CEDH · CASELAW;REPORTS;ENG — 9 juillet 1992

.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 }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                            APPLICATION No. 13924/88                                Erik Hans NORTIER                                     against                                 the NETHERLANDS                            REPORT OF THE COMMISSION                            (adopted on 9 July 1992)                                TABLE OF CONTENTS                                                                         Page I.     INTRODUCTION       (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . . . .1       A.     The application             (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . . .1         B.     The proceedings             (paras. 5-13) . . . . . . . . . . . . . . . . . . . . . . . .1         C.     The present Report             (paras. 14-18). . . . . . . . . . . . . . . . . . . . . . . .2   II.    ESTABLISHMENT OF THE FACTS       (paras. 19-47). . . . . . . . . . . . . . . . . . . . . . . . . . .3         A.     The particular circumstances of the case             (paras. 19-30). . . . . . . . . . . . . . . . . . . . . . . .3         B.     Relevant domestic law             (paras. 31-47). . . . . . . . . . . . . . . . . . . . . . . .4   III.   OPINION OF THE COMMISSION       (paras. 48-67). . . . . . . . . . . . . . . . . . . . . . . . . . .9         A.     Complaint declared admissible             (para. 48). . . . . . . . . . . . . . . . . . . . . . . . . .9         B.     Point at issue             (para. 49). . . . . . . . . . . . . . . . . . . . . . . . . .9         C.     The alleged violation of Article 6             para. 1 of the Convention             (paras. 50-67). . . . . . . . . . . . . . . . . . . . . . . .9         CONCLUSION (para. 68) . . . . . . . . . . . . . . . . . . . . . . 12   Concurring separate opinion by Mr. S. TRECHSEL, joined by MM. J.A. FROWEIN, H.G. SCHERMERS and Sir Basil HALL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13   Dissenting opinion by Mr. J.-C. GEUS, joined by MM. A. WEITZEL and B. MARXER. . . . . . . . . . . . . . . . . . . . . . 15   APPENDIX I    :   HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . . . 17   APPENDIX II   :   DECISION ON THE ADMISSIBILITY OF                 THE APPLICATION . . . . . . . . . . . . . . . . . . . . 19   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.     The application   2.     The applicant is a Dutch citizen, born in 1972.   At the time of the introduction of the application, he was staying in an Institution for Special Treatment, "de Overberg", in Amerongen. The applicant was represented before the Commission by Mr. J. Sap, a lawyer practising in Amersfoort.   3.     The application is directed against the Netherlands.   The respondent Government were represented by their Agent, Mrs. D.S. van Heukelom, succeeded by Mr. K. de Vey Mestdagh, both of the Netherlands Ministry of Foreign Affairs.   4.     The applicant complains that the Juvenile Judge who determined his case was not an impartial tribunal within the meaning of Article 6 para. 1 of the Convention.   B.     The proceedings   5.     The application was introduced on 28 April 1988 and registered on 9 June 1988.   6.     On 5 February 1990 the Commission decided that notice should be given to the Government of the Netherlands of the application and that they should be invited to submit written observations on the admissibility and merits of the application.   7.     The Government submitted their observations on 19 April 1990. The applicant submitted observations in reply on 13 June 1990.   8.     On 18 May 1990 the applicant was granted free legal aid.   9.     On 27 May 1991 the Commission decided to hold a hearing with the parties on the admissibility and merits of the case.   10.    At the hearing on 9 October 1991, the Government were represented by their Agent, Mr. K. de Vey Mestdagh, and Mr. A. Patijn, Ministry of Justice, as adviser; the applicant was represented by Mr. J. Sap.   11.    Following the hearing, the Commission declared the application admissible.   12.    On 16 October 1991 the Commission requested the parties to submit further factual information.   On 23 January 1992 the applicant submitted the information, followed by the Government on 24 January 1992.   13.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.     The present Report   14.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:               MM.    C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   E. BUSUTTIL                   A. WEITZEL                   H.G. SCHERMERS                   H. DANELIUS             Mrs.   G.H. THUNE             Sir    Basil HALL             Mr.    F. MARTINEZ             Mrs.   J. LIDDY             MM.    J.-C. GEUS                   M.P. PELLONPÄÄ                   B. MARXER   15.    