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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> NORTIER v. THE NETHERLANDS - 13924/88 [1993] ECHR 34 (24 August 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/34.html
Cite as: 17 EHRR 273, [1993] ECHR 34, (1994) 17 EHRR 273
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In the case of Nortier v. the Netherlands*,
The European Court of Human Rights, sitting, in
accordance with Article 43 (art. 43) of the Convention for the
Protection of Human Rights and Fundamental Freedoms ("the
Convention")** and the relevant provisions of the Rules of Court,
as a Chamber composed of the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr B. Walsh,
Mr J. De Meyer,
Mr N. Valticos,
Mr S.K. Martens,
Mr I. Foighel,
Mr J.M. Morenilla,
Sir John Freeland,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 February
and 23 June 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* 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.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on
11 September 1992, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 13924/88)
against the Kingdom of the Netherlands lodged with the Commission
under Article 25 (art. 25) on 28 April 1988 by a Netherlands
national, Mr Erik Hans Nortier.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby the Netherlands
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 para. 1
(art. 6-1) of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 26 September 1992, in the
presence of the Registrar, the President drew by lot the names
of the other seven members, namely Mr Thór Vilhjálmsson,
Mr B. Walsh, Mr J. De Meyer, Mr N. Valticos, Mr I. Foighel,
Mr J.M. Morenilla and Sir John Freeland (Article 43 in fine and
Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Netherlands Government ("the Government"), the Delegate
of the Commission and the applicant's lawyer on the organisation
of the proceedings (Rules 37 para. 1 and 38). Pursuant to the
order made in consequence, the Registrar received the applicant's
memorial on 14 December 1992. By letter of 30 November 1992, the
Government indicated that they would not be filing any memorial.
On 6 January 1993 the Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
5. On 11 January 1993 the Commission produced certain
documents which the Registrar had sought from it at the
Government's request.
6. In accordance with the decision of the President, who had
given the applicant's lawyer leave to use the Dutch language
(Rule 27 para. 3), the hearing took place in public in the Human
Rights Building, Strasbourg, on 23 February 1993. The Court had
held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr K. de Vey Mestdagh, Ministry of Foreign Affairs, Agent,
Mr A. Patijn, Ministry of Justice, Adviser;
(b) for the Commission
Mr M.P. Pellonpää, Delegate;
(c) for the applicant
Mr J. Sap, advocaat en procureur, Counsel.
The Court heard addresses by Mr de Vey Mestdagh for the
Government, Mr Pellonpää for the Commission and Mr Sap for the
applicant, as well as replies to a question put by the Court and
questions put by several of its members individually.
AS TO THE FACTS
I. The particular circumstances of the case
7. The applicant is a Netherlands national born on
13 May 1972. At the time of the events now under examination,
he was fifteen years old.
8. On 19 September 1987 the applicant was released from a
youth custody centre after serving a custodial sentence for rape.
Eleven days later, on 30 September 1987, the applicant
was again arrested on suspicion of attempted rape. Following his
arrest, he admitted the crime to the police.
9. On 2 October 1987 the applicant was brought before Judge
Meulenbroek, juvenile judge (kinderrechter) at the Middelburg
Regional Court (arrondissementsrechtbank), who sat in the
capacity of investigating judge (rechter-commissaris). The
applicant was assisted by his lawyer. The private association
which was the applicant's legal guardian was represented by two
social workers.
The applicant again confessed.
On an application by the Public Prosecutor (officier van
justitie), Juvenile Judge Meulenbroek ordered the applicant to
be placed in initial detention on remand (bewaring). He also
ordered a preliminary investigation (gerechtelijk vooronderzoek)
with a view to having a psychiatric report drawn up. Neither the
applicant nor his lawyer objected.
10. Again on an application by the Public Prosecutor,
Juvenile Judge Meulenbroek, sitting in the capacity of review
chamber (raadkamer), made an order for the applicant's extended
detention on remand (gevangenhouding) on 8 October 1987. He
prolonged this order twice on the occasion of periodic reviews,
on 10 November and 10 December 1987. At no time did either the
applicant or his lawyer raise any objection.
11. In the course of the preliminary investigation, the
applicant underwent a psychiatric examination. The resultant
psychiatric report recommended that, if the charge were to be
proven, the applicant should be sent to an institution for
psychiatric treatment (inrichting voor buitengewone behandeling),
pursuant to Article 77k of the Criminal Code (Wetboek van
Strafrecht), but not punished.
