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BEFORE: |
CHAIRPERSON: Ms.
Christine Chanet (France)
VICE-CHAIRPERSONS:
Mr. Maurice Glele Ahanhanzo (Benin), Ms. Elisabeth Palm (Sweden),
Mr. Hipolito Solari Yrigoyen (Argentina)
RAPPORTEUR: Mr. Ivan
Shearer (Australia)
MEMBERS: Mr.
Abdelfattah Amor (Tunisia), Mr. Mr. Nisuke Ando (Japan), Mr.
Prafullachandra Natwarlal Bhagwati (India), Alfredo Castillero Hoyos
(Panama), Mr. Edwin Johnson Lopez (Ecuador), Mr. Walter Kalin
(Switzerland), Mr. Ahmed Tawfik Khalil (Egypt), Mr. Rajsoomer Lallah
(Mauritius), Mr. Michael O’Flaherty (Ireland), Mr. Rafael Rivas
Posada (Colombia), Sir Nigel Rodley (United Kingdom), Ms. Ruth
Wedgwood (United States), Mr. Roman Wieruszewski (Poland) |
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PermaLink: |
http://www.worldcourts.com/hrc/eng/decisions/2005.07.25_Sanders_v_Netherlands.htm |
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Citation: |
Sanders
v.Netherlands, Comm. 1193/2003, U.N. Doc. A/60/40, Vol. II, at 407 (HRC
2005) |
Alt. Style
of Cause: |
Teun Sanders
v. The Netherlands |
Publications: |
Report of
the Human Rights Committee, U.N. GAOR, 60th Sess., Supp. No. 40,
U.N. Doc. A/60/40, Annex VI, sect. V, at 407 (Oct. 3, 2005) |
Represented By: |
B.W.M.
Zegers |
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1.1 The author of the
communication is Mr. Teun Sanders, a Dutch citizen. He claims to be a victim
of a violation by the Netherlands under article 14 of the International
Covenant on Civil and Political Rights. He is represented by counsel; Mr. B.
W. M. Zegers.
1.2 On 28 August 2003, pursuant to the State party's submission on
admissibility, the Special Rapporteur on New Communications, acting on
behalf of the Committee, decided that the admissibility of this
communication should be considered separately from the merits.
FACTUAL BACKGROUND
2.1 On 4 February 1997, the author lodged civil proceedings against the
Dutch Touring Club (ANWB) and the Dutch Technical Institute (TNO), in which
he requested the court to: (a) order the ANWB to rectify an article
published in the ANWB magazine about the working and safety of a coupling
stabilizer designed by the author; (b) prohibit the ANWB from distributing
the article; order the ANWB and TNO to pay compensation for the damage he
suffered; and (c) to order the ANWB and TNO to hand over the "report"
mentioned in the summons.
2.2 On 10 February 1997, at the beginning of the court hearing, the author
asked the "trial judge" to refer the case to another court, claiming that
The Hague Regional Court could not be considered an independent and
impartial tribunal. He argued that "a number of lawyers" working at the same
law firm [FN1] as the lawyers representing ANWB and TNO also served as
substitute judges on the Hague Regional Court and on the Court of Appeal.
The judge rejected his request.
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[FN1] De Brauw Blackstone Westbroek Linklaters & Alliance (DBB)
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2.3 The author appealed to the Hague Court of Appeal and, at the beginning
of the hearing, sought referral of the case to another Court of Appeal, for
the same reason as in 2.2 above. On 22 September 1998, the Hague Court of
Appeal declared the author's claim inadmissible as, under Dutch law, the
decision not to refer the case to another court could not be appealed
separately from the Court's ruling on the case itself. On 30 June 2000, his
appeal to the Supreme Court was rejected.
THE COMPLAINT
3.1 The author claims a violation of article 14 of the Covenant, as he was
not afforded a "fair trial" before an independent and impartial tribunal. He
claims that both the Hague Regional Court and Court of Appeal cannot be
considered to be independent and impartial tribunals, as "a number of
lawyers" working in the same firm as the lawyers representing ANWB and TNO
also served as substitute judges on the same court, therefore creating a
conflict of interest. He contends that the fact that the case was not
referred to another Regional Court proved that the Hague Court of Appeal had
an "interest" in passing judgement on the author's case.