The text of the Report was adopted on 7 July 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 1 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         (1)    to establish the facts, and         (2)    to state an opinion as to whether the facts             found disclose a breach by the State             concerned of its obligations under the             Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   19.    The applicant was born in May 1972.   Some time before the criminal proceedings complained of in the present case, he was placed under the supervision of the Child Welfare Council (Raad voor de Kinderbescherming) and was accomodated outside his own family (uithuisplaatsing).   Around 1985/86 at the age of 13-14 years, he was convicted by Juvenile Judge M., who also convicted the applicant in the present case, of an offence similar to the one with which he was charged in the present case, described below.   20.    On 30 September 1987, at the age of 15, 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.   21.    The Public Prosecutor (Officier van Justitie) decided to prosecute the applicant.   According to the Government, there has been no "three way consultation" on the question whether the applicant's prosecution was called for, in pursuance of the practice in the Middelburg district (see para. 39 below).   22.    On 2 October 1987 the Public Prosecutor requested the Juvenile Judge (kinderrechter) of Middelburg, who also acts as the investigating judge (rechter-commissaris) under Article 494 of the Code of Penal Procedure (Wetboek van Strafvordering), to detain the applicant on remand on the ground that he might repeat the offence. On the same day the Juvenile Judge M. granted this request.   Judge M. also granted the request to institute preliminary judicial investigations (gerechtelijk vooronderzoek).   Accordingly, he ordered the applicant's detention on remand which he prolonged on several occasions during the preliminary investigations.   The applicant was detained on remand in the State Institution for Male Youngsters (rijksinrichting voor jongens) "Den Hey-Acker" in Breda. During 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.   23.    As the defence feared that the applicant's confession at the police station had been obtained under duress, the applicant's representative requested Judge M. to hear a certain witness.   By letter of 29 October 1987, Judge M. referred him to another Juvenile Judge, Mr. W., whom he entrusted with the task of hearing witnesses according to the current practice in the Netherlands (see Relevant domestic law and practice).   At the applicant's representative's request, the policemen involved were called as witnesses before the investigating judge, Mr. W., who heard them on 22 and 23 December 1987.   These witnesses were not heard again during the trial.   24.    It appears that Judge W. did not receive any instructions from Judge M.   The case-file was in the latter's possession when ordering the applicant's detention on remand and the subsequent prolongations, i.e. on 2 October, 8 October, 10 November and 10 December 1987.   On 23 December 1987 the preliminary judicial investigations were closed and the case-file was sent to Judge M. for the preparation of the hearing of the case.   He therefore became acquainted with the content of the witnesses' testimonies on or about 23 December 1987.   25.    On 8 December 1987 the psychiatrist submitted his report about the examination of the applicant's personality to the Juvenile Judge M.   He recommended that the applicant should be placed in an Institution for Special Treatment.   26.    On 17 December 1987 the applicant was summoned to appear in court on 6 January 1988 before the Juvenile Judge M.   By letter of 5 January 1988 the applicant challenged Judge M. 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 M. declared the challenge ill-founded.   27.    The applicant appealed to the Regional Court (Arrondissementsrechtbank) of Middelburg which, on 22 January 1988, confirmed the decision of the Juvenile Judge and also rejected the challenge.   It held that the Juvenile Judge could be considered as an impartial judge because of the special circumstances of the penal procedure for juveniles.   It observed that this procedure has an important pedagogical character and 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).   28.    At the hearing on 25 January 1988, the applicant confirmed the statement he had made to the police on 30 September 1987 and thus admitted having committed the offence he was charged with. The charge was proved and accordingly he was placed in "de Overberg", an Institution for Special Treatment for young offenders, on the basis of Article 77k of the Penal Code (Wetboek van Strafrecht) as requested by the Public Prosecutor.   29.    In 1990 Judge M. prolonged the applicant's confinement in the Institution on the basis of Article 77r para. 3 of the Penal Code. On 30 November 1990 the applicant was released.   30.    According to the parties there is no indication of any tension or animosity between Judge M. and the applicant.   B.     Relevant domestic law and practice   31.     