The defence, fearing that the applicant's initial
confession had been obtained under duress, requested that the two
police officers who had taken down his initial statement
following his arrest be questioned as witnesses. Juvenile Judge
Meulenbroek referred the matter to Judge Witziers, Vice-President
of the Middelburg Regional Court and substitute juvenile judge.
Judge Witziers questioned the two police officers on 22 and
23 December 1987. The results were such that the defence did not
ask for them to be heard again at the trial.
The preliminary investigation in the present case
consisted only of the questioning of the said witnesses and the
above-mentioned psychiatric examination.
12. The applicant received a summons in December 1987 to
appear before Juvenile Judge Meulenbroek on 6 January 1988 for
trial.
13. By letter of 5 January 1988, the day before the trial was
to take place, the applicant's lawyer challenged Juvenile
Judge Meulenbroek on the ground that he was not impartial, since
he had taken pre-trial decisions concerning the applicant's
detention on remand.
Juvenile Judge Meulenbroek rejected the challenge as
ill-founded on 6 January 1988.
14. The applicant appealed against this decision to the
Middelburg Regional Court, which rejected the challenge on
22 January 1988. In its decision the Regional Court considered
in detail the relevance of the judgment of the European Court in
the case of De Cubber v. Belgium (judgment of 26 October 1984,
Series A no. 86). The Regional Court was of the opinion that
there was a fundamental difference between the position of a
Belgian investigating judge and that of a Netherlands juvenile
judge, particularly as far as their independence was concerned.
It further held that the De Cubber judgment did not imply that
the performance of the functions of investigating judge and trial
judge in the same case constituted a breach of Article 6
para. 1 (art. 6-1) under all circumstances. Netherlands juvenile
criminal procedure provided for an exception to the rule of
general criminal procedure prohibiting the combination in a
single person of the functions of investigating judge and trial
judge (see paragraph 20 (a) below). As the juvenile judge had
rightly emphasised in his decision, the reason for this was to
be found in the pre-eminence of the educational aspect of
juvenile criminal law and the importance of optimally
co-ordinating the various decisions taken with regard to the
minor.
15. The applicant was eventually tried on 25 January 1988, by
Juvenile Judge Meulenbroek. He was assisted by his lawyer. One
of the social workers representing the private association which
was the applicant's legal guardian was also present and allowed
to speak.
Confirming his earlier statements, the applicant admitted
the charge, which was then held to be proven in the light of the
evidence. In accordance with the recommendation contained in the
psychiatric report (see paragraph 11 above), the applicant was
committed to an institution for the psychiatric treatment of
juvenile offenders pursuant to Article 77k of the Criminal Code.
He was reminded by the juvenile judge of the right to appeal, but
the applicant's lawyer, who alone could decide to do so (see
paragraph 22 below), did not file an appeal.
In March 1990 Juvenile Judge Meulenbroek carried out the
biennial review required by Article 77r of the Criminal Code to
determine whether or not it continued to be in the applicant's
interests for him to remain in the institution. Apparently
neither the applicant nor his lawyer raised any objection to the
prolongation of the measure. The applicant was released
unconditionally on 9 August 1991.
II. Relevant domestic law and practice
A. The legal structure of juvenile penal law and criminal
procedure
16. Since 1901 it has been the rule in the Netherlands not to
apply penal law and criminal procedure to juveniles in the same
way as to adults. Juvenile penal law and criminal procedure
provide for exceptions to the general law: that is, general penal
law and criminal procedure apply to the extent that they are not
expressly deviated from.
Juveniles cannot be prosecuted for acts committed before
the age of twelve (Article 77a of the Criminal Code).
Juvenile criminal procedure applies if the suspect has
not yet reached the age of eighteen when a prosecution against
him is commenced (Article 487 of the Code of Criminal Procedure
(Wetboek van Strafvordering)).
In principle, the same age-limit applies in juvenile
penal law (Article 77b of the Criminal Code). However, subject
to certain conditions, the Criminal Code makes it possible on the
one hand to apply general penal law to a suspect who at the time
of the offence was sixteen or seventeen years old (Article 77c,
ibid.), and on the other hand to apply juvenile penal law to a
suspect who at the time of the offence had reached the age of
eighteen but not yet that of twenty-one (Article 77d, ibid.).
