SASSEN v. THE NETHERLANDS
Inadmissible
Elisabeth Palm;Gaukur Jörundsson
The applicant is a Dutch national, born in 1944 and living in Nijmegen, the Netherlands. He is represented before the Court by Mr M.P.H. Winters, a lawyer practising in Arnhem, the Netherlands. A.  The applicant is the author of a computer programme for the calculation of amounts of maintenance to be used by national courts. The programme was published by the Kluwer publishing company. The applicant’s programme tested best in a trial in which two other programmes participated but the authors of one of the other programmes, Messrs F. and W., obtained an injunction when Kluwer started advertising the applicant’s programme in legal journals - the test results had allegedly been ‘frozen’ at the instigation of the authors of the third programme who were attached to a regional court. Kluwer then attempted to get the applicant and Messrs F. and W. to work together but the applicant refused. Subsequently, Kluwer decided to publish the programme of Messrs F. and W. The applicant started proceedings for damages against both Kluwer and Messrs F. and W., arguing that their actions had caused him to lose his advantage which the test results had given him from a marketing point of view. In the proceedings against Kluwer, the Court of Appeal (Gerechtshof) of Arnhem decided on 3 March 1992 that Kluwer’s actions had indeed caused prejudice to the applicant and in a separate procedure the amount of damages to be paid by Kluwer to the applicant should be calculated. In a judgment of 9 February 1995 the Regional Court (Arrondissementsrechtbank) of Zutphen ordered Kluwer to pay a certain amount of damages (about 10% of what the applicant had demanded), rejected the applicant’s other demands in respect of Kluwer (namely that Kluwer halt its publication of Messrs F. and W.’s programme) and declared the applicant’s claims on Messrs F. and W. inadmissible as it held that these claims covered the same damage as the applicant claimed from Kluwer. On 4 March 1997 the Court of Appeal of Arnhem quashed this decision, but only insofar as the amount of damages was concerned (the Court of Appeal lowered this amount). It held that the applicant’s claim on Messrs F. and W. was admissible, but rejected this claim because Messrs F. and W. had not acted unlawfully towards the applicant and the Court of Appeal also agreed with the Regional Court that the applicant’s claims on Messrs F. and W. were the same as those on Kluwer. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), raising a number of complaints relating to the reasoning applied by the Court of Appeal and also arguing that there was a contradiction between the Court of Appeal’s judgments of 3 March 1992 and that of 4 March 1997. According to the applicant, these circumstances created at least the impression that the lower courts, most of whose judges where also contractually connected to the Kluwer company, had not been impartial. The applicant requested the Supreme Court in writing to appoint judges to this case who had no ties with Kluwer. In the proceedings before the Supreme Court the Advocate-General at that court submitted an advisory opinion to which the applicant was able to reply. In his response he pointed out that this particular Advocate-General had had a number of written works published by Kluwer in the time before he became Advocate-General. On 6 November 1998 the Supreme Court rejected the appeal in cassation. Four of the five Supreme Court judges have had written works published by Kluwer or companies part of the Kluwer conglomerate. B. Relevant domestic law Pursuant to Article 29 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) a party may challenge any of the judges assigned to examine a case on the grounds of facts or circumstances which might prejudice the judicial impartiality. A request to challenge a judge should be made as soon as the person concerned has become familiar with these facts or circumstances (Article 30 § 1 of the Code of Civil Procedure). Article XIII § 2 of the Rules of Court of the Supreme Court (Reglement van Orde van de Hoge Raad der Nederlanden) provides that at the request of one of the parties to the proceedings the Registrar will notify to that party the names of the members of the Supreme Court who will render judgment in a particular case. The duties and position of the Procurator-General’s department (openbaar ministerie) are defined in the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). The Procurator-General’s department consists of the Procurator-General and advocates-general of the Supreme Court, the procurators-general and advocates-general of the courts of appeal and the public prosecutor’s of the regional and district courts (Article 3 § 1 of the Judiciary (Organisation) Act). The advocates-general of the Supreme Court act as deputies of the Procurator-General of that court and are subordinate to him (Articles 3 § 2, 5a and 6 § 1). The Procurator-General’s department must be heard by the courts in so far as the law so prescribes (Article 4). The advisory opinion of the Procurator-General or an advocate-general to the Supreme Court takes the form of a learned treatise containing references to relevant case-law and legal literature and a recommendation, which is not binding on the Supreme Court, to uphold or reject points of appeal.