Dutch juvenile penal law (including procedural law) applies to minors between the age of 12 and 18 years (Articles 486 and 487 of the Code of Penal Procedure). Juveniles are tried by one single judge of a Regional Court (Arrondissementsrechtbank) acting as a Juvenile Judge.   At the same time, according to Article 494 of the Code of Penal Procedure, he acts as an investigating judge.   32.    Article 494 provides as follows:         <Dutch>         "Art.494. In afwijking van artikel 168 treedt de       kinderrechter op als rechter-commissaris."         <Translation>         "Art.494. By way of exception to Article 168 the Juvenile       Judge acts as investigating judge."   33.    Article 168 stipulates:         <Dutch>         "Art.168. 1. In elke rechtbank zijn één of meer rechter-       commissarissen belast met de behandeling van strafzaken.        2. Zij worden uit de leden der rechtbank door het       gerechtshof voor de tijd van twee jaren benoemd, nadat de       procureur-generaal en de voorzitter der rechtbank zijn       gehoord, en zijn op verzoek weder dadelijk benoembaar.        3. Zij kunnen op hun verzoek om gewichtige redenen vóór de       afloop van hun diensttijd door het gerechtshof worden       ontslagen, nadat de procureur-generaal en de voorzitter der       rechtbank zijn gehoord."         <Translation>         "Art.168. 1. In each Regional Court one or more investigating       judges shall deal with penal cases.        2. They will be chosen by the Court of Appeal among the       members of the Regional Court for a period of two years,       after the Procurator-General and the President of the       Regional Court have been heard, and they can be immediately       reappointed upon request.        3. They may be discharged at their own request for       compelling reasons by the Court of Appeal before expiry of       their term of office, after the Procurator-General and the       President of the Regional Court have been heard."   34.    Article 496 furthermore entrusts the Juvenile Judge with the preliminary investigations and thus empowers him to decide on the detention on remand of a minor and on prolongation of such detention. This provision reads as follows:         <Dutch>         "Art.496. 1. Met het gerechtelijk vooronderzoek is de       kinderrechter belast, tenzij de zaak tevens een of meer       verdachten betreft die op het tijdstip warop de vervolging       tegen hen is aangevangen de leeftijd van achttien jaren       hebben bereikt, en naar het aanvankelijk oordeel van de       officier van justitie en de kinderrechter niet voor splitsing       vatbaar is.        2. In zaken, waarin de kinderrechter het gerechtelijk       vooronderzoek instelt, wordt hij als rechter-commissaris,       belast met het gerechtelijk vooronderzoek, aangemerkt."         <Translation>         "Art.496. 1. The Juvenile Judge is charged with the       preliminary judicial investigations, unless the case involves       one or more suspects who have reached the age of eighteen at       the moment the prosecution against them started, and in the       initial opinion of the Public Prosecutor and the Juvenile       Judge the case cannot be split.        2. In cases where the Juvenile Judge opens preliminary       judicial investigations, he shall be regarded as       investigating judge charged with the preliminary judicial       investigations."   35.    However, following the De Cubber judgment (Eur. Court H.R., judgment of 26 October 1984, Series A no. 86), 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 judicial investigations.   In principle the Juvenile Judge in charge of the case will however retain the competence to order the detention on remand and its prolongation or to release the accused.   36.    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 in cases of serious indications against the suspect (ernstige bezwaren tegen de verdachte).   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 is serious evidence implicating the suspect 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."   37.    However, according to Article 67a para. 3 of the Code of Penal Procedure, detention on remand cannot be ordered if, there is a serious possibility that in the case of a conviction, no unconditional prison sentence or measure will be imposed or if the length of the detention on remand is likely to exceed the length of the prison sentence or the measure.   Detention on remand usually takes place in special homes for youngsters.   38.     The prosecution of a minor is initiated by the Public Prosecutor.   However, Article 493 of the Code of Penal Procedure stipulates that the Public Prosecutor who wishes to drop charges against a minor must first seek the authorisation from the Juvenile Judge.   If, on the other hand, 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 heard on the desirability of prosecution according to Article 495 of the Code of Penal Procedure.   39.    In order to implement these provisions effectively, the general practice is 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.   