NORTIER v. THE NETHERLANDS
Doc ref: 13924/88 • ECHR ID: 001-45522
Document date: July 9, 1992
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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 Ã
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 Ã
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