . . . . . . . . . . 8

CONCURRING OPINION OF MR. H.G. SCHERMERS. . . . . . . . . . . . . . 9

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . .11

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 1966 and resident in

Oude Pekela, the Netherlands. She was represented before the Commission

by Mr E.C.M. Roelvink, a lawyer practising in Winschoten.

3. The application is directed against the Netherlands. The

respondent Government were represented by their Agent, Mr. H. von

Hebel, of the Netherlands Ministry of Foreign Affairs.

4. The case concerns the complaint that the applicant's entitlement

to sickness benefits has not been determined by an impartial tribunal.

The applicant invokes Article 6 para. 1 of the Convention.

B. The proceedings

5. The application was introduced on 5 August 1993 and registered

on 29 October 1993.

6. On 11 January 1994 the Commission (Second 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 22 April 1994

after an extension of the time-limit fixed for this purpose. The

applicant replied on 24 May 1994. On 5 July 1994 the Commission granted

the applicant legal aid for the representation of her case.

8. On 29 July 1994 the Government submitted additional observations

to which the applicant replied on 31 October 1994.

9. On 18 May 1995 the Commission declared the application

admissible.

10. The text of the Commission's decision on admissibility was sent

to the parties on 2 June 1995 and they were invited to submit such

further information or observations on the merits as they wished. No

such information or observations have been submitted.

11. 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

12. The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

13. The text of this Report was adopted on 15 May 1996 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.

14. 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.

15. The Commission's decision on the admissibility of the application

is annexed hereto.

16. 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

17. The Occupational Association for the Chemical Industry

(Bedrijfsvereniging voor de Chemische Industrie) decided on 14 May 1990

that the applicant could no longer be regarded as unfit for work and,

consequently, was no longer entitled to sickness benefits under the

Health Insurance Act (Ziektewet) as from 10 May 1990.

18. On 22 May 1990 the applicant lodged an appeal against this

decision with the Appeals Tribunal (Raad van Beroep) of Groningen,

challenging the finding that she was fit to resume her work. On 11

September 1990 the Acting President of the Appeals Tribunal, Judge S.,

in conformity with the opinion he had obtained from the permanent

medical expert (vaste deskundige) who had examined the applicant on 17

August 1990, decided, in simplified proceedings, that the appeal was

unfounded.

19. The applicant filed an objection (verzet) against the Acting

President's decision. Pursuant to an established policy, her objection

automatically rendered the Acting President's decision void ab initio.

She also requested that Judge S. should not participate in the further

examination of her case by the Appeals Tribunal composed of three

judges.

20. Following deliberations in Chambers (Raadkamer) in which Judge

S. was replaced by another member of the Appeals Tribunal who acted as

President, her request to replace Judge S. was rejected by the Appeals

Tribunal on 8 August 1991. It stated on this point:

"The procedure laid down in the Appeals Act [Beroepswet] already

offers in itself sufficient guarantees for an unprejudiced

administration of justice, i.e. possibilities for sufficient

compensation in case of a possible suspicion of a too big

involvement by the President concerned. One element is in this

regard that where an objection has been lodged, this makes the

decision of the President (pursuant to Section 128/Section 141

of the Appeals Act) void. The examination of the case will then

be referred to a session where the Appeals Tribunal will take a

decision. An unlimited appeal [onbeperkt hoger beroep] lies

against all decisions of the Appeals Tribunal, except in certain

cases concerning the Health Insurance Act (an exception which

does not apply where there are for instance also complaints of

a procedural nature [processuele grieven]). The Appeals Tribunal

of Groningen applies the following policy.

In cases in which no further appeal is possible (for instance

when a decision pursuant to Section 94 of the Appeals Act has

been taken), i.e. where the objection which is examined can lead

to a non-appealable judicial decision, an objection against a

decision will be dealt with by another President than the one who

has given the decision.

Cases, in which an objection lodged against a decision of the

President renders that decision void and thus leads to a decision

of the Appeals Tribunal against which an appeal lies, remain with

the same President. In Health Insurance Act cases like the

present one, which also raises complaints of a procedural nature

(and which thus no longer exclusively concerns a dispute of a

medical nature against which, pursuant to Section 75 para. 2 of

the Health Insurance Act, no appeal lies), the Appeals Tribunal

assumes that the Central Appeals Tribunal [Centrale Raad van

Beroep] will admit the parties on appeal."

