APPLICABILITY OF ARTICLE 6 ECHR*

by Martin Kuijer1

4.1 Introduction

An elaborate discussion on the applicability of Article 6 ECHR falls outside the scope of this book. One could easily write a separate doctoral thesis on the issue and indeed this has been done by Lemmens and Viering.2 However, a research into one of the substantive requirements of Article 6 ECHR would be incomplete if it did not pay at least summarily attention to the question when Article 6 ECHR is applicable. The doors of the 'Walhalla' of Article 6 ECHR remain firmly shut in some categories of proceedings. In those instances the protection offered by the Convention concerning judicial independence and impartiality is a priori excluded. This paragraph will examine the interpretation given by the Court to the first sentence of Article 6 ECHR, i.e. "In the determination of his civil rights and obligations or of any criminal charge against him" (§4.2 and §4.3). Then some remarks will be made with regard to the applicability of Article 6 ECHR in the pre-trial and post-trial stage (§4.4) and in administrative proceedings (§4.5). And finally this section focuses (§§4.6 to 4.9) on the applicability of Article 6 ECHR vis-à-vis various kinds of tribunals (for example, constitutional courts, arbitral tribunals, international tribunals, et cetera).

4.2 The concept of “civil rights and obligations”

The interpretation of "civil rights and obligations" has led to a lively debate. It has been unclear from the very beginning what is exactly meant by this phrase. Compared to provisions dealing with a fair trial in other international human rights documents, Article 6 ECHR is the only provision with this limitation clause. Article 14 of the ICCPR speaks more generally of "rights and obligations in a suit of law". Article 8 §1 of the American Convention on Human Rights uses the words "[...] or for the

* This material was provided by the National Institute of Justice with the author’s approval. It is included in the current data base in the frames of the project ‘Promoting Efficiency of Bulgarian Judiciary in the Area of Human Rights Protection’, accomplished by BLHR Foundation from November 2005 to August 2006.

1 Prof. dr. Martin Kuijer is Professor in human rights law at the Free University of Amsterdam. He is head of the human rights departement of the Netherlands Ministry of Justice, where he is responsible for the defence of the Netherlands before the European Court of Human Rights. This article is a chapter of his doctoral thesis “The Blindfold of Lady Justice - Judicial Independence and Impartiality in Light of the Requirements of Article 6 ECHR”, Wolf Legal Publishers 2004.

2 P. Lemmens, Geschillen over burgerlijke rechten en verplichtingen, Antwerpen: Kluwer rechtswetenschappen, 1989 and M.L.W.M. Viering, Het toepassingsgebied van artikel 6 EVRM, Zwolle: W.E.J. Tjeenk Willink, 1994.

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determination of his rights and obligations of a civil, labour, fiscal, or any other nature [emphasis added, MK]". And the recent Charter of Fundamental Rights of the European Union simply states in Article 47: "Everyone is entitled [...]" in an unconditional manner. Van Dijk has in my view cogently argued that the drafting history of the European Convention (in the light of the drafting history of the ICCPR) would seem to indicate that "procedures concerning the determination of civil rights and obligations together with criminal procedures were considered to cover all adjudicative procedures and that consequently, 'civil' was used in the sense of 'non-criminal'”.3 Likewise, Commission members Frowein and Melchior argued in their dissenting opinion in the Benthem case that "all those rights which are individual rights under the national legal system and fall into the sphere of general individual freedom, be it professional or any other legally permitted activity, must be seen as civil rights".4

Unfortunately, however, such a broad interpretation as argued by Van Dijk, Frowein and Melchior has not been the standpoint of the Court. Equally unfortunate is the fact that the Court has never given an abstract definition of the phrase "civil rights and obligations". This is disappointing from the point of view of legal certainty and clarity and has led to a disorderly body of case-law based on ad hoc decisions. Let me attempt to give an overview of the current status quo.

Article 6 ECHR will only be applicable if (a) there is a dispute (‘contestation’) of a serious and legal nature between two (legal) persons which are in some relation to the right5; (b) the disputed right has - at least on arguable grounds - been recognised under national law; (c) the outcome of the national proceedings is directly decisive for these rights and obligations6; and (d) these rights are 'civil' in the autonomous sense of the Convention. If national law classifies a disputed right as 'civil' there is usually no reason for the Court to reach a different conclusion. Problems only arise if national law classifies the disputed right as 'non-civil', for example administrative law. The Court therefore emphasised the autonomous character in the

3 P. van Dijk, "The interpretation of 'civil rights and obligations' by the European Court of Human Rights - one more step to take", in: F. Matscher & H. Petzold (eds.), Protecting Human Rights: The European Dimension – Essays in honour of G. Wiarda, Köln: Carl Heymanns Verlag, 1988, pp. 131-143. See also: Th. Buergenthal & W. Kewenig, "Zum Begriff der Civil Rights in Artikel 6 Absatz 1 der Europäischen Menschenrechtskonvention", in: Archiv des Völkerrechts 1966/67, pp. 404-406 and K.J. Partsch, Die Rechte und Freiheiten der europäischen Menschenrechtskonvention, Berlin, 1966, pp. 143-145.

4 EComHR, 8 October 1983, Benthem - Netherlands (Series A- 97), Dissenting opinion, §10.

5 The ‘contestation’ may not only relate to “the actual existence of a rights but also to its scope or the manner in which it may be exercised” (see ECHR, 27 October 1987, Pudas - Sweden (Series A-125-A), §31).

6 The Court has held that a “tenuous connection or remote consequences” do not suffice for Article 6 ECHR (see, for example, ECHR, 23 June 1981, Le Compte, Van Leuven & De Meyere - Belgium (Series A-43), §47).

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König case. Whether or not a right is to be regarded as civil within the meaning of the Convention must be determined by reference to the substantive content and effects of the right - and not its legal classification under domestic law.7 Already in the Ringeisen judgment the Court had clarified that for Article 6 to be applicable it is not necessary that both parties to the proceedings should be private persons.8 And in the before mentioned König judgment, the Court elaborated that Article 6 does not only cover private-law disputes in the traditional sense, that is disputes between individuals or between an individual and the State to the extent that the latter had been acting as a private person, subject to private law. If the case concerns a dispute between an individual and a public authority, whether the latter has acted as a private person or in its sovereign capacity is not conclusive.9 The result of this conclusion was that parts of public law could now fall under the scope of application of Article 6 ECHR. In subsequent case-law the Court would look at the substance of the right and would balance the public law features against the private law features (such as the right being "personal and economic"). If private law features would be predominant, Article 6 would apply.10 The Court continued to give a dynamic interpretation and the phrase continued to expand. In the Salesi case the Court stated that "today the general rule is that Article 6 §1 does apply in the field of social insurance", including welfare assistance even though public law features seemed to be predominant (i.e. the benefits were entirely funded by the State and an entitlement to the benefit existed independently of a private employment contract).11 As a general rule one could say that virtually any dispute (not taking into account the exceptions mentioned below) affecting one's income or property falls within the scope of Article 6 §1.12 It is as of yet unclear whether the Court in a more recent judgment departs from its standing case-law and widens the notion of 'civil rights and obligations'. In a judgment of November 2002 the Court stated that the civil limb of Article 6 ECHR is applicable, "seeing that it was designed to seek protection of individual rights from the interference by the executive authorities".13

7 ECHR, 28 June 1978, König - Germany (Series A-27), §§88-89.

8 ECHR, 16 July 1971, Ringeisen - Austria (Series A-13), §94.

9 ECHR, 28 June 1978, König - Germany (Series A-27), §90.

10 See, for example, ECHR, 29 May 1986, Feldbrugge - Netherlands (Series A-99) and ECHR, 29 May 1986, Deumeland - Germany (Series A-100).

11 ECHR, 26 February 1993, Salesi - Italy (Series A-257-E), §19.

12 The Court speaks of "propriertary character" and "commercial activities" in ECHR, 23 October 1985, Benthem - Netherlands (Series A-97), §36.

13 ECHR, 7 November 2002, Veeber - Estonia (No. 1) (appl. no. 37571/97), §69.

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However this may be, there are traditionally certain areas of law that fall outside the scope of application of the civil limb of Article 6 ECHR:

Taxation 14

Article 6 is not applicable in traditional taxation disputes. According to the traditional case-law of the Convention institutions,

“There may exist ‘pecuniary’ obligations vis-à-vis the State or its subordinate authorities which, for the purposes of Article 6 §1, are to be considered as belonging exclusively to the realm of public law and are accordingly not covered by the notion of ‘civil rights and obligations’. Apart from fines imposed by way of ‘criminal sanction’, this will be the case, in particular, where an obligation which is pecuniary in nature derives from tax legislation or is otherwise part of normal civic duties in a democratic society.” 15

After the introduction of the 11th Protocol the ‘new’ Court reviewed this standing case-law “in the light of changed attitudes in society as to the legal protection that falls to be accorded to individuals in their relations with the State”. In the Ferrazini case the Court however held that “tax matters still form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the tax authority remaining predominant”.16 Apparently there are also within the Court those who find this case-law disappointing.17 In Ferrazzini a Grand Chamber was called to decide the case after the Second Chamber was about to overturn the existing case-law. In the end a majority of 11 judges against 6 ‘dissenters’ reaffirmed the previous line in the case-law. In his dissenting opinion Judge Lorenzen stated that it was hard to accept that the travaux préparatoires dating more than 50 years back and partly based on preconditions that have not been fulfilled or are no longer relevant should remain a permanent obstacle to a reasonable development of the case-law concerning the scope of Article 6. He pleaded in favour of applicability of Article 6 ECHR since the “obligation to pay taxes directly and substantially affects the pecuniary interests of citizens and that in a democratic society taxation (its base, payment and collection as opposed to litigation under budgetary law) is based on the application of legal rules and

14 See also P. Baker, “Taxation and the European Convention on Human Rights”, in: European Taxation 2000, pp. 308-310.

15 ECHR, 9 December 1994, Schouten and Meldrum – Netherlands (Series A-304), §50.

16 ECHR, 12 July 2001, Ferrazzini – Italy (appl. no. 44759/98), §29.

17 See also the interview with Judge Thomassen, “De Nederlandse rechter in het EHRM”, in: NJB 1999, p. 1031.

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not on the authorities’ discretion”.18 In my opinion it is difficult to reconcile the exclusion of such a large group of proceedings with the emphasis in the Court’s case-law on the Rule of Law. Why should the executive not be subjected to judicial control in the field of taxation? Bender and Douma have – in my opinion rightly – expressed their bewilderment about the disparity that taxes do fall within the scope of Article 1 of the First Protocol (the right to property) while at the same time not being acknowledged as ‘civil rights and obligations’.19 Feteris and Wattel have argued that disputes concerning tax debts that have already been determined by the tax authorities should at least be considered ‘civil’.20 The Court, however, has only accepted two exceptions to the general rule that tax matters fall outside the scope of Article 6.

Firstly, Article 6 is applicable when a tax case contains a punitive element. Not because civil rights and obligations would be at stake, but because the proceedings are deemed to have a criminal character.21

Secondly, Article 6 ECHR will also be applicable in case the dispute is concerned with the reclamation of taxes that have already been paid. With regard to these proceedings the Court ruled that they were “private-law actions and were decisive for the determination of private-law rights to quantifiable sums of money. This conclusion is not affected by the fact that the rights asserted in those proceedings had their background in tax legislation […]”.22

Recruitment, employment and retirement of public servantsThe Court has consistently held that Article 6 is not applicable with regard to

disputes concerning the recruitment, employment and retirement of public servants.23

Some commentators have argued that the Court’s attitude seems to be based on the fact

18 ECHR, 12 July 2001, Ferrazzini – Italy (appl. no. 44759/98), Dissenting opinion of Judge Lorenzen, joined by Judges Rozakis, Bonello, Strážnická, Bîrsan and Fischbach, p. 13 and p. 16.

19 T. Bender & S. Douma, “Geen fair trial voor belastingzaken”, in: NJCM-Bulletin 2002, pp. 400-413. See also: P.J. Wattel, annotation in BNB 1999 / 271, nr. 1.

20 M. Feteris, “Vijftig jaar EVRM en het belastingrecht”, in: R.A. Lawson & E. Myjer (eds.), 50 Jaar EVRM, Leiden: NJCM, 2000, p. 466 and P.J. Wattel, "Mensenrechten en belastingen", in: 40 Jaar EVRM, Leiden: NJCM, 1990, pp. 251-252.