17. Juvenile penal law is different from that applying to
adults only in that it has its own system of punishments
(straffen) and curative or protective measures (maatregelen)
designed to meet the specific aims of this branch of criminal law
which (in the words of the Explanatory Note to the Act of
9 November 1961 - see paragraph 18 below) "has primarily a
pedagogical purpose, the interests of the minor being borne in
mind at all times", and which, accordingly, seeks mainly to
protect and educate the juvenile concerned.
Punishments available under juvenile penal law are
placement in a youth custody centre (tuchtschool) for up to six
months, juvenile detention (arrest) for up to fourteen days, a
fine of up to five hundred guilders and a reprimand (berisping)
(Article 77g). The measures include, inter alia, judicial
supervision (ondertoezichtstelling) - which is in fact a
protective measure under civil law (Articles 1:245 et seq. of the
Civil Code (Burgerlijk Wetboek)) - and committal to an
institution for the psychiatric treatment of young offenders
(Article 77h). The latter is a curative measure applied only to
young persons with impaired mental development or suffering from
a serious mental disturbance (Article 77k).
18. Juvenile criminal procedure also seeks to protect and
educate, but here the differences from general criminal procedure
are considerable.
The underlying principle of juvenile criminal procedure
is that it
"should be simple and understandable for both the minors
concerned and their parents. Formalities which have some
purpose for adults but are practically devoid of purpose
in relation to minors should be omitted, whereas on the
other hand special requirements should ensure proper
treatment of juvenile cases". (Quoted from the
Explanatory Note to the Act of 9 November 1961, which Act
entered into force in 1965, by which juvenile criminal
procedure - introduced in 1901 and thoroughly reviewed in
1921 - was modernised)
It is by reason of this basic idea and of the need to
improve the protection of juveniles by creating links with the
protection of juveniles in civil law - in which the juvenile
judge is the central actor and is empowered to order various
protective measures - that the juvenile judge is the central
actor in juvenile criminal procedure also. Several advantages
are claimed for this system:
(a) it is conducive to the protection of the juvenile if the
juvenile judge is consulted beforehand on the subject of the
desirability of criminal prosecution, especially if he already
knows the minor concerned; this may be the case for example if
he has been involved in protective measures under civil law, such
as placing the minor under judicial supervision;
(b) a relationship of trust may develop between the juvenile
judge on the one hand and the minor and his or her parents or
guardian on the other owing to the fact that the minor and his
or her parents or guardian (who are summoned to appear at the
preliminary investigation stage and the trial and have the right
to speak) are dealt with by one and the same judge throughout the
proceedings, which moreover are held in private and in an
informal manner;
(c) in those cases in which the juvenile has made an
immediate confession - as usually happens when the suspect is a
minor - a plan may be developed at an early stage for the future
of the juvenile concerned, even during the preliminary
investigation;
(d) the juvenile judge is the most suitable person for the
purpose in view of his expert knowledge and his considerable
decision-making powers.
The close link between protective measures under civil
law and criminal prosecution may be seen in Article 14a of the
Code of Criminal Procedure; if there are proceedings relating to
the protection of the minor under civil law (such as a request
to have him or her placed under judicial supervision or aimed at
divesting the parents of their parental rights) running parallel
to the criminal prosecution, then under this provision the
prosecution may be suspended until a final decision has been
taken in those parallel proceedings.
19. The central position of the juvenile judge appears
clearly from the fact that the juvenile judge is involved in the
decision whether or not to prosecute. According to Article 493
of the Code of Criminal Procedure, if the Public Prosecutor
wishes to drop charges against a minor unconditionally, he must
first consult the juvenile judge; if he wishes to do so
conditionally, he requires the juvenile judge's consent. If
charges are not dropped immediately, the Public Prosecutor must
obtain from the child welfare authorities information on the
minor's personality and living conditions; they may then comment
on the desirability of prosecution (ibid., Article 495).
In order to implement these provisions effectively, it
has been the practice for the juvenile judge, the Public
Prosecutor and the representative of the child welfare
authorities to meet on a regular basis to discuss case files
together. This so-called "three-way consultation"
(driehoeksoverleg) took place in the absence of the minor or his
legal representative or counsel, and without their being informed
about it.
20. The juvenile judge is also the central figure in the
investigation phase.
