CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 21491/93                       by Beleggings- en Beheersmaatschappij                       INDIANA B.V.                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 29 November 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 8 December 1992 by Beleggings- en Beheersmaatschappij INDIANA B.V. against the Netherlands and registered on 10 March 1993 under file No. 21491/93;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      23 November 1994 and the observations in reply submitted by the      applicant on 12 April 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch company with limited liability, whose registered seat is in Rotterdam. The applicant company is represented before the Commission by Mr. A.D. Lindenbergh, a lawyer practising in Rotterdam.        The facts, as presented by the parties, may be summarised as follows.   a.    Particular circumstances of the present case        Since 1984, the applicant company has been the owner of a plot of land situated in an industrial area in the municipality of Vlissingen. Before 1984, the plot was owned by the N.V. Metaalmaat- schappij Cracau, which, until 1974, used it as a depot for metals. From 1974 to 1980 Cracau rented the plot to the company B.V. Nickel and Tungsten Alloy Manufacturing Co. Maxalloys, which regained metals from waste products.        From 1979 onwards, the municipality of Vlissingen had been negotiating with the owners of the above-mentioned plot over the purchase thereof by the municipality.        In 1982, the municipality of Vlissingen carried out a preliminary examination of the soil of the plot. This examination showed that the soil and the groundwater were polluted by heavy metals and oil. In 1985 the municipality of Vlissingen instructed the company Grontmij N.V. to carry out a formal investigation of the soil pursuant to the Interim Act on Soil Cleaning (Interimwet bodemsanering). The results of this investigation were made public in June 1986. On the basis of the investigation, the Provincial Executive (Gedeputeerde Staten) of Zeeland decided that the soil should be cleaned. In the provincial soil cleaning programme for 1989 the plot was indicated as being subject to the Interim Act on Soil Cleaning.        The pollution of the soil, the cleaning operation, the costs thereof, and the liability of the applicant were important elements in the negotiations between the municipality of Vlissingen and the owners of the plot.        In 1988, the Ministry of Housing, Regional Planning and Environment (Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, hereinafter referred to as the "Ministry") seized the plot for security (conservatoir beslag), and started civil proceedings against, inter alia, the applicant company, in order to recover the costs of the soil cleaning operation. In August 1988, in summary proceedings (kort geding) before the President of the Regional Court (Arrondissementsrechtbank) of The Hague, the applicant company unsuccessfully sought to have the seizure lifted in order to be able to sell the plot.        On 3 February 1989, the Mayor and Aldermen (Burgemeester en Wethouders) of Vlissingen, who were put in charge by the Provincial Executive of Zeeland of the soil cleaning operation, informed the applicant company of their intention to start the soil cleaning operation in 1989, and asked the applicant company for its co- operation. The applicant company replied on 17 February 1989 requesting a suspension of the soil cleaning operation pending the outcome of an investigation of the soil which it had ordered from the private company X. The applicant company further expressed its willingness to reach a solution and asked for consultations with the municipality on the modalities of the soil cleaning.        By letter of 20 March 1989, the applicant company's lawyer informed the Mayor and Aldermen that the applicant company wished to carry out the cleaning under its own management and that the company X would act as their expert. The results of the investigation carried out by X and the latter's proposals on the technical modalities of the soil cleaning were added to this letter.        By decision of 28 March 1989, the Mayor and Aldermen rejected the request for a suspension of the soil cleaning operation, and, on the basis of Section 11 of the Interim Act on Soil Cleaning, ordered the applicant company to admit authorised persons to their property, to allow these persons to investigate the extent of the pollution, and to allow the cleaning of the soil. As regards the investigation of the soil by authorised persons, the order was declared to be immediately enforceable.        On 26 April 1989, the applicant company lodged an appeal against the decision of 28 March 1989 with the Administrative Litigation Division of the Council of State (Afdeling voor de geschillen van bestuur van de Raad van State). On 1 August 1989, the Mayor and Aldermen submitted their memorial in reply to the applicant's appeal (verweerschrift) to the Administrative Litigation Division.        On 2 August 1989, the Chairman of the Division requested an official report (ambtsbericht) from the Environmental Management Appeals Adviser (Adviseur Beroepen Milieubeheer, hereinafter referred to as "Adviser") of the Ministry. The official report was submitted on 9 December 1991 by the Adviser. He concluded that the decision of the Mayor and Aldermen of Vlissingen should be upheld and that the appeal should be rejected.        