CONCURRING OPINION OF JUDGE WALSH

1. I agree that on the facts of the present case the applicant has failed to establish a breach of Article 6 para. 1 (art. 6-1) of the Convention. I think it is well established that a trial judge should be disqualified on the grounds of lack of structural impartiality if before the trial he has participated, by way of investigating judge or otherwise, in making any decision or forming an opinion on the case which called for an assessment of the probable guilt of the accused person. As I pointed out in my opinion in Sainte-Marie v. France (judgment of 16 December 1992 , Series A no. 253-A, p. 18), this is to be ascertained by an examination of the precise circumstances of each case. In the present case I am satisfied on the evidence that in fact the judge had not engaged in any pre-trial activity which involved an assessment of the probable guilt of the accused.

2. Juveniles facing criminal charges and trial are as fully entitled as adults to benefit from all the Convention requirements for a fair trial. Great care must always be taken to ensure that this entitlement is not diluted by considerations of rehabilitation or of reform. These are considerations which should be in addition to all the procedural protections available. Fair trial and proper proof of guilt are absolute conditions precedent.

CONCURRING OPINION OF JUDGE MORENILLA

1. I agree with the conclusion that there has been no violation of Article 6 para. 1 (art. 6-1) of the Convention in the present case. The applicant ’ s alleged apprehensions about Juvenile Judge Meulenbroek ’ s lack of impartiality when deciding his case, based on the fact that the latter had acted as the investigating judge and had on four occasions decided that the applicant should be detained on remand and on the fact that he was the only judge dealing with the case, were not objectively justified.

Nevertheless, unlike the majority, when arriving at this conclusion it is to me of decisive importance that the applicant was fifteen years old when the facts took place; that the case was investigated and tried by a juvenile judge according to Netherlands juvenile criminal procedure; and that, in accordance with the recommendation in the psychiatric report, he was committed to a mental institution for minors where he remained under Juvenile Judge Meulenbroek ’ s supervision until his unconditional release three and a half years later.

2. With Mr Trechsel and the members of the Commission who joined his separate concurring opinion, I think that minors are entitled to the same protection of their fundamental rights as adults but that the developing state of their personality - and consequently their limited social responsibility - should be taken into account in applying Article 6 (art. 6) of the Convention. In particular, the right of everyone charged with a criminal offence to be judged by an impartial tribunal should not be incompatible with the protective treatment of juvenile offenders. Under Article 25 of the Universal Declaration of Human Rights, childhood is entitled to special care and assistance. States, therefore, should afford them the "necessary protection and assistance so that they can fully assume their responsibilities within the community", and prepare them "to live an individual life in society" (preamble of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations, Resolution 44/25 of 20 November 1989), by promoting "the establishment of laws, procedures, authorities and institutions applicable to children alleged as, accused of, or recognised as having infringed the penal law" (ibid., Article 40 para. 3).

3. The difficulties arising from the penal treatment of young offenders have been faced, in many penal systems, by setting up juvenile courts under specific procedural rules to apply penal or protective measures aiming at the correction or re-education of the minor rather than the punishment of criminal acts for which he is not fully responsible. The educational and psychiatrical aspects of the treatment are therefore essential and the qualifications and functions of the juvenile judge should be seen in terms of these purposes. The organisation of the proceedings in a manner that a single judge deals with the case from the pre-trial investigation adopting the appropriate provisional measures until the execution of the sentence, supervising the adopted protective measures of the judgment, in order to "[develop] a relationship of trust ... between the juvenile judge on the one hand and the minor and his ... parents or guardian on the other" (paragraph 18 (b) of the judgment) seems to me both reasonable and commendable to attain these objectives.

Accordingly, I cannot see the cumulative exercise of these functions by the juvenile judge as constituting a violation of Article 6 (art. 6) of the Convention. This Article (art. 6), like other substantive provisions of the Convention, has been designed, and should be interpreted, so as to protect the rights and freedoms of the individual from acts or omissions of the State that are opposed to them, but not so as to hinder measures intending the full development of minors. Such an interpretation would be, in my opinion, contrary to Article 60 (art. 60) of the Convention. Furthermore, I think that the protection of children is a matter about which national authorities are better prepared to plan in accordance with the demands of their society. The Convention is meant to be interpreted in the sense of giving the member States a margin of appreciation as to the organisation of their system of penal justice to protect both the interests of the child and those of society.

4. Considering these circumstances, the central role performed by Juvenile Judge Meulenbroek throughout the procedure does not to me appear objectively open to doubt as to his impartiality since his functions were legally designed to protect young offenders, not to punish them. Likewise I understand the majority ’ s analysis of the "scope and nature" of the decisions that he took in the present case (paragraph 33 of the judgment) in the context of juvenile criminal proceedings. The conclusion of non-violation is then reconciled with the doctrine of the Court when interpreting the requirement of an "impartial tribunal" particularly in the cases of De Cubber v. Belgium (judgment of 26 October 1984, Series A no. 86, p. 16, para. 30) and Hauschildt v. Denmark (judgment of 24 May 1989, Series A no. 154, pp. 22-23, paras . 50-52).

In the Padovani v. Italy judgment of 26 February 1993 (Series A no. 257-B, pp. 20-21, paras . 27-28), in which the fear of lack of impartiality was based on the fact that "the pretore had before the trial questioned the applicant, taken measures restricting his liberty and summoned him to appear before him", the Court noted that the pretore "followed specific rules applicable to flagrante delicto cases". Similarly in the present case, for the sake of coherence with the case-law of the Court, when judging whether the applicant ’ s fear was justified, the Court should have noted, in addition, the specificity of the procedural rules applicable to juvenile offenders under the Dutch system of penal justice so extensively expounded in paragraphs 16 to 26 of this judgment.

[*]  The case is numbered 31/1992/376/450.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 267 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.