21 ECHR, 24 February 1994, Bendenoun - France (Series A-284) and ECHR, 3 May 2001, J.B. – Switzerland (appl. no. 31827/96).

22 ECHR, 23 October 1997, The National & Provincial Building Society a.o. – United Kingdom (Reports 1997, 2325). See also: ECHR, 26 March 1992, Éditions Périscope – France (Series A-234-B) and EComHR, 20 October 1992, D.C. – Italy (appl. no. 13120/87).

23 ECHR, 26 November 1992, Francesco Lombardo - Italy (Series A-249-B), §17; ECHR, 26 November 1992, Giancarlo Lombardo - Italy (Series A-249-C), §16 and ECHR, 24 August 1993, Massa - Italy (Series A-265-B), §26.

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that the right of access to public service is not contained in the Convention.24 Surely the fact that one does not recognise a substantive right under the Convention is irrelevant when determining whether one enjoys the procedural protection of Article 6.25 However, this case-law has been confirmed by the 'new' Court after the introduction of the 11th

Protocol. In the Pellegrin case the Court only re-examined the definition given to the word ‘public servant’. The Court adopted a new ‘functional’ criterion based on the nature of the employee’s duties and responsibilities:

“The Court notes that in each country’s public-service sector certain posts involve responsibilities in the general interest or participation in the exercise of powers conferred by public law. The holders of such posts thus wield a portion of the State’s sovereign power. The State therefore has a legitimate interest in requiring of these servants a special bond of trust and loyalty. On the other hand, in respect of other posts which do not have this ‘public administration’ aspect, there is no such interest.” 26

The Court concluded that disputes are only excluded from the scope of Article 6 in case they are raised by public servants whose posts entail direct or indirect participation in the exercise of powers conferred by public law and duties designed to safeguard the general interests of the State. If, on the other hand, the tasks of the public servant could be performed by an employee on the basis of a private labour contract as well, then Article 6 does apply.

For the purposes of this research the Pitkevich decision of the Court is also of relevance. In this case a Russian judge was dismissed from the judiciary. She complained to the Court about her dismissal. The applicant alleged that the judicial disciplinary authorities which decided the case were not impartial since they were influenced by the media, local politicians and other judges. The Court first had to decide whether Article 6 was applicable. The Court referred to its Pellegrin judgment and observed that

24 ECHR, 28 August 1986, Glasenapp - Germany (Series A-104), §49 and ECHR, 28 August 1986, Kosiek - Germany (Series A-105), §35. Subsequently, in the Vogt case (ECHR, 26 September 1995, Vogt - Germany (Series A-323), §59) the Court accepted that a state is entitled to require civil servants to be loyal to the constitutional principles on which the state is founded. A certain discretion therefore is left to the states to appoint or not appoint certain people exercising the sovereign powers on their behalf.

25 A.W. Heringa, "Artikel 6 EVRM: civil rights and obligations revisited", in: NJCM-Bulletin 1994, pp. 575-579.

26 ECHR, 8 December 1999, Pellegrin – France (appl. no. 28541/95), §65.

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"[...] the judiciary, while not being part of ordinary civil service, is nonetheless part of typical public service. A judge has specific responsibilities in the field of administration of justice which is a sphere in which States exercise sovereign powers. Consequently, the judge participates directly in the exercise of powers conferred by public law and performs duties designed to safeguard the general interests of the State." 27

This conclusion is a very important one. Article 6 will not be applicable to disciplinary proceedings against judges.

The Court did hold Article 6 to be applicable with regard to disputes concerning the pension of civil servants. It stated in its Francesco Lombardo judgment: "In performing this obligation the State is not using discretionary powers and may be compared, in this respect, with an employer who is a party to a contract of employment governed by private law".28

Residence permits and expulsion of aliensIt was standing case-law of the Commission that disputes concerning the lawful

stay of an alien in the territory of a member state of the Council of Europe fell outside the scope of application of Article 6 ECHR. The Commission therefore consistently declared these complaints incompatible ratione materiae with the provisions of the Convention (Article 27 §2 ECHR (old)):

“[…] the Commission recalls its case-law according to which a decision as to whether an alien should be allowed to stay in a country or be expelled does not involve either the determination of the alien’s rights or obligations or of a criminal charge within the meaning of Article 6 para. 1 of the Convention.” 29

This case-law remained unchanged for more than 20 years independent of the specific composition of the Commission. The result was that the (former) Court was never able to define a standpoint with regard to this issue (because all the complaints were declared inadmissible and never reached the Court). It was interesting to see what the position would be of the ‘new’ Court after the introduction of the 11 th Protocol. In

27 ECHR, 8 February 2001, Pitkevich - Russia (appl. no. 47936/99).

28 ECHR, 26 November 1992, Francesco Lombardo - Italy (Series A-249-B), §18.

29 EComHR, 6 October 1976 (appl. no. 7317/75; D&R 6, p. 141); EComHR, 2 May 1979 (appl. no. 8244/78; D&R 17, p. 149); EComHR, 15 May 1984 (appl. no. 9990/82; D&R 39, p. 119); EComHR, 5 December 1996 (appl. no. 31113/96; D&R 87, p. 151); EComHR, 25 October 1996 (appl. no. 32025/96; D&R 87, p. 174).

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the first few admissibility decisions the Court seemed to indicate that it would change the case-law of the Commission. The Court did not focus on applicability, but examined the merits of the complaints.30 However, in the end these admissibility decisions did not constitute the prelude to a drastic change in the jurisprudence.

In the Maaouia case the Grand Chamber of the Court confirmed the standing case-law. The Court reached the conclusion that an expulsion order does not constitute a ‘criminal charge’. The Court attached a lot of importance to the fact that expulsion orders are classified by national law in most member states of the Council of Europe as preventive measures for the purposes of immigration control, not as criminal sanctions. With regard to the question whether expulsion cases determine ‘civil rights and obligations’, the Court stressed the fact that the travaux préparatoires prove that the Contracting States never intended that Article 6 would be applicable in expulsion cases.31 The Court then simply concluded:

“The fact that the expulsion order incidentally had major repercussions on the applicant’s private and family life or on his prospects of employment cannot suffice to bring those proceedings within the scope of civil rights protected by Article 6 §1 of the Convention.”32

One could also have argued that an expulsion case might have a major impact on important ‘private law’ elements, such as the use of property rights33, existing contracts of employment, the exercise of rights and obligations derived from family law, et cetera. Is it really justifiable to make a difference between a Maaouia situation (where the Court acknowledged that the proceedings had “major repercussions” on his ‘private law’ rights) and a ‘proper’ Benthem situation (Article 6 is applicable in case one can argue ‘on sufficiently tenable grounds’ that the outcome of the proceedings are directly decisive for the determination of civil rights and obligations)? In my opinion it can not be justified.34

30 See, for example, ECHR, 4 May 1999, S.N. – Netherlands (appl. no. 38088/97): “[…] even supposing that proceedings concerning the grant of residence permits and the expulsion of aliens were to come witin the ambit of Article 6 […]”.

31 The importance of the travaux préparatoires has certainly diminished (see also *** Chapter 3 §3 ***). This statement however holds primarily true for the drafting history of the Convention itself (1950). In casu the Court refers to the intention of the Contracting States, as can be established during the drafting process of the more recent Protocol No. 7 (1984).

32 ECHR, 5 October 2000, Maaouia – France (appl. no. 39652/98), §38.

33 ECHR, 8 July 1987, Baraona – Portugal (Series A-122).

34 See more elaborately M. Kuijer, “De reikwijdte van artikel 6 EVRM in uitzettingszaken”, in: NJCM-Bulletin 2001, pp. 762-779.

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Some argue that the exception can be justified because of the fact that disputes concerning the stay of aliens are closely related to issues that touch the sovereign realm of each state. This argument apparently refers to the idea that there can be no 'right' if discretionary powers are left to the administrative authority. In my opinion, the existence of discretionary powers is not decisive for the question whether the dispute is of a 'civil' character. In the Court's case-law Article 6 has been held applicable in other areas in which the authorities can act on the basis of discretionary powers.35 Maybe applicability of Article 6 ECHR is denied by the Court because it does not want to create the impression that a substantive right of asylum is provided for under the Convention. Nobody will argue that such a substantive right is accepted in the Court's case-law. However, this should not have any implications for the procedural protection offered by Article 6 ECHR.

Political rightsThe Court also held that electoral disputes do not fall within the scope of Article

6 ECHR. The right to stand for election is a political one and not a ‘civil’ one. The mere fact that proceedings also raise an ‘economic issue’ does not mean that they have become ‘civil’ in the sense of the Convention.36

In the Refah Partisi case, the Court had to rule on the applicability of Article 6 ECHR in a Turkish case concerning proceedings before the constitutional court on the prohibition of a political party. The Court ruled that complaints about the fairness of national proceedings concerning alleged restrictions on the exercise of political rights will be declared incompatible ratione materiae with the Convention.37

In conclusion, it is undoubtedly true that the Court has given an extensive interpretation to the phrase ‘civil rights and obligations’.38 On the other hand, some

35 See, for example, ECHR, 27 October 1987, Pudas - Sweden (Series A-125-A) and ECHR, 28 June 1990, Mats Jacobsson - Sweden (Series A-180-A). See also: M.L.W.M. Viering, Het toepassingsgebied van artikel 6 EVRM (thesis University of Utrecht), Zwolle: Tjeenk Willink, 1994, p. 123.

36 ECHR, 21 October 1997, Pierre-Bloch – France (Reports 1997, 2223), §51.

37 ECHR (dec.), 3 October 2000, Refah Partisi a.o. - Turkey (appl. no. 41340/98): "En effet, la procédure devant la Cour constitutionnelle portrait sur un litige relatif au droit du R.P. de poursuivre, en tant que parti politique, ses activités politiques. Il s'agissait donc, par excellence, d'un droit de nature politique qui, comme tel, ne relève pas de la garantie de l'article 6 §1 de la Convention" [the decision on admissibility is only available in French]. See also: ECHR, 9 April 2002, Yazar, Karataş, Aksoy et le Parti du Travail du Peuple (HEP) - Turkey (appl. no. 22723/93 a.o.), §66.

38 See also G.J. Wiarda, "Extensieve en restrictieve verdragstoepassing door het Europese Hof voor de rechten van de mens", in: Ad Personam, Zwolle: Tjeenk Willink, 1981, pp. 371-385 and the same author in his inaugural lecture at the Erasmus University in Rotterdam: Rechterlijke voortvarendheid en rechterlijke terughoudendheid bij de toepassing van de Europese Conventie tot bescherming van de rechten van de mens, The Hague, 1986.

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important exceptions have been made throughout the years. Perhaps the time has come to adopt a fundamentally different approach to the interpretation of this phrase.39 In my opinion it is not at all possible to draw a clear and convincing dividing line between ‘civil’ and ‘non-civil’ rights and obligations. The time has come to end that uncertainty by extending the protection under Article 6 §1 to all cases in which a determination by a public authority of the legal position of a private party is at stake.40 This will ensure the necessary foreseeability and judicial security. It will also ensure that aliens, civil servants and tax payers are entitled under the Convention to a fair trial by an independent and impartial tribunal. The fear of the potential financial implications41 or a potential increase of the workload for the Court should not be decisive. Neither is the Court’s ‘sovereign prerogatives’ argument persuasive. Surely, this does not absolve the state from providing procedural protection in case it interferes with the legal position of a private party.

4.3 The concept of “criminal charge”

Delimitation of the concept ‘criminal charge’ is mainly problematic in the field of administrative and disciplinary law. There is an increasing tendency within Europe to decriminalise petty offences. National authorities do not use ordinary criminal law procedures, but introduce administrative enforcement mechanisms. The Court has commented in the Öztürk case that the Convention is not opposed to decriminalisation, but that this does not mean that Article 6 is no longer applicable.42 Likewise the Court stressed in the Engel case that:

39 See also N. Verheij, “(Woon)bron van verwarring”, in: NJCM-Bulletin 2003, p. 789 and P. van Dijk, “De toegang tot de rechter – een Straatsburgse springprocessie”, in: NJCM-Bulletin 2003, n.y.p.