3.2 The author adds that the lawyer for ANWB was also a professor at the
Vrije University in Amsterdam, and that three other professors of the same
university were substitute judges on The Hague Regional Court. He argues
that the "trial judge" had been a member of the Disciplinary Council of The
Hague bar association until 1996, together with Ms. Nouwen-Kronenberg, a
judge on the Dordrecht (Municipal) Court and sister-in-law of Mr. Nouwen, a
former manager of ANWB. When this fact was pointed out to the "trial judge",
he answered that he was unaware of this fact and that it was no ground for
him to rule himself out as a judge in the case.
3.3 Finally, the author claims that the institution per se of substitute
judges, who always have additional functions besides their work as judges,
violates article 14 of the Covenant, as it inevitably leads to conflicts of
interest.
THE STATE PARTY'S SUBMISSION ON ADMISSIBILITY AND AUTHOR'S COMMENTS THEREON
4.1 On 27 August 2003, the State party contested the admissibility of the
communication on two grounds. Firstly, it submits that the author does not
qualify as a "victim" within the meaning of article 1 of the Optional
Protocol, as the President dealing with interim injunction proceedings
(referred to by the author as the "trial judge") had no personal ties with
the law firm of the defendant's lawyers. It recalls that the Optional
Protocol is not intended for complaints couched in abstract terms about
alleged shortcomings in national legislation or national legal practice.
According to the State party, any challenge to a judge must be backed up
with specific objections that demonstrate that the specific judge's
impartiality was open to question, or in any case that objectively
justifiable doubts exist concerning his/her impartiality or appearance of
impartiality.
4.2 Secondly, the State party submits that the case falls outside the scope
of the application of Covenant, as it concerns interim injunction
proceedings before the President (referred to as the "trial judge" by the
author). On the basis of article 254, paragraph 1, of the Code of Civil
Procedure, a judge who hears applications for interim relief may grant an
injunction "in all urgent cases in which an immediately enforceable
injunction is required, having regard to the interests of the parties".
Article 257 of the Code states, "immediately enforceable decisions shall not
prejudice the principal action". The State party argues that the present
case does not relate to the determination of a civil right, within the
meaning of article 14, paragraph 1. It submits that the European Court of
Human Rights reached the same conclusion on 29 May 2002, when it found the
same case inadmissible, for being outside the scope of article 6 of the
European Convention on Human Rights.
5.1 On 30 September 2004, the author commented on the State party's
submission and reiterates that his claim does come within the scope of the
Covenant, maintaining that it does relate to a civil right, i.e. the "right
to a fair trial" and, that he has been a victim within the meaning of
article 1 of the Optional Protocol. He concedes that the Regional Court
judge who considered his case was not a substitute judge from the law firm
in question but a full-time judge. However, this judge had "personal ties"
with lawyers of the firm. He argues that in practice, judges consult or
confer with other substitute judges who are also lawyers at the [DBB] law
firm. He argues that the Covenant makes no distinction between summary
proceedings and principal proceedings and the fact that the European Court
of Human Rights found his claim inadmissible does not mean that the
Committee should find likewise.
5.2 Finally, he refers to the consideration of an unrelated case before The
Hague Regional Court on 21 June 2001, in respect of which the court held
that because of the close connection between the judges of the Court and the
law firm DBB, the applicant's request to have his case referred to another
court was granted.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the complaint is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee notes that this matter was already considered by the
European Court of Human Rights on 29 May 2002. However, it recalls its
jurisprudence FN2 that it is only where the same matter is being examined
under another procedure of international investigation or settlement that
the Committee has no competence to deal with a communication under article
5, paragraph 2 (a), of the Optional Protocol. Thus, article 5, paragraph
2(a), does not bar the Committee from considering the present communication.
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[FN2] See Communication, No. 824/1998, N.M. Nicolov v. Bulgaria, decision
adopted on 24 March 2000.
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6.3 The Committee notes the author's claim that the court was not
independent and impartial as "a number of judges" on The Hague Regional
Court and Court of Appeal were also practicing lawyers in the law firm
against whom the author was taking legal action. It notes the State party's
argument that the President of the court in which injunction proceedings
were pending had no ties with the law firm in question and that the author
conceded, in his own comments on the State party's observations, that the
judge who considered his case was employed as a full-time judge and not a
practising lawyer with the law firm in question. The Committee notes that
the author has failed to provide any additional information which would
substantiate his claim of lack of impartiality or lack of independence on
the part of the judges who examined his case. It therefore concludes that
the author has failed to substantiate his claims for purposes of
admissibility, under article 2 of the Optional Protocol, and that these
claims are thus inadmissible.
7. The Human Rights Committee therefore decides:
a) That the communication is inadmissible under article 2 of the Optional
Protocol;
b) That this decision shall be communicated to the State party and to the
author.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly. |
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