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1.1 The author of the
communication is Johannes van den Hemel, a Dutch citizen. He claims to be a
victim of a violation by the Netherlands of his rights 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 15 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 and merits of the
communication should be considered together.
FACTUAL BACKGROUND
2.1 The author is an orthodontist living in the Netherlands. On 12 October
1989, he was involved in a car accident in which road signs used by road
construction companies were damaged. The author himself suffered "material
and non-material" damage and a 20% loss of earning capacity.
2.2 The damage was covered by several insurance companies, including Royal
Nederlands Verzekeing Maatschappij NV (Royal), which partially compensated
the damage. The insurance company VVAA Schadeverzekeing-smattschappij (VVAA),
with whom the author had third party insurance at the time of the accident,
partially compensated the damage to Royal. The question of guilt regarding
the cause of the car accident and the damaged road signs led to a dispute
between the author and the insurance company Royal.
2.3 Royal filed a claim in the Utrecht Regional Court against the author and
VVAA for compensation for the remaining damages. The author filed a counter
claim. On 21 February 1996, the Utrecht Regional Court ordered the author to
pay Royal 9.576,62 Dutch Guilders plus interest in the amount of 5.257,25
Dutch Guilders. The Utrecht Regional Court declared the author's counter
claim inadmissible.
2.4 The author appealed the judgement to the Court of Appeal, which affirmed
the judgement on 26 June 1997. Judges Van der Reep and Veger, who rendered
judgement in the Court of Appeal case, also sit on the Utrecht Regional
Court. The author refers to a report published in 1996 by the Scientific
Research Judiciary Foundation, in which it is reported that a third judge,
judge Cremers, who also rendered judgement in the author's Court of Appeal
case, had decided in favour of the insurance company in all 26 appeal cases
in which an insurance company was one of the parties.
2.5 On 26 September 1997, the author appealed the judgement to the Supreme
Court. Two of the judges who considered this appeal, judges Herrman and
Mijnssen, were at the time of the author's appeal, employed and remunerated
by the Supervisory Board of the Insurance Sector (Raad van Toezicht
Verzekeringen), which is financed by the League of Insurers (Verbond van
Verzekeraars) of which Royal is a member. The Board is a disciplinary body
that determines disputes between insurance companies and the insured.
2.6 On the basis that judges Herrman and Mijnssen of the Supreme Court would
not be impartial, the author requested that they recuse themselves from the
case. His application was heard by a different composition of the Supreme
Court. Pursuant to a request from judges Herrman and Mijnssen, they were
heard by the Supreme Court in the absence of the author. The author was
heard in the presence of the two judges. According to the author, the judges
stated that if their request were not granted by the court, they would "no
longer cooperate with the hearing of the request with regard to the
challenge". On 19 November 1999, the Supreme Court rejected the author's
application and on 24 December 1999, rejected his appeal from the Court of
Appeal.
2.7 The author states that judge Mijnssen had earlier been a colleague of
judge Heemskerk at a University in Amsterdam. The latter, a judge on the
Supreme Court, had considered and rejected the author's request to have
Judge Mijnssen recuse himself from the case and had also heard and rejected
the author's appeal.
2.8 According to the author, he has been unable to ascertain whether any of
the judges of the Supreme Court or the Court of Appeal were shareholders of
Royal, and accuses the Utrecht Regional Court of failing to comply with its
obligations under article 44 of the Legal State Magistrates Act (Wet
Rechtspositie Rechterlijke Ambtenaren), which requires Courts to hold a
register in which the additional functions of magistrates are listed. He
bases his argument on an October 2000 study undertaken by the Ministry of
Justice, which concluded that a large number of judges refuse to publish
their other functions or only partially publish them.
THE COMPLAINT
3.1 The author claims that his hearing before the Court of Appeal was
contrary to article 14 as two of the judges who rendered judgement in this
appeal, also sit on the Utrecht Regional Court.
