Jurisprudentie op het gebied van de ruimtelijke ordening, het ... - StAB

82
Ruimtelijke ordening
165. The applicants submitted that, in the light of
the Court’s judgments in the cases of Procola v.
Luxembourg (28 September 1985, Series A
no. 326) and McGonnell v. the United Kingdom
(no. 28488/95, ECHR 2000-II), the Administrative
Jurisdiction Division cannot be regarded as an independent
and impartial tribunal within the meaning
of Article 6 § 1 of the Convention. In Procola v.
Luxembourg, the Court indicated that, by reason of
the combination of different functions within the
Luxembourg Council of State, this ‘institution’s
structural impartiality’ could be put in doubt. The
applicants further submitted that the perception of
appellants had to be regarded as decisive where it
concerned a tribunal’s objective impartiality. Any
doubts by appellants – based on reasonable and objectively
justified grounds – as to the impartiality of
a tribunal had to be dispelled.
190. As is well established in the Court’s case-law,
in order to establish whether a tribunal can be considered
‘independent’ for the purposes of Article 6
§ 1, regard must be had, inter alia, to the manner
of appointment of its members and their term of office,
the existence of safeguards against outside
pressures and the question whether it presents an
appearance of independence.
191. As to the question of ‘impartiality’ for the purposes
of Article 6 § 1, there are two aspects to this
requirement. First, the tribunal must be subjectively
free of personal prejudice or bias. Secondly, it must
also be impartial from an objective viewpoint, that
is, it must offer sufficient guarantees to exclude any
legitimate doubt in this respect. (...)
193. Although the notion of the separation of powers
between the political organs of government
and the judiciary has assumed growing importance
in the Court’s case-law (see Stafford v. the United
Kingdom [GC], no. 46295/99, § 78, ECHR 2002-
IV), neither Article 6 nor any other provision of the
Convention requires States to comply with any theoretical
constitutional concepts regarding the permissible
limits of the powers’ interaction. The
question is always whether, in a given case, the requirements
of the Convention are met. The present
case does not, therefore, require the application of
any particular doctrine of constitutional law to the
position of the Netherlands Council of State. The
Court is faced solely with the question whether, in
the circumstances of the case, the Administrative
Jurisdiction Division had the requisite ‘appearance’
of independence, or the requisite ‘objective’ impartiality.
(...)
195. Having regard to the manner and conditions of
appointment of the Netherlands Council of State’s
members and their terms of office, and in the absence
of any indication of a lack of sufficient and
adequate safeguards against possible extraneous
pressure, the Court has found nothing in the applicant’s
submissions that could substantiate their
concerns as to the independence of the Council of
State and its members, the more so as this particular
issue was not addressed in the challenge proceedings
brought by Mr and Mrs Raymakers.
Neither is there any indication in the present
case that any member of the bench of the Administrative
Jurisdiction Division was subjectively prejudiced
or biased when hearing the applicants’ appeals
against the Routing Decision. In particular, it
has not been alleged by the applicants that the participation
of the President of the bench in the advisory
opinion on the Transport Infrastructure Planning
Bill gave rise to actual bias on his part.
196. Nevertheless, as illustrated in the above-cited
Procola v. Luxembourg case, the consecutive exercise
of advisory and judicial functions within one
body may, in certain circumstances, raise an issue
under Article 6 § 1 of the Convention as regards the
impartiality of the body seen from the objective
viewpoint. In this context the Court reiterates that it
is crucial for tribunals to inspire trust and confidence
(see § 191 above).
197. The respondent Government has brought to
the Court’s attention the internal measures taken by
the Council of State with a view to giving effect to
the Procola judgment in the Netherlands (see
§§ 142-145 above). According to the description of
these measures which is to be found in the Annual
Report of 2000 of the Council of State, the composition
of the bench will only be scrutinised if doubts
are expressed by a party; the criterion then applied
is that if the appeal goes to a matter explicitly addressed
in a previous advisory opinion, the compo-
NIEUWSBRIEF StAB 3 / 2003