40 See P. van Dijk & G.J.H. van Hoof, Theory and Practice of the European Convention on Human Rights, The Hague: Kluwer Law International, 1998, p. 406. See also Judge Loucaides in his dissenting opinion in the Maaouia judgment. In his opinion a teleological interpretation of ‘civil rights and obligations’ could only lead to the conclusion that “[…] the term ‘civil’ should be interpreted as covering all other legal rights which are not of a criminal nature [emphasis added, MK]”. In his view it would be “absurd” to accept that the procedural guarantees of Article 6 are only applicable to certain categories of proceedings. Judge Lorenzen in his dissenting opinion with the Ferrazzini judgment did not (yet) support “such a radical step”.

41 One can also refer to standing case-law of the Court of Justice of the European Communities, the Dutch Supreme Court and the Dutch Commissie Gelijke Behandeling confirming that financial-economic reasons can as such not be regarded an objective justification for discrimination. See ECJ, Case C-343/92, 24 February 1994, ROKS (Jur. 1994, p. I-587); Hoge Raad, 30 September 1992 (NJ 1992, 689) and Commissie Gelijke Behandeling, oordelen 96-07, 96-08 and 97-13.

42 ECHR, 21 February 1984, Öztürk – Germany (Series A-73), §56.

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“If the Contracting States were able at their discretion to classify an offence as disciplinary instead of criminal […] the operation of the fundamental clauses of Article 6 and 7 would be subordinated to their sovereign will. A latitude extending thus far might lead to results incompatible with the object and purpose of the Convention.” 43

The Court therefore emphasised the autonomous meaning of the concept ‘criminal charge’. In the Engel case the Court developed a test to determine whether an offence should be considered ‘criminal’ for the purposes of the Convention. In the subsequent Putz case the Court stressed that these criteria are alternative, not cumulative.44 These criteria are:

Classification of the offence under national lawIf a State classifies an offence as ‘criminal’, the Court will automatically

hold Article 6 ECHR applicable.

Nature of the offenceThis second criterion admittedly is rather vague. The Court will attach some

importance to how the misconduct is classified in other member States of the Council of Europe. For example, in the Öztürk case the Court noted that the offence committed by Öztürk (reckless driving) continued to be classified as part of the criminal law in the vast majority of the Contracting States (see §53). The Court also attached importance to the fact that the rule of law infringed by the applicant was of a general character applicable to all citizens.

Nature of the penaltyThe Court will consider national proceedings ‘criminal’ if the purpose of the

penalty imposed was “deterrent and punitive” (Öztürk, §53). Administrative measures of a preventive character will on the other hand be considered ‘non-criminal’. Taking away someone’s driving license for a brief period of time (i.e. the time necessary to sober up) can not be seen as being primarily ‘punitive’. Measures of this kind are mainly of a preventive nature in order to guarantee road safety.45

Severity of the penalty

43 ECHR, 8 June 1976, Engel – Netherlands (Series A-22), §81.

44 ECHR, 22 February 1996, Putz – Austria (Reports 1996, 312), §31.

45 ECHR [GC], 28 October 1999, Escoubet – Belgium (appl. no. 26780/95), §§33-39 and ECHR (dec), 7 November 2000, Blokker – Netherlands (appl. no. 45282/99).

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It is important to note that the Court does not look at the penalty that has actually been imposed; what is decisive is the highest possible penalty that could have been imposed. Whenever deprivation of liberty can be imposed, the Court will immediately classify an offence as being ‘criminal’. However, the Court also held that “[…] the lack of seriousness of the penalty at stake cannot divest an offence of its inherently criminal character” (see Öztürk, §54).

The Court has avoided, and in my opinion rightfully so, the introduction of a ‘de minimis rule’ according to which only cases of a more serious nature enjoy the full protection of Article 6 ECHR.46

The definition of the notion ‘charge’ (“the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence” or any other measures “which carry the implication of such an allegation and which likewise substantially affect[s] the situation of the suspect”47) is relevant when determining the starting point of criminal proceedings.

This paragraph does not intend to give an exhaustive overview of the Court’s case-law, but one practical issue should be discussed here. On occasion a defendant complains about judicial bias on the part of the judge refusing an application for legal aid. In the Gutfreund case, the Court held that the procedure for applying for legal aid does not concern the determination of a ‘criminal charge’ in the sense of Article 6 ECHR.48

4.4 Applicability in the pre-trial and post-trial stage

The applicability of Article 6 ECHR primarily focuses on the trial in court. However, the judicial protection offered by Article 6 undeniably extends to some extent (i.e. indirectly) to the pre-trial stage as well.49 The Court will look at the entirety of the domestic proceedings, but some elements in the pre-trial stage may have prejudiced the right to a fair trial in such a manner that it affects the fairness of the trial itself. In the Imbrioscia judgment the Court stated:

46 Judge Matscher in his dissenting opinion attached to the Öztürk case stated that the individual in the case of ‘regulatory offences’ undoubtedly needs certain procedural guarantees, but not necessarily all those which Article 6 provides. Some commentators argued that the Court introduced such a ‘de minimis rule’ in the Bendenoun case (ECHR, 24 February 1994, Bendenoun – France (Series A-284), §47; see, for example, M.L.W.M. Viering, “Het arrest Bendenoun: een stap terug?”, in: NJB 1994, pp. 1061-1063). But other more recent cases suggest that the amount of the fine is not decisive at all (ECHR, 23 October 1995, Schmautzer – Austria (Series A-328-A), §§27-28).

47 ECHR, 10 December 1982, Foti a.o. – Italy (Series A-56), §52.

48 ECHR (dec.), 12 June 2003, Gutfreund – France (appl. no. 45681/99).

49 See also F. Kuitenbrouwer, “Eerlijkheid alleen in toga?”, in: DD 1972, pp. 334-336.

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"[…] it does not follow that the Article [Article 6, MK] has no application to pre-trial proceedings […] Other requirements of Article 6 – especially of paragraph 3 – may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them." 50

The wording used by the Court changed slightly in subsequent case-law. In the Schöps judgment the Court simply states: "it follows from the wording of Article 6 - and particularly from the autonomous meaning to be given to the notion of ‘criminal charge’ - that this provision has some application to pre-trial proceedings".51 This applicability of Article 6 ECHR in the pre-trial stage goes hand in hand with leaving the national authorities a margin of appreciation. The Court confirmed this in the Brennan case: "The manner in which Article 6 §§1 and 3(c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case".52

The Imbrioscia, Schöps and Brennan cases were concerned with criminal cases and did not relate to judicial bias, but there is no reason to assume that the Court would rule otherwise in case of a complaint relating to judicial independence or impartiality.53

Admittedly, many cases in which the Court was confronted with complaints concerning impartiality in pre-trial stages were concerned with the trial judge having taken pre-trial decisions. In these instances there is an issue under Article 6 because of the alleged lack of objectivity of a trial judge. It does not really concern applicability of Article 6 in the pre-trial phase. However, there is one decision taken by the Commission in which the applicant complained about the alleged bias of an investigative judge in the pre-trial stage. In its Stromillo decision – two years before the Imbrioscia judgment of the Court – the Commission eventually declared the case inadmissible, but it indicated that the

50 ECHR, 24 November 1993, Imbrioscia – Switzerland (Series A-275), §36. The case was concerned with Article 6 §2 (the presumption of innocence). See, concerning the right not to incriminate oneself: ECHR, 21 September 1994, Fayed - United Kingdom (Series A-294-B), §61 and ECHR, 17 December 1996, Saunders - United Kingdom (Reports 1996, 2044), §67. In these cases it was not suggested that Article 6 was applicable to the pre-trial proceedings, but the Court reviewed the compatibility with the Convention by looking at the use of the statements given in the pre-trial stages at the subsequent criminal trial.

51 ECHR, 13 February 2001, Schöps - Germany (appl. no. 25116/94), §44.

52 ECHR, 16 October 2001, Brennan - United Kingdom (appl. no. 39846/98), §45. The case concerned the assistance of a lawyer already at the initial stages of police interrogation (see also ECHR, 8 February 1996, John Murray - United Kingdom (Reports 1996, 54), §63).

53 See also M.I. Veldt, Het EVRM en de onpartijdige strafrechter, Deventer: Gouda Quint, 1997, p. 14. She argues that the Imbrioscia doctrine can be applied for example in case of a cumulation of functions by the judge in the pre-trial stage. Such a cumulation of functions can have a negative impact on the fairness of the trial itself.

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complaint had to be examined “having regard to the development of the proceedings as a whole”.54 This seems to indicate that the Commission was willing to take into account deficiencies in the pre-trial stage. It also indicates that some deficiencies in the pre-trial stage may be ‘remedied’ in a later stage of the proceedings. However, one may wonder whether all deficiencies in the pre-trial stage can be remedied in such a manner. Can a lack of judicial control over the lawfulness of intrusive investigative measures as a result of a clearly biased pre-trial judge be sufficiently remedied in a later stage simply by not allowing the ensuing evidence? If not, then the lack of impartiality in the pre-trial stage will affect the overall fairness of the proceedings. In light of the above-mentioned case-law the Court should then find a violation of Article 6 ECHR.

In this regard the Korellis judgment should be mentioned.55 The applicant complained about interlocutory proceedings which preceded the criminal trial in respect of the charge against the applicant. The applicant maintained that some judges lacked impartiality. This lack of impartiality had resulted in the applicant being deprived of the opportunity to have his own scientific experts examine an important piece of evidence. In its admissibility decision the Court held that these interlocutory proceedings did not determine a criminal charge against the applicant. However, in light of the crucial nature of the evidence, the results of the interlocutory proceedings could have an important bearing on the applicant’s guilt or innocence of the charges. In other words, the pre-trial stage was “crucial for the outcome of the trial”. Under these circumstances the Court was in principle willing to base its decision on the pre-trial stage.

Applicability of Article 6 to pre-trial stages also relates to civil cases in case the party is (obliged to be) involved in the pre-trial stage. For example, with regard to 'reasonable time' cases the Court has taken into account pre-trial stages in order to determine the starting point of the proceedings. In the Schouten & Meldrum case, the Court used the date on which the applicant applied for an administrative decision in order to start judicial proceedings as a starting point.56

The (extent of) applicability of Article 6 to pre-trial stages has been the subject of an extensive discussion. Alkema commented in 1994 that the trend in the Strasbourg case-law was becoming clear: pre-trial proceedings were more and more often taken into account when applying Article 6 ECHR.57 This statement is certainly true. But it

54 EComHR, 25 February 1991, Stromillo – Italy (D&R 69, pp. 317-320).

55 ECHR, 7 January 2003, Korellis – Cyprus (appl. no. 54528/00), §33.

56 ECHR, 9 December 1994, Schouten and Meldrum - Netherlands (Series A-304). See also: ECHR, 26 April 1994, Vallée - France (Series A-289-A) in which the Court looked at the date on which an applicant had submitted a request for financial compensation to the administrative authority.

57 E.A. Alkema, "Telt de 'voorfase' mee voor de redelijke termijn?", in: NJB 1994, p. 604. In his article Alkema also pleaded in favour of applicability of the 'equality of arms' principle in the pre-trial proceedings.

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seems to me that there are limits to this trend. The Court will not in the near future extend the applicability of Article 6 to pre-trial stages ‘directly’ and unconditionally. Martens emphasised that the investigative stage and the trial stage need to be carefully distinguished. Article 6 "applies to the second stage only".58 Deficiencies in the pre-trial stage will remain to be of importance 'indirectly', i.e. if those deficiencies seriously prejudice the trial itself. This ‘indirect’ application suffices in my opinion. It would be impossible to hold Article 6 directly applicable to all sorts of administrative pre-trial stages. However, I would argue in favour of a more generally accepted applicability of Article 6 in case the pre-trial stages are of a judicial nature.

Likewise, Article 6 should be held applicable to judicial proceedings after the actual trial is over.59 In the Hornsby case the Court stated: "Execution of a judgment given by any court must therefore be regarded as an integral part of the 'trial' for the purposes of Article 6".60 Also in case of 'reasonable time' complaints the Court has taken into account the period after a final judgment (i.e. proceedings for the execution of the original judgment).61 The Court has on various occassions accepted that other requirements of Article 6 continue to play a role in the post-trial stage. In the Sekanina judgment the Court stated that proceedings concerning financial compensation for wrongful detention “can be regarded as a consequence and, to some extent, the concomitant of the decision”.62 Equally, one is in my opinion entitled to an impartial judge in the judicial proceedings determining financial compensation for pre-trial detention after an acquittal.