21. Thereafter, the case was dealt with at a public hearing before

the Appeals Tribunal which was composed of Judge S. as President and

two lay judges. On 21 August 1991 the Appeals Tribunal, so composed and

following adversarial proceedings in which the applicant was

represented by a lawyer, rejected the applicant's appeal.

22. The applicant lodged a subsequent appeal with the Central Appeals

Tribunal. In her appeal she argued, inter alia, that the Appeals

Tribunal had violated Article 6 of the Convention insofar as Judge S.

had decided first on her appeal and then on her objections against his

first decision. In her opinion, he could not on that second occasion

be considered an impartial judge. She also challenged the decision at

issue on other grounds.

23. In its judgment of 26 April 1993, the Central Appeals Tribunal

referred to its reasoning in a case decided on the same day in which

a similar complaint had been raised and in which it had noted that the

Acting President of the Appeals Tribunal had not been involved in any

decisions prior to the proceedings before the Appeals Tribunal and that

his participation had remained limited to the proceedings before that

Tribunal. It had therefore found no violation of Article 6 of the

Convention. Thus, as regards the proceedings in the present

application, the Central Appeals Tribunal also found that the fact that

Judge S. had not been replaced did not violate the applicant's rights

under Article 6 of the Convention.

24. As regards the other arguments raised by the applicant

concerning, inter alia, her actual functions and work environment and

the latter's alleged influence on her health, the Central Appeals

Tribunal found that the Appeals Tribunal had taken these elements into

consideration in a correct manner and that it could not be held that

the Appeals Tribunal, in its assessment, had applied an incorrect

standard. It therefore found the applicant's objections against the

decision of the Occupational Association unfounded.

25. The Central Appeals Tribunal upheld the challenged decision

insofar as it was competent to examine this decision ("bevestigt de

aangevallen uitspraak, voor zover deze ter beoordeling van de Raad

staat").

B. Relevant domestic law

26. Until 1 January 1994, disputes arising out of the application of

the Health Insurance Act were governed by the Appeals Act. For disputes

concerning fitness or unfitness for work, a simplified procedure could

be applied, known as the permanent-medical-expert procedure (see Eur.

Court H.R., Feldbrugge judgment of 29 May 1986, Series A no. 99, p. 10,

paras. 18-20). This procedure was applied in the present case.

27. Following the European Court's judgment in the case of Feldbrugge

against the Netherlands (loc. cit.), the Presidents of the Appeals

Tribunals, pending new legislation, established a policy guideline to

the effect that appellants would be informed that an unlimited

objection (onbeperkt verzet) can be lodged against a decision of the

President of the Appeals Tribunal with the Appeals Tribunal and that

an objection, provided it was filed in time, would automatically render

a decision by a President void, and would lead to an ordinary

examination of the case. This policy guideline was applied in the

present case.

28. Pursuant to Section 23 of the Appeals Act, all decisions by an

Appeals Tribunal are to be taken by a majority of the participating

judges.

29. According to Section 75 of the Health Insurance Act, no appeal

lies against a decision of the Appeals Tribunal. However, according to

the case-law of the Central Appeals Tribunal, appeals are admitted when

formal rules may have been disregarded, when an incorrect standard has

been applied as regards the concepts of "labour" and "unfitness", or

when the challenged decision, on the basis of the available facts,

could not reasonably have been taken. An appeal to the Central Appeals

Tribunal is only excluded in those cases in which exclusively and

unambiguously disputes of a medical nature have been determined.

30. On 1 October 1991 certain amendments were made to the Appeals Act

on the basis of the European Court's findings in its judgment in the

case of Feldbrugge (loc. cit.).

31. On 1 January 1994 the General Administrative Act (Algemene Wet

Bestuursrecht) entered into force, laying down new uniform rules of

administrative law procedure, which also apply to cases like the

present one. Under the new Act a party may lodge an appeal against a

decision of an Occupational Association with the Regional Court

(Arrondissementsrechtbank) and subsequently with the Central Appeals

Tribunal.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

32. The Commission has declared admissible the applicant's complaint

that her appeal before the Appeals Tribunal was not determined by an

impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1)

of the Convention.

