CASE OF NORTIER v. THE NETHERLANDS
No violation of Art. 6
John Freeland;N. Valticos
7. The applicant is a Netherlands national born on 13 May 1972. At the time of the events now under examination, he was fifteen years old. 8. On 19 September 1987 the applicant was released from a youth custody centre after serving a custodial sentence for rape. Eleven days later, on 30 September 1987, the applicant was again arrested on suspicion of attempted rape. Following his arrest, he admitted the crime to the police. 9. On 2 October 1987 the applicant was brought before Judge Meulenbroek, juvenile judge (kinderrechter) at the Middelburg Regional Court (arrondissementsrechtbank), who sat in the capacity of investigating judge (rechter-commissaris). The applicant was assisted by his lawyer. The private association which was the applicant’s legal guardian was represented by two social workers. The applicant again confessed. On an application by the Public Prosecutor (officier van justitie), Juvenile Judge Meulenbroek ordered the applicant to be placed in initial detention on remand (bewaring). He also ordered a preliminary investigation (gerechtelijk vooronderzoek) with a view to having a psychiatric report drawn up. Neither the applicant nor his lawyer objected. 10. Again on an application by the Public Prosecutor, Juvenile Judge Meulenbroek, sitting in the capacity of review chamber (raadkamer), made an order for the applicant’s extended detention on remand (gevangenhouding) on 8 October 1987. He prolonged this order twice on the occasion of periodic reviews, on 10 November and 10 December 1987. At no time did either the applicant or his lawyer raise any objection. 11. In the course of the preliminary investigation, the applicant underwent a psychiatric examination. The resultant psychiatric report recommended that, if the charge were to be proven, the applicant should be sent to an institution for psychiatric treatment (inrichting voor buitengewone behandeling), pursuant to Article 77k of the Criminal Code (Wetboek van Strafrecht), but not punished. The defence, fearing that the applicant’s initial confession had been obtained under duress, requested that the two police officers who had taken down his initial statement following his arrest be questioned as witnesses. Juvenile Judge Meulenbroek referred the matter to Judge Witziers, Vice-President of the Middelburg Regional Court and substitute juvenile judge. Judge Witziers questioned the two police officers on 22 and 23 December 1987. The results were such that the defence did not ask for them to be heard again at the trial. The preliminary investigation in the present case consisted only of the questioning of the said witnesses and the above-mentioned psychiatric examination. 12. The applicant received a summons in December 1987 to appear before Juvenile Judge Meulenbroek on 6 January 1988 for trial. 13. By letter of 5 January 1988, the day before the trial was to take place, the applicant’s lawyer challenged Juvenile Judge Meulenbroek on the ground that he was not impartial, since he had taken pre-trial decisions concerning the applicant’s detention on remand. Juvenile Judge Meulenbroek rejected the challenge as ill-founded on 6 January 1988. 14. The applicant appealed against this decision to the Middelburg Regional Court, which rejected the challenge on 22 January 1988. In its decision the Regional Court considered in detail the relevance of the judgment of the European Court in the case of De Cubber v. Belgium (judgment of 26 October 1984, Series A no. 86). The Regional Court was of the opinion that there was a fundamental difference between the position of a Belgian investigating judge and that of a Netherlands juvenile judge, particularly as far as their independence was concerned. It further held that the De Cubber judgment did not imply that the performance of the functions of investigating judge and trial judge in the same case constituted a breach of Article 6 para. 1 (art. 6-1) under all circumstances. Netherlands juvenile criminal procedure provided for an exception to the rule of general criminal procedure prohibiting the combination in a single person of the functions of investigating judge and trial judge (see paragraph 20 (a) below). As the juvenile judge had rightly emphasised in his decision, the reason for this was to be found in the pre-eminence of the educational aspect of juvenile criminal law and the importance of optimally co-ordinating the various decisions taken with regard to the minor. 15. The applicant was eventually tried on 25 January 1988, by Juvenile Judge Meulenbroek. He was assisted by his lawyer. One of the social workers representing the private association which was the applicant’s legal guardian was also present and allowed to speak. Confirming his earlier statements, the applicant admitted the charge, which was then held to be proven in the light of the evidence. In accordance with the recommendation contained in the psychiatric report (see paragraph 11 above), the applicant was committed to an institution for the psychiatric treatment of juvenile offenders pursuant to Article 77k of the Criminal Code. He was reminded by the juvenile judge of the right to appeal, but the applicant’s lawyer, who alone could decide to do so (see paragraph 22 below), did not file an appeal. In March 1990 Juvenile Judge Meulenbroek carried out the biennial review required by Article 77r of the Criminal Code to determine whether or not it continued to be in the applicant’s interests for him to remain in the institution. Apparently neither the applicant nor his lawyer raised any objection to the prolongation of the measure. The applicant was released unconditionally on 9 August 1991. 