(a) This is clear in the first place from Article 494 of the
Code of Criminal Procedure, which stipulates that the juvenile
judge is to act as investigating judge, and from Article 496,
which reads:
"1. The juvenile judge shall be responsible for the
preliminary investigation, unless the case involves one
or more suspects who have reached the age of eighteen at
the moment the prosecution against them is commenced and
the case cannot, in the initial opinion of the Public
Prosecutor and the juvenile judge, be divided.
2. In cases where the juvenile judge orders a preliminary
investigation, he shall be regarded as investigating
judge responsible for the preliminary investigation."
This means that the juvenile judge has all the decision-
making powers of an investigating judge and that he is in charge
of the preliminary investigation.
A preliminary investigation may involve such matters as
obtaining expert opinions and technical evidence, questioning
witnesses, mail and telephone interceptions, searches and visits
to the scene of the crime, as well as interrogation of the
suspect.
According to Article 268 of the Code of Criminal
Procedure, a judge who has undertaken any investigation in the
case as an investigating judge is debarred from taking part in
the trial; however, by virtue of Article 500d, this provision
does not apply in juvenile procedure.
(b) It is also the juvenile judge who takes all decisions
concerning detention on remand. In adult criminal procedure,
initial detention on remand (for a maximum of six days, which may
be prolonged once for a further six days) is ordered by the
investigating judge and extended detention on remand (for a
maximum of thirty days, which may be prolonged twice for further
periods of thirty days) by the review chamber of the Regional
Court. In juvenile criminal procedure, the juvenile judge
exercises both these powers; he not only officiates as
investigating judge but also, pursuant to Article 488, as review
chamber. One consequence of this is that in cases where in adult
criminal procedure an appeal against decisions of the
investigating judge lies to the review chamber, and to the extent
that such appeals are allowed in juvenile procedure, the juvenile
judge may be called upon to hear appeals against some of his own
decisions.
21. The central position of the juvenile judge further
appears from the fact that it is, as a rule, the juvenile judge
himself who, sitting as a single judge, conducts the trial and
gives judgment (Article 500 para. 1). It is for the juvenile
judge to decide whether or not the case is one that should be
referred to a chamber consisting of the juvenile judge and two
other judges (Article 500 para. 2, in conjunction with
Article 500e).
The juvenile judge is also involved to a significant
degree with the execution of the punishment or measure imposed.
For example, a sentence to the punishment of juvenile detention
is not executed until the judge who imposed it has been consulted
(Article 505) and the punishment of reprimand is administered
personally by the judge who imposed it (Article 506).
22. If the juvenile concerned has not yet reached the age of
sixteen, then it is his lawyer who enjoys all the procedural
rights afforded the suspect by the Code of Criminal Procedure)
instead of the juvenile himself (with the exception of the rights
which the suspect may avail himself of during the hearing)
(Article 504 para. 1). However, the juvenile's legal guardian
(wettelijke vertegenwoordiger) may file a note of protest to the
president of the court with jurisdiction as to both facts and law
before which the juvenile is being prosecuted or was last
prosecuted if he disapproves of the lawyer's use of these rights
or his failure to make use of them (Article 504 para. 2).
Pursuant to Article 56 of the Judiciary (Organisation)
Act (Wet op de Rechterlijke Organisatie) an appeal against the
judgment of the juvenile judge lies to the Court of Appeal
(gerechtshof). Such an appeal involves a complete re-examination
of the case by three judges (Article 422 of the Code of Criminal
Procedure).
B. Criticism of the existing legal structure and the effects
thereof on its application in practice
23. For a long time there has been criticism of the system
described above. For this reason, a committee for the revision
of juvenile criminal law was set up in 1979 and it published a
report in 1982. Criticism of the existing system in legal
writing increased as a result of this report and of the judgments
of the European Court in the cases of De Cubber v. Belgium
(judgment of 26 October 1984, Series A no. 86) and Hauschildt v.
Denmark (judgment of 24 May 1989, Series A no. 154). However,
opinion is still divided on the question to what extent it is
necessary to modify the present system.
These factors have resulted in informal changes in the
way the system operates (see paragraph 24 below) and a proposal
for a change of the law (see paragraph 25 below). In this
connection, it is also useful to mention a development in
Netherlands case-law (see paragraph 26 below).
