CASE OF DE HAAN v. THE NETHERLANDS
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
6. The applicant, Ms Klaziena Wilhelmina de Haan, is a Netherlands national born in 1966 and resident in Oude Pekela. She worked at a dry cleaner’s from 1987. In the spring of 1989 she started to develop physical complaints which caused her to take sick-leave for months at a time. It was alleged that these complaints were caused by chemical substances used in dry cleaning. While she was not at work the applicant enjoyed sick-pay from the Occupational Association for the Chemical Industry (Bedrijfsvereniging voor de Chemische Industrie) under the Health Insurance Act (ziektewet). 7. By a letter of 14 May 1990 the Occupational Association for the Chemical Industry informed the applicant that according to the information at their disposal she was no longer unfit for work, and that accordingly her entitlement to sick-pay would be terminated with retrospective effect from 10 May. 8. The applicant lodged an appeal with the Groningen Appeals Tribunal (Raad van Beroep) on 22 May 1990. On 20 June she filed an additional statement setting out her grounds of appeal. 9. The Appeals Tribunal followed the simplified procedure known as the permanent-medical-expert procedure (vaste deskundige procedure – see paragraphs 25–28 below). 10. On 17 August 1990 the applicant was examined by a permanent medical expert (vaste deskundige) attached to the Appeals Tribunal – a general practitioner. 11. On 11 September 1990 the acting president of the Appeals Tribunal, Judge S., dismissed the appeal. This decision, which was typed on a pre-printed form, contained the following reasoning: “In his opinion, which was received at the registry of the Appeals Tribunal on 6 September 1990, the expert reached the conclusion that on and after the date to which the decision appealed against relates the applicant was not unfit for work ... The Appeals Tribunal considers that it should accept this opinion. In view of this opinion, as well as the other documents contained in the case file, it must be held that in the decision appealed against the respondent authority acted correctly in deciding to discontinue the applicant’s sick-pay.” 12. On 26 September 1990 the applicant filed an objection (verzet). This caused the decision of the president to lapse provisionally (section 142 (3) of the Appeals Act – see paragraph 29 below). She filed a statement of the grounds on which her objection was based on 19 November 1990. The grounds of her objection went to the merits of the case. 13. The applicant received an invitation to take part in a hearing set for 8 August 1991. By a letter of 24 July addressed to Judge S., the applicant’s lawyer stated that he had learnt that Judge S. would officiate as president of the Chamber of the Appeals Tribunal constituted to hear the case and announced his intention of challenging him. 14. At the hearing the applicant’s lawyer submitted a written note dated the day before requesting that Judge S. withdraw and, in the alternative, challenging him. It was not alleged that Judge S. was subjectively biased, but doubts were expressed as to his objective impartiality in view of the fact that he had given a decision in the case earlier, based on evidence contained in the case file. 15. The Chamber of the Appeals Tribunal withdrew to consider the applicant’s challenge in camera. The discussion was presided over by a judge who was not a member of the Chamber (section 62 of the Appeals Act – see paragraph 33 below). Judge S. did not withdraw. It was decided to reject the challenge, pursuant to the internal policy of the Groningen Appeals Tribunal (see paragraph 34 below). The Chamber of the Appeals Tribunal thereafter resumed the hearing in the same composition. 16. On 21 August 1991 the Appeals Tribunal held the objection to be unfounded. 17. The applicant filed a further appeal (hoger beroep) to the Central Appeals Tribunal (Centrale Raad van Beroep) on 6 September 1991. Relying specifically on Article 6 of the Convention, she complained about the rejection by the Appeals Tribunal of her challenge of Judge S., stating that the latter had lacked objective impartiality. She asked that the case be referred back to the Appeals Tribunal for a rehearing (see paragraph 36 below) under the presidency of a different judge. As an alternative submission, she asked that her entitlement to sick-pay after 10 May 1990 be recognised. 