16. Since 1901 it has been the rule in the Netherlands not to apply penal law and criminal procedure to juveniles in the same way as to adults. Juvenile penal law and criminal procedure provide for exceptions to the general law: that is, general penal law and criminal procedure apply to the extent that they are not expressly deviated from. Juveniles cannot be prosecuted for acts committed before the age of twelve (Article 77a of the Criminal Code). Juvenile criminal procedure applies if the suspect has not yet reached the age of eighteen when a prosecution against him is commenced (Article 487 of the Code of Criminal Procedure (Wetboek van Strafvordering)). In principle, the same age-limit applies in juvenile penal law (Article 77b of the Criminal Code). However, subject to certain conditions, the Criminal Code makes it possible on the one hand to apply general penal law to a suspect who at the time of the offence was sixteen or seventeen years old (Article 77c, ibid.), and on the other hand to apply juvenile penal law to a suspect who at the time of the offence had reached the age of eighteen but not yet that of twenty-one (Article 77d, ibid.). 17. Juvenile penal law is different from that applying to adults only in that it has its own system of punishments (straffen) and curative or protective measures (maatregelen) designed to meet the specific aims of this branch of criminal law which (in the words of the Explanatory Note to the Act of 9 November 1961 - see paragraph 18 below) "has primarily a pedagogical purpose, the interests of the minor being borne in mind at all times", and which, accordingly, seeks mainly to protect and educate the juvenile concerned. Punishments available under juvenile penal law are placement in a youth custody centre (tuchtschool) for up to six months, juvenile detention (arrest) for up to fourteen days, a fine of up to five hundred guilders and a reprimand (berisping) (Article 77g). The measures include, inter alia, judicial supervision (ondertoezichtstelling) - which is in fact a protective measure under civil law (Articles 1:245 et seq. of the Civil Code (Burgerlijk Wetboek)) - and committal to an institution for the psychiatric treatment of young offenders (Article 77h). The latter is a curative measure applied only to young persons with impaired mental development or suffering from a serious mental disturbance (Article 77k). 18. Juvenile criminal procedure also seeks to protect and educate, but here the differences from general criminal procedure are considerable. The underlying principle of juvenile criminal procedure is that it "should be simple and understandable for both the minors concerned and their parents. Formalities which have some purpose for adults but are practically devoid of purpose in relation to minors should be omitted, whereas on the other hand special requirements should ensure proper treatment of juvenile cases". (Quoted from the Explanatory Note to the Act of 9 November 1961, which Act entered into force in 1965, by which juvenile criminal procedure - introduced in 1901 and thoroughly reviewed in 1921 - was modernised) It is by reason of this basic idea and of the need to improve the protection of juveniles by creating links with the protection of juveniles in civil law - in which the juvenile judge is the central actor and is empowered to order various protective measures - that the juvenile judge is the central actor in juvenile criminal procedure also. Several advantages are claimed for this system: (a) it is conducive to the protection of the juvenile if the juvenile judge is consulted beforehand on the subject of the desirability of criminal prosecution, especially if he already knows the minor concerned; this may be the case for example if he has been involved in protective measures under civil law, such as placing the minor under judicial supervision; (b) a relationship of trust may develop between the juvenile judge on the one hand and the minor and his or her parents or guardian on the other owing to the fact that the minor and his or her parents or guardian (who are summoned to appear at the preliminary investigation stage and the trial and have the right to speak) are dealt with by one and the same judge throughout the proceedings, which moreover are held in private and in an informal manner; (c) in those cases in which the juvenile has made an immediate confession - as usually happens when the suspect is a minor - a plan may be developed at an early stage for the future of the juvenile concerned, even during the preliminary investigation; (d) the juvenile judge is the most suitable person for the purpose in view of his expert knowledge and his considerable decision-making powers. The close link between protective measures under civil law and criminal prosecution may be seen in Article 14a of the Code of Criminal Procedure; if there are proceedings relating to the protection of the minor under civil law (such as a request to have him or her placed under judicial supervision or aimed at divesting the parents of their parental rights) running parallel to the criminal prosecution, then under this provision the prosecution may be suspended until a final decision has been taken in those parallel proceedings. 