24. In the first place, there is now an informal arrangement
under which the juvenile judge, when confronted with a suspect
who denies charges, entrusts the interrogation of witnesses to
another juvenile judge and to that extent does not act as
investigating judge. However, even in such cases he continues
to take the decisions on detention on remand.
Secondly, "three-way consultations" (see paragraph 19
above) have been discontinued at most Regional Courts.
25. A proposal for an amendment of the law was sent to
Parliament in 1989; the written procedure has not yet been
completed. It essentially follows the suggestions of the
committee referred to in paragraph 23 above, the gist of which
is to remove from the juvenile judge the functions of
investigating judge and review chamber. However, the proposal
differs from those suggestions in that the juvenile judge is to
retain the power to order initial detention on remand.
26. This last feature corresponds to the case-law of the
Supreme Court (Hoge Raad), particularly its judgments of
15 March 1988, NJ (Nederlandse Jurisprudentie) 1988, no. 847 and
13 November 1990, NJ 1991, no. 219. In the first-mentioned
judgment the Supreme Court construed Article 268 of the Code of
Criminal Procedure (see paragraph 20 above) as meaning that an
investigating judge who had not carried out any preliminary
investigations but had given the order for initial detention on
remand was not debarred from sitting at the trial. This was not
held to jeopardise his independence. The judgment of 1990
concerned a juvenile judge who sat at the trial pursuant to
Article 500e (see paragraph 21 above) after he had instituted a
preliminary investigation in the case as investigating judge.
The Supreme Court held that as a result one of the judges taking
part in the trial lacked impartiality as required by Article 6
(art. 6) of the Convention. According to the Supreme Court, such
would always be the case if
"one of those judges [had] previously had dealings in the
same case aimed at the collection of evidence, either as
an investigating judge in the course of the preliminary
investigation or in another way during the investigations
preparing the case".
C. Provisions relating to detention on remand
27. As far as the preconditions for initial and extended
detention on remand are concerned, juvenile criminal procedure
does not differ from adult criminal procedure. They are to be
found in Articles 67 and 67a of the Code of Criminal Procedure.
Article 67 of the Code of Criminal Procedure enumerates
the cases in which detention on remand (voorlopige hechtenis) may
be ordered; for present purposes, these may be summarised as
those cases in which a person is suspected of a relatively
serious crime (paragraphs 1 and 2). In addition, paragraph 3 of
Article 67 provides as follows:
"The preceding paragraphs of this Article shall only be
applied if it appears from certain facts or circumstances
that there are serious indications (ernstige bezwaren)
against the suspect."
In this connection, the Memorandum in Reply (Memorie van
Antwoord) accompanying a proposal for amendment of the statutory
provisions governing detention on remand states that there are
such serious indications when in the opinion of the investigating
judge
"it is prima facie likely (aannemelijk) that the suspect
has committed the offence in relation to which detention
on remand is applied for". (see Bijlagen Handelingen
Tweede Kamer - Appendices to the Records of the Lower
Chamber of Parliament -1972-9994-No. 8, page 10)
Article 67a enumerates the reasons for which detention on
remand may be ordered. These may be summarised as the serious
risk of the suspect's absconding; the fact that the crime, being
of a particularly grave nature, has created considerable social
unrest; the serious risk that the suspect will commit more crimes
of a grave nature and the need to secure evidence.
However, paragraph 3 of Article 67a provides:
"An order for detention on remand shall not be made if
there exists a distinct possibility that in the event of
conviction no unconditional prison sentence or measure
involving loss of liberty will be imposed on the suspect,
or that implementation of the order will cause [the
suspect] to be deprived of his liberty for longer than
the duration of the sentence or the measure."
PROCEEDINGS BEFORE THE COMMISSION
28. Mr Nortier applied to the Commission on 28 April 1988.
He relied on Article 6 para. 1 (art. 6-1) of the Convention,
complaining that he had not received a hearing before an
impartial tribunal because the juvenile judge who tried him had
also acted as investigating judge during the preliminary
investigation and, moreover, had taken several decisions
regarding the prolongation of his detention on remand.
29. The Commission declared the application (no. 13924/88)
admissible on 9 October 1991. In its report of 9 July 1992
(Article 31) (art. 31), it expressed the opinion, by twelve votes
to three, that there had been no violation of Article 6 para. 1
(art. 6-1).
