De Haan v. The Netherlands   (84/1996/673/895) 26 August 1997: Tribunal called upon to decide on an objection against a decision for which he himself is responsible

The Netherlands - impartiality of a judge presiding over a Chamber of the Appeals Tribunal called upon to decide on an objection against a decision for which he himself is responsible (sections 141 and 142 of the Appeals Act)

I. ARTICLE 6 OF THE CONVENTION

B. Compliance with Article 6 1

The sole responsibility for taking the decision falls to the President (or Acting President) of the Appeals Board, even when - as in the instant case - he does no more than ratify the opinion of the permanent medical expert.

Permanent-medical-expert procedure is not comparable to criminal proceedings in absentia in which the accused is neither present nor represented - applicant was actively involved in the establishment of the expert's opinion which was to be the basis of the Acting President's decision.

In the present case, unlike in the Feldbrugge case, it is undisputed that the applicant had unlimited access to the Appeals Tribunal - it must accordingly be decided whether that tribunal offered the guarantees required by Article 6 1, in particular that of "impartiality".

Reiteration of Court's case-law on concept of "impartial" tribunal.

Subjective test: nothing to indicate any prejudice or bias on the part of Judge S.

Objective test: decisive feature of the case is that Judge S. presided over a tribunal called upon to decide on an objection against a decision for which he himself was responsible - also significant that the tribunal was composed of a professional judge assisted by two lay judges - no intervening decision by a higher body - applicant's fears in this regard objectively justified.

Scope of review of the Central Appeals Tribunal insufficient to make up for the failings of the procedure before the Appeals Tribunal - possibility exists that a higher or the highest tribunal may, in some circumstances, make reparation for an initial violation of one of the Convention's provisions - the Central Appeals Tribunal had the power to quash the decision appealed against on the ground that the composition of the Appeals Tribunal had not been such as to guarantee its impartiality and to refer the case back to the Appeals Tribunal for rehearing if necessary - it declined to do so and, as a consequence, did not cure the failing in question.

Conclusion: violation (6 votes to 3).

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