4.5 Applicability of Article 6 in appellate proceedings: courts of the classic kind versus the doctrine of “full review” for administrative proceedings

The Convention demands the existence of a judicial tribunal, which fulfils all the requirements of Article 6 ECHR, in case either "civil rights and obligations" or "criminal charges" are determined. Article 6 does not require the existence of several levels of

58 ECHR, 17 December 1996, Saunders - United Kingdom (Reports 1996, 2044), Dissenting Opinion of Judge Martens, §14.

59 See also M.I. Veldt, Het EVRM en de onpartijdige strafrechter, Deventer: Gouda Quint, 1997, p. 14. Viering seems to suggest that Article 6 is only applicable till the final judgment is given (see M.L.W.M. Viering, Het toepassingsgeboed van artikel 6 EVRM, Zwolle: Tjeenk Willink, 1994, p. 101 - however this passage was written before the Hornsby judgment).

60 ECHR, 19 March 1997, Hornsby - Greece (Reports 1997, 495), §40.

61 For example ECHR, 26 October 1988, Martins Moreira - Portugal (Series A-143), §44. This does not imply that an applicant is barred from complaining to the Court before the execution of a judgment.

62 ECHR, 25 August 1993, Sekanina – Austria (Series A-266-A), §22.

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jurisdiction: first instance, courts of appeal and possibly courts of cassation. This has led to States defending themselves before the European Court arguing that defects in one ‘layer’ of their court system were unproblematic from a viewpoint of Article 6 in view of the fact that another ‘layer’ could remedy these defects. The Court’s response to the rationale of this argument as such will be discussed in *** §4.5.1 ***. When addressing the question whether a lack of judicial impartiality or independence may be remedied the Court has differentiated between administrative courts (*** §4.5.2 ***) and ‘courts of the classic kind’ (*** §4.5.3 ***). Finally, some concluding remarks will be made in *** §4.5.4 ***.

The following (sub)paragraphs therefore deal with the issue of applicability of Article 6 ECHR in a multi-layered court system. In these cases, the national authorities claim that state responsibility under the Convention has never been engaged because a potential violation of one of the Convention rights has been remedied on the national level. This line of defence is closely linked with raising an objection concerning the obligation to exhaust domestic remedies (and the issue of waiver of rights).

4.5.1 Applicability of Article 6 ECHR in case of a multi-layered court system

The Convention itself does not oblige Contracting States to establish courts of appeal (or courts of cassation). The right of appeal in criminal cases is guaranteed in Article 2 of the Seventh Protocol, which was signed in 1984. Ten Member States of the Council of Europe have however still not ratified this Protocol.63 Furthermore, the guarantee of Article 2 Seventh Protocol is only applicable with regard to criminal proceedings.

One may wonder therefore whether all domestic courts need to fulfil the standard as laid down in Article 6 in case the national judiciary provides for a multi-layered court system. States have tried to argue that courts of first instance do not necessarily need to fulfil all the requirements stipulated in Article 6 in view of the existence of courts of appeal that could remedy potential defects. In the De Cubber-case the Belgian government argued that courts of first instance would not have to meet the standard of Article 6 ECHR if the national system had established courts of appeal, which would meet the standard. Any shortcomings in the procedure before the court of first instance could then be remedied by the court of appeal. The Belgian government referred in this respect to the Court's case law concerning administrative and disciplinary tribunals (the doctrine of "full review" which will be discussed in more detail in the following paragraph). Neither the Commission nor the Court agreed with the standpoint of the

63 Andorra, Belgium, Cyprus, Germany, Liechtenstein, Netherlands, Portugal, Spain, Turkey, and the United Kingdom (state of ratifications as from 17 January 2003).

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Belgian government.64 The case law concerning administrative and disciplinary tribunals could not be applied analogously with regard to "courts of the classic kind":

"Article 6 par. 1 concerns primarily courts of first instance; it does not require the existence of courts of further instance." 65

If the national legal system does provide for courts of appeal, this does not mean that...

"[...] the lower courts do not have to provide the required guarantees. Such a result would be at variance with the intention underlying the creation of several levels of courts, namely to reinforce the protection afforded to litigants." 66

The opposite has also been argued. The Convention would only require from High Contracting Parties that one court meets all the standards of Article 6 ECHR. Assuming that the court of first instance fulfils all the standards, one may wonder whether the court of appeal has to fulfil all the requirements of Article 6 ECHR as well. One argument in favour of the latter viewpoint is the fact that Member States of the Council of Europe are not officially (on the basis of the Convention and its Protocols) obliged to set up courts of appeal.67 In one of its first judgments the Court stipulated in this regard, that...

" [...] [T]he Convention does not, it is true, compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6." 68

64 The Commission already took this view in EComHR, 12 October 1978, Zand - Austria (appl. no. 7360/76; D&R 15, p. 70).

65 ECHR, 26 October 1984, De Cubber - Belgium (Series A-86), §32.

66 ECHR, 26 October 1984, De Cubber - Belgium (Series A-86), §32.

67 Either because the national proceedings which are the subject of a Strasbourg complaint have been concluded before 1984 (the coming into force of the Seventh Protocol), or because the specific Member State did not ratify the Seventh Protocol, or because the national proceedings were civil.

68 ECHR, 17 January 1970, Delcourt - Belgium (Series A-11), §25. See also, for example, ECHR, 26 October 1984, De Cubber - Belgium (Series A-86), §32; ECHR, 2 March 1987, Monnell and Morris - United Kingdom (Series A-115), §54 and EComHR, 5 July 1985, Ekbatani - Sweden (D&R 44, p. 113).

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Once a Member State has therefore decided to establish courts of appeal or courts of cassation, these courts will in principle be governed by the requirements of Article 6 ECHR. The Court has however held that it will take account of the entirety of the proceedings when determining whether the requirements of Article 6 ECHR have been met. In the Bulut judgment the Court stated:

“[…] that the manner of application of Article 6 to proceedings before appellate courts depends on the special features of the proceedings involved; account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein.” 69

As a result an appellate court does not necessarily have to fulfil all the requirements of Article 6 ECHR. This brings us to the question which defects may be remedied. The answer of the European Court is differentiated: courts of the classic kind versus administrative courts and the doctrine of full review. The latter will be discussed first.

4.5.2 Administrative courts and the doctrine of full review

It is very well possible that under domestic law some proceedings concerning the determination of "civil rights and obligations" or "criminal charges" are of a disciplinary or administrative nature. Especially in the field of disciplinary and administrative law, judicial functions are often assigned to authorities, which are not a part of the classic judicial machinery. Rarely do these authorities meet all requirements of Article 6 ECHR (for example, the requirement of publicity). According to established Strasbourg case law this does not in itself mean that the Convention is breached.70 This also holds true for a

69 See ECHR, 22 February 1996, Bulut – Austria (Reports 1996, 346), §40. See also, among many other authorities, ECHR, 26 May 1988, Ekbatani – Sweden (Series A-134), §27; ECHR, 29 October 1991, Fejde – Sweden (Series A-212-C), §26; ECHR, 19 July 1995, Kerojärvi – Finland (Series A-322), §40; ECHR, 19 February 1996, Botten - Norway (Reports 1996, p. 141), §39 and ECHR, 27 June 2000, Constantinescu - Romania (appl. no. 28871/95), §§53-55.

70 ECHR, 27 February 1980, Deweer - Belgium (Series A-35), §49; ECHR, 23 June 1981, Le Compte, Van Leuven & De Meyere - Belgium (Series A-43), §§51, 54 and 60; ECHR, 23 September 1982, Sporrong & Lönnroth - Sweden (Series A-52), §86; ECHR, 19 April 1994, Van de Hurk - Netherlands (Series A-288), §52; ECHR, 23 October 1995, Schmautzer - Austria (Series A-328-A), §34; ECHR, 20 November 1995, British-American Tobacco Company Ltd. - Netherlands (Series A-331), §§79-85; ECHR, 17 December 1996, Terra Woningen - Netherlands (Reports 1996, 2105), §52; ECHR, 19 December 1997, Helle - Finland (Reports 1997, 2911), §45 and ECHR, 7 November 2000, Kingsley - United Kingdom (appl. no. 35605/97), §§51-59. See within the Dutch domestic context: Raad van State, 25 July 2001, 20 0001618/1, X – Rechtbank Amsterdam (NJB 2001, p. 1769, nr. 21). The Raad van State concludes that the College van beroep voor de examens is not a “tribunal” in the sense of Article 6 ECHR.

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lack of judicial impartiality and independence. In the recent Riepan case the Court confirmed that it had accepted that in administrative proceedings the lower instances may not qualify as independent and impartial tribunals.71

In such instances the Court simply requires that domestic law provides for the possibility to have all aspects (both legal and factual) of the judgment by the disciplinary or administrative tribunal (which does not itself meet the requirements of Article 6 ECHR) reviewed by a judicial institution, which does fully comply with the requirements of Article 6 ECHR.72 This is called the doctrine of "full review" (which is in line with the Court’s position that one has to look at the ‘proceedings as a whole’). In the Zumtobel case, for example, the Court considered the Convention not to have been breached, because the reviewing (administrative) authority examined the merits of the case...

"[...] without ever having to decline jurisdiction in replying to them [the complaints of the applicant, MK] or in ascertaining various facts." 73

The exact scope of judicial review required by the Court, however, remains unclear on the basis of the existing case-law. In the Ortenberg case the Court held that the Constitutional Court could not be considered a ‘tribunal’ because it could not determine all relevant facts.74 The judicial control may not be too limited. In the Obermeier case, the Court held that a system whereby the administrative judge can only determine whether the administrative authority has used its discretionary powers within the aim and purpose of the legal provisions, is insufficient.75 In the Pudas case the Court clarified that the administrative judge also has to have the power to review administrative acts in the light of general principles of law.76 The administrative judge should also be able to look into

71 ECHR, 14 November 2000, Riepan – Austria (appl. no. 35115/97), §39.

72 After the above-mentioned convictions by the European Court, Sweden for example changed its legislation in 1988 so that a citizen always has access to an ordinary judge in administrative proceedings. Also Austria had to make substantial changes to its administrative system. It introduced Unabhängige Verwaltungssenate which fulfil the requirements of Article 6 ECHR. These administrative courts are ‘weisungsfrei’ and have full ‘reformatorische Entscheidungskompetenz’. Cf. the Danish Constitution which assigns certain judicial tasks to administrative organs without the possibility of judicial review (see: L. Prakke & C.A.J.M. Kortmann (eds.), Het staatsrecht van de landen van de Europese Unie, Deventer: Kluwer, 1998, p. 79, 639 and 910).

73 ECHR, 21 September 1993, Zumtobel - Austria (Series A-268-A), §32. See also ECHR, 23 September 1982, Sporrong and Lönnroth - Sweden (Series A-52), §87 ("[...] a tribunal competent to determine all the aspects of the matter").

74 ECHR, 25 November 1994, Ortenberg - Austria (Series A-295-B), §34.

75 ECHR, 28 June 1990, Obermeier - Austria (Series A-179), §70.

76 ECHR, 27 October 1987, Pudas – Sweden (Series A-125-A).

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the question whether the sanction is proportionate to the fault.77 For a long time it remained unclear whether the British system of judicial review could be considered in conformity with this part of the Court’s case-law.78 However, in the Bryan case79, the Court held that the availability of judicial review was enough to ensure compliance with Article 6 despite the fact that the appeal to the High Court was not capable of embracing all aspects of the original decision (particularly the merits of the decision). The Court decided that it was sufficient that the reviewing court had jurisdiction to quash the original decision on one of the classic grounds of unlawfulness under English law (fairness, procedural propriety, independence and impartiality) or if it found that the original decision had been taken ultra vires, irrelevant matters were taken into account or relevant matters had not been taken into account, that a perverse decision had been reached or a decision based on a misunderstanding or ignorance of an established and relevant fact, or if the required procedural steps had not been followed.

It does seem that the Court takes a more relaxed standpoint vis-à-vis administrative courts. It is remarkable that the Court in the Zumtobel case also referred to...

“[...] the respect which must be accorded to decisions taken by the administrative authorities on grounds of expediency [...]” 80

It seems that Contracting States are awarded a certain “margin of appreciation” when dealing with issues which are on the borderline of on the one hand traditional criminal and civil law and on the other hand administrative and disciplinary law. This wide margin of appreciation seems to be based on the traditional view that judicial restraint is mandatory in the field of administrative law. Martens was a profound adversary of the “Zumtobel doctrine”.81 He rightly pointed out that the strict division between the executive and the judiciary may have been historically justifiable, but that

77 ECHR, 23 June 1981, Le Compte, Van Leuven and De Meyere - Belgium (Series A-43), §51 and ECHR, 23 September 1998, Malige - France (Reports 1998, 2922), §49; see also: M. Kuijer & E.E.V. Lenos, "Proportionaliteit van sancties: een taak van de rechter of van de wetgever?", in: NJCM-Bulletin 2000, pp. 873-879.