The full text of the Commission's opinion and of the two
separate opinions contained in the report is reproduced as an
annex to this judgment*.
_______________
* 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.
_______________
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
30. The applicant alleged that he had not received a hearing
before an "impartial tribunal" within the meaning of
Article 6 para. 1 (art. 6-1), which states that:
"In the determination of ... any criminal charge against
him, everyone is entitled to a ... hearing ... by an ...
impartial tribunal ..."
31. The applicant stressed that throughout the proceedings,
i.e. during the pre-trial phase as well as at the trial, his case
had been dealt with by one and the same judge, Juvenile Judge
Meulenbroek, who had taken all relevant decisions. He did not
doubt the personal impartiality of Juvenile Judge Meulenbroek,
but pointed to the fact that the latter had acted as
investigating judge and had on four occasions decided on the
applicant's detention on remand. These decisions implied that
Judge Meulenbroek had already reached the conclusion at that
stage that there were "serious indications" that the applicant
had committed the crime of which he stood accused; furthermore,
he must also already have formed an idea of the sentence or
measure to be imposed, since the law required him to ascertain
that it was unlikely that the detention on remand would last
longer than any detention imposed under that sentence or measure
(see paragraph 27 above). Consequently, the applicant had had
legitimate grounds for fearing that Judge Meulenbroek, who tried
his case as a single judge, lacked the impartiality required of
a trial judge, the more so as the applicant was only fifteen
years old and therefore less able to defend himself.
32. The Government and the Commission maintained that the
applicant's fears could not be held to be objectively justified.
33. The Court recalls that what is decisive are not the
subjective apprehensions of the suspect, however understandable,
but whether, in the particular circumstances of the case, his
fears can be held to be objectively justified (see, as the most
recent authorities, the Fey v. Austria judgment of
24 February 1993, Series A no. 255, p. 12, para. 30, and the
Padovani v. Italy judgment of 26 February 1993, Series A
no. 257-B, p. 20, para. 27).
The mere fact that Juvenile Judge Meulenbroek also made
pre-trial decisions, including decisions relating to detention
on remand, cannot be taken as in itself justifying fears as to
his impartiality; what matters is the scope and nature of these
decisions.
34. Apart from his decisions relating to the applicant's
detention on remand, Juvenile Judge Meulenbroek made no other
pre-trial decisions than the one allowing the application made
by the prosecution for a psychiatric examination of the
applicant, which was not contested by the latter. He made no
other use of his powers as investigating judge.
35. As for his decisions on the applicant's detention on
remand, they could justify fears as to the judge's impartiality
only under special circumstances such as those which obtained in
the Hauschildt case (see the Hauschildt v. Denmark judgment of
24 May 1989, Series A no. 154, p. 22, para. 51, and the
Sainte-Marie v. France judgment of 16 December 1992, Series A
no. 253-A, p. 16, para. 32).
There was nothing of that nature in the present case.
Contrary to the applicant's arguments, the questions which
Juvenile Judge Meulenbroek had to answer when taking these
decisions were not the same as those which were decisive for his
final judgment. In finding that there were "serious indications"
against the applicant his task was only to ascertain summarily
that the prosecution had prima facie grounds for the charge
against the applicant (see paragraph 27 above). The charge had,
moreover, been admitted by the applicant and had already at that
stage been supported by further evidence.
36. As to the arguments put forward by the applicant
concerning the fact that the judge sat alone and in a case
involving a fifteen year- old, the Court points out that the
defendant's interests were looked after by a lawyer, who assisted
him at all stages of the proceedings (see paragraph 22 above).
It should also be observed that an appeal was available which
would have consisted of a complete rehearing before a chamber of
three judges of the Court of Appeal.
37. Under these circumstances the applicant's fear that
Juvenile Judge Meulenbroek lacked impartiality cannot be regarded
as objectively justified. There has therefore not been a
violation of Article 6 para. 1 (art. 6-1).
38. In view of this conclusion it is not necessary to go into
the question raised by the Government and by certain members of
the Commission in their concurring opinion, namely whether
Article 6 (art. 6) should be applied to juvenile criminal
procedure in the same way as to adult criminal procedure.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has not been a violation of
Article 6 para. 1 (art. 6-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
24 August 1993.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
concurring opinions of Mr Walsh and Mr Morenilla are annexed to
this judgment.
Initialled: R.R.
Initialled: M.-A.E.
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.