B. Point at issue

33. The issue to be determined is whether there has been a violation

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

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

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

relevant, reads:

"In the determination of his civil rights and obligations ...

everyone is entitled to a ... hearing ... by an ... impartial

tribunal ...".

35. The Commission recalls that Article 6 para. 1 (Art. 6-1) of the

Convention applies to proceedings concerning the entitlement to

benefits under the Health Insurance Act (see Eur. Court H.R.,

Feldbrugge judgment of 29 May 1986, Series A no. 99, pp. 12-16, paras.

26-40).

36. The Commission must therefore address the question whether the

Appeals Tribunal, in view of its composition, can be considered to have

been an impartial tribunal when it decided on the applicant's appeal

on 21 August 1991.

37. The applicant submits that the issue at stake is not whether or

not Judge S. was biased, but whether a given judge appears partial or

not from an appellant's point of view. The applicant considers that in

this respect Judge S. could not be regarded as impartial. She is of the

opinion that, since only an appeal on specific points could be lodged

against the decision of the Appeals Tribunal, Judge S. should have been

replaced in the proceedings before the Appeals Tribunal following her

objection.

38. The applicant confirms that the Central Appeals Tribunal examined

her appeal against the decision of the Appeals Tribunal, but only

within the limits set by the Central Appeals Tribunal's case-law. The

matter falling outside the scope of that appeal, i.e. the alleged

incorrect criterion used in defining the concept of illness, was not

examined on the merits by the Central Appeals Tribunal, whereas

Judge S. considered that point twice. The fact that the latter's first

decision became void after the applicant's objection is irrelevant. The

opinion of Judge S. as regards the applicant's illness was obvious from

his initial decision, and, therefore, he cannot be considered to have

been impartial in the subsequent proceedings before the Appeals

Tribunal.

39. The respondent Government submit that the applicant's appeal was

initially rejected by the Acting President of the Appeals Tribunal,

without a hearing, on the basis of the applicant's written grounds of

appeal and a medical report. Her subsequent objection rendered this

rejection of her appeal void. Her appeal was subsequently examined by

the full bench of the Appeals Tribunal, which - following adversarial

proceedings, in which the parties made both oral and written

submissions to the Appeals Tribunal and each party could challenge the

submissions of the other party - rejected it in a reasoned decision.

The applicant's appeal thus received a full examination in the ordinary

way before the Appeals Tribunal. The fact that Judge S. was not

replaced had no repercussions on the judicial impartiality of the

Appeals Tribunal when it took its decision on the applicant's appeal,

in view of the fact that in Judge S.'s initial decision, which he took

as a single judge, regard was only had to the written grounds of appeal

and a medical report, and not to the subsequent submissions to the full

bench of the Appeals Tribunal. It can and may reasonably be expected

of a judge in the position of Judge S. that he will examine the case

in an unbiased manner.

40. The Government further submit that, although the Convention does

not guarantee a right of appeal, an appeal to the Central Appeals

Tribunal is possible, insofar as the appeal is not based on a dispute

of a medical nature. In the present case such an appeal was in fact

lodged and was examined on the merits by the Central Appeals Tribunal.

41. The Commission recalls that when the impartiality of a tribunal

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

being determined, regard must be had not only to the personal

conviction of a particular judge in a given case - the subjective

approach - but it must also be considered whether he afforded

sufficient guarantees to exclude any legitimate doubt in this respect -

the objective approach (cf. Eur. Court H.R., Piersack judgment of 1

October 1982, Series A no. 53, p. 14, para. 30; and Bulut judgment of

22 February 1996, para. 31, to be published in Reports of Judgments and

Decisions for 1996).

42. As to the subjective test, the personal impartiality of a judge

must be presumed until there is proof to the contrary (cf. Eur. Court

H.R., Bulut judgment, loc. cit., para. 32; and Padovani judgment of

26 February 1993, Series A no. 257-B, p. 20, para. 26). The applicant

has not alleged any personal bias on the part of Judge S.

43. As regards the objective test, it must be determined whether

there are ascertainable facts which may raise doubts as to a judge's

impartiality. What is at stake is the confidence which the courts in

a democratic society must inspire in the public. In deciding whether

in a given case there is a legitimate reason to fear that a particular

judge lacks impartiality appearances may be of certain importance,

although the opinions of the persons concerned are not in themselves

decisive. What is decisive is whether such fears can be regarded as

objectively justified (cf. Eur. Court H.R., Piersack judgment, loc.

cit.; and Kraska judgment of 19 April 1993, Series A no. 254-B, p. 50,

para. 32).

