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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: (1994) 17 EHRR 273, 17 EHRR 273, [1993] ECHR 34

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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.