In the Middelburg district, however, this practice has been abandoned as being unnecessary as it appeared that the Public Prosecutor always proceeds with the prosecution.   40. Preliminary judicial investigations are instituted by the investigating judge at the request of the Public Prosecutor (Article 181 of the Code of Penal Procedure).   During these investigations, the Juvenile Judge in his capacity of investigating judge may order that the minor be placed in a remand centre (observatiehuis) or mental hospital to have his personality examined (Articles 496 c-e of the Code of Penal Procedure).   He can also order the detention on remand, the further detention on remand and prolongations thereof. Furthermore he can hear the suspect, witnesses and experts (Article 185 of the Code of Penal Procedure). The investigating judge closes the preliminary judicial investigations when he considers them to be completed (Article 237 of the Code of Penal Procedure).   41.    The Juvenile Judge also acts in the capacity of the Judges' Council Chambers (Raadkamer), according to Article 488 of the Code of Penal Procedure.   In this capacity, he may have to decide on an appeal by the Public Prosecutor against a detention he has ordered himself.   42.    After the closure of the preliminary judicial investigations by the Juvenile Judge, the Public Prosecutor summons the minor (Article 258 of the Code of Penal Procedure) before the Juvenile Judge.   The hearing takes place in camera (Article 500 f of the Code of Penal Procedure).   43.    After the Public Prosecutor's final conclusions (requisitoir), the minor has the right to make a final submission. The Juvenile Judge then delivers the final decision in which he may order placement in an Institution for Special Treatment if the charges against the minor have been proved.   According to Article 77k of the Penal Code, this measure can be imposed on a minor who suffered from a mental deficiency or a mental illness when committing the offence he is charged with.   44.     The Juvenile Judge delivers his decision orally.   Unless an appeal is filed against this decision or unless the minor or his representative so requires, no detailed text of the judgment is drafted, but only a notice of oral judgment (aantekening mondeling vonnis).   In such cases no detailed procès-verbal of the hearing is drawn up either.   45.    The departure from adult penal law in the Articles 487-509 of the Code of Penal Procedure which govern juvenile penal law finds it reason, according to the Dutch legislator, in pedagogical considerations and in the need of coherence and optimal co-ordination in cases involving minors.   46.    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. Pursuant to the De Cubber judgment it is proposed that the Juvenile Judge shall no longer be acting as an investigating judge, but 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 (Eur. Court H.R., judgment of 24 May 1989, Series A no. 154).   47.    The Bill further proposes that the Judges' Council Chambers will order the pre-trial detention (voorlopige hechtenis) and decide on the appeal filed by the Public Prosecutor against such an order.   The Juvenile Judge would be able to sit in the Chamber but would no longer be empowered to act as an investigating judge.   He will nevertheless retain the competence to order the detention on remand (bewaring).   Moreover, it is proposed to abolish the three way consultation.   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   48.    The Commission has declared admissible the applicant's complaint that the Juvenile Judge who determined his case was not impartial.   B.     Point at issue   49.    Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     The alleged violation of Article 6 para. 1 (Art. 6-1) of the Commission   50.    Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, provides as follows:         "In the determination of ... any criminal charge against       him, everyone is entitled to a ... hearing ... by an       independent and impartial tribunal ...".   51.    The applicant complains that he did not receive a hearing before an impartial tribunal, because the Juvenile Judge who determined the charge against him 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.   52.    According to the applicant, 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. objection against the charge), his procedural position is made subordinate to the pedagogical character of juvenile penal law.   Thus the minor has the impression that his case has already been decided at the pre-trial stage.   53.    The Government submit that the deviations from adult penal law are justified by 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.   54.    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 whose functions and powers differ from those of the Dutch Juvenile Judge.   55.      The Government submit that, according to the Hauschildt judgment, the mere fact that a judge has participated in a trial after having taken decisions during the investigation does not in itself support the conclusion that he is partial.   