CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 octobre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 13924/88                       by Erik Hans NORTIER                       against the Netherlands             The European Commission of Human Rights sitting in private on 9 October 1991, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS              Mrs. G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ RUIZ              Mrs. J. LIDDY              MM.   J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER                Mr. J. RAYMOND, Deputy Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 28 April 1988 by Erik Hans NORTIER against the Netherlands and registered on 9 June 1988 under file No. 13924/88;          Having regard to;        -   the observations submitted by the respondent Government on 19 April 1990 and the observations in reply submitted by the applicant on 13 June 1990;      -   the submissions of the parties at the hearing on 9 October         1991;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows: THE FACTS           The applicant is a Dutch national, born in 1972.   He is presently staying in an Institution for Special Treatment (Inrichting voor Buitengewone Behandeling), "de Overberg", in Amerongen, the Netherlands.    He has no professional occupation.   Before the Commission he is represented by Mr. J. Sap, a lawyer practising in Middelburg, the Netherlands.   A.       PARTICULAR CIRCUMSTANCES OF THE CASE           The facts as submitted by the parties may be summarised as follows.           The applicant had already been confronted with the Juvenile Judge, Mr. M., before the facts of the present case took place.   At a certain period of time the applicant was placed under the supervision of the Child Welfare Council (Raad voor de Kinderbescherming) and was accomodated outside his own family (uithuisplaatsing).   Around 1985 or 1986 the applicant was convicted by Mr. M. of an offence similar to the one in the present case.           On 30 September 1987 the applicant was arrested on suspicion of attempted rape.   During his interrogation at the police station, he confessed having committed the offence he was suspected of.   It appears that from that moment the applicant chose to remain silent until the end of the trial.   On 2 October the Public Prosecutor (Officier van Justitie) requested the Juvenile Judge (kinderrechter) of Middelburg, who also acts as the investigating judge (rechter-commissaris) on the basis of Article 494 of the Code of Penal Procedure (Wetboek van Strafvordering), to detain the applicant on remand and to institute preliminary judicial investigations (gerechtelijk vooronderzoek).   On the same day the Juvenile Judge granted both requests.   Accordingly, Mr. M. ordered the applicant's detention on remand which he prolonged on several occasions during the preliminary investigations.   In that period, he also ordered a personality examination (persoonlijkheidsonderzoek) of the applicant by behavioural experts. The applicant's detention on remand lasted about 100 days.           As the defence feared that the applicant's confession at the police station had been obtained under duress, it had the policemen involved called as witnesses before the investigating judge.   However, Mr. M. entrusted this task to another Juvenile Judge, Mr. W., according to the current practice in the Netherlands (see Relevant domestic law and practice).   These witnesses were not heard again during the trial.           It is not clearly established whether the "three way consultation" on the question whether the applicant's prosecution was called for took place (see Relevant domestic law and practice).           However, on 17 December 1987 the applicant was summoned to appear in court on 6 January 1988 before the same Juvenile Judge, Mr. M.   By letter of 5 January 1988 the applicant challenged the Juvenile Judge on the ground that he was not impartial, as required by Article 6 para. 1 of the Convention, because he had also taken pre-trial decisions concerning the applicant's detention.   On 6 January 1988 the Juvenile Judge declared the challenge ill-founded.              The applicant appealed to the Regional Court (Arrondissementsrechtbank) of Middelburg which, on 22 January 1988, confirmed the decision of the Juvenile Judge and equally rejected the challenge.   It held, inter alia, that the Juvenile Judge could be considered as an impartial judge because of the special circumstances of the penal procedure for juveniles.   It explained moreover that this procedure has an important pedagogical character, whilst it is also important that the respective measures should be as coherent as possible.   No appeal was possible against the decision of the Regional Court (Article 518 para. 4 of the Code of Penal Procedure).           On 25 January 1988 the applicant was convicted and sentenced. He was placed in "de Overberg", an Institution for Special Treatment for young offenders.           In 1990 Mr. M. prolonged the applicant's confinement in the Institution on the basis of Article 77r para. 3 of the Penal Code (Wetboek van Strafrecht).   This measure will automatically expire when the applicant will reach the age of 21 (Article 77r para. 1 of the Penal Code), i.e. in the present case on 13 May 1993, unless he is released in the meantime.     B.       RELEVANT DOMESTIC LAW AND PRACTICE           Under Dutch juvenile penal law (including procedural law), one single judge of a Regional Court (Arrondissementsrechtbank) acts as Juvenile Judge.   At the same time, according to Article 494 of the Code of Penal Procedure, he acts as an investigating judge.   Article 496 entrusts him furthermore with the preliminary investigations and thus empowers him to decide on the detention on remand of a minor and on an eventual prolongation of this detention.   However, following the De Cubber judgment, the Regional Courts reached an informal agreement that a Juvenile Judge confronted with a minor denying all charges will entrust another Juvenile Judge with hearing witnesses during the preliminary investigations.   In principle the Juvenile Judge in charge of the case will however retain the competence to order the detention on remand and its possible prolongation(s) or to release the accused.           Article 67 para. 3 of the Code of Penal Procedure, which applies in both adult and juvenile penal law, stipulates that detention on remand can only be ordered when it appears from the facts or the circumstances that there are "serious objections" (ernstige bezwaren) against the suspect.   In this respect, the Memorandum in Reply (Memorie van Antwoord) accompanying a Bill for amendment of the statutory provisions governing detention on remand (Stb. 1973, 509) states that there are "serious objections" when for the investigating judge "it is prima facie likely (aannemelijk) that the suspect has committed the offence for which detention on remand is demanded."           The decision to prosecute a minor is effected on the basis of a special procedure.   