3.2 He claims that the relationship of the two judges of the Supreme Court
with Royal, through their presence on the Supervisory Board, gives rise to
"the appearance of a possible bias" in violation of the author's right to a
fair hearing under article 14 of the Covenant. [FN1] He argues that a
finding by these judges of the Supreme Court for the author in Royal's claim
against him could have resulted in the termination of their membership on
the Board and thus a loss of fees. The author states that the two judges
indicated their interest in the dispute between the author and Royal through
their refusal to withdraw from the case and their behavior during the
author's challenge to their hearing of the case. In addition, he argues that
the failure to grant him a fair hearing was compounded by the "link" between
Judge Mijnssen and Judge Heemskerk, as they had earlier been colleagues in a
university in Amsterdam.
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[FN1] In the communication, the author cites as applicable a decision of the
House of Lords of 17 December 1998, ILM Vol. 38 (1999), which discusses the
principle that a man may not be a judge in his own case as applied in a case
where a judge is in fact a party to the litigation and where the behaviour
of the judge gives rise to a suspicion that he is not impartial. The author
additionally cites the High Court of Australia in Webb and Hay v. the Queen
to demonstrate that the doctrine of disqualification applies where, as in
the current case, a direct or indirect relationship gives rise to prejudice
on the part of a judge.
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3.3 Lastly, he claims that relationships between Royal and the judges of the
Utrecht Regional Court, the Court of the Appeal and the Supreme Court,
violate his right to a fair trial under article 14 of the Covenant because
these judges "could" be shareholders of Royal. He claims that as it
"appeared" to him that the Utrecht Regional Court had failed to comply with
article 44 of the Legal State Magistrates Act, his right to a fair trial had
been violated, as he was unable to ascertain whether any of the judges were
such shareholders.
THE STATE PARTY'S SUBMISSION ON ADMISSIBILITY AND MERITS AND THE AUTHOR'S
COMMENTS THEREON
4.1 On 4 August 2003, the State party contested the admissibility of part of
the complaint. It submitted that the claim concerning the judges of the
Court of Appeal is inadmissible for failure to exhaust domestic remedies. It
argues that under articles 36 and 37, paragraph 1, of the Code of Civil
Procedure, the author could have challenged the judges assigned to examine
his case on "the grounds of facts and or circumstances which might prejudice
judicial impartiality" and should be done "as soon as the person concerned
has become familiar with these facts or circumstances". Had the author
challenged the impartiality of one or more of the judges, the proceedings
would have been suspended immediately. The challenge would have been heard
by the full bench, excluding the challenged judges, at the earliest
opportunity. Had the full-bench upheld the author's challenge, the case
would subsequently have been heard by a court in which the challenged judge
or judges took no part. It refers to the Committee's decision in Perera v.
Australia and in Triboulet v. France [FN2] in this regard.
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[FN2] Communication No. 536/1993, Decision adopted on 28 March 1995, para.
6.5, and Communication No. 661/1995, Decision adopted on 29 July 1997,
paragraph 6.2.
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4.2 On 2 December 2003, the State party provided its submission on the
merits, arguing that the part of the case which is not considered
inadmissible for failure to exhaust domestic remedies is "manifestly
ill-founded". As a preliminary remark, it noted that, on 14 November 2000,
the European Court of Human Rights had found this case inadmissible, because
it did "not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols". According to the State
party, a finding by the Committee that there has been a violation in this
case would be extremely difficult to reconcile with this conclusion.
4.3 As to the facts, the State party sets out the legislation governing
challenges to judges on grounds of bias and the recusal of judges, including
article 34 of the Code of Civil Procedure and 8:19 of the General
Administrative Law Act (Algemene Wet Bestuursrecht), which states that a
judge must recuse himself if there are facts or circumstances in a case that
could be prejudicial to the court's impartiality. It submits that, under
(old) [FN3] article 32 of the Code of Procedure, the court may determine, at
the request of either the challenging party or the challenged judge, that
either one or both parties will not be heard in each others' presence. The
two judges of the Supreme Court availed themselves of this option and
author's counsel stated expressly during the oral questioning at the public
hearing of 4 October 1999 that he did not object. [FN4] After the president
had granted the request, the author left the court. His counsel stated that
he "thought it better that he should also leave the court". The State party
adds that the judges concerned had said that they had no objection to the
author's counsel being present while they were being heard. As to the claim
that the judges stated that if their request were not granted by the court,
they would "no longer [………] cooperate with the hearing of the request with
regard to the challenge", the State party submits that this observation is
completely groundless and is not supported by the documents in the case.