19. The central position of the juvenile judge appears clearly from the fact that the juvenile judge is involved in the decision whether or not to prosecute. According to Article 493 of the Code of Criminal Procedure, if the Public Prosecutor wishes to drop charges against a minor unconditionally, he must first consult the juvenile judge; if he wishes to do so conditionally, he requires the juvenile judge’s consent. If charges are not dropped immediately, the Public Prosecutor must obtain from the child welfare authorities information on the minor’s personality and living conditions; they may then comment on the desirability of prosecution (ibid., Article 495). In order to implement these provisions effectively, it has been the practice for the juvenile judge, the Public Prosecutor and the representative of the child welfare authorities to meet on a regular basis to discuss case files together. This so-called "three-way consultation" (driehoeksoverleg) took place in the absence of the minor or his legal representative or counsel, and without their being informed about it. 20. The juvenile judge is also the central figure in the investigation phase. (a) This is clear in the first place from Article 494 of the Code of Criminal Procedure, which stipulates that the juvenile judge is to act as investigating judge, and from Article 496, which reads: "1. The juvenile judge shall be responsible for the preliminary investigation, unless the case involves one or more suspects who have reached the age of eighteen at the moment the prosecution against them is commenced and the case cannot, in the initial opinion of the Public Prosecutor and the juvenile judge, be divided. 2. In cases where the juvenile judge orders a preliminary investigation, he shall be regarded as investigating judge responsible for the preliminary investigation." This means that the juvenile judge has all the decision- making powers of an investigating judge and that he is in charge of the preliminary investigation. A preliminary investigation may involve such matters as obtaining expert opinions and technical evidence, questioning witnesses, mail and telephone interceptions, searches and visits to the scene of the crime, as well as interrogation of the suspect. According to Article 268 of the Code of Criminal Procedure, a judge who has undertaken any investigation in the case as an investigating judge is debarred from taking part in the trial; however, by virtue of Article 500d, this provision does not apply in juvenile procedure. (b) It is also the juvenile judge who takes all decisions concerning detention on remand. In adult criminal procedure, initial detention on remand (for a maximum of six days, which may be prolonged once for a further six days) is ordered by the investigating judge and extended detention on remand (for a maximum of thirty days, which may be prolonged twice for further periods of thirty days) by the review chamber of the Regional Court. In juvenile criminal procedure, the juvenile judge exercises both these powers; he not only officiates as investigating judge but also, pursuant to Article 488, as review chamber. One consequence of this is that in cases where in adult criminal procedure an appeal against decisions of the investigating judge lies to the review chamber, and to the extent that such appeals are allowed in juvenile procedure, the juvenile judge may be called upon to hear appeals against some of his own decisions. 21. The central position of the juvenile judge further appears from the fact that it is, as a rule, the juvenile judge himself who, sitting as a single judge, conducts the trial and gives judgment (Article 500 para. 1). It is for the juvenile judge to decide whether or not the case is one that should be referred to a chamber consisting of the juvenile judge and two other judges (Article 500 para. 2, in conjunction with Article 500e). The juvenile judge is also involved to a significant degree with the execution of the punishment or measure imposed. For example, a sentence to the punishment of juvenile detention is not executed until the judge who imposed it has been consulted (Article 505) and the punishment of reprimand is administered personally by the judge who imposed it (Article 506). 22. If the juvenile concerned has not yet reached the age of sixteen, then it is his lawyer who enjoys all the procedural rights afforded the suspect by the Code of Criminal Procedure) instead of the juvenile himself (with the exception of the rights which the suspect may avail himself of during the hearing) (Article 504 para. 1). However, the juvenile’s legal guardian (wettelijke vertegenwoordiger) may file a note of protest to the president of the court with jurisdiction as to both facts and law before which the juvenile is being prosecuted or was last prosecuted if he disapproves of the lawyer’s use of these rights or his failure to make use of them (Article 504 para. 2). Pursuant to Article 56 of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) an appeal against the judgment of the juvenile judge lies to the Court of Appeal (gerechtshof). Such an appeal involves a complete re-examination of the case by three judges (Article 422 of the Code of Criminal Procedure). 