PARTLY DISSENTING OPINION OF JUDGE FOIGHEL

As follows from paragraphs 56-61, there is no indication that the applicant was not treated with fairness when his case was determined by the Industrial Appeals Tribunal. The applicant ’ s main complaint is that the mere existence of section 74 of the 1954 Act, according to which the Government could block the consequences of the Tribunal ’ s decisions, impaired that Tribunal ’ s independence.

I agree with the majority (paragraph 47) "that there is nothing in the information at [the Court ’ s] disposal to indicate that the mere existence of the Crown ’ s powers under section 74 had any influence on the way the Tribunal handled and decided the cases which came before it". Taking into consideration, furthermore, that the power stemming from section 74 was never used by the Government and that as from 1 January 1994 that power has been abolished, I come to the conclusion that the applicant is not a "victim" and his rights under Article 6 (art. 6) of the Convention have not been affected.

This makes it unnecessary for me to discuss the theoretical question whether a tribunal loses its independence if it cannot in all cases control the execution of its judgment.

I find no violation of Article 6 (art. 6) in this case.

PARTLY DISSENTING OPINION OF JUDGE MIFSUD BONNICI

1.   The majority has found that the adjudicating organ set up by the 1954 Act could not be considered a "tribunal" because section 74 of that constituting law granted the possibility of an intervention by the executive whenever the judgment delivered by the Industrial Appeals Tribunal was considered, in whole or in part, contrary to the general interest. The judgment of the Court holds that, because of the presence of section 74, this adjudicating organ does not qualify as a "tribunal" within the meaning of Article 6 para . 1 (art. 6-1) of the Convention and accordingly the applicant ’ s civil rights and obligations were not determined by a tribunal.

2.   My first difficulty arises from the consideration that the reasons adduced are not, in my opinion, of a conclusive nature. I cannot, of course, but agree that the faculty reserved for the executive is highly objectionable, but it does not follow that because of this the adjudicating organ is therefore not a tribunal. "Determination of rights and obligations" has the same meaning as "definition of rights and obligations", and accordingly this element appears to be present. The element of "effectiveness" is of greater weight, and I would be inclined to consider it as an element of disqualification if the circumstances of law and fact concur.

3.   In the present case the relevant circumstances did not authorise this disqualification:

(a) the Executive ’ s faculty to intervene has never been used since it was created in 1954, and could not be exercised in this case because the judgment was against the applicant;

(b) the Court rightly found that it is by no means clear that the outcome of the case would have been favourable to the applicant if the adjudicating organ had been a tribunal, in accordance with the Convention, and therefore his claim for pecuniary damage was rejected;

(c) section 74 of the Act was abrogated on 1 January 1994.

4.   It seems to me that, in these circumstances, the "in abstracto " principle had to be applied. In the Hauschildt v. Denmark judgment of 24 May 1989 (Series A no. 154, p. 21, para . 45) this Court had said:

"The Court ’ s task is not to review the relevant law and practice in abstracto , but to determine whether the manner in which they were applied to or affected Mr Hauschildt gave rise to a violation of Article 6 para . 1 (art. 6-1)."

This constitutes my second and conclusive difficulty.

5.   The presence of section 74 in the Act, which brought about the finding of a violation by the majority, did not, in reality, affect the applicant in any way, and he in effect did not qualify as a victim of a fundamental right violation.

6.   In my opinion therefore, in the absence of a victim and without an in concreto element, I cannot agree with the delivery of a judgment which, practically, condemns a section of law which:

(a) never prejudicially affected anybody and moreover,

(b) is already inexistent on the date of that judgment.

7.   In view of the fact that, in my opinion, the applicant was not a victim, I think that nothing is due to him under Article 50 (art. 50) of the Convention.

[*]  Note by the Registrar.  The case is numbered 9/1993/404/482.  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.

[*]  Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 288 of Series A of the Publications of the Court), but a copy of the Commission's report is available from the registry.

[*]  Note by the Registrar.  As a derogation from the usual practice (Rules 26 and 27 par. 5 of the Rules of Court), the French text was not available until June 1994; but it too is authentic.

[1] See the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 18, para . 33.

[2] See the Modinos v. Cyprus judgment of 22 April 1993, Series A no. 259, p. 11, para . 20.

[3] See my concurring opinion in the Fey v. Austria case, judgment of 24 February 1993, Series A no. 255-A, p. 16, para . 1.

[4] See paragraphs 46 and 47 of the Court's judgment.

[5] See, as the most recent authority, the Salabiaku v. France judgment of 7 October 1988, Series A no. 141-A, p. 16, par. 28.  It may be deduced from the Håkansson and Sturesson v. Sweden judgment of 21 February 1990, Series A no. 171-A, pp. 16-17, paras . 45-50, that the Court is prepared to examine alleged violations of the principle of the rule of law.

[6] See paragraph 32 of the Court's judgment.

[7] In fairness to the Netherlands legislature of 1954, it should be observed that it was quite unfamiliar with the idea that administrative proceedings might well concern "civil rights"!

