SCHOUTEN v. the NETHERLANDSPARTLY DISSENTING OPINION OF MM. S. TRECHSEL, H.G. SCHERMERS

Doc ref: • ECHR ID:

Document date: October 12, 1993

Doc ref: • ECHR ID:

Document date: October 12, 1993

Cited paragraphs only

PARTLY DISSENTING OPINION OF MM. S. TRECHSEL, H.G. SCHERMERS

MRS. G.H. THUNE, J. LIDDY, MM. I. CABRAL BARRETO, B. CONFORTI

AND N. BRATZA

We share the view of the majority of the Commission that there

has been a breach of Article 6 para. 1 of the Convention in the present

case by reason of the length of the proceedings, but we are unable to

agree with the conclusion of the majority that there has been a

separate breach of this provision by reason of the lack of fairness of

the proceedings.

In so concluding the majority rely on what is described as the

double role of the BVG, which both rendered the decision against which

the applicant's appeal to the Appeals Tribunal was lodged and

participated as a party before the Tribunal. It is the view of the

majority that, in these circumstances, the BVG, by failing for a

considerable time to arrive at a formal decision could delay the

introduction of an appeal and that this meant that there was a lack of

equality between the applicant and his opponent in the appeal

proceedings.

We do not consider that the "double role" of the BVG, a role

which is by no means unusual in litigation between administrative

agencies and private parties, has been shown to have affected the

fairness of the proceedings before the Tribunal. Moreover, insofar as

the fairness of the proceedings may be said to have been affected by

the delay of the BVG in issuing its decision, this complaint is in our

view subsumed in the Commission's finding of a violation in relation

to the length of proceedings.

(Or. français)

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