DISSENTING OPINION OF Mr E.A. ALKEMA

In contrast to the majority of the Commission, I entertained from the outset doubts as to the present case's admissibility and wondered whether the applicant has properly exhausted domestic remedies.  It has not been established that he effectively challenged the Bailiff's impartiality and/or independence during the domestic proceedings nor that such challenge would be of no avail under Guernsey law.  On the other hand I agreed with the Commission's finding that the conditions for an appeal from the Royal Court to the Judicial Committee of the Privy Council are too strict to make that a practicable and effective remedy.

If challenged, the Bailiff could have been replaced by his Deputy or one of his Lieutenants provided that neither of them had participated in the preceding decision-making process, i.e. the approval of the Detailed Development Plan or in the decision of the Island Development Committee.  Although the Bailiff's Lieutenants are appointed by the Bailiff himself, there is no indication that the Lieutenant's office lacks impartiality or independence.  Neither is there an indication that the Jurats, the other members of the Royal Court, do not meet the standards of Article 6 para. 1.

It is submitted here that the above approach of a procedural nature may serve as well to approach the material question underlying the merits.  Of course, maintaining the rule of law is essential also in small insular communities such as Guernsey.  For that purpose it is not, however, necessary to require that such societies have similar elaborate constitutional structures as generally are to be found in states of an ordinary size.  Careful consideration should be given to the peculiarities of small scale societies and to both the specific disadvantages and benefits such scale may entail for the proper functioning of the body politic.  In that respect, contrary to the majority (see para. 56), I am of the opinion that, in virtue of Article 63 para. 3 due regard should be given to "local requirements" of territories whose international relations have been transferred to a High Contracting Party.

In such an - often delicate - situation the State responsible for those relations should be free in the ways and means in which it implements the Convention.  In the instant case it ought to have the choice between diverse options like: recognizing the challenging of the Bailiff as an effective recourse, reorganizing the constitutional competencies of his office or facilitating an "external" appeal (i.e. lying outside Guernsey) to the Privy Council.

(Or. English)