By letter of 17 February 1992, the Administrative Litigation Division, pursuant to Section 36 of the Act on the Council of State (Wet op de Raad van State, hereinafter referred to as "WRS"), informed the parties that the documents concerning the applicant company's appeal against the decision of 28 March 1989 could be consulted until and including 13 March 1992 at the Registry of the Council of State. In general terms the parties' attention was drawn to the fact that a consultation of these documents could be important in particular insofar as an official report had been issued in the proceedings.        The Registry of the Administrative Litigation Division informed the applicant company that its appeal would be examined in the course of an oral hearing and that, provided that the President of the Division would have been duly informed thereof before 21 April 1992, it could bring witnesses and experts in order to have them examined before the Administrative Litigation Division.        On 2 June 1992 - by that time the soil cleaning operation, the costs of which are estimated to be about 2.000.000 Dutch guilders, had already taken place - a hearing was held by the Administrative Litigation Division of the Council of State. The Adviser did not take part in this hearing. The applicant company and the Mayor and Aldermen of Vlissingen, both represented by lawyers, pleaded their case.        The applicant company submitted, inter alia, that already in the period between 1986 and 1988 it had offered the municipality that the company would clean the soil and bear the costs thereof itself, but the municipality had declined to enter into negotiations on this subject. The company further argued that the Adviser was not independent and impartial, that the official report should be disregarded by the Division, and that the official report was contrary to an independent and impartial administration of justice and therefore contrary to Article 6 of the Convention. It proposed that an impartial expert should be appointed and offered to advance the costs of such an expert if the Administrative Litigation Division should decide to appoint such an expert. It submitted that in the end the costs of the expert should be borne by the party who would lose the case before the Division.        On 9 June 1992, the Administrative Litigation Division rejected the appeal. It held, inter alia, that the Mayor and Aldermen had correctly taken the position that the soil cleaning operation should be carried out in accordance with the requirements and conditions of the Soil Cleaning Guideline (Leidraad Bodemsanering) which is based on the Interim Act on Soil Cleaning. It further held that the soil cleaning method opted for by the Mayor and Aldermen (removal, processing and replacement of polluted soil, extraction of polluted ground water) could be considered as being in accordance with the Soil Cleaning Guideline, whereas the soil cleaning method proposed by the applicant company (removal of a top layer of 30 centimetres of polluted soil, followed by a further investigation in order to determine the subsequent procedure) could not be regarded as an acceptable alternative from an environmental hygiene point of view. It found that the Mayor and Aldermen, after having weighed the interests involved, could reasonably have reached the decision complained of, including its immediate enforceability.        In reaching this finding, the Administrative Litigation Division also had regard to the fact that, according to a telex of 5 January 1988, the applicant company, in its negotiations with the municipality of Vlissingen regarding the sale of the plot, had attempted to obtain a waiver as regards its environmental responsibilities and that, by letter of 12 April 1988, the applicant company had informed the State Advocate (landsadvocaat) that it was willing to clean the soil at its own expense on condition that the soil would be cleaned according to the guidelines of an engineering company of the applicant company's choice and that the State would not undertake any further action against the applicant company or the (former) directors of Maxalloys. In these circumstances the Administrative Litigation Division accepted the Mayor and Aldermen's finding that was not clear that the applicant company was prepared to secure a cleaning of the soil which was acceptable from the point of view of environmental hygiene.        In its decision, the Administrative Litigation Division made a general reference to the official report, and the line of reasoning and the conclusion are the same in the official report and in the Council of State's decision. The Administrative Litigation Division did not deal with the applicant company's submissions that the Adviser was not independent and impartial, that the official report should be disregarded and that the report was contrary to an independent and impartial administration of justice as required by Article 6 of the Convention.   