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[FN3] The Judiciary Act and the Code of Civil Procedure was amended on 1
January 2002. Thus, the numbering of the articles has changed.
[FN4] It refers to the relevant paragraph of the official report which reads
as follows, "At the request of Mr. Mijnssen and Mr. Herrmann to be heard in
Mr. Van den Hemel's absence, Mr. Groen replied that his client had no
objection to this", and "The President [of the special chamber hearing the
challenge on grounds of bias - the Government stated that the request of Mr.
Mijnssen and Mr. Hermann to be heard in Mr. Van den Hemel's absence was
granted, since the latter did not object".
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4.4 As to the claim that two of the judges considering his case before the
Supreme Court were members of the Insurance Companies Supervisory Board,
which is financed by the Dutch Association of Insurers, of which the other
party in this case belonged, the State party refers to the Committee's
definition of impartiality in Communication No. 387/1989, Karttunen v.
Finland, [FN5] in which it was found that, "impartiality of the court
implies that judges must not harbour preconceptions about the matter put
before them, and that they must not act in ways that promote the interests
of one of the parties." In the State party's view, the author has not
demonstrated that the judges in question harboured such preconceptions.
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[FN5] Views adopted on 23 October 19992, para. 7.2.
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4.5 According to the State party, the author's observations fail to take
into account the fact that the Supervisory Board's members are independent
experts, and that the Supervisory Board is an independent disciplinary
tribunal set up under private law. This Board provides, together with an
Insurance Ombudsman, an alternative to legal proceedings. It sets out, in
consultation with the insurer or agent involved, to find a solution to, or
to pronounce an opinion on, an insurance dispute, but does not act in the
place of the competent court. The Insurance Companies' Complaints Council is
financed by a foundation of the same name, which was set up jointly by
insurance companies and agents and the Dutch Consumers' Association, none of
which, it is added, exercise any influence on, or have any power to decide,
the way in which a case is dealt with.
4.6 The State party refers to the reasoning of the Supreme Court, stating
that the mere fact that the Supervisory Board is financed in part, by way of
the Insurance Companies' Complaints Council, and the Dutch Association of
Insurers, the large membership of which includes the other party to the
author's proceedings, and that the Supervisory Board's members receive a fee
for their work, provides no justification, for the author's fear that the
judges concerned lack impartiality. [FN6]
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[FN6] "The mere fact that the Foundation is financed in the manner described
in 2.7 and that the members of the Supervisory Board receive a fee, the
amount of which is determined by the Foundation's Board, is insufficient
having regard, inter alia, to the mandate [of the Supervisory Board] as
defined in 2.5, to justify the conclusion that the petitioner's fear as
described in 2.6 [that judges who are also members of the Supervisory Board
lack impartiality in cases between insurers and non-insurers] is objectively
justified."
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4.7 The State party argues that the Supervisory Board's members are
appointed by the board of directors of the Dutch Association of Insurers, on
the basis of nominations by the Association's management. Royal, as one of
the many members of the Dutch Association of Insurers, was not in a position
to exercise such considerable influence on the appointments, or
reappointments, of Supervisory Board members, as suggested by the author.
The State party explains that the Dutch Association of Insurers is only one
of a large number of organisations, including the Consumers' Association,
which is affiliated to the Insurance Companies' Complaints Council. Its
members' independence is guaranteed explicitly in the Regulations.
Furthermore, Royal, as a member of the Dutch Association of Insurers, is
expressly subject to independent disciplinary jurisdiction. As to the
allegation that the judges failure to ensure a positive outcome for Royal
may have resulted in a failure to prolong their appointment thereby losing
their fees, the State party highlights the fact that the author did not make
this submission in the domestic proceedings.
4.8 The State party contests the fact that two of the judges in question,
who had been professors in the law faculty of the Free University in 1990
and 1986, respectively, prior to their appointments to the Supreme Court,
could be of any significance in the present communication. As to the
allegation that some judges may be shareholders in Royal, the State party
submits that under section 44 of the Judicial Officers (Legal Status) Act,
judges are required to report any outside activities that they either
already have or are contemplating. The Board administering the courts keeps
a register of outside activities, which is open to inspection at the court.