78 ECHR, 5 May 1995, Air Canada – United Kingdom (Series A-316-A).

79 ECHR, 22 November 1995, Bryan - United Kingdom (Series A-335-A), §§38-47. See also: ECHR, 12 March 2002, Holding and Barnes – United Kingdom (appl. no. 2352/02).

80 ECHR, 21 September 1993, Zumtobel - Austria (Series A-268-A), §32. See also: ECHR, 22 November 1995, Bryan - United Kingdom (Series A-335-A), §47.

81 See his systematic analysis of the weaknesses of the doctrine in his dissenting opinion in the Fischer case (ECHR, 26 April 1995, Fischer - Austria (Series A-312), Dissenting Opinion of Judge Martens, pp. 23-39).

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nowadays such a strict division can no longer be maintained.82 Judicial control over the executive is more and more widely accepted. The question whether the judicial tribunal should have the competence to control fully all factual assessments made by administrative authorities within the province of their discretionary powers should be answered in the affirmative, according to Martens. Analysing the Court's case-law, however, he was not convinced that this approach was also taken by the Court. He argued that particular kinds of subject matter may result in stricter requirements as to the scope of the tribunal's powers than are normally acceptable. He therefore concluded that the “Zumtobel doctrine” clearly represented a step back:

“The Court has tried to conceal this by referring, at the outset, to its ‘full jurisdiction’ doctrine. I hope that the foregoing considerations have made it clear why that reference, in my opinion, is mere lip service.”

I agree with this reasoning of Martens. The ‘full review’ (or ‘full jurisdiction’) doctrine is in my view only acceptable if the judicial tribunal is competent to address all relevant issues of a dispute. Even if that entails judicial control over the exercise of discretionary administrative powers.83 Such a standpoint, however, does not directly stem from the Court’s case-law concerning Article 6 ECHR.

4.5.3 Courts of the classic kind

Also with regard to ‘courts of the classic kind’ the Court has accepted that certain shortcomings in prior stages of the proceedings can be remedied by courts of appeal. But the Court is clearly more strict compared to administrative courts. In the Riepan judgment, the Court explicitly rejected the ‘full jurisdiction’ doctrine vis-à-vis courts of the classic kind and stated:

82 This seems to be underlined by the fact that some legal systems do not have separate administrative courts. In Iceland, for example, Article 60 of the Constitution specifies that the judiciary is empowered to settle all disputes regarding the competence of administrative authorities. Also in Norway, ordinary courts of law deal with disputes concerning the validity of decisions made by administrative bodies. In recent years one can discern a growing trend to try the purely discretionary aspect of administrative decisions (see Council of Europe, Judicial organisation in Europe, Strasbourg: Council of Europe Publishing, 2000, p. 179 and p. 253).

83 This would also seem to be the standpoint of a meeting organised within the framework of the Council of Europe. See the conclusions of the conference "Judicial control of administrative acts", held in Madrid on 13-15 November 1996 (to be found in: Council of Europe, Independence, impartiality and competence of judges – Achievements of the Council of Europe (doc. no. MJU-22 (99) 5), pp. 73-74): "[...] the aim of any reform should be to make all administrative acts, including general regulations, subject to review by a judge. [...] Although a judge, in his function of judging, cannot take the place of the administrative authority, he must provide reasonable control of the authority's exercise of discretionary power, in particular by applying the principle of proportionality".

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“The present case, however, concerns proceedings before courts of a classic kind which are classified as “criminal” both under domestic and Convention law. In this field, the Court has, in the context of the requirement of a tribunal’s “independence and impartiality”, rejected the possibility that a defect at first instance could be remedied at a later stage, finding that the accused was entitled to a first instance tribunal that fully met the requirements of Article 6 §1.” 84

The last sentence seems to indicate that there is indeed a very narrow margin left to the domestic courts to remedy defects at the first instance level. The Court clearly ruled that defects concerning judicial impartiality and independence and concerning publicity may not be remedied. This leaves the possibility that the Court when examining the fairness of the trial (i.e. equality of arms and the right of adversarial proceedings) will look at the proceedings as a whole and that it might accept certain shortcomings to be corrected by appeal proceedings.85

4.5.4 Concluding remarks

There is a distinct differentiation in the Court’s case-law between courts of the classic kind and administrative courts. Administrative courts receive a greater latitude from the Court. The Court introduced the doctrine of full review. A lack of judicial impartiality or independence can be remedied on a higher level. The Court explicitly held that this doctrine is not applicable for courts of the classic kind.

This differentiation is historically justifiable. The distinctive feature is that a litigant in administrative proceedings does not have a right to base his claims upon. Instead, the administrative authorities have a discretionary power. Many countries of the Council of Europe have therefore adopted a system whereby complaints against the administration are first lodged before a higher administrative authority which is deemed

84 ECHR, 14 November 2000, Riepan – Austria (appl. no. 35115/97), §40. Early case-law indicated into that direction but was still rather unclear. In the De Cubber case [ECHR, 26 October 1984, De Cubber – Belgium (Series A-86), §33] the Court confirmed the general rule that defects could be remedied, but ruled that this was in casu impossible, since "[T]he particular defect in question did not bear solely upon the conduct of the first-instance proceedings: its source being the very composition of the [...] court, the defect involved matters of internal organisation and the Court of Appeal did not cure that defect since it did not quash on that ground the judgment [...] in its entirety". This seemed to indicate that shortcomings of a more structural nature could not be remedied by a court of appeal, unless the court of appeal quashed the judgment of the court of first instance because of this structural fault.

85 See with regard to other aspects of Article 6 ECHR, for example, ECHR, 26 May 1988, Ekbatani – Sweden (Series A-134), §27; ECHR, 29 October 1991, Fejde – Sweden (Series A-212-C), §26 and ECHR, 19 February 1996, Botten - Norway (Reports 1996, p. 141), §39.

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to be in a better position to check whether the application of discretionary powers in a concrete case was correct . These administrative authorities, however, often do not fulfil the standards required of a judicial tribunal in the sense of Article 6. Subsequently an appeal is open before a ‘proper’ administrative court. Such a system is justified from a viewpoint of efficiency (personally I am not convinced by some who argue that such an administrative system is necessary because of the specialised technical knowledge required for settling disputes – many categories of disputes before ‘courts of the classic kind’ require a same level of specialised technical knowledge). But there are two comments to be made. First of all, the administrative court really should have full jurisdiction to review every aspect of the case: a review of the facts of the case, an examination whether the administrative authorities complied with the prescribed criteria how to use their discretionary powers in light of the merits of the case and the proportionality between the fault and the sanction. This will necessarily entail judicial control over the exercise of discretionary administrative powers. The Court should be willing to accept this consequence of its “full review” doctrine more explicitly and consistently. And secondly, one can detect a trend within several of the countries of the Council of Europe that the court system in the field of administrative law is fundamentally reformed. The reforms lead to a court system that is more similar to that of the ordinary judicial machinery. In those countries the strict division between courts of the classic kind and administrative courts may no longer be justified. In those circumstances the Court should eventually abolish its “full review” doctrine.

4.6 Constitutional courts

The Strasbourg organs have for a long time been rather reluctant to declare all the requirements of Article 6 ECHR applicable to constitutional courts. Some Contracting Parties did not consider Article 6 ECHR to be applicable since in their view proceedings before constitutional courts did not determine "civil rights and obligations" nor "criminal charges". This view was shared by the Commission in its early case law 86 and by the Court in the Buchholz case.87 In more recent case law the Court has however taken the view that a constitutional court has to meet the standard as laid down in Article 6 ECHR with regard to the requirement of delivering a judgment "within a reasonable time".88 A similar conclusion was reached by the Court in the Ruiz-Mateos case 89 with regard to the 86 See J.A. Frowein & W. Peukert, Europäische Menschenrechtskonvention, EMRK-Kommentar,

Kehl / Strasbourg / Arlington: Engel, 1996, p. 169.

87 ECHR, 6 May 1981, Buchholz - Germany (Series A-42), §48.

88 ECHR, 29 March 1989, Bock - Germany (Series A-150), §37. See also: ECHR, 25 February 2000, Gast and Popp - Germany (appl. no. 29357/95), §69 and ECHR, 27 July 2000, Klein - Germany (appl. no. 33379/96), §27.

89 ECHR, 23 June 1993, Ruiz-Mateos - Spain (Series A-262), §63.

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requirement of "equality of arms" and in the Krčmář case with regard to the right to a fair hearing.90 In the Ruiz-Mateos case the former Spanish government (supported by the German and Portuguese governments who intervened) explicitly argued that Article 6 §1 did not apply to proceedings before constitutional courts. The European Court admitted that proceedings before constitutional courts have their own characteristics but found nevertheless that Article 6 was breached. In doing so, the European Court implicitly rejected the line of reasoning as put forward by the Spanish government. This was explicitly confirmed in the Pammel case and the Pierre-Bloch case: "[...] the fact that proceedings have taken place before a constitutional court does not suffice to remove them from the ambit of Article 6 par. 1".91 And the wording of subsequent judgments of the Court seems to indicate that the Court is more and more willing to accept applicability. In February 2000 the Court stated in the Gast & Popp case: "[...] Constitutional Court proceedings do not in principle fall outside the scope of Article 6 §1 of the Convention".92 In March 2000 the Court formulated its standpoint in a more firm manner: "Moreover, according to the Court's case-law, Article 6 §1 applies to proceedings before Constitutional Courts".93

Constitutional courts therefore fall in principle within the scope of application of Article 6 ECHR. They do however still enjoy a special status and role. The Süssmann case can serve as an example. Süssmann complained about the length of a procedure before the German Federal Constitutional Court (Bundesverfassungsgericht). Süssmann filed his appeal at the same time as an appeal by former civil servants of the German Democratic Republic who challenged a provision of the Treaty on German Unification on the basis of which the employment contracts of approximately 300.000 persons were terminated. The Court stated that

"[...] the role as guardian of the Constitution makes it particularly necessary for a Constitutional Court sometimes to take into account other considerations than the mere chronological order in which cases are entered on the list, such as the nature of the case and its importance in political and social terms [...] bearing in mind the unique political context of German reunification and the serious social implications of the disputes which concerned termination of

90 ECHR, 3 March 2000, Krčmář - the Czech Republic (appl. no. 35376/97), §45.

91 ECHR, 1 July 1997, Pammel - Germany (Reports 1997, 1096), §53 and ECHR, 21 October 1997, Pierre-Bloch - France (Reports 1997, 2206), §48.

92 ECHR, 25 February 2000, Gast & Popp - Germany (appl. no. 29357/95), §64.

93 ECHR, 3 March 2000, Krčmář - the Czech Republic (appl. no. 35376/97), §36.

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employment contracts, the Federal Constitutional Court was entitled to decide that it should give priority to those cases." 94

In conclusion, constitutional courts should meet the substantive requirements of Article 6 §1 ECHR in principle, but enjoy a large margin of appreciation. That discretion, based on the special status and role of constitutional courts, can be understood with regard to the right to be tried within a reasonable time, the right to a public hearing and some matters related to admissibility of evidence. But in my opinion, the same discretion can not be granted with regard to judicial impartiality. A lack of judicial impartiality would infringe the essence of the fairness of the trial, thereby undermining the public confidence in the court's administration.

4.7 Arbitration

The applicability of Article 6 ECHR in arbitration proceedings calls for a more thorough debate. Such an elaborate debate, however, would exceed the scope of this thesis. Therefore, this paragraph – even more so than other paragraphs in this chapter – only aims at providing a sketch of relevant Strasbourg case-law and some critical comments. Furthermore, this paragraph focusses on so-called consensual arbitration, meaning that the submission to arbitration is voluntary. In case of statutory arbitration there is no doubt about the applicability of Article 6 ECHR. In the Bramelid & Malmström case the Commission held that:

“A distinction must be drawn between voluntary arbitration and compulsory arbitration […]. If […] arbitration is compulsory […] the parties have no option but to refer their dispute to an arbitration board, and the board must offer the guarantees set forth in Article 6 §1.” 95

Problems arise in practice with regard to alleged defects in consensual arbitration proceedings. This paragraph will first deal with the issue of waiver of rights in the context of arbitration. Then a few comments will be made concerning the construction of state responsibility under the ECHR. The specific case-law concerning the requirements of impartiality and independence in arbitration proceedings will be discussed in the following chapters.