b. Relevant domestic law and practice        Pursuant to the Interim Act on Crown Appeals (Tijdelijke Wet Kroongeschillen), which was in force from 1 January 1988 until 1 January 1994, the Administrative Litigation Division of the Council of State was competent to decide on appeals concerning, inter alia, the application of Section 11 of the Interim Act on Soil Cleaning. No further appeal lay against a decision by the Administrative Litigation Division, nor could it be overruled by an administrative authority. Before 1 January 1988 such appeals were decided by the Crown (Kroon), i.e. the Queen and the responsible Minister or Ministers.        The procedure before the Administrative Litigation Division was, until 1 January 1994, governed by the rules set out in Sections 26-62a of the Act on the Council of State (WRS).        The members of the Administrative Litigation Division, whose number is determined by the Crown but cannot be less than five including the President of the Division, are chosen by the Crown from amongst the members of the Council of State, upon the proposal of the Minister of Internal Affairs, after consultation of the Minister of Justice and upon the recommendation of the Council of State (Section 27 WRS).        The members of the Council of State are appointed for life by the Crown, upon the proposal of the Minister of Internal Affairs, after consultation of the Minister of Justice and on the recommendation of the Council of State. They are dismissed by the Crown at their own request or when they have reached the age of seventy years. They can also be dismissed or suspended by decision of the Council of State in accordance with the rules and procedures set out in Sections 11-13a of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) (Sections 3 and 3a WRS).        Section 7 of the WRS deals with functions and professional activities the exercise of which are incompatible with membership of the Council of State.        Before taking up their duties, new members of the Council of State take the oath, the wording of which is set out in Section 8 of the WRS. In the oath they solemnly declare that they shall abide by the obligations of independence and impartiality in the exercise of their functions as member of the Council of State.        Section 32 (c) of the WRS, in its wording at the relevant time, provides, insofar as relevant, as follows:   [Dutch]      "1.    De Voorzitter van de Afdeling (voor de geschillen van      bestuur) wint de nodige ambtsberichten in. Hij doet daarvan      mededeling aan Onze Minister, wie de zaak aangaat.      2.     Het overheidsorgaan, aan hetwelk een ambtsbericht is      gevraagd, zendt dit onder bijvoeging van de zich onder zijn      berusting bevindende tot het geschil betrekkelijke stukken - voor      zover dit niet in strijd is met enige wettelijke bepaling tot      geheimhouding - aan de voorzitter door tussenkomst van deze      Minister.      3.     Ook indien Onze Minister geen ambtsbericht is gevraagd, kan      hij zijn ambtsbericht en stukken bijvoegen.      4.     De voorzitter kan een termijn stellen, waarbinnen de      ambtsberichten worden uitgebracht." [translation]      "1.    The President of the (Administrative Litigation) Division      requests the necessary official reports. He informs Our Minister      concerned of this.      2.     The public body, which has been requested to submit an      official report, will send this report together with the      documents in its possession which relate to the dispute - insofar      as this is not contrary to any statutory provision providing for      secrecy - to the president via this Minister.      3.     Also when Our Minister has not been asked for an official      report, he can add his official report and documents.      4.     The president may set a time-limit for the submission of      official reports."        In the Government's Memorandum of Reply (Memorie van Antwoord) to the Lower House (Tweede Kamer) during the parliamentary discussion on the adoption of the Interim Act on Crown Appeals (Tweede Kamer- stukken 1986-1987, 19 497, nr. 5, pp. 11-13), the Government stated as regards the compatibility of official reports with the requirements of Article 6 para. 1 of the Convention, inter alia:   [Dutch]      "Wij wensen in genen dele af te doen aan het beginsel dat de      Afdeling voor de geschillen van bestuur in volle vrijheid tot      haar beslissingen moet kunnen komen. (...) De rechter is in geen      enkel opzicht gebonden aan dat standpunt (het ambtsbericht). Haar      onpartijdigheid zal niet in het geding kunnen komen doordat zij      kan beschikken over een mogelijk relevant standpunt van een      instantie die geen partij is bij het geding (...) de Afdeling      bepaalt zelf welke adviezen zij langs welke weg wenst in te      winnen. Het wordt aan de rechter overgelaten te beoordelen welke      waarde en welk gewicht hij aan de ingewonnen ambtsberichten,      onder meer vanwege het ontbreken van voldoende onafhankelijkheid      van de desbetreffende instantie, mag toekennen. De rechter kan,      indien hij de afhankelijkheid van degene die het ambtsbericht      uitbrengt ten opzichte van één van de procespartijen te groot      acht, zo nodig advies inwinnen bij een andere instantie."   [translation]      "We do not wish in any way to depart from the principle that the      Administrative Litigation Division must be able to reach its      decisions in all liberty. (...) The judge is not bound in any way      by that opinion (the official report). Its impartiality cannot      be questioned on the ground that it may have at its disposal a      possibly relevant point of view of a body which is not a party      to the dispute (...) the Administrative Litigation Division      itself will decide what opinions are required and how to obtain      them. It is left to the judge to assess the value and weight of      the official reports thus sought, inter alia, having regard to      a lack of sufficient impartiality of the body concerned (which      issued the report). The judge may seek advice from another body,      if he finds that the body which issues the official report is too      closely connected with one of the parties to the dispute."        Considering that the Administrative Litigation Division favoured a position of advisers as independent as possible, the Minister of Housing, Regional Planning and Environment, in his decision (besluit) of 12 September 1988 with retroactive effect as from 1 January 1988, provided the Adviser with an independent position within the Ministry. According to this decision the Adviser shall independently sign official reports (Section 2 of the decision) in his capacity of Adviser (Section 3 of the decision) and will send official reports directly to the Administrative Litigation Division (Section 5 of the decision).        In proceedings before the Administrative Litigation Division, the parties may submit such documentary evidence as they consider necessary (Section 34 WRS) and, unless the parties do not find this necessary, a public hearing will be held in the course of which the parties can argue their case (Sections 38, 38a and 45 WRS). The parties have the right, as does the President of the Administrative Litigation Division, to call witnesses and experts provided the President has been informed in time of this wish and these persons' particulars, to put questions to them and to comment on any evidence given (Sections 41, 46 and 48 WRS).        The Administrative Litigation Division deliberates in camera (Section 51 WRS), it may carry out on-site inspections (Section 52 WRS), ask for additional official reports on which the parties may comment (Section 54 WRS) and hold further hearings (Section 55 WRS).        As from 1 January 1994, the Interim Act on Crown Appeals is no longer in force. As from that date an administrative appeal against decisions under the Interim Act on Soil Cleaning lies directly with the Administrative Law Division of the Council of State, which replaced the Administrative Litigation Division. This change took place jointly with the entry into force on 1 January 1994 of the General Administrative Law Act (Algemene Wet Bestuursrecht), which lays down new uniform rules of administrative law procedure. According to Section 36 of the present Act on the Council of State, the new uniform rules laid down in Chapter 8 of the General Administrative Law Act, with certain exceptions, also apply to proceedings before the Administrative Law Division. Under Section 8:47 of the General Administrative Law Act, which also applies to proceedings before the Administrative Law Division, the court may seek expert opinions.   COMPLAINTS   1.    The applicant company complains under Article 6 para. 1 of the Convention that its appeal before the Administrative Litigation Division of the Council of State was not determined by an independent and impartial tribunal, as the Division obtained an official report, which was decisive for its decision, from an expert who could not be considered independent and impartial, since he was employed as Adviser of the Ministry. The Ministry had a direct financial interest in the outcome of the proceedings before the Administrative Litigation Division: it paid for the soil-cleaning operation, it seized the property of the applicant company and it started a lawsuit against the applicant company in order to recover the costs of the soil cleaning operation.   2.    The applicant company further complains under Article 6 para. 1 of the Convention that it did not receive a fair hearing and that the principle of equality of arms has been violated, in that the Administrative Litigation Division did not seek the advice of an independent and impartial expert, whereas the applicant company had offered to pay the expenses of such an independent expert.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 8 December 1992 and registered on 10 March 1993.        On 2 September 1994, the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 23 November 1994, after an extension of the time-limit fixed for that purpose. The applicant company replied on 12 April 1995, also after an extension of the time-limit.   THE LAW        The applicant company complains under Article 6 para. 1 (Art. 6-1) of the Convention that its appeal before the Administrative Litigation Division of the Council of State was not determined by an independent and impartial tribunal.        Article 6 para. 1 (Art. 6-1) of the Convention, insofar as relevant, states:        "In the determination of his civil rights and obligations      ... everyone is entitled to a fair ... hearing ... by an      independent and impartial tribunal".        