23. For a long time there has been criticism of the system described above. For this reason, a committee for the revision of juvenile criminal law was set up in 1979 and it published a report in 1982. Criticism of the existing system in legal writing increased as a result of this report and of the judgments of the European Court in the cases of De Cubber v. Belgium (judgment of 26 October 1984, Series A no. 86) and Hauschildt v. Denmark (judgment of 24 May 1989, Series A no. 154). However, opinion is still divided on the question to what extent it is necessary to modify the present system. These factors have resulted in informal changes in the way the system operates (see paragraph 24 below) and a proposal for a change of the law (see paragraph 25 below). In this connection, it is also useful to mention a development in Netherlands case-law (see paragraph 26 below). 24. In the first place, there is now an informal arrangement under which the juvenile judge, when confronted with a suspect who denies charges, entrusts the interrogation of witnesses to another juvenile judge and to that extent does not act as investigating judge. However, even in such cases he continues to take the decisions on detention on remand. Secondly, "three-way consultations" (see paragraph 19 above) have been discontinued at most Regional Courts. 25. A proposal for an amendment of the law was sent to Parliament in 1989; the written procedure has not yet been completed. It essentially follows the suggestions of the committee referred to in paragraph 23 above, the gist of which is to remove from the juvenile judge the functions of investigating judge and review chamber. However, the proposal differs from those suggestions in that the juvenile judge is to retain the power to order initial detention on remand. 26. This last feature corresponds to the case-law of the Supreme Court (Hoge Raad), particularly its judgments of 15 March 1988, NJ (Nederlandse Jurisprudentie) 1988, no. 847 and 13 November 1990, NJ 1991, no. 219. In the first-mentioned judgment the Supreme Court construed Article 268 of the Code of Criminal Procedure (see paragraph 20 above) as meaning that an investigating judge who had not carried out any preliminary investigations but had given the order for initial detention on remand was not debarred from sitting at the trial. This was not held to jeopardise his independence. The judgment of 1990 concerned a juvenile judge who sat at the trial pursuant to Article 500e (see paragraph 21 above) after he had instituted a preliminary investigation in the case as investigating judge. The Supreme Court held that as a result one of the judges taking part in the trial lacked impartiality as required by Article 6 (art. 6) of the Convention. According to the Supreme Court, such would always be the case if "one of those judges [had] previously had dealings in the same case aimed at the collection of evidence, either as an investigating judge in the course of the preliminary investigation or in another way during the investigations preparing the case". 27. As far as the preconditions for initial and extended detention on remand are concerned, juvenile criminal procedure does not differ from adult criminal procedure. They are to be found in Articles 67 and 67a of the Code of Criminal Procedure. Article 67 of the Code of Criminal Procedure enumerates the cases in which detention on remand (voorlopige hechtenis) may be ordered; for present purposes, these may be summarised as those cases in which a person is suspected of a relatively serious crime (paragraphs 1 and 2). In addition, paragraph 3 of Article 67 provides as follows: "The preceding paragraphs of this Article shall only be applied if it appears from certain facts or circumstances that there are serious indications (ernstige bezwaren) against the suspect." In this connection, the Memorandum in Reply (Memorie van Antwoord) accompanying a proposal for amendment of the statutory provisions governing detention on remand states that there are such serious indications when in the opinion of the investigating judge "it is prima facie likely (aannemelijk) that the suspect has committed the offence in relation to which detention on remand is applied for". (see Bijlagen Handelingen Tweede Kamer - Appendices to the Records of the Lower Chamber of Parliament -1972-9994-No. 8, page 10) Article 67a enumerates the reasons for which detention on remand may be ordered. These may be summarised as the serious risk of the suspect’s absconding; the fact that the crime, being of a particularly grave nature, has created considerable social unrest; the serious risk that the suspect will commit more crimes of a grave nature and the need to secure evidence. However, paragraph 3 of Article 67a provides: "An order for detention on remand shall not be made if there exists a distinct possibility that in the event of conviction no unconditional prison sentence or measure involving loss of liberty will be imposed on the suspect, or that implementation of the order will cause [the suspect] to be deprived of his liberty for longer than the duration of the sentence or the measure."