44. In the present case, Judge S., in his decision of 11 September

1990, which he gave as a single judge of the Appeals Tribunal in

simplified proceedings and in conformity with the opinion he had

obtained from the permanent medical expert who had examined the

applicant, rejected the applicant's appeal as unfounded.

45. It is true that the decision of 11 September 1990 became void ab

initio following the applicant's objection and that in the proceedings

before the full bench of the Appeals Tribunal the latter did not only

have regard to the initial submissions but also to the additional oral

and written submissions made by the parties in the course of the

adversarial proceedings before it.

46. The fact remains however, that Judge S., who presided over the

Appeals Tribunal during its examination of the applicant's appeal, had

already as a single judge taken a decision on the merits of the

applicant's appeal to the Appeals Tribunal.

47. The Commission considers that, although the decision of the full

Appeals Tribunal was based on more extensive submissions and on a more

complete material than the previous decision taken in simplified

proceedings, the fact that Judge S. had already decided on the same

subject-matter was an element which could arouse in the applicant a

legitimate fear that he might be influenced by his previous decision

in the case.

48. In these circumstances, and having regard to the fact that,

according to the wording of the Central Appeals Tribunal's decision of

26 April 1993, the applicant's appeal to that Tribunal could not be

regarded as having offered a full review of the applicant's case (see

para. 25), the Commission finds that the requirement of impartiality

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

was not satisfied in the present case.

CONCLUSION

49. The Commission concludes, unanimously, that there has been a

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

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

(Or. English)

CONCURRING OPINION OF MR. H.G. SCHERMERS

With great hesitation I share the opinion of the Commission,

finding a violation of Article 6 para. 1.

The independence and impartiality of the judiciary are corner

stones of our constitutional systems. So far, they have been rigidly

defended by the Court. This may be illustrated by two examples:

(1) In Van de Hurk, a provision in the national legislation

enabled the Government not to execute a judicial decision and to have

it replaced by a procedure for damages. Although this provision had

never been applied and there was no indication that it had played any

role in the case at hand, the Court found a violation of Article 6 in

the mere existence of that possibility.

(2) In Procola, the Court held that judges are not impartial when

they have previously rendered an opinion about the legislation at stake

in the case.

The position of the Court in these and similar cases leads to the

conclusion that also in the present case an infringement of Article 6

must be found. The decision of the Acting President of the Raad van

Beroep was a judicial decision which the applicant could accept or

against which she could file an objection in case of disagreement. In

substance, such an objection must be considered as an appeal.

When the same judge who sat in first instance also sits on

appeal, he is inevitably influenced by his first decision and most

likely his better knowledge of the case may influence his colleagues.

The court in which judges sit who sat before, will, therefore, not be

entirely impartial. Considering the importance of full impartiality of

courts and the position of the Court so far, it seems appropriate to

find a violation of Article 6 in the present case.

The Governments of the Contracting States seem to take a

different position. In Protocol No. 11 they have adopted a procedure

similar to the one under review in the present case. Under that

Protocol, cases are decided by a Chamber of Seven. In exceptional cases

they may subsequently be referred to a Grand Chamber of Seventeen, in

which two judges sit who will also have sat in the Chamber of Seven.

It is submitted that this is not an appeal, but merely a continuation

of the examination of the case in the larger composition of the same

court. In my submission, that is exactly what happens in the Raad van

Beroep. The question then arises whether the Commission (and the Court)

should take account of this opinion of the Member States of the Council

of Europe.

Are the Governments the legislators of the Council of Europe

whose opinions must be respected by the judiciary, including the Court

and Commission of Human Rights? Or are they the national authorities

against whom the Court and Commission should defend the rights of

individuals?

Whatever the reply to the above questions may be, in the present

case there is no specific international legislation on internal appeals

inside judicial organs. The only rule we have is Article 6 and this has

been strictly interpreted by the Court in its case-law. Notwithstanding

the position of the Governments in Protocol No. 11, I finally

concluded, therefore, that an infringement of Article 6 must be found

in the present case.

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DE HAAN v. THE NETHERLANDS

DE HAAN v. THE NETHERLANDS

LEXI