The Commission notes in the first place that the parties do not dispute the applicability of Article 6 para. 1 (Art. 6-1) of the Convention. Having regard to the close connection between the proceedings at issue and the consequences of their outcome for the applicant company's pecuniary rights and its economic activities, the Commission finds that these proceedings concerned a dispute over a right which was "civil" in nature. The proceedings at issue therefore fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention (cf. Eur. Court H.R., Ortenberg judgment of 25 November 1994, Series A no. 295-B, p. 48, para. 28 and Procola judgment of 28 September 1995, Series A no. 326, para. 39).        Insofar as the applicant company complains that the Administrative Litigation Division of the Council of State cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, the Commission recalls that in order to establish whether a body can be considered "independent", regard must be had, inter alia, to the manner of appointment of its members and their term of office, to the existence of guarantees against outside pressures and to the question whether the body presents an appearance of independence.   As to the question of impartiality, a distinction must be drawn between the subjective test, whereby it is sought to establish the personal conviction of a given judge in a given case, and the objective test, aimed at ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (Eur. Court H.R., Langborger judgment of 22 June 1989, Series A no. 155, p. 16, para. 32).        Having regard to the manner of appointment, the term of office and the rules on dismissal and suspension of members of the Council of State, the Commission finds no reason to doubt the independence of the Administrative Litigation Division of the Council of State.        As regards the question whether the Administrative Litigation Division was impartial, the Commission first notes that the applicant has not expressed any doubt as to the personal impartiality of the members of the Administrative Litigation Division.        As to the objective test, it must be determined whether there are ascertainable facts which may raise doubts as to the impartiality of the court. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. It follows that, in deciding whether in a given case there is a legitimate reason to fear that a court lacks impartiality, the parties' opinion is important but not decisive. What is decisive is whether a party's fear can be regarded as objectively justified (Padovani judgment, loc. cit., p. 20, para. 27).        The Commission finds that such an objective justification is lacking in the present case. The fear of lack of impartiality is based on the fact that the Administrative Litigation Division based its decision on an official report from an expert employed by the Ministry, which, according to the applicant company, had a direct financial interest in the outcome of the proceedings.        The Commission recalls in this respect that the mere fact that experts are employed by the administrative authority which is involved in a case does not justify fears that such experts are unable to act with proper neutrality. To hold otherwise would often place unacceptable limits on the possibility to obtain expert advice (see Zumtobel v. Austria, Comm. Report 30.6.92, Eur. Court H.R., Series A no. 268-A, para. 86; Eur. Court H.R., Brandstetter judgment of 28 August 1991, Series A no. 211, p. 21, para. 44).        The Commission is, therefore, of the opinion that the fact that the Administrative Litigation Division sought advice from such an expert belonging to the staff of the Ministry is in itself insufficient for an objective justification of the fear that the Administrative Litigation Division was not an impartial tribunal. There is no other element in the case which could cause doubts as to its impartiality.        It remains to be examined, however, whether the Adviser's report was dealt with in a fair manner so as to give the applicant the opportunity to argue against it and to present other expert advice.        In this respect the applicant company complains that, in the proceedings before the Administrative Litigation Division, it did not receive a fair hearing as required by Article 6 para. 1 (Art. 6-1) of the Convention in that the Administrative Litigation Division did not seek the advice of an independent and impartial expert, although the applicant company had offered to pay the expenses of such an independent expert.        The Government emphasise that the Adviser is an impartial expert. He has an independent position and has been entrusted with final authority in issuing official reports. He focused not only on the facts of the dispute, but also dwelt on the relevant policy as it had been pursued in order to allow the court to make a sound assessment of the dispute. There was, however, no question in this regard of any "propagation" of the policy pursued by the Ministry.        The Government further submit that, apart from the submission of an official report, the Adviser did not participate in the proceedings at issue. Nor did the Ministry participate in these proceedings. Given that the decision challenged by the applicant company only concerned its obligation to co-operate in the soil cleaning operation, that the provincial authorities decide on soil cleaning operations and determine the priorities of such operations and that the Ministry has never tried to acquire the applicant company's property, the Government argue that the Ministry had no interest in the outcome of the proceedings at issue. The fact that the Ministry sought to secure the recovery of the costs of the soil cleaning operation, the possibility to recover such costs from, inter alia, the owners of a cleaned plot being provided for by Section 21 of the Interim Act on Soil Cleaning, does not alter this as this action, which gave rise to civil proceedings in the present case, is completely separate from the administrative powers held by the provincial and municipal authorities as regards the implementation of the Interim Act on Soil Cleaning. The Administrative Litigation Division is, moreover, entirely free to determine how much value it attaches to an official report.        