Finding no exceptional circumstances allowing a different conclusion in the present case, the Government are 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).   In any case, the Juvenile Judge concerned could not be accused of partiality, since he had witnesses heard during the preliminary judicial investigations by another Juvenile Judge and therefore took no effective part in the investigation of the facts.   56.    The Commission first recalls that the existence of impartiality for the purposes of Article 6 para. 1 (Art. 6-1) of the Convention must be determined according to a subjective test and also to an objective test (Eur. Court H.R. Hauschildt judgment, loc. cit., para. 46).   57.    As to the subjective test, the applicant has not alleged that the Juvenile Judge acted with personal bias.   In any event, the personal impartiality of a judge must be presumed until there is proof to the contrary and in the present case there is no such proof.   58.    Under the objective test, it must be determined whether there are ascertainable facts which may raise doubts as to Judge M.'s impartiality.   This implies that in deciding whether there was a legitimate reason to fear that he lacked impartiality, the view of the accused was important but not decisive.   What is decisive is whether such fear can be held objectively justified (ibid. para. 48).   59.    In the De Cubber case the European Court of Human Rights noted, in regard to Belgian law, a number of significant differences between the functions of an investigating judge and those of a trial judge and considered that the impartiality of a court could give rise to legitimate doubts when these two functions are entrusted to the same person (Eur. Court H.R., De Cubber judgment, loc. cit., paras. 29-30).   60.    In Dutch law the Juvenile Judge has in principle the double task of acting as an investigating judge and of subsequently ruling on the charge brought against the suspected young offender.   In the light of the De Cubber judgment the compatibility of such a system with Article 6 (Art. 6) of the Convention is doubtful.   In any case the Commission cannot find that it could be justified by the special considerations which may apply in regard to the trial of juveniles.   Indeed the guarantee of impartiality in Article 6 (Art. 6) is a fundamental guarantee, and it would not seem acceptable that young persons who are brought to trial should be deprived of that guarantee or that it should only to a limited extent apply to them.   61.    However, the question in the present case is not whether the Dutch system as such is in conformity with Article 6 (Art. 6), but whether the way it was applied in regard to the applicant gave rise to legitimate doubts as to the impartiality of the Juvenile Judge M.   62.    It is important to note in this regard that, when the applicant's lawyer asked for a certain person to be heard as a witness during the preliminary judicial investigations, he was referred by Judge M. to another Juvenile Judge, Mr. W., who in fact heard two persons as witnesses at the request of the applicant's lawyer.   The Government have pointed out that Judge W. was also responsible for deciding whether any further witnesses should be heard.   63.    Moreover, the Commission notes that in the present case there was no so-called "three way consultation" between the Juvenile Judge, the Public Prosecutor and the Child Welfare Council, which is otherwise a normal practice in juvenile cases in the Netherlands (cf. para. 39 above).   64.    Nor could the fact that Judge M. ordered the applicant's detention on remand or the prolongation of that detention on a number of occasions be a sufficient reason to doubt his impartiality, since in the Hauschildt case the European Court accepted that, except in special cases, the fact that a trial judge has, at the pre-trial stage, made decisions on the detention on remand of the accused does not justify fears as to his impartiality (Eur. Court H.R., Hauschildt judgment, loc. cit., para. 50).   No special circumstances which could lead to a different conclusion have been shown to exist in the present case.   65.    According to information supplied by the Government, it was Judge M. who granted the Public Prosecutor's application for preliminary judicial investigations with the aim of having psychological tests carried out on the applicant and who appointed a psychiatrist to carry out these tests.   However, the Commission cannot find that these decisions, which were of a rather formal or procedural character, were such as to create any doubts about Judge M.'s impartiality during the subsequent proceedings.   66.    It does not appear that Judge M. took any other initiatives in regard to the preliminary judicial investigations or that he even participated actively in carrying out any investigatory measures.   The decisions on the applicant's detention on remand were all taken at the request of the Public Prosecutor and after a hearing in which the applicant participated.   