DISSENTING OPINION OF

JUDGE TSATSA-NIKOLOVSKA JOINED BY JUDGES STRÁŽNICKÁ AND UGREKHELIDZE

1. I regret that I am unable to share the opinion of the majority that there has been no violation of Article 6 § 1 of the Convention in this case.

2. The requirement under Article 6 § 1 that tribunals must be independent and impartial is directly linked to the concept of separation of powers, which notion lies at the very heart of this case. Admittedly this principle has never been recognised explicitly as forming part of Article 6, and indeed Article 6 does not require Contracting States to adopt or endorse any particular constitutional theory ( see McGonnell v. the United Kingdom , no. 28488/95, § 51, ECHR 2000-II). It is nonetheless inseparable from the notion of judicial independence. This can be illustrated with examples from the Court ’ s case-law, such as McGonnell ( cited above, § 55) , Stran Greek Refineries and Stratis Andreadis v. Greece (judgment of 9 December 1994, Series A no. 301-B, p. 82, § 49), as regards independence from the legislature , and T. v. the United Kingdom ([GC], no. 24724/94, § 113, 16 December 1999), as regards independence from the executive.

3. The fact that advisory and judicial tasks are exercised within one State organ, such as the Netherlands Council of State, is in my opinion not necessarily incompatible with Article 6, in particular where, as in the Netherlands Council of State, the exercise of judicial tasks is entrusted to a separate division. However, where such an organisational structure nevertheless allows these two functions to be exercised by the same individuals in respect of one and the same law, it is conceivable and, in my opinion, quite understandable that parties to judicial proceedings before the Council of State should have serious misgivings as to the impartiality, from an objective perspective, of a bench composed of such persons.

4. As reiterated by the Court in the present case, “appearances” are in this respect of relevance as “what is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings” (see paragraph 191 of the judgment ). This in my view applies all the more where, as in the present case, new legislation entails restrictions on the scope of judicial control by reducing the number of tribunals competent to hear appeals in a particular case to only one.

5. This does not of course imply that fears perceived by a party must be accepted as decisive. In this respect, it is standing case-law that the opinion of a party to proceedings is important but not decisive. The crucial test remains whether a party ’ s doubts as to the impartiality can be regarded as objectively justified (see, as a recent authority, Werner v. Poland , no. 26760/95, § 39, 15 November 2001 , with further references).

6. Since the complaint that the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal for the purposes of Article 6 § 1 is directly based on the organisational structure of the Netherlands Council of State allowing dual assignments, I find it regrettable that the Court has only examined this complaint in light of the specific circumstances of the applicants ’ case without clearly making a finding as to the question whether, as a matter of principle, such a structure is compatible with the requirements for tribunals under Article 6.

7. In my opinion, the exercise of both advisory and judicial functions by the same persons is, as a matter of principle, incompatible with the requirements of Article 6 regardless of the question how remote or close the connection is between these functions. A strict and visible separation between the legislative and executive authorities on the one hand and the judicial authorities of the State on the other is indispensable for securing the independence and impartiality of judges and thus the confidence of the general public in its judicial system. Compromise in this area cannot but undermine this confidence.

8. The facts in the present case illustrate this. It is clear from the facts that the plans for the construction of the Betuweroute railway were contested as from the start and that the executive sought a way to simplify and shorten the planning procedures for this and other major transport infrastructure projects, which eventually resulted in the Transport Infrastructure Planning Act. In view of the explicit references to the Betuweroute railway in the two advisory opinions given by the o rdinary c ouncillors of the Netherlands Council of State on the Transport Infrastructure Planning Bill, it is obvious that the impact of this b ill on the realisation of this project was taken into consideration by the o rdinary c ouncillors when they exercised the advisory functions of the Council of State.

9. When considering this element in conjunction with the circles from which o rdinary c ouncillors are mainly selected (see paragraph 128 of the judgment ), I quite understand that the applicants in the present case, whose appeals were determined by a bench of the Administrative Jurisdiction Division entirely composed of o rdinary c ouncillors, had doubts as to the impartiality of this judicial body and consider that these doubts were objectively justified. Consequently, there has in my opinion been a violation of Article 6 § 1 of the Convention.

10. It would have been far preferable, and quite possible even within the present organisational structure of the Council of State, for the bench that dealt with these appeals to have been composed of e xtraordinary c ouncillors. Had this been the case, there would have been no room for doubts as, unlike the o rdinary c ouncillors, the e xtraordinary c ouncillors have only one function – namely, the administration of justice. An even better possibility to remove all doubts would of course be to incorporate administrative - law proceedings entirely in the regular judicial system by establishing either a separate administrative - law division at the level of the Netherlands Supreme Court or a separate administrative judicial authority as a final appeal body.