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BENTHEM CASE

Doc ref: 8848/80 • ECHR ID: 001-55450

Document date: April 26, 1988

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Cited paragraphs: 0
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BENTHEM CASE

Doc ref: 8848/80 • ECHR ID: 001-55450

Document date: April 26, 1988

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54 (art. 54) of

the Convention for the Protection of Human Rights and Fundamental

Freedoms (hereinafter referred to as "the convention"),

Having regard to the judgment of the European Court of Human Rights in

the Benthem case, delivered on 23 October 1985 and transmitted the

same day to the Committee of Ministers;

Recalling that the case originated in an application against the

Kingdom of the Netherlands lodged with the European Commission of

Human Rights on 21 December 1979 under Article 25 (art. 25) of the

convention by Mr Albert Benthem, a Netherlands national, who claimed

that proceedings concerning a licence to operate an installation for

the delivery of liquid petroleum gas involved a dispute over civil

rights and obligations and that, contrary to the requirements of

Article 6, paragraph 1 (art. 6-1), of the convention, his case had not

been heard by an independent and impartial tribunal;

Recalling that the case was brought before the Court by the Commission

on 20 March 1984;

Whereas in its judgment of 23 October 1985 the Court held:

- by eleven votes to six that Article 6, paragraph 1 (art. 6-1),

was applicable in the present case;

- by eleven votes to six that Article 6, paragraph 1 (art. 6-1),

had been violated;

- unanimously that the foregoing finding constituted of itself

sufficient just satisfaction for the purposes of Article 50 (art. 50)

of the convention;

Having regard to the Rules adopted by the Committee of Ministers

concerning the application of Article 54 (art. 54) of the convention;

Having invited the Government of the Netherlands to inform it of the

measures which had been taken in consequence of the judgment, having

regard to its obligation under Article 53 (art. 53) of the convention

to abide by it;

Whereas, during the examination of the case by the Committee of

Ministers, the Government of the Netherlands gave the Committee

information about the measures taken in consequence of the judgment,

which information appears in the appendix to this resolution,

Declares, after having taken note of the information supplied by the

Government of the Netherlands, that it has exercised its functions

under Article 54 (art. 54) of the convention in this case.

Appendix to Resolution DH (88) 6

Information provided by the Government of the Netherlands during

the examination of the Benthem case by the Committee of Ministers

In the Benthem case, the European Court of Human Rights held that the

proceedings before the Administrative Litigation Division of the

Council of State, which had only an advisory function, while the

decision was rendered by Royal Decree, did not provide the

"determination by a tribunal of the matters in dispute" as required by

Article 6, paragraph 1 (art. 6-1), of the convention.

To meet the Court's judgment, the Provisional Act on disputes before

the Crown (Tijdelijke Wet Kroongeschillen), which provisionally

regulates proceedings in matters of litigation where the Crown has

thus far been competent, was adopted on 18 June 1987; it came into

force on 1 January 1988.

The Act in question gives a power of decision to the aforementioned

Administrative Litigation Division of the Council of State, which can

therefore henceforth act as a tribunal in the sense of Article 6,

paragraph 1 (art. 6-1), of the convention. The Act is of a

provisional nature and definitive legislation is foreseen within

five years.

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