Information Note on the Court’s case-law

August 1997

De Haan v. the Netherlands - 22839/93

Judgment 26.8.1997

Article 6

Civil proceedings

Article 6-1

Impartial tribunal

Impartiality of a judge presiding over a Chamber of the Appeals Tribunal called upon to decide on an objection against a decision for which he himself was responsible: violation

[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]

I. ARTICLE 6 OF THE CONVENTION

A. Applicability of Article 6

Not contested. Case concerns proceedings of the same typ e as the Feldbrugge case and a dispute under the same Act.

B. Compliance with Article 6 § 1

The sole responsibility for taking the decision falls to the president (or acting president) of the Appeals Tribunal, even when, as in the instant case, he does no more than ratify the opinion of the permanent medical expert.

Permanent-medical-expert proce dure is not comparable to criminal proceedings in absentia in which the accused is neither present nor represented – applicant was actively involved in the establishment of the expert’s opinion which was to be the basis of the acting president’s decision.

In the present case, unlike in the Feldbrugge case, it is undisputed that the applicant had unlimited access to the Appeals Tribunal – it must accordingly be decided whether that tribunal offered the guarantees required by Article 6 § 1, in particular that of “impartiality”.

Reiteration of Court’s case-law on concept of “impartial” tribunal.

Subjective test: nothing to indicate any prejudice or bias on the part of Judge S.

Objective test: decisive feature of the case is that Judge S. presided over a tribuna l called upon to decide on an objection against a decision for which he himself was responsible – also significant that the tribunal was composed of a professional judge assisted by two lay judges – no intervening decision by a higher body – applicant’s fe ars in this regard objectively justified.

Scope of review of the Central Appeals Tribunal insufficient to make up for the failings of the procedure before the Appeals Tribunal – possibility exists that a higher or the highest tribunal may, in some circumst ances, make reparation for an initial violation of one of the Convention’s provisions – the Central Appeals Tribunal had the power to quash the decision appealed against on the ground that the composition of the Appeals Tribunal had not been such as to gua rantee its impartiality and to refer the case back to the Appeals Tribunal for rehearing if necessary – it declined to do so and, as a consequence, did not cure the failing in question.

Conclusion : violation (six votes to three).

II. ARTICLE 50 OF THE CONVENTION

A. Damage

Pecuniary damage: no causal link established.

Non-pecuniary damage: finding of violation constitutes in itself sufficient just satisfaction.

B. Costs and expenses: reimbursement.

Conclusion : respondent State to pa y applicant a specified sum for costs and expenses (unanimously).

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

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