Communicated on 15 April 2020 Published on 2 June 2020

FOURTH SECTION

Application no. 19365/19 Johanna KUIJT against the Netherlands lodged on 4 April 2019

SUBJECT MATTER OF THE CASE

The application concerns the practice in the Netherlands Supreme Court ( Hoge Raad ) to allow judges to sit in deliberations even when they do not form part of the formation to which the case has been assigned.

On 12 December 2016, following proceedings on appeal, the Court of Appeal ( gerechtshof ) convicted the applicant of having disrupted – in the context of a demonstration – an official meeting of the Zeist municipal council and sentenced her to two weeks imprisonment. She filed an appeal in cassation.

An appeal in cassation – which is limited to procedural conformity and points of law – is , in principle , examined and determined by the “seat” ( zetel ), i.e. a formation of three or five members of a multi-judge chamber ( meervoudige kamer ) as provided for in Article 75(3) of the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ). There are four multi-judge chambers at the Supreme Court. The second one hears appeals in cassation in criminal cases. The so-called “reservists” are members of a chamber but do not belong to the seat. Although not charged with examining and determining an appeal in cassation, they do participate in the deliberations. According to the Protocol on the participation in the examination and deliberation ( Protocol deelname aan de behandeling en beraadslaging ), adopted by the Supreme Court on 28 August 2017, reservists, although not invited to express their views on the case at hand, may participate in the deliberations with a view to ensur ing legal uniformity within the multi-judge chamber concerned.

Disagreeing with this practice, the applicant challenged the three judges assigned to her case as well as the reservists, i.e. all other members of the second multi-judge chamber of the Supreme Court. This challenge was heard before a three-judge seat of the fourth multi-judge Chamber of the Supreme Court and rejected on 21 December 2018. The applicant ’ s appeal in cassation was rejected by the Supreme Court on 8 January 2019.

The applicant alleges a violation of her rights under Article 6 § 1 of the Convention in that her appeal in cassation was not determined by a “tribunal established by law” since it was heard by more judges, i.e. including the “reservists”, than the statutory defined number. She further complains under Article 6 § 1 that, in these circumstances, both the members of the seat and the reservists cannot be regarded as independent and impartial.

QUESTIONS TO THE PARTIES

1. Has the applicant duly exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention in respect of her complaint that her appeal in cassation was not determined by an independent and impartial tribunal established by law?

2. Assuming domestic remedies to have been exhausted, given the practice that “reservist” judges participate in the deliberations on an appeal in cassation and the applicant ’ s unsuccessful challenge of this practice, has the applicant ’ s appeal in cassation been determined by an independent and impartial tribunal established by law as required by Article 6 § 1 of the Convention?