[8] Compare Article 6:168 para . 1 of the Netherlands ' new Civil Code.

[9] As the Court said in its Klass and Others v. Germany judgment (see note (1) above), pp. 25-26, para . 55:  "The rule of law implies, inter alia, that an interference by the executive authorities with an individual's rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure."

[10] Giving the "final say" to the executive was symptomatic of the attitude which also was at the root of the "appeal to the Crown" that the Court condemned in its Benthem v. the Netherlands judgment of 23 October 1983, Series A no. 97.  But see note (7) above.

[11] For a synopsis of the critical comments of learned writers at that time, see A.J. Haakman , Rechtspraak Bedrijfsorganisatie (Samson, Alphen aan den Rijn, 1957), paragraph 174 (pp. 145-46).

[12] Thus the leader of the Liberals, Mr Oud , Handelingen der Tweede Kamer , Zitting 1953-1954, p. 2423.

[13] See, for instance, Oud , Handelingen der Tweede Kamer , Zitting 1953-1954, pp. 2419 and 2424, and Kikkert , ibid., p. 2434.

[14] Lemaire , Handelingen der Tweede Kamer , Zitting 1953-1954, p. 2435. It might be argued that ideas like these were at the root of the Court's extensive interpretation of the field of application of Article 6 (art. 6) of the Convention.

[15] Lemaire , ibid., p. 2436.

[16] However, E.A. Alkema , Nederlands Juristenblad 1980, p. 196, defended section 74 as compatible with Article 6 (art. 6); in his annotation to the Benthem judgment ( Nederlandse Jurisprudentie 1986, no. 102) he maintained that opinion.

[17] See inter alia: W. Konijnenbelt , De Gemeentestem , p. 355; A.W. Heringa , NJCM-Bulletin 1985, pp. 691 et seq.; E.M.A. Hirsch Ballin , Administratiefrechtelijke Beslissingen 1986, no. 1; I. Sewandono , Nederlands Juristenblad 1986, pp. 465 et seq.; R.J.G. Widdershoven , Gespecialiseerde rechtsgangen in het administratief recht ( Tjeenk Willink , Zwolle, 1989), pp. 128-29.  See also Ernst Holthöfer , Beiträge zur Justizgeschichte der Niederlande , Belgiens und Luxemburgs im 19. und 20. Jahrhundert ( Vittorio Klostermann , Frankfurt am Main, 1993), p. 47 (" auffallendes rechtsstaatliches Defizit ").

[18] F.H. van der Burg and G.J.M. Cartigny , Rechtsbescherming tegen de Overheid (3rd edition, Ars Aequi Libri , Nijmegen , 1983), p. 79.

[19] A.Q.C. Tak and J.B.J.M. ten Berge, Nederlands Administratief Procesrecht ( Tjeenk Willink , Zwolle, 1983), II. para . 1560 (p. 245).

[20] E.A.M. Stroink , Administratieve rechtspraak en rechterlijke macht 1985, p. 9.

[21] Preadvies voor de Nederlandse Juristenvereniging , Handelingen van de Nederlandse Juristenvereniging 1983, I.2, pp. 119 et seq.

[22] See the Court's judgment, paragraph 48 in fine.

[23] In this context I note that commentators on the Industrial Appeals Act always point out that had the Crown ever made use of its powers under section 74, the individual concerned could have had its decision reviewed by the civil courts.  In my opinion, it would have been a persuasive argument for the Government to draw the Court's attention to this remedy and to plead that, in view of the disuse to which the Minister had referred officially, the civil courts would certainly have set aside the Crown's decision under section 74 as being contrary to general principles of good governance, in particular the principle of legal certainty and the principle that legitimate expectations must be fulfilled.  However, the Government did not use this argument.

[24] See the Klass and Others v. Germany judgment (see note (1) above), p. 18, para . 33.

[25] See my dissenting opinion in the Cossey v. the United Kingdom case, judgment of 27 September 1990, Series A no. 184, p. 26, para . 3.4.

[26] See the references in paragraph 45 of the Court's judgment.

[27] See paragraphs 32-36 of the Court's judgment.

[28] It follows that it is open to doubt whether even after the present judgment the Netherlands civil courts will feel bound to assume jurisdiction under the principles of Netherlands law referred to in the Oerlemans v. the Netherlands judgment of 27 November 1991, Series A no. 219, p. 22, para . 57.  As the above analysis makes clear, it is at least arguable that the Court's finding that the Industrial Appeals Tribunal does not meet all the requirements implied in the notion of "tribunal" within the meaning of Article 6 (art. 6) does not necessarily imply that the Industrial Appeals Tribunal did "not afford sufficient guarantees as to a fair procedure" within the meaning of those principles of Netherlands law.

[29] See, as the most recent authorities, the Open Door and Dublin Well Woman v. Ireland judgment of 29 October 1992, Series A no. 246, p. 22, para . 44, and the Informationsverein Lentia and Others v. Austria judgment of 24 November 1993, Series A no. 276, p. 13, para . 27.