The outside activities of judges and deputy judges are also published on the
internet. The State party argues that this claim is solely based on
assumptions and that the author did not raise this point during the domestic
proceedings. Thus, the domestic courts had no opportunity to make any
finding thereon.
4.9 The State party submits that, should the Committee find the claim
relating to allegations of bias by the judges of the Court of Appeal to be
admissible, it should be noted that the author has not provided any evidence
that the mere fact that judges working at the Court of Appeal also serve as
deputy judges at the Utrecht Regional Court provides objective justification
for fears of bias or constitutes sufficient grounds on which to conclude
that there is an appearance of bias. It also states that the two judges in
the Court of Appeal who are also deputy judges at the Utrecht Regional Court
did not pronounce on the author's case at first instance.
5. On 2 February 2004, the author commented on the State party's response.
He argues that since he did not know, at the time his appeal was pending,
that two judges of the Court of Appeal were also sitting on the Utrecht
Regional Court, the conclusion by the State party that domestic remedies
have not been exhausted is invalid. He reiterates his view that as a large
number of judges refuse to publish information on their additional
functions, a litigant does not have reliable information on such functions
for the purpose of challenging him and exhausting domestic remedies. In
supplementary information provided on 28 May 2004, the author makes various
allegations about the relationship between the judiciary and insurance
companies generally.
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 14 November 2000. However, it recalls its
jurisprudence [FN7] 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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[FN7] See Communication, No. 824/1998, N.M. Nicolov v. Bulgaria, decision
adopted on 24 March 2000.
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6.3 The Committee has noted the author's claim that the hearing of his case
violated article 14 of the Covenant because (a) two of the judges who
rendered judgement in the Court of Appeal also sit as substitute judges on
the Utrecht Regional Court; (b) the Supreme Court judges who considered his
case were biased because of their possible links to Royal ( the insurance
company that filed a claim against the author), because of their positions
on the Supervisory Board of the Dutch Association of Insurers; and (c ) the
judges who pronounced on his case "could" have been shareholders of Royal.
6.4 As to the first claim, the Committee notes that the author has adduced
no evidence to the effect that the two judges of the Court of Appeal had in
fact also sat on his case in the Regional Court of Utrecht, or participated
in any way in the adjudication of his case at first instance. In this
respect, the author has failed to substantiate his claim of bias, for
purposes of admissibility, and the Committee therefore declares it
inadmissible under article 2 of the Optional Protocol.
6.5 In as much as the second claim is concerned (bias because of the Supreme
Court judges' position on the National Insurers Association Supervisory
Board), the Committee observes that the author challenged the two Supreme
Court judges in question and requested that they recuse themselves. While
expressing some doubts about the propriety of a system that allows judges to
sit on a supervisory board established by a business association, the
Committee notes that the Supreme Court heard the author's recusal challenge
in a different composition, proceeded to a full hearing of the positions and
the evidence advanced by the author and the judges in question, and in the
end dismissed the challenge and subsequently, on 24 December 1999, also the
substance of the appeal. The Committee recalls that it is generally for the
courts of States parties to the Covenant to evaluate facts and evidence in a
case, unless it can be ascertained that the evaluation was clearly arbitrary
or amounted to a denial of justice. [FN8] Nothing in the material before the
Committee suggests that the proceedings before the Supreme Court that
resulted in the dismissal of the author's challenge on 19 November 1999 and
of the substance of his appeal a month later suffered from such defects.
Accordingly, this claim is inadmissible under article 2 of the Optional
Protocol. The same applies with even more force to the author's claim, under
article 14, that one of the Supreme Court judges who considered the author's
challenge of the two Supreme Court judges had been a former colleague of one
of these judges in the University of Amsterdam.
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[FN8] See Errol Simms v. Jamaica, communication No.541/1993, declared
inadmissible 3 April 1995.
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6.6 Finally, in as much as the author's final claim is concerned, the
Committee notes that the contention that some of the judges who heard the
author's appeal "might" have been shareholders of the insurance company
which litigated against him (Royal), was not raised in the course of the
domestic judicial proceedings. In this respect, accordingly, the Committee
concludes that the author has failed to exhaust domestic remedies, as
required by article 5, paragraph 2(b), of the Optional Protocol.
7. The Human Rights Committee therefore decides:
a) That the communication is inadmissible under articles 2 and 5, paragraph
2(b), 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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