18. The Central Appeals Tribunal rejected the applicant’s further appeal on 26 April 1993. In so far as its judgment concerned the applicant’s challenge of Judge S., it referred to another judgment delivered the same day in which the same problem of functional impartiality was addressed. That judgment contained the following reasoning: “The Central Appeals Tribunal construes the [relevant] case-law of the European Court of Human Rights ... in the sense that the possibility of a violation of the guarantee of judicial impartiality is accepted if the judge participating in the determination of the legal question in the principal proceedings [hoofdgeding] has been involved in preparatory decisions which were independent in nature and had a purport of their own, and which generally fall to be taken on the basis of a global or provisional view of the main issue in the principal proceedings and which in general cannot be reconsidered when the main issue is dealt with. The procedure according to the Appeals Act, as called into question by the applicant, concerns a judge who, within a single instance on appeal, within the framework of continuous judicial construction [rechtsvinding] in the stage before as well as after the objection, which, if filed in due time, causes the preceding decision to lapse in accordance with section 129 [of the Appeals Act], is involved in a decision with the same purport, given in relation to the same legal question and on the basis of the same standards. In view of these essential differences the Central Appeals Tribunal is of the opinion that no violation of judicial impartiality can be found on the basis of the criteria which may be deduced from the above-mentioned case-law of the European Court of Human Rights. The Central Appeals Tribunal will not address the question whether the Court’s case-law, which has been formed in the field of criminal law, may be transposed to other fields of law without further ado.” 19. The following is a rendering of the relevant domestic law and practice at the time of the events complained of. 20. The Health Insurance Act sets up an insurance scheme which is compulsory for all employees (section 20). Under this scheme, an employee has a right to sick-pay in the event of inability to perform his or her work due to illness, pregnancy or disability (section 19). In the event of illness or disability the employee may receive sick-pay for a period of up to fifty-two weeks (section 29 (2)). Provision for illness or disability continuing beyond this period was made under a different Act, the Occupational Disability Insurance Act (Wet op de arbeidsongeschiktheidsverzekering), which is not relevant to the present case. 21. Pursuant to section 2 of the Social Security (Organisation) Act (Organisatiewet sociale verzekeringen) it falls to the occupational associations to implement certain social-security legislation, including the Health Insurance Act. One occupational association exists for each of the various sectors of economic life. An occupational association is an association (vereniging) under private law set up by employers’ and employees’ organisations considered by the Minister of Social Affairs and Employment (Minister van Sociale Zaken en Werkgelegenheid) to be sufficiently representative of the sector concerned; its purpose is defined as being to implement the relevant social-security legislation, it must be a non-profit-making body and its statutes must satisfy certain requirements (section 4 (1) of the Social Security (Organisation) Act). An employer is automatically a member of the occupational association corresponding to the sector of the economy to which the work carried out by his employees belongs (section 7 (1) of the Social Security (Organisation) Act). 22. The Appeals Tribunals – which have in the meanwhile been abolished (see paragraph 38 below) – were the judicial bodies with jurisdiction to rule at first instance on disputes concerning most social- security legislation, including the Health Insurance Act (at the relevant time, section 75 of the Health Insurance Act). 23. A Chamber of an Appeals Tribunal comprised three members. Its president was always a judge appointed for life: the president of the Appeals Tribunal concerned or a vice-president or acting president (sections 5 and 116 (1) of the Appeals Act). The other two members were appointed for six years by the Minister of Justice, from lists of persons put forward by organisations of employers and employees (sections 9 and 10). 24. In addition, every Appeals Tribunal had a number of permanent medical experts at its disposal. These were physicians (section 131 of the Appeals Act). They were appointed for one year at a time by the Minister of Justice (section 132 (1)). Upon appointment, they swore that they would report according to their conscience (section 133). They were not allowed to be connected to any organisation concerned with social-security matters, or to act as permanent medical experts in cases in which they had previously been involved in another capacity (section 134). 25. In the event of a dispute between an occupational association and an employee with regard to the latter’s fitness for work, the permanent-medical-expert procedure provided for by the Appeals Act was followed (section 75 (2) of the Health Insurance Act). 26. When an appeal was lodged against a decision of an occupational association concerning an employee’s fitness for work, the president of the Appeals Tribunal appointed a permanent medical expert (section 135 of the Appeals Act). The registry of the Appeals Tribunal informed the occupational association in question of the lodging of the appeal; the occupational association was then required to submit the relevant documents in its possession, normally within three days (section 136). These were included in the case file, which was then forwarded to the permanent medical expert. 