The Government further point out that, although the Interim Act on Soil Cleaning does not provide for an obligation to consult the party concerned nor a right for the party concerned to conduct a soil cleaning operation itself, it may be inferred from the parliamentary procedure regarding this Act that an administrative body should first find out whether the party concerned is willing to co-operate in the soil cleaning or to carry out the soil cleaning itself. According to the Government it was not unreasonable, in view of the applicant company's attitude towards the soil cleaning operation since 1982 - in particular the absence of sound, serious and timely proposals by the applicant company concerning the manner in which the soil cleaning operation should be carried out - that the municipality of Vlissingen took the view that there was no willingness of the applicant company to co-operate in a sound clean-up operation.        The Government finally submit that, in the proceedings before the Administrative Litigation Division, the applicant company only submitted its objections to the official report and its offer to appoint an independent adviser and to advance the costs involved at a very late stage, i.e. at the hearing on 2 June 1992. It did not avail itself of the possibility of submitting its own report in reaction to the official report which had been made accessible to the parties between 17 February and 13 March 1992, or of bringing witnesses and/or experts to the hearing on 2 June 1992 in order to have them examined before the Administrative Litigation Division or, provided the other party had not objected to this, of presenting new items of evidence at the hearing of 2 June 1992.        The applicant company submits that, although the Administrative Litigation Division is formally not obliged to seek an official report and is not bound by it, a study has shown that in 67% of the environmental cases brought before the Division in 1988 and 1989 an official report was sought and that in 69,7% of the cases in which an official report was obtained the findings in the decision of the Administrative Litigation Division fully coincided with the findings in the official report. The applicant company, therefore, finds it evident that official reports have a great influence on the findings of the Administrative Litigation Division in environmental cases.        As regards the use of experts, the applicant company argues that in procedural law a distinction is made between an expert appearing for a party and an expert appointed by the court. An expert appearing for a party is approached by one of the parties in order to advise on a question formulated by this party. If the advice given is not to its liking, the party is free not to use this advice and to seek another expert. An expert appointed by the court is approached by the court and requested to advise on one or more specific questions. The parties determine in consultation with the court which expert should be approached. This expert is deemed to provide impartial and independent advice.        The applicant company submits that the Adviser is an expert appointed by the court and that this Adviser - in whose official report the facts of the case are considered in the light of the applicable statutory provisions, the policy pursued is taken into account and a conclusion is reached as regards the outcome of the proceedings - cannot be regarded as independent and impartial. The Adviser is employed by and works in the building of the Ministry, is appointed by the Minister of Housing, Regional Planning and Environment and derives his internal independent position from the Minister. Given the relation of power, the Minister can easily influence the contents of the official report. The applicant company is of the opinion that the Adviser's final authority in issuing reports referred to by the Government offers an insufficient guarantee for autonomy or independence.        The applicant company refutes the Government's argument that the Ministry had no interest in the matter. It submits that the Ministry is accountable to parliament for environmental matters, it has an interest in ensuring that environmental policy can be enforced. In this respect the applicant company emphasises that the outcome of the proceedings was decisive for the question whether the Ministry could subsequently recover the costs of the soil cleaning operation from the applicant company.        