It may be added that, since the applicant had made a confession, no extensive preliminary judicial investigations were apparently required in order to establish the facts.   67.    In view of the above, the Commission is satisfied that the criminal charge against the applicant was determined by an impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.         Conclusion   68.    The Commission finds by 12 votes to 3 that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.   Secretary to the Commission             President of the Commission       (H.C. KRÜGER)                            (C.A. NØRGAARD)                               Separate concurring                     opinion of Mr. TRECHSEL, joined by            MM. J.A. FROWEIN, H.G. SCHERMERS and Sir Basil HALL         While I am in agreement with the conclusion reached by the majority of the Commission, I find it important to set out the line of arguments which are, in my view, decisive.   In the De Cubber case, the European Court of Human Rights found that a person who had previously acted as investigating judge could not be regarded, in the same case, as an impartial judge on the merits.   In the present case the question arises whether the same principle applies in proceedings concerning juvenile delinquents.         In this respect I accept the view that, as a rule, minors are entitled to the same protection of their fundamental rights as adults.   This does, however, not exclude that their specific situation in life, in particular their limited ability to assume full responsibility for their social behaviour, is taken into account in applying the Convention.   Thus, the requirement of fair proceedings set out in Article 6 may fall to be seen in a different light with regard to juvenile delinquents.         In fact, the administration of justice in the case of a minor follows different guidelines compared to that concerning adult offenders.   The emphasis lies not on the task of the tribunal to establish the criminal guilt of the defendant and to mete out retributive punishment, but on establishing the facts and in particular the state of development of the minor's personality and to select, as the case may be, the educative measure most appropriate for his case.         In this context, I note that the Convention itself reflects the special situation of minors in Article 5 para. 1 (d) where it refers to "the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority".   This sub- paragraph establishes a lex specialis with regard to Article 5 para. 1 (a) and (c) in that the "lawful order" need not necessarily be the result of "conviction by a competent court" and the specific formal guarantees of Article 5 para. 3 do not apply (although, in application of the principle of proportionality, limits in time must also be set to the "preventive detention" of minors).         It is true that Article 6 - with the exception of the second sentence in para. 1 (exclusion of the press and public where the interests of juveniles so require) - does not provide for special rules regarding juveniles.   However, many (although not all) experts in the field of proceedings against minors regard it as very important to organise these proceedings in such a way that the defendant can gain confidence in the person representing the authority.   It is regarded as harmful if a new, hitherto unknown magistrate appears at every turn of the proceedings.   Under this perspective it is regarded as harmful if the final decision is not taken by the person who was previously in charge of the investigation.         I am well aware of the fact that it may be difficult to decide whether, in a particular case, it is justified to apply special rules for juvenile defendants or not.   In this regard, different factors may be of importance, such as the age and state of development of the minor, the punitive element of the sanction envisaged and the question whether the defendant admits the facts or not.         In view of the controversy to which these issues may give rise, I am convinced that the Convention must be read as leaving to the High Contracting Parties a wide margin of appreciation as to how to organise and structure their procedure for juvenile defendants.         As far as the present case is concerned, I hold it to be of importance that the applicant was under the age of sixteen at the time of the attempted rape and of the decision on its legal consequences.   He was thus well below the age of full criminal responsibility, i.e. eighteen.   Furthermore, the measure adopted, the placement in an Institution for Special Treatment for young offenders, was clearly of an educative character.   Finally, the applicant had consistently admitted to having committed the facts he was suspected of.         I attach some weight also to the fact that judge M. had not taken any investigating initiatives which the applicant could have considered to be directed against him and that no "three way consultation" had taken place (cf. para. 39 above).   