4.7.1 Waiver of rights and arbitration

94 ECHR, 16 September 1996, Süssmann - Germany (Reports 1996, 1158), §§38-46.

95 EComHR, 12 December 1983, Bramelid & Malmström – Sweden (appl. nos. 8588/79 and 8589/79, published in D&R vol. 38, p. 38).

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The general concept of waiver of rights under the Convention has been discussed in *** Chapter 3 §13 ***. It seems appropriate, however, to make some additional comments with regard to arbitral proceedings. With regard to arbitration it is often argued that parties have waived their rights under Article 6 ECHR. Article 6 would not be applicable to arbitration proceedings. This conclusion seems to a large extent justified in view of the Strasbourg case-law. In 1962 the Commission stated that:

“[…] the inclusion of an arbitration clause in an agreement between individuals amounts legally to partial renunciation of the exercise of those rights defined by Article 6 (1); whereas nothing in the text of that Article nor any other article of the Convention explicitly prohibits such renunciation; whereas the Commission is not entitled to assume that the Contracting States, in accepting the obligations arising under Article 6 (1), intended to prevent persons coming under their jurisdiction from entrusting the settlement of certain matters to arbitrators […]” 96

The Commission is cautious in its wording; it speaks of a “partial renunciation”. Several years later the Court confirmed the standpoint of the Commission in the Deweer case:

“In the Contracting States’ domestic legal systems a waiver of this kind is frequently encountered both in civil matters, notably in the shape of arbitration clauses in contracts, and in criminal cases in the shape, inter alia, of fines paid by way of compensation. The waiver, which has undeniable advantages for the individual concerned as well as for the administration of justice, does not in principle offend against the Convention.” 97

The Court does not reiterate the notion of a “partial” waiver as such, but it is likely that the Court did not want to differentiate from the Commission. The Court states that such a waiver will not violate the Convention “in principle”. This conclusion seems justified in light of the subsequent decision of the Commission in the Nordström-Janzon case. The Commission referred to the Court’s judgment in the Deweer case and then stated:

96 EComHR, 5 March 1962, X. – Germany (appl. no. 1197/61, as published in Yearbook of the ECHR vol. 5 (1962), pp. 94-96).

97 ECHR, 27 February 1980, Deweer – Belgium (Series A-35), §49. Voluntary arbitration was not at the heart of the Deweer case, but the Court made some interesting observations on the issue of arbitration and waiver of rights.

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“Consequently, there was a renunciation by the parties of a procedure before the ordinary courts satisfying all the requirements [emphasis added, MK] of Article 6 of the Convention.” 98

The issue was discussed again in one of the earlier admissibility decisions of the 'new' Court after the introduction of the 11th Protocol. In the case of Suovaniemi the applicants complained that their rights under Article 6 ECHR had been violated since the national courts had upheld an arbitral award (on the basis of a voluntary agreement) which had been given by arbitrators, two of whom allegedly lacked impartiality. The impartiality of one of the arbitrators was open to doubt under domestic law. However, the national court had not quashed the arbitral award because it held that the applicants had irreversibly waived their right to an impartial judge. So this time the Court had to deal with the question whether the right to an impartial judge can be waived at all. The Court stresses the fact that the Contracting States enjoy "considerable discretion in regulating the question on which grounds an arbitral award should be quashed, since the quashing of an already rendered award will often mean that a long and costly arbitral procedure will become useless and that considerable work and expense must be invested in new proceedings".99 The Court then states that the Finnish legislation did not appear to be "arbitrary or unreasonable" and concludes that in the circumstances of the case the applicants' waiver of their right to an impartial judge should be regarded as effective for Convention purposes. A few factors may have been decisive:

Not only was the submission to arbitration voluntary but, in addition, during the proceedings before the arbitrators the applicants clearly abstained from pursuing their challenge against the specific arbitrators. Thus, the applicants unequivocally accepted this state of affairs in the course of the arbitration proceedings. This indicates that the conclusion of the Court might have been different in case the applicants had raised their objections during the arbitral proceedings.

The waiver needs to be accompanied by sufficient guarantees commensurate to its importance. In this specific case the applicants were represented by counsel throughout the arbitration. So the applicants had professional legal advice at their disposal.

98 EComHR, 27 November 1996, Nordström-Janzon – Netherlands (appl. no. 28101/95).

99 ECHR, 23 February 1999, Suovaniemi a.o. - Finland (appl. no. 31737/96).

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Furthermore, the applicants were awarded ample opportunity to advance their arguments (concerning the circumstances in which the waiver took place during the arbitration proceedings) before the national courts. This underlines the necessity for an 'ordinary' court to check the validity of the waiver.

Finally, it is important to stress that the judgment is limited to the issue of waiver of rights in case of voluntary arbitration. When the Court concludes that the waiver was possible for Convention purposes it explicitly states: "[W]ithout having to decide whether a similar waiver would be valid in the context of purely judicial proceedings [...]". In my opinion this is a clear signal by the Court that the Court's reasoning is not to be used by way of analogy in purely judicial proceedings.

Personally, I regret the Court's decision in the Suovaniemi case. Before the Court reaches its decision it reiterates certain general principles that can be derived from earlier case-law. The Court - rightly - stresses the fact that an arbitral clause does not necessarily involve a waiver of all rights under Article 6 ECHR:

"There is no doubt that a voluntary waiver of court proceedings in favour of arbitration is in principle acceptable from the point of view of Article 6 [...] Even so, such a waiver should not necessarily be considered to amount to a waiver of all the rights under Article 6 [...] A distinction may have to be made even between different rights guaranteed by Article 6." 100

I do not have a great deal of difficulties accepting that one can waive certain requirements of Article 6 ECHR in arbitration proceedings, such as the right to a public hearing.101 However, as already discussed in *** Chapter 3 §13 ***, it seems illogical to assume that a party subjected to arbitration proceedings is no longer interested in proceedings that are in accordance with the very essence of a fair trial.102 In my opinion, it can not be argued that a party has waived the principle of equality of arms or his right to an unbiased decision (these are core rights under Article 6 ECHR, without which there can be no fair trial). I would therefore be in favour of a restrictive interpretation of the Suovaniemi case, i.e. a waiver of the right to be tried by an impartial judge is only

100 ECHR, 23 February 1999, Suovaniemi a.o. - Finland (appl. no. 31737/96).

101 See for example ECHR, 21 February 1990, Håkansson & Sturesson - Sweden (Series A-171), §§66-67.

102 See also: H.J. Snijders, "Rond de arbitrage met name in bouwzaken", in: H.J. Snijders & S.L. Buruma, Bouwarbitrage en civiele rechter (Publikatie van de Vereniging voor Bouwrecht Nr. 23), Deventer: Kluwer, 1995, pp. 71-72.

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acceptable for Convention purposes in case the applicant has abstained from pursuing a challenge against the arbitrator during the arbitration proceedings.

The acceptability of a waiver should be distinguished from the question how one should interpret that Convention right in light of the specific circumstances of a case. It is logical to interpret the requirement of judicial impartiality in a different manner vis-à-vis the judicial machinery of the classic kind. In conclusion, I plead in favour of not accepting a waiver of the right to an impartial judge too easily. However, I believe it to be quite understandable that Article 6 ECHR - once applicable - should be applied in a more moderated manner.103

4.7.2 State responsibility for arbitration proceedings

The next question that needs to be addressed is how the state can be held responsible for potential defaults in private arbitration proceedings. Can there be international accountability before the European Court of Human Rights? The state cannot be held directly accountable for the actions of an arbitral tribunal.104 The arbitrators are not part of the state-organised judiciary. So, if state responsibility is to exist, it must be construed in an indirect manner.

In one of its early decisions, the Commission tried to construe state responsibility by way of an ex post invalidation of the consent given by the parties to partially waive their rights under Article 6 ECHR:

“[…] it may […] be queried whether the original validity of the consent, from which the arbitration clause assumes its legal force, might not be subsequently affected if the arbitrator, in carrying out the functions conferred on him by that clause, conducted himself in a

103 See also: O. Jacot-Guillarmod, “L’arbitrage privé face à l’article 6 §1 de la Convention européenne des Droits de l‘Homme”, in: F. Matscher & H. Petzold (eds.), Protecting Human Rights: The European Dimension – Studies in honour of G.J. Wiarda (Köln, Berlin, Bonn, München: Carl Heymanns Verlag, 1988), p. 294 (“[…] l’applicabilité de l’article 6 §1 CEDH à l’arbitrage privé est une applicabilité fonctionnelle […] les garanties de l’article 6 §1 CEDH ne s’appliquent que partiellement”); R.A. Lawson, “Arbitrage en artikel 6 EVRM: vrijheid in gebondenheid”, in: Tijdschrift voor Arbitrage 1996, p. 166 (“Dat brengt met zich mee dat de eisen van artikel 6 lid 1 EVRM slechts enigszins gedempt doorklinken in de wereld van de arbitrage”), F. Matscher, “L’arbitrage et la Convention”, in: L.E. Pettiti, E. Decaux & P.H. Imbert (eds.), La Convention européenne des droits de l’homme – Commentaire article par article, Parijs: Economica, 1995, p. 291 (“[…] en d’autres termes, les organes de la Convention n’appliqueraient pas aux procédures arbitrales des critères de contrôle aussi stricts [emphasis added, MK] qu’aux procédures devant les tribunaux étatiques”)

104 See, for example, J.E.S. Fawcett, The application of the European Convention on Human Rights, Oxford: Clarendon Press, 1987, pp. 144-145.

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manner incompatible with the spirit of the Convention and particularly Article 6.” 105

Petrochilos calls this ruling of the Commission “patently confused”.106 I agree; this ruling is likely to be the result of confusion within the Commission whether or not the material requirements of Article 6 ECHR should apply – at least to a certain extent – to arbitral proceedings. There are other – and more logical – ways in which state responsibility can be engaged.

Firstly, if a state is called upon to endorse (by way of enforcement or confirmation) an arbitral award. The ordinary courts are bound not to give effect to arbitral awards in case the duties incumbent upon such tribunals under the Convention are violated.

But a more general solution can be found in the Commission’s ruling in the Nordström-Janzon case:

“[…] account must be taken […] of the legislative framework providing for such proceedings in order to determine whether the domestic courts retained some measure of control of the arbitration proceedings and whether this control has been properly exercised in the concrete case.” 107

In my opinion, the Court should in a future case hold that the Convention introduces a positive obligation for states to afford protection by way of providing for such a “legislative framework”, amounting indirectly to horizontal effect of Article 6 ECHR. Such a “legislative framework” needs in my view to provide for at least the following basic guarantees. In the first place, domestic courts need to be given jurisdiction in order to control the validity of the arbitration agreement. In other words, domestic courts should be able to assess whether the waiver of access to court – on the basis of the requirements set out in *** Chapter 3 §13 *** – is valid. And secondly, the national law needs to provide a legal remedy in case of an allegation that the arbitral

105 EComHR, 5 March 1962, X. – Germany (appl. no. 1197/61, as published in Yearbook of the ECHR vol. 5 (1962), pp. 94-96). See also: M.-A. Eissen, "Le 'droit à un tribunal' dans la jurisprudence de la Commission", in: Miscellanea W.J. Ganshof van der Meersch: studia ab discipulis amicisque in honorem egregii professoris edita, Bruxelles: Bruylant, 1972, Volume I. p. 474-476.

106 G. Petrochilos, The Choice of Procedural Law in International Arbitration, Oxford: Oxford University Press, 2004 forthcoming, Chapter 3.

107 EComHR, 27 November 1996, Nordström-Janzon – Netherlands (appl. no. 28101/95). See also: EComHR, 4 March 1987, R. - Switzerland (appl. no. 10881/84; D&R 51, p. 93), in which the Commission also took account of the 'legislative framework' in determining to what extent the state authorities (including the ordinary courts) could be held responsible under the Convention.