As regards the Government's observation that the applicant company could have submitted a counter-report, the applicant company states that the point was that it wanted the Administrative Litigation Division, in consultation with the parties, to appoint an independent expert and that it was not able to make this request until the hearing on 2 June 1992. It further submits that the Administrative Litigation Division did not seek advice from the Adviser on specific questions and that the official report can be interpreted as a draft judgment. In the absence of specific questions, it was difficult for the applicant company to assess which questions an expert should answer. Moreover, given that it took the Adviser almost 21/2 years to draw up the official report, the applicant company considers that it cannot reasonably be expected from it to produce a properly argued counter-report in the short period available.        The Commission notes in the first place that the Ministry, which employs the Adviser, was not a party to the proceedings at issue which concerned the lawfulness of the decision of the Mayor and Aldermen of Vlissingen. It is true that the Ministry could be considered to have a certain interest in the outcome of the proceedings, but this concerned the question whether the costs of the soil cleaning should be borne by public funds or whether they could be recovered from the owner of the cleaned plot. This question formed the object of a different set of proceedings.        There may be some doubts as to whether the Adviser could be regarded as fully independent of the Minister given their hierarchical relationship. However, in matters of this kind it would not seem unnatural that a court may ask for advice from an expert who holds a central position in the state structure and has special knowledge and experience of the implementation of the applicable rules and guidelines. There is no reason to believe that the Adviser failed to act with proper neutrality in the present case. The Commission also recalls in this respect the case-law as regards the use of experts employed by an administrative authority which is in a certain way involved in proceedings (cf. Eur. Court H.R., Bönisch judgment of 6 May 1985, Series A no. 92, p. 15, para. 32; Brandstetter judgment of 28 August 1991, Series A no. 211, p. 21, para. 44; and Zumtobel v. Austria, Comm. Report 30.6.92, Eur. Court H.R., Series A no. 268-A, p. 22, para. 86).        The Commission notes that, in proceedings before the Administrative Litigation Division, the parties may submit such documentary evidence as they consider necessary and, unless the parties do not find this necessary, a public hearing will be held in the course of which the parties can argue their case. The Commission further notes that parties have the right to call witnesses and experts, to put questions to them and to comment on any evidence given.        The Commission recalls that, as a general rule, it is for the national courts to assess the evidence before them (cf. Eur. Court H.R., Vidal judgment of 22 April 1992, Series A no. 235-B, p. 32, para. 33), but the Commission may ensure that the presentation of evidence was fair. The effect of Article 6 para. 1 (Art. 6-1) of the Convention is, inter alia, to place the domestic courts under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to the domestic courts' assessment thereof (Eur. Court H.R., Van de Hurk judgment, Series A no. 288, p. 19, para. 59).        The Commission notes that the applicant company did not seek to submit any other expert opinion before the hearing before the Administrative Litigation Division and did not seek the attendance of its own experts or witnesses at this hearing in order to have them heard before the Administrative Litigation Division. Only at the latest possible stage - namely at the hearing on 2 June 1992 - the applicant company criticised the position of the Adviser and the official report and requested the Administrative Litigation Division to appoint another expert in consultation with the parties.        In these circumstances the Commission considers that the applicant company did not avail itself of the opportunity which it had to contest the contents of the Adviser's report and to present alternative expert advice. The Commission also considers that the implied refusal by the Administrative Litigation Division of the applicant company's request to appoint another expert, made at a very late stage of the proceedings, cannot be considered to have deprived the applicant of a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission finds no indication that the applicant company was prevented from making full submissions on the question of the necessity and the modalities of the cleaning of the soil or that it was placed in a disadvantaged position vis-à-vis its adverse party. It was provided with ample opportunity to state its case, to submit evidence and to challenge the official report or the submissions made by the opposing party, both orally and in writing. Moreover, there is no reason to believe that the Administrative Litigation Division failed to take the parties' submissions, arguments and evidence into account when taking its decision in the present case.        The Commission is, therefore, of the opinion that the Administrative Litigation Division was in the present case an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention and that the proceedings before the Litigation Division were in conformity with the requirements of that provision.        It follows that the application is to be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                        (H. DANELIUS)