Information Note on the Court’s case-law 53

May 2003

Kleyn and Others v. the Netherlands [GC] - 39651/98, 39343/98, 46664/99 et al.

Judgment 6.5.2003 [GC]

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Judicial role of the Council of State in relation to legislation on which it has previously given an advisory opinion: no violation

Facts : In 1991 the Council of State gave an advisory opinion on t he Transport Infrastructure Planning Bill, which was intended to provide a legislative framework for the supra-regional planning of a major new transport infrastructure. A number of changes were made to the bill on the basis of the Council of State’s opini on and it eventually came into force as the Transport Infrastructure Planning Act in 1994. In the meantime, the Government had presented a draft Outline Planning Decision concerning a new railway, the Betuweroute railway, which would join up with the Germa n rail network. Following a public consultation process, a revised document was put before both Houses of Parliament. It became valid on its publication in May 1994. A large number of appeals against the revised document had been lodged with the Administra tive Jurisdiction Division of the Council of State, which in January 1997 rejected most of the appeals, including those lodged by the applicants. In June 1994, a preliminary draft of the Routing Decision, setting out the exact route of the railway, had bee n opened to public inspection. Following public consultation, the route was finalised in November 1996. A large number of appeals were lodged with the Administrative Jurisdiction Division, including those of the applicants, two of whom challenged the judge s on the ground that the plenary Council of State had been involved in the drafting of the legislation at issue. A special chamber declared the complaint inadmissible in so far as it concerned the Council of State as a whole and rejected the complaint in s o far as it was directed against the three judges who were to hear the appeals, on the ground that they had not in any way expressed themselves in a manner contrary to the position of the appellants. The Administrative Jurisdiction Division subsequently di smissed most of the appeals, although it allowed certain specific complaints. The Government considered that the decision left the project 95% intact and that no radical review was needed. New partial decisions were taken in respect of the parts which had been annulled and the applicants’ further appeals in that respect were unsuccessful.

Law

Admissibility – The challenge made by two of the applicants to the Council of State judges had been dismissed and the Court failed to see that a further challenge by t he other applicants – parties to the same proceedings – could have resulted in a different decision. These applicants were not, therefore, required to try the remedy, which was bound to fail. As to a remedy before the civil courts, the Government had not c ited any domestic case-law in which a civil court had agreed to hear an administrative appeal on the ground that the Council of State afforded insufficient guarantees of independence and impartiality. The applicants had sufficiently established that in the present case this remedy could not be regarded as offering any reasonable prospects of success. The applications were therefore admissible.

Article 6 § 1 – The case did not require the application of any particular doctrine of constitutional law; the Cour t was faced solely with the question whether, in the circumstances, the Administrative Judicial Division had the requisite appearance of independence or the requisite “objective” impartiality. There was nothing to substantiate the applicants’ concerns as t o the independence of the Council of State and its members, nor was there any indication of subjective prejudice or bias on the part of any member hearing the applicants’ appeals. Nevertheless, the consecutive exercise of advisory and judicial functions wi thin one body may raise an issue under Article 6 as regards objective impartiality (see Procola v. Luxembourg , Series A no. 326). The Court was not as confident as the Government that the arrangements made to give effect to the Procola judgment (exclusion of judges who had participated in an advisory opinion if the appeal went to a matter explicitly addressed in the opinion) ensured that in all appeals coming before the Administrative Jurisdiction Division it constituted an impartial tribunal. However, the Court’s task was not to rule in the abstract on the compatibility of the system with the Convention. The issue before it was whether, with regard to the appeals brought by the applicants, it was compatible with the requirement of objective impartiality tha t the Council of State’s institutional structure allowed certain of its members to exercise both advisory and judicial functions. In that respect, the plenary Council of State had advised on the Transport Infrastructure Planning Bill, whereas the applicant s’ appeals were directed against the Routing Decision. Thus, unlike the situation in the Procola judgment, the advisory opinion and the subsequent proceedings on the appeals could not be regarded as involving the “same case” or the “same decision”. The ref erences in the advisory opinion to the proposed railway could not reasonably be interpreted as expressing views on, or amounting to a preliminary determination of, any issues subsequently decided in the Routing Decision. In the circumstances, therefore, th e applicants’ fears as to a lack of independence and impartiality could not be regarded as being objectively justified.

Conclusion : no violation (twelve votes to five).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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