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proceedings were not in conformity with elementary procedural guarantees, such as the principle of equality of arms and the requirement of judicial impartiality (‘core rights’ as explained in §1 and §4.7.1 of this chapter). This means that states must ex post ensure that arbitral proceedings are in conformity with the ‘core rights’ of Article 6 ECHR. One could argue that there should be a third obligation, i.e. to oblige arbitral tribunals to apply certain procedural rules that reflect the core rights under Article 6 ECHR, such as the right to a fair trial by an impartial arbitrator. The third obligation is a logical consequence of the second obligation. Is it not logical to avoid the infringement at the earliest possible stage? 108

4.7.3 Can a dispute concerning the validity of the arbitration award be considered as a "civil right"?

The answer to this final question is usually affirmative, as long as the arbitration award can be qualified as pecuniary. In the Stran Greek Refineries and Stratis Andreadis case, the applicants complained about the fairness of the proceedings in which the validity of an arbitration award was challenged. The Greek government tried to argue that Article 6 ECHR was not applicable since the subject of the dispute before the national courts had been the validity of the arbitration clause and consequently of the arbitration award itself. The government argued that this could not be regarded as a ‘civil’ right within the meaning of Article 6. The Court refused to accept this line of reasoning. The Court noted that the right to recover the sums awarded by the arbitration court was pecuniary in nature. The outcome of the proceedings brought in the ordinary courts by the state authorities to have the arbitration award set aside was therefore decisive for a ‘civil right’ within the meaning of Article 6 ECHR.109

4.8 Foreign courts

This paragraph deals with the question whether Article 6 ECHR can be held indirectly applicable to proceedings before national courts of non-ECHR states. Of course, it is impossible to complain before the Court directly about judicial proceedings in non-ECHR states. However, state responsibility could be engaged in various situations.

108 See also: G. Petrochilos, The Choice of Procedural Law in International Arbitration, Oxford: Oxford University Press, 2004 forthcoming, Chapter 3.

109 ECHR, 21 November 1994, Stran Greek Refineries and Stratis Andreadis - Greece (Series A-301-B), §§38-40.

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The first scenario is that a person is arrested in a “High Contracting Party” and that subsequently extradition is requested by a non-ECHR state. In the Soering case, the Court has held that

“The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society […]. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country.” 110

The Court seems to introduce a high burden of proof (“exceptionally” and “flagrant denial of a fair trial”). The Soering judgment dealt with extradition, but in my opinion a similar protection should also be applicable in cases of expulsion of aliens. However, in the latter scenario the threshold for applicants will likely be even more difficult, since it is in principle the prerogative of the state concerned to decide on issues concerning the entry and stay of non-nationals.

Another scenario could be that a domestic court of one of the “High Contracting Parties” is asked to enforce a ‘foreign’ judicial decision in the domestic legal order. The issue was discussed in the Drozd & Janousek case111 brought against France and Spain. Drozd and Janousek were arrested in Andorra for robbery and less than twenty days later both were convicted to fourteen years of imprisonment. According to an old customary rule, convicted persons had a choice to have the prison sentence executed in either France or Spain. Drozd and Janousek chose to be imprisoned in France. Once in France they complained about the manner in which the criminal proceedings in Andorra were conducted (various complaints relating to judicial independence and a complaint relating to a lack of assistance of an interpreter and lawyer during the investigative stage). The French authorities, however, refused to examine the administration of justice in Andorra. Drozd and Janousek then complained to the Strasbourg institutions. They could not lodge a complaint against Andorra, since the Principality was not a party to the Convention. The question therefore was whether the applicants came under the ‘jurisdiction’ of France and Spain within the meaning of Article 1 of the Convention

110 ECHR, 7 July 1989, Soering – United Kingdom (Series A-161), §113; confirmed in ECHR, 6 February 2003, Mamatkulov – Turkey (appl. no. 46827/99), §§85-87. See also §8 of Resolution 1271 (2002) of the Parliamentary Assembly on ‘Combating terrorism and respect for human rights’: “The Assembly also insists on the fact that member States should under no circumstances extradite persons who risk […] being subjected to a trial which does not respect the fundamental principles of a fair trial […]”.

111 ECHR, 26 June 1992, Drozd & Janousek – France and Spain (Series A-240).

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because of their conviction by an Andorran court. The Court (at least a narrow majority) held in §110 of its judgment that

“[…] France was not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the requirements of Article 6 of the Convention […] The Contracting States are, however, obliged to refuse their cooperation if it emerges that the conviction is the result of a flagrant denial of justice […]”

The Court’s judgment raises several questions. Firstly, what is meant by the Court when it refers to “all” requirements of Article 6 ECHR? Apparently, the Court qualifies certain elements of Article 6 ECHR as ‘core rights’. Some commentators criticise this artificial differentiation between core rights and other rights enshrined in Article 6 ECHR (which are also described as ‘fundamental human rights’).112 My main criticism is not so much that the Court qualifies certain elements as ‘core rights’ when the Court is confronted with an indirect application of the Convention (see also *** Chapter 4 §4.7 ***). My main problem is that judicial impartiality must surely be considered as one of these ‘core’ rights.

Secondly, the Court introduces a high ‘threshold’ when it is confronted with an indirect application of the Convention. A Contracting State is only obliged to refuse cooperation when there has been a “flagrant denial of justice”. The only justification provided by the Court for introducing such a high ‘burden of proof’ is that a different (more strict) interpretation would “thwart the current trend towards strengthening international cooperation in the administration of justice”. One may wonder whether that assumption is actually correct.

The Court’s position changed somewhat in the Pellegrini case (2001). Mrs Pellegrini married Mr Gigliozzi in 1962 in a religious ceremony that was valid under civil law. In 1987 she petitioned for a judicial separation in the Rome Court of First Instance. The proceedings ended with a judgment in 1990, in which the court of first instance ordered the applicant’s former husband to pay her monthly maintenance instalments. The husband in the meantime had however started proceedings before the Latium Regional Ecclesiastical Court in the Vicariate of Rome in order to nullify the marriage on the ground that they were too closely related (so that in the end he would not have to pay the maintenance installments). In 1988 the Tribunal of the Roman Rota declared the marriage a nullity because the spouses were close relatives. The husband then turned to the Italian courts in order to enforce the judgment of the ecclesiastical courts. In 1991 the Florence Court of Appeal issued an authority to enforce the

112 R.A. Lawson, “Mensenrechten in Andorra: van de (co-)prins geen kwaad”, in: NJCM-Bulletin 1992, p. 827.

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judgment. Pellegrini complained that her defence rights had been violated in the ecclesiastical proceedings, but to no avail. She appealed to the Court of Cassation, but that appeal was dismissed in 1995. Pellegrini then turned to the European Court of Human Rights. She complained of a violation of Article 6 of the Convention in that the Italian courts had granted an authority to enforce a decree of nullity of marriage issued by the ecclesiastical courts in proceedings in which her defence rights had been infringed. The Court first had to address the issue of state responsibility and the applicability of Article 6 ECHR:

“[…] The Court's task therefore consists not in examining whether the proceedings before the ecclesiastical courts complied with Article 6 of the Convention, but whether the Italian courts, before authorising enforcement of the decision annulling the marriage, duly satisfied themselves that the relevant proceedings fulfilled the guarantees of Article 6. A review of that kind is required where a decision in respect of which enforcement is requested emanates from the courts of a country which does not apply the Convention. Such a review is especially necessary where the implications of a declaration of enforceability are of capital importance for the parties.” 113

So the Court’s task is not to examine whether the ecclesiastical proceedings satisfied Article 6 of the Convention, but to consider whether the Italian courts had duly verified whether the Article 6 guarantees had been secured in the proceedings concerned before granting the authority to enforce the decree. The high threshold adopted by the Court in the Drozd & Janousek case, i.e. that a Contracting State is only obliged to refuse cooperation when there has been a “flagrant denial of justice”, is abolished in the Pellegrini judgment.

In my opinion, no decisive importance should be attached to the last sentence of the Court’s reasoning. Also in cases in which the implications of the enforcement of the judicial decision are not of “capital importance” to the parties, such a review should be considered necessary to satisfy the obligations under the Convention. It would have been better to have introduced a reversed standard, i.e. only in petty cases such a review is not necessary.

4.9 International tribunals: Member State responsibility?

Obviously, the requirements with regard to judicial independence and impartiality applicable to ordinary domestic courts are not automatically applicable vis-à-vis

113 ECHR, 20 July 2001, Pellegrini – Italy (appl. no. 30882/96), §40.

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international tribunals.114 International tribunals require specialised standards. To what extent are international tribunals formally bound by Article 6? Obviously, the ECHR can not receive applications that are directly addressed to international tribunals; it is only competent to receive complaints against states. But the question remains whether states can be held indirectly responsible for defects in proceedings before an international tribunal. Let me first make a few remarks concerning the applicability of the Convention vis-à-vis acts of international organisations.

In Strasbourg case law and legal doctrine, lengthy discussions regarding the applicability of the Convention with regard to acts of international organisations have taken place.115 So can signatory states be held indirectly responsible for actions of international organisations in which they participate? The most recent authoritative standpoint of the Court seems to be laid down in the Matthews judgment, in which the Court endorsed the concept of member state responsibility:

“The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be ‘secured’. Member States’ responsibility therefore continues even after such a transfer.” 116

On the same day the Court delivered a judgment in the Waite and Kennedy case and came to a similar conclusion:

“[…] where States establish international organisations in order to pursue or strengthen their cooperation in certain fields or activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the fields of activity covered by such attribution.” 117

114 EComHR, 9 February 1990, M. & Co. - Germany (appl. no. 13258/87; D&R 64, p. 138).

115 See for example André Klip, "The Decrease of Protection under Human Rights Treaties in International Criminal Law", in: International Review of Penal Law 1997, pp. 292-310 and R.A. Lawson, Het EVRM en de Europese Gemeenschappen – Bouwstenen voor een aansprakelijkheidsregime voor het optreden van internationale organisaties, Deventer: Kluwer, 1999.

116 ECHR, 18 February 1999, Matthews - United Kingdom (appl. no. 24833/94), §32. This standpoint in the Court's case law can probably be explained by the increasing importance of acts of the European Union in everyday life. To categorically deny applicability of the Convention became increasingly undesirable.

117 ECHR, 18 February 1999, Waite and Kennedy - Germany (appl. no. 26083/95), §67.

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This transfer of competences by Parties to an international organisation should not be confused with the question of whether or not the Convention has extra-territorial application. This issue was discussed in the Bankovic case, in which a complaint was brought against the 17 European member States of NATO regarding the bombardment of a radio station in Belgrade. The European Court concluded that such extra-territorial actions do not fall within the “jurisdiction” of the Parties, as referred to in Article 1 ECHR, and declared the complaint inadmissible.118

One may wonder whether this case law concerning international organisations is equally applicable to international tribunals. In my opinion that is not actually the case.119

For the purposes of this commentary the Naletilić case is most interesting, because the Court has commented on the independence and impartiality of the ICTY. The Croatian applicant complained that his surrender to the ICTY amounted to a violation of Article 6. The Court, however, stated:

"(.…) Involved here is the surrender to an international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence." 120

This strongly resembles the “equivalent protection” doctrine found in earlier case law of the European Commission of Human Rights. In the M.&Co. decision, the Commission stated:

“[…] the transfer of powers to an international organisation is not incompatible with the Convention provided that within that organisation fundamental rights will receive an equivalent protection.” 121

118 ECHR, 12 December 2001, Bankovic a.o. - 17 European member States of NATO (appl. no. 52207/99).

119 See M. Kuijer in: A. Klip & G. Sluiter (eds.), Annotated Leading Cases ICTY Vol. IV, Antwerp / Oxford / New York: Intersentia, 2002, pp. 139-144.

120 ECHR, 4 May 2000, Naletilić - Croatia (appl. no. 51891/99), §1. See also C. Buisman, "Europees Hof laat Joegoslavië-tribunaal de ruimte", in: NJCM-Bulletin 2001, pp. 50-57. A similar complaint brought by Slobodan Milosevic has been declared inadmissible by the Court since the applicant had failed to exhaust all domestic remedies (ECHR, 19 March 2002, Slobodan Milosevic - Netherlands (appl. no. 77631/01)).