While it is true that judge M. ordered the applicant's detention on remand or the prolongation of that detention, no special circumstances such as those which were decisive in the Hauschildt case have been shown to exist in the present case.           Opinion dissidente de M. J.-C. GEUS à laquelle se rallient                         MM. A. WEITZEL et B. MARXER         Je partage entièrement l'opinion de la majorité de la Commission selon laquelle, d'une part, le mineur qui est l'objet d'une accusation en matière pénale et peut subir une mesure privative de liberté doit, comme un adulte, bénéficier de toutes les garanties prévues à l'article 6 de la Convention et, d'autre part, le système néerlandais ne semble pas offrir toutes ces garanties.         Il ne m'est cependant pas possible de me rallier aux conclusions de la majorité dans le présent cas.         Je constate en effet que la Commission a estimé, en se fondant sur les circonstances propres à la présente affaire, que malgré les critiques qu'appelle le système néerlandais au regard de l'article 6, il n'y avait pas eu de violation de cette disposition.         Me fondant notamment sur les arrêts DE CUBBER (série A n° 86), HAUSCHILDT (série A n° 154), LANGBORGER (série A n° 155) et BORGERS (série A n° 214), j'estime que cette approche est erronnée. Si "justice must be seen to be done", le fait que "justice has been done" est dépourvu de pertinence lorsqu'il s'agit d'apprécier selon une démarche objective si le "tribunal" était impartial.   En pareil cas, il faut prendre en compte "des considérations de caractère fonctionnel et organique" (arrêt DE CUBBER précité, par. 26).   Si, en principe, il n'y a pas lieu d'examiner in abstracto la législation pertinente (arrêt HAUSCHILDT précité, par. 45), un tel examen s'avère indispensable lorsque l'apparence de partialité alléguée résulte de compétences attribuées par la loi à un magistrat et non de la manière dont il les a exercées (cf. mutatis mutandis, l'arrêt BORGERS précité).         Dans tous les cas, et donc dans la présente affaire, le juge de la jeunesse néerlandais, étant à la fois juge d'instruction et juge du fond en vertu des articles 494 et 496 du Code de procédure pénale, a acquis, de par les fonctions qui lui sont confiées par la loi, une connaissance exhaustive du dossier constitué par lui ou sous son entière responsabilité, avant que se tienne l'audience sur le fond, au cours de laquelle les droits de la défense devraient pourtant avoir leur pleine signification, ce qui ne saurait être le cas si le juge s'est formé par avance son opinion.   Le critère fondamental retenu par la Cour dans l'arrêt DE CUBBER (par. 29) est donc ici présent.   En outre, dans cette dernière affaire, le tribunal était composé de trois juges dont un seul avait acquis la connaissance du dossier en raison des fonctions qu'il avait exercées antérieurement, alors que le juge de la jeunesse néerlandais statue sur le fond en tant que juge unique.   Ceci a également pour conséquence que le contrôle de légalité des "mesures accomplies ou ordonnées par le juge d'instruction" est effectué par ce juge lui-même.         Bien plus, non seulement le même magistrat était le juge d'instruction et le juge unique du fond, mais il a encore ordonné seul la mise en détention préventive du requérant et a prolongé cette mesure.   Sans doute, sauf circonstances particulières, une telle mission n'implique pas que des appréhensions quant à l'impartialité du juge soient justifiées (arrêt HAUSCHILDT précité, par. 50 et 51).   Je note à cet égard que l'article 67 par. 3 du Code de procédure pénale néerlandais exige des charges sérieuses à l'encontre de l'accusé pour qu'il puisse être placé en détention préventive, et surtout que c'est le même magistrat qui statue en "appel" sur ses propres décisions en la matière.         Dès lors, le juge de la jeunesse cumule, sans contrôle juridictionnel, un tel nombre de pouvoirs qu'il doit nécessairement avoir acquis, avant l'audience au fond, une connaissance non seulement   approfondie mais bien exhaustive des données de l'affaire q'il va juger seul.   Selon la démarche objective, il ne peut donc, en aucun cas, être considéré comme le "tribunal impartial" qu'exige l'article 6 par. 1 de la Convention.                                   APPENDIX I                             HISTORY OF PROCEEDINGS   Date                                     Item ___________________________________________________________________   28   April 1988                           Introduction of application   9 June 1988                              Registration of application   Examination of admissibility   5 February 1990                          Commission's decision to                                         invite the Government to                                         submit their observations                                         on the admissibility and                                         merits of the application     19 April 1990                            Government's observations   18 May 1990                              Applicant granted free                              &#