Article 493 of the Code of Penal Procedure stipulates that the Public Prosecutor who wishes to drop charges conditionally resp. unconditionally against a minor must first consult resp. obtain the authorisation from the Juvenile Judge.   However, if the Public Prosecutor wishes to proceed with the prosecution, the Child Welfare Council must provide him with information concerning the minor's personality and his living conditions and it must also be given the opportunity to give advice on the desirability of prosecution according to Article 495 of the Code of Penal Procedure.           In order to implement these provisions effectively, it is now practice that the Juvenile Judge, the Public Prosecutor and the Child Welfare Council meet and decide on the prosecution of the minor concerned.   This so called "three way consultation" (driehoeksoverleg) takes place without the presence of the minor or his representative and without them being informed about it.           At the trial stage the Juvenile Judge also acts in the capacity of the Judges's Council Chambers (Raadkamer).   In this capacity, he may have to decide on an appeal against a detention he has ordered himself.           These special provisions, except Article 67 of the Code of Penal Procedure, do not apply in adult penal law.   The reason for this difference is to be found, according to the Dutch legislator, in pedagogical considerations and in the need of coherence and optimal co-ordination in cases involving minors.           On 21 September 1989 a Bill was tabled to amend the juvenile penal law in order to bring it more into line with adult penal law. It is proposed, inter alia, that the Juvenile Judge will no longer be acting as an investigating judge pursuant to the De Cubber judgment, but that he should nevertheless retain the competence to order detention on remand, which competence the Dutch legislator considers to be in accordance with the Hauschildt judgment.     COMPLAINTS           The applicant complains that he did not receive a hearing before an impartial tribunal, because the Juvenile Judge who decided in his case had also acted as an investigating judge during the preliminary judicial investigations in which he took several decisions regarding the prolongation of the applicant's detention on remand.   He invokes Article 6 para. 1 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 28 April 1988 and registered on 9 June 1988.           On 5 February 1990 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application with regard to the issue under Article 6 para. 1 of the Convention concerning a fair hearing before an impartial tribunal.           The Government's observations were received by letter dated 19 April 1990 and the applicant's observations by letter dated 13 June 1990.           On 27 May 1991 the Commission decided to invite the parties to a hearing on the admissibility and merits of the complaint under Article 6 para. 1 of the Convention that the Juvenile Judge is not an impartial tribunal.           The hearing took place on 9 October 1991.           The parties were represented as follows:           For the Government:        -   Mr. K. de VEY MESTDAGH of the Ministry of         Foreign Affairs, Agent        -   Mr. A. PATIJN, Legislative Counsellor,         of the Ministry of Justice, Adviser           For the applicant:        -   Mr. J. SAP, lawyer practising at Middelburg, Counsel     THE LAW           The applicant complains that he did not have a hearing before an impartial tribunal, since the Juvenile Judge who dealt with his case had also acted as an investigating judge during the preliminary investigations in which he took several decisions regarding the prolongation of the applicant's detention on remand.   In this respect he relies on Article 6 para. 1 (Art. 6-1) of the Convention, which reads insofar as relevant:   "1.    In the determination of ... any criminal charge against him, everyone is entitled to a .... hearing ... by an ... impartial tribunal ..."           The Commission notes that the parties agree on the applicability of Article 6 (Art. 6).   The Commission considers in this respect that the present case involves the determination of a criminal charge having regard to the nature of the offence and the measure imposed on the applicant.           The applicant argues that since different functions have been reunited in the Juvenile Judge, he cannot be expected to be objective when determining the criminal charge.   Moreover, as some of the procedural guarantees of adult penal law are not available to a minor (e.g. file an objection against the summons), his procedural position is made subordinate to the pedagogical character of juvenile penal law.   It follows that the minor has the impression that his case has already been decided at the pre-trial stage.           The Government submit that the deviations from adult penal law are justified by the paramount importance of the educational aspect of juvenile penal law and the importance of ensuring, in the interests of the child, that the various decisions taken are optimally co-ordinated. This is achieved by means of one single judge who is thus enabled to come to know the suspect's personality as well as all the details of the case.         The Government furthermore submit that the De Cubber judgment is of no relevance to the present case since it concerns the investigating judge in Belgium who has different functions and powers than the Dutch Juvenile Judge.           The Government refer to the Hauschildt judgment in which it has been decided that the mere fact that a judge has participated in a trial after having taken decisions in the pre-trial period of the same case does not in itself support the conclusion that he is not impartial.   As there are no exceptional circumstances allowing a different conclusion, the Government is of the opinion that the applicant did have a fair hearing by an impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           The Government finally submit that in the present case the Juvenile Judge concerned could anyhow not be accused of lack of impartiality, since he had witnesses heard during the preliminary judicial investigations by another Juvenile Judge and therefore he had taken no effective part in the investigation of the facts.           The Commission, having regard to the parties' submissions under Article 6 (Art. 6) of the Convention concerning the alleged partiality of the Juvenile Judge, considers that this complaint raises complex issues of fact and law which can only be resolved by an examination of the merits. This application cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for inadmissibility have been established.           For these reasons, the Commission, by a majority           DECLARES THE APPLICATION ADMISSIBLE         without prejudging the merits of the case.   Deputy Secretary to the Commission       President of the Commission                  (J. RAYMOND)                         (C.A. NØRGAARD)