27. The permanent medical expert was required to consult the physician who had examined the appellant on behalf of the occupational association and the physician who had treated the appellant, unless it appeared from the case file that their opinions corresponded to his own; he also examined the appellant (section 137). He then drew up an opinion which he submitted to the president of the Appeals Tribunal (section 140). 28. The president of the Appeals Tribunal, or an acting president as the case might be, gave a reasoned decision which was pronounced in public (section 141). 29. Both the appellant and the occupational association could file an objection with the Appeals Tribunal against the decision of the president (section 142 (2) of the Appeals Act). As a consequence of the filing of such an objection, the decision objected against lapsed unless the objection was eventually held to be inadmissible or unfounded (section 142 (3)). 30. Before the Court’s judgment in the case of Feldbrugge v. the Netherlands (judgment of 29 May 1986, Series A no. 99), such an objection could only be based on certain formal grounds (ibid., p. 10, § 19). After that judgment the presidents of the Appeals Tribunals established a policy guideline pursuant to which appellants were informed that they could file an objection on any grounds desired (Nederlands Juristenblad – Netherlands Law Review – 1986, p. 869). 31. The objection proceedings involved a hearing in camera before a Chamber of the Appeals Tribunal (section 142 (2) and (6)). A decision dismissing the objection had to be reasoned (section 142 (7)). 32. Pursuant to section 61 (1) of the Appeals Act, a party to proceedings before an Appeals Tribunal was entitled to challenge a member of the Chamber called upon to hear the case “on the ground of facts or circumstances which might prevent [the member concerned from forming] an impartial opinion” (die een onpartijdig oordeel zouden kunnen belemmeren). A member of the Chamber was entitled to withdraw for the same reason (section 61 (2)). 33. After a hearing of the party concerned, the challenge was decided on in camera by the other members of the Chamber, chaired by the president of the Appeals Tribunal or his or her deputy. No appeal lay against the ensuing decision (section 62 (1) of the Appeals Act). 34. It appears from the decision in the present case (see paragraph 15 above) that the Groningen Appeals Tribunal had an internal policy under which objections against decisions which had lapsed as a result of the filing of the objection were normally dealt with under the presidency of the acting president who had given the original decision unless no further appeal was possible. 35. The Central Appeals Tribunal was, and is, composed entirely of judges appointed for life (section 32 of the Appeals Act). At the relevant time it always sat in Chambers of three (section 39). Its hearings are public (section 64). 36. A further appeal against the decision or judgment of an Appeals Tribunal lay to the Central Appeals Tribunal, unless the law provided otherwise (section 145 of the Appeals Act). The procedure normally involved a complete re-examination of the case, including a hearing (section 148). The Central Appeals Tribunal could confirm the decision of the Appeals Tribunal, with different reasoning if necessary, or do what the Appeals Tribunal ought to have done (section 149); it could also refer the case back to the Appeals Tribunal if it saw fit (section 150). 37. However, according to section 75 (2) of the Health Insurance Act, no appeal lay against a decision given by an Appeals Tribunal in objection proceedings such as those in issue. In its judgment of 24 July 1958 (Rechtspraak Sociaal Verzekeringsrecht (Social Security Law Reports, RSV) 1958, no. 102) the Central Appeals Tribunal nevertheless opened the possibility of a further appeal in such cases if it appeared that rules of a formal nature had not been followed, if incorrect standards had been applied, or to the extent that the decision appealed against was unreasonable. 38. The General Administrative Law Act entered into force on 1 January 1994. It replaced the Appeals Tribunals by administrative-law divisions of the Regional Courts (arrondissementsrechtbanken). 39. An employee who does not wish to accept the decision of an occupational association concerning his or her fitness for work may file an objection (bezwaarschrift) to that body (section 7:1 of the Administrative Law Act). An appeal lies to the Regional Court (section 8:1). The Regional Court may appoint a medical expert to examine the appellant (section 8:47 (1)). It must hold a hearing, unless the parties to the case waive their right to be heard (sections 8:56 and 8:57). A further appeal lies to the Central Appeals Tribunal (section 18 of the Appeals Act, as amended). The restrictions set out in paragraph 37 above no longer apply.