CEDH · PRESS;GENERAL;ENG — 6 mai 2003

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .sA3022B31 { margin-left:10.52pt; padding-left:17.83pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sB15BD35E { color:#b5082e } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     241   6.5.2003   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT IN THE CASE OF KLEYN AND OTHERS v. THE NETHERLANDS   The European Court of Human Rights has delivered at a public hearing today a judgment in the case of Kleyn and Others v. the Netherlands (application nos. 39343/98, 39651/98, 43147/98 and 46664/99). The Court held   unanimously that the complaint under Article 6 § 1 (right to a fair hearing before an independent tribunal) of the European Convention on Human Rights was admissible; and by twelve votes to five that there had been no violation of Article 6 § 1 .   1.     Principal facts   The case concerns four joined applications (nos. 39343/98, 39651/98, 43147/98 and 46664/99) brought by 23 Netherlands nationals and 12 Dutch companies, whose homes or business premises are located on or near the track of a new railway, the Betuweroute railway, which is currently being constructed and which runs across the Netherlands from the Rotterdam harbour to the German border.   All applicants took part in proceedings objecting to the decision on the determination of the exact routing of the Betuweroute railway, the so-called Routing Decision ( Tracébesluit ). This Routing Decision was taken under the procedure provided for in the Transport Infrastructure Planning Act ( Tracéwet ), as in force since 1 January 1994. In its decision of 28 May 1998, the Administrative Jurisdiction Division of the Council of State rejected most of the applicants’ complaints. In so far as the complaints were considered well-founded, new partial routing decisions were taken in 1998. Appeals against these new partial decisions were dismissed by the Administrative Jurisdiction Division in separate decisions taken between 16   April 1999 and 25 July 2000.   2.     Procedure and composition of the Court   The applications were lodged with the European Commission of Human Rights between 8   July 1997 and 16 March 1998 and were transmitted to the Court on 1 November 1998. In its partial decision on admissibility taken on 3 May 2001, a Chamber of the Court decided to communicate to the Netherlands Government the applicants’ complaint under Article 6 § 1 that the Administrative Jurisdiction Division could not be regarded as an independent and impartial tribunal, and to declare inadmissible the remainder of the applications. On 2 July 2002 the Chamber relinquished jurisdiction in favour of the Grand Chamber. Requests by the Governments of Italy and France to make written third party submissions under Article 36 §   2 of the Convention were granted. A hearing was held on 27   November 2002.   Judgment was given by a Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Georg Ress (German), Nicolas Bratza (British), Lucius Caflisch [1] (Swiss), Viera Strážnická (Slovakian) Karel Jungwiert (Czech) , Volodymyr Butkevych (Ukrainian) , Nina Vajić (Croatian) , John Hedigan (Irish) , Wilhelmina Thomassen (Netherlands) , Margarita Tsatsa-Nikolovska (Macedonian) , András Baka (Hungarian) , Kristaq Traja (Albanian) , Mindia Ugrekhelidze (Georgian), Vladimiro Zagrebelsky (Italian), judges , and also Paul Mahoney , Registrar .   3.     Summary of the judgment [2]   Complaint   The applicants complained, under Article 6 § 1 of the Convention, that the Administrative Jurisdiction Division of the Netherlands Council of State could not be regarded as an independent and impartial tribunal in that the Council of State exercised both advisory functions, by giving advisory opinions on draft legislation, and judicial functions, by determining appeals under administrative law. Relying on the Court’s findings in its judgment of 28 September 1995 in the Procola   v. Luxembourg   case , in which the Court held   that the Supreme Administrative Court’s successive performance of   advisory and judicial functions in respect of the same decisions was   capable of casting doubt on that institution’s structural impartiality,   the The applicants , relying on the Court’s findings in its judgment of 28 September 1995 in the case of Procola v. Luxembourg , submitted complained that the Council of State had advised the Government on the Bill for the Transport Infrastructure Planning Act and that the Routing Decision they had subsequently challenged before the Administrative Jurisdiction Division of the Council of State had been taken on the basis of that Act.   Decision of the Court   Admissibility of the application   The Government contended that, apart from Mr and Mrs Raymakers, the applicants had failed to exhaust domestic remedies because they had neither challenged the Administrative Jurisdiction Division nor appealed to the civil courts on the ground that the administrative proceedings at issue did not offer sufficient guarantees of fairness. Since the Raymakers’ challenge, which was based on the Court’s finding in the Procola v. Luxembourg case , had been dismissed, the Court failed to see how a further challenge by the other applicants, based on the same arguments as the Raymakers’ challenge, could have resulted in a different decision. The applicants had further established that the civil remedy referred to by the Government offered no reasonable prospect of success. Accordingly, the applications could not be dismissed for failure to exhaust domestic remedies. The Court considered that the complaint under Article 6 § 1 raised questions of law which were sufficiently serious to warrant an examination of the merits.   Article 6 § 1   The sole question before the Court was whether, in the circumstances of this case, the Administrative Jurisdiction Division had had the requisite appearance of independence or the requisite objective impartiality. The Court found nothing in the manner and conditions of appointment of the Netherlands Council of State’s members or their terms of office to substantiate the applicants’ concerns regarding the independence of the Council of State. Nor was there any indication of any personal bias on the part of any member of the bench that had heard the applicants’ appeals against the Routing Decision.   The Court was not as confident as the Government that the internal measures taken by the Council of State with a view to giving effect to the Procola judgment in the Netherlands were such as to ensure that in all appeals the Administrative Jurisdiction Division constituted an impartial tribunal under Article 6 § 1. However, it was not the Court’s task to rule in the abstract on the compatibility of the Netherlands system in this respect with the Convention. The issue before the Court was whether, in respect of the applicants’ appeals, it was compatible with the requirement of objective impartiality that the Council of State’s institutional structure had allowed certain of its councillors to exercise both advisory and judicial functions.   The Council of State had advised on the Transport Infrastructure Planning Bill, whereas the applicants’ appeals had been directed against the Routing Decision. The Court found that the advisory opinions given on the draft legislation and the subsequent proceedings on the appeals against the Routing Decision could not be regarded as involving the “same case” or the “same decision”. Although the planning of the Betuweroute railway had been referred to in the advice given to the Government, that could not reasonably be regarded as a preliminary determination of any issues subsequently decided by the ministers responsible for the Routing Decision. The Court could not agree with the applicants that, by suggesting name of places where the Betuweroute was to start and end, the Council of State had in any way prejudged the exact routing of that railway.   The applicants’ fears regarding the Administrative Jurisdiction Division’s lack of independence and impartiality could not be regarded as objectively justified. There had accordingly been no violation of Article 6 § 1.   Judge Ress expressed a concurring opinion, Judge Tsatsa-Nikolovska, joined by Judges Strážnická and Ugrekhelidze, expressed a dissenting opinion, and Judge Thomassen, joined by Judge Zagrebelsky, also expressed a dissenting opinion, all of which are annexed to the judgment.   ***   The Court’s judgments are available on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Joanna Reynell (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. 1.     Elected as the judge in respect of Liechtenstein. [2] .     This summary by the Registry does not bind the Court.