121 EComHR, 9 February 1990, M.&Co. - Germany (appl. no. 13258/87; D&R 64, p. 138).

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However, in practice the Strasbourg institutions seem to have afforded a much greater latitude in the case of international tribunals. In the Naletilić case, the Court reached the conclusion that the ICTY fulfilled the standards laid down in Article 6 without any proper examination. This ‘professional courtesy’ approach can also be found in other cases. In the Pafitis case the Court did not want to interfere with the system of preliminary rulings under EC law. The applicant complained about a breach of his right to be tried within a reasonable time. The delays were partly due to the fact that the domestic court asked for a preliminary ruling from the European Court of Justice (ECJ) and that it took the ECJ several months to reply. The Strasbourg Court responded:

“The Court cannot […] take this period into consideration in its assessment of the length of each particular set of proceedings: even though it may at first sight appear relatively long, to take it into account would adversely affect the system instituted by Article 177 of the EEC Treaty and work against the aim pursued in substance in that Article.” 122

This factual behaviour of the Court is somewhat half-hearted. The Court gives the impression to a complainant that it provides full effective judicial protection. But in practice the 'professional courtesy' approach will prevail. However, a lot can be said in favour of this cautious approach by the Court. On the one hand, the Court has ensured itself of jurisdiction, enabling it to intervene in more severe circumstances. And on the other hand, the cautious approach of the Court will lead in general to a harmonious relationship with other international tribunals in the international legal order.

What about the European Court of Human Rights itself? Does the Court comply with the standards laid down in Article 6 ECHR? A violation by the European Court of its own “reasonable length of proceedings” case-law for example would not be unfeasible.123

122 ECHR, 26 February 1998, Pafitis a.o. - Greece (Reports 1998, 458), §95; confirmed in ECHR, 30 September 2003, Koua Poirrez – France (appl. no. 40892/98), §61. And it should be noted that it is not completely unconceivable that the Court of Justice in some cases will act in a manner that is - to say the least - questionable in light of the Strasbourg case-law. Mancini has once commented: "Few supreme courts in the Western world are so lacking in links, direct or indirect, with the symbols of democratic government and in few countries is the judiciary so bereft of formal guarantees of its independence" (G.F. Mancini, Democracy and Constitutionalism in the European Union, Oxford: Hart, 2000, p. 32).The ECJ has, for example, refused leave to submit observations in response to the Opinion of the Advocate General. This seems to be in contradiction with the standpoint of the ECHR concerning the right to adversarial proceedings, as formulated in the Vermeulen case (ECHR, 20 February 1996, Vermeulen - Belgium (Reports 1996, 224), §§29-30). See on this issue more elaborately: R.A. Lawson, "Annotation Case C-17/98, Emesa Sugar (Free Zone) NV v. Aruba", in: CMLRev. 2000, pp. 983-990.

123 Perhaps the Court could (in such a hypothetical case) refer to its own case-law: the High Contracting Parties (via the Council of Europe) should provide the necessary (financial) means in order to ensure compliance with the Convention standards.

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Neither are complaints about objective impartiality or independence of the Court completely theoretical.

In the debate on guaranteeing the long-term effectiveness of the Court, the Court itself drew attention to the necessity of defining the legal relationship which binds the Court to the Council of Europe in clearer terms so as to ensure that the administrative and budgetary arrangements are consistent with judicial independence and the separation of powers. In addition, the Court stated that permanent regulations should be drawn up to determine the conditions of service of judges, securing for them appropriate social protection and pension cover.124 Equally interesting is a proposal of the drafting group on the reinforcement of the human rights protection mechanism concerning the term of office of judges of the Court. An amendment of the Convention is examined, whereby judges of the Court would be elected for a single, fixed term of not less than 9 years in order to offer a further guarantee of the Court’s independence.125

Yet another criticism is related to the appointment procedure. The current system involves the nomination of three candidates at a national level, followed by an election by the Council of Europe’s Parliamentary Assembly which is prepared by a Sub-Committee on the election of judges. In May 2003 Interights published a report called ‘Judicial Independence: Law and Practice of Appointments to the European Court of Human Rights’. The report criticises the ad hoc and often politicised processes adopted in the appointment of judges. According to the report, the appointment process lacks transparency and accountability. At a national level, States are given absolute discretion with respect to the nomination system they adopt. At the level of the Parliamentary Assembly, the report criticises the superficial assessment of the nominees. Furthermore, the Sub-Committee on the election of judges deliberates in camera and the Sub-Committee does not give reasons for its ranking of nominees. The Interights report proposes two simple measures: (a) the adoption of minimum standards for national nomination procedures (for example, nominees should be selected by an independent body); and (b) the body making recommendations to the Parliamentary Assembly should itself be independent, possess expertise in international human rights law and follow a fair and open procedure.

The 'internal appeal'-construction of the Court also deserves mentioning. It could be contrary to the Court’s own case law.126 Judges from the Chamber that made the initial

124 CDDH-GDR (2003) 024 (position paper of the European Court of Human Rights on proposals for reform of the European Convention on Human Rights, unanimously adopted by the Court at its 43rd plenary administrative session on 12 September 2003), §50.

125 CDDH-GDR (2003) 030, 30 September 2003.

126 See more elaborately on this issue M. Kuijer, “De EHRM-jurisprudentie over onafhankelijkheid en onpartijdigheid van nationale rechters en de gevolgen hiervan voor het nieuwe Hof”, in: NJCM-Bulletin 1997, pp. 850-858. See also: M.R. Wijnholt, “Perikelen rond intern appel”, in: NJCM-Bulletin 1997, pp. 859-861.

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judgment are excluded in the proceedings before the Grand Chamber, in order to guarantee complete impartiality. However, to ensure the consistency of the Court's case law, the president of the Chamber and the national judge will participate in the proceedings before the Grand Chamber. This is likely to be contrary to its own case law, as established in the De Haan case (see *** Chapter 7 §3.3.3 ***).

Another issue about the Court’s own impartiality is the possibility of a judge ad hoc. The participation of judges ad hoc has always been controversial in academic literature. Those in favour of the use of judges ad hoc emphasise the political necessity of the national (ad hoc) judge and point to the fact that the participation of a judge with the nationality of one of the parties is deeply rooted in the history of international arbitration and judicial settlement.127 Giving a party the possibility of appointing a judge ad hoc probably also increases the general confidence member states have in the court. In addition, after a judgment has been rendered, parties will be more likely to faithfully execute and comply with the court’s judgment. On the other hand, the fact that a judge ad hoc is named by one of the parties to the dispute after a particular case has arisen can be criticised. The defendant state is able to appoint a judge ad hoc who previously expressed views similar to the point of view of that government. This gives one party to the proceedings (the defendant state) a substantial advantage vis-à-vis the other party. It could furthermore seriously disrupt the unity of the Bench.128

Also, appointing a judge ad hoc can be very unpractical and expensive.129 The credibility of the judge ad hoc is further undermined if one analyses the actual voting behaviour in comparison with the voting behaviour of titular national judges.130 Several solutions have been offered. Each member state could be obliged to file a list of three candidates for the position of judge ad hoc at the Registry of the Court before a dispute has arisen (logical candidates would include for example the old ‘national’ judge whose term of office has just expired and the runners-up on the list of nominations that each Contracting Party submits to the Parliamentary Assembly before the appointment of a 127 See for example: S. Rosenne, The International Court of Justice – An Essay in Political

and Legal Theory, Leiden: Sijthoff, 1957, p. 147.

128 See among others: I. Ro Suh, “Voting Behavior of National Judges in International Courts”, in AJIL 1969, p. 226; M.N. Shaw, International Law, Cambridge: Cambridge University Press, 1991, p. 660 and M. Kuijer, “De EHRM-jurisprudentie over onafhankelijkheid en onpartijdigheid van nationale rechters en de gevolgen hiervan voor het nieuwe Hof”, in: NJCM-Bulletin 1997, pp. 850-858.

129 Discussed by H.G. Schermers, “The European Court of Human Rights After the Merger”, in: European Law Review 1993, pp. 502-503. In light of these considerations it is alarming that some countries (like Spain and Italy) have nominated their agents to become judge. These agents for the Government will be familiar with and have participated in all complaints brought against their country. They will need to exempt themselves from dealing with the case as a judge of the Court, resulting in the appointment of ad hoc judges.

130 See M. Kuijer, “Voting behaviour and national bias in the European Court of Human Rights and the International Court of Justice”, in: Leiden Journal of International Law 1997, pp. 47-65.

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titular judge). In case a judge ad hoc is subsequently needed, the Registrar can contact the first candidate without further interference of the state concerned. Should the first candidate be unavailable, the Registrar would be able to contact the second and third candidate. In addition, member states could be urged (for example by the Parliamentary Assembly of the Council of Europe) not to appoint judges ad hoc at all. In my opinion, the institution should be abolished all together.131 It no longer serves a meaningful purpose within the context of the European Court.132

Even though complaints against the Strasbourg control mechanism about inconsistencies like this seem to be impossible, members of the Court are aware that they should not only guarantee the impartiality of national judges but also their own.133 There is therefore a more informal scrutiny, despite the lack of formal possibilities to challenge the Strasbourg control mechanism.134

Usually, the judge in question will raise the issue himself. The Dutch Judge Thomassen, for example, exempted herself from sitting in the case of M.M. - Netherlands135 in light of her prior involvement with the case on the national level. The Swedish judge Palm was appointed to sit as a judge ad hoc on behalf of the Netherlands (Article 27 §2 ECHR and Rule 29 §1).

Another example of this informal mechanism can be found in the Turkish Ogur judgment. In the first part of the judgment the procedure before the Court is described. The judgment then states:

"On 19 November 1998 Mr Wildhaber exempted Mr Türmen [the judge elected in respect of Turkey, MK] from sitting; the latter had withdrawn following a decision taken by the Grand Chamber under Rule 28 §4." 136

131 Cf. F.J. Bruinsma & S. Parmentier, “Interview with Mr. Luzius Wildhaber, President of the ECHR”, in: Netherlands Quarterly of Human Rights 2003, p. 191. Wildhaber states that “a sizable number” of countries would not accept abolishing the institution of ad hoc judges.

132 Judges ad hoc do not exist within the framework of the Court of Justice of the European Communities.

133 See with regard to the ‘internal appeal’-construction for example the dissenting opinion of Commissioner Schermers in the De Haan case and Judge Van Dijk in an interview in a Dutch law journal (R. Lawson & E. Myjer, "De zaak loopt volstrekt uit de hand - een interview met de nieuwe Nederlandse leden van het Europese Hof en de Europese Commissie voor de Rechten van de Mens", in: NJCM-Bulletin 1997, p. 111).

134 It should be said that there can reasonably be no doubt concerning the de facto independence and impartiality of titular judges of the Bench. See M. Kuijer, "Voting behaviour and national bias in the European Court of Human Rights and the International Court of Justice", in: Leiden Journal of International Law 1997, pp. 47-65.

135 ECHR, 8 April 2003, M.M. – Netherlands (appl. no. 39339/98).

136 ECHR, 20 May 1999, Ogur - Turkey (appl. no. 21594/93), §5.

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Apparently, there had been a discussion within the Court whether the participation of Judge Türmen in this particular case was desirable. The matter was decided within the Grand Chamber and subsequently Judge Türmen decided to withdraw. The discussions within the Grand Chamber seem to be an informal mechanism developed by the Court itself.

Appearance of judicial independence and impartiality can also be an issue within the context of electing a candidate for a Strasbourg post. Before the introduction of the 11th Protocol, a position in Strasbourg was still a part-time job. Members of the Commission and the Court had primary functions elsewhere. On occasion, problems arose because candidates had primary functions that were deemed to be incompatible with judicial office (for example, in case the candidate was legal counsel at a ministry). Equally problematic can be the election of a former Ambassador or Agent.137

Of course, the informal practice of the Court does not always function impeccably. In the case of Pardo a request for the revision of the original judgment138

was made. The Chamber dealing with the admissibility of the request for revision was composed of 9 judges, of whom 4 judges had also participated in the original proceedings. The applicant requested the Court to declare the composition of the Chamber void and in the alternative challenged all the judges appointed. The Chamber however decided to reject the request (without using its discretionary power to relinquish jurisdiction in favour of the plenary Court). The Chamber ruled that the relevant provision of the Rules of Procedure was not directed at the participation of a judge in the examination of a case in which he had been involved at an earlier stage in the procedure before the Court. From a viewpoint of ensuring the appearance of judicial independence and impartiality this line of reasoning can be regretted.139

137 F.J. Bruinsma & S. Parmentier, “Interview with Mr. Luzius Wildhaber, President of the ECHR”, in: Netherlands Quarterly of Human Rights 2003, p. 191: “When the Turkish Ambassador, Mr. Türmen, was elected as a judge, he had to be disqualified whenever his name figured in any written information to Turkey about the Court”.

138 ECHR, 20 September 1993, Pardo – France (Series A-261-B).

139 See ECHR, 10 July 1996, Pardo – France (Revision – admissibility) (Reports 1996, p. 860), §§4-5.

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