Tribunal established by law
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Outline planning decisions 105. Section 2a of the Town and Country Planning Act empowers the Minister for Housing, Planning and Environment Management together with the other ministers concerned in each case to prepare plans, known as outline planning decisions, for particular aspects of national planning policy (section 2a ( 1 )). At the relevant time (that is before 1 January 1994) the draft for such a plan was required to be laid open for public inspection for a period of between one and three months, an announcement being made beforehand in the Netherlands Government Gazette and the local media. Anyone minded to do so could submit their views for a period of one month after the end of the inspection period (section 2a ( 2 ) ). The draft was transmitted to the Lower House of Parliament for information at the time of its being laid open for public inspection (section 2a ( 5 ) ). 106. The ministers were required to consult the authorities of the provinces, regional surface waterboards, municipalities and any other public-law entities, as appropriate, about the draft (section 2a ( 3 ) ). The advice of the Planning Advisory Board had to be sought (section 2a ( 4 ) ). 107. The ministers were then required to transmit the outline planning decision – which by this time no longer had the status of a draft – to the Lower House for approval. The plan had to be accompanied by a general statement setting out the way in which any views submitted by interested parties, the results of consultations with lower government bodies and the advice of the Planning Advisory Board had been taken into account (section 2a ( 6 ) ). 108. The Lower House was entitled to send the outline planning decision back to the ministers concerned for modification before deciding whether or not to approve it. Thereafter it could withhold its approval of all or part of the plan (section 2a ( 7 ) ). 109. The Lower House then transmitted the outline planning decision, as approved by it, to the Upper House of Parliament. The latter House could decide to approve it or not, but could not amend it (section 2a ( 8 ) ). If approved by the Upper House, the outline planning decision came into force (section 2a ( 7 )). Once it was in force, the outline planning decision was published in the Official Bulletin and the local media (section 2a ( 9 ) ). 110. Although there is no specific provision for any appeal to an administrative tribunal against an outline planning decision, the Administrative Jurisdiction Division of the Council of State held in its decision of 31 January 1997 – that is the decision on the appeals against the outline planning decision in the present case (see paragraphs 62-69 above) – that the decisive moment for lodging an appeal was when the ministers resubmitted the outline planning decision to the Lower House of Parliament after the latter had given them the opportunity to modify it ( that is, for the purposes of the present case, Outline Planning Decision – Part 3A ). 111. Since 1 January 1994 it is provided that, in so far as an outline planning decision contains policy decisions about major projects of national importance, all further planning relating to such projects is subject to the limitations set out in these policy decisions (section 39). B. The Transport Infrastructure Planning Act 112. The Transport Infrastructure Planning Act, as in force since 1 January 1994, requires the Minister for Transport and Communications to consult the local and regional authorities whose territories may be affected and, in the case of a railway project, the prospective exploiter of the railway before drawing up a draft routing decision (section 6). This draft is then transmitted to them, after which they have the opportunity to comment (sections 11 ( 1 ), 12( 1 ) and ( 2 ), and section 13). 113. The minister then draws up a final routing decision and may if necessary require the local and regional authorities to modify their own local and zoning plans (section 15( 1 ) - ( 3 ) ). The routing decision is transmitted to Parliament with an explanatory statement (section 16 ( 1 ) ). Non-binding time-limits are set for the various stages of the procedure. 114. Anyone with an interest may lodge an appeal against the routing decision with the Administrative Jurisdiction Division of the Council of State (section 15 ( 4 ) ). 115. Chapter V of the Transport Infrastructure Planning Act contains special provisions governing the procedure relating to major projects of national importance. This procedure is to be followed if an outline planning decision is in force (section 21). In such cases the outline planning decision is to form the basis of, and be transformed into, a draft routing decision (section 22). If changes to the draft routing decision appear necessary in view of observations received from interested parties or local - government bodies, then these changes are to remain within the limits drawn by the outline planning decision (section 23 ( 1 ) ). 116. The Minister for Transport and Communications, together with the Minister for Housing, Planning and Environment Management, then draws up a final routing decision and may, if necessary, require the local and regional authorities to modify their own local and zoning plans (section 24 ( 1 ) - ( 3 ) ). 117. Anyone with an interest may appeal against the final routing decision to the Administrative Jurisdiction Division of the Council of State (section 24 ( 4 ) ). No separate appeal lies against the outline planning decision if it is followed within one year from its entry into force by a final routing decision (section 24 ( 5 ) ). C. Historical overview of the Council of State and its Divisions 118. The Council of State was established by Emperor Charles V in 1531 in order to assist and advise his sister, Mary of Hungary, whom he had appointed regent ( landvoogdes ) of the Low Countries to rule on his behalf. 119. Following the Low Countries ’ secession from Spain in 1581 and in the course of the subsequent establishment of the independent Republic of the Seven United Netherlands Provinces, which was formalised in 1648 by the Treaty of Westphalia, the Council of State developed into a body that, together with the Stadtholder ( Stadhouder ), was charged with daily government. The control over their governance was exercised by the representatives of the United Provinces sitting in the States General ( Staten- Generaal ). 120. The Council of State was abolished in 1795, when France occupied the Republic. Napoleon transformed the Republic into the Kingdom of Holland in 1806 and, in 1810, incorporated it into the French Empire. In 1805 the Council of State had been reinstated as an advisory body to the Grand Pensionary ( Raadpensionaris ), who was appointed by the legislative body to head the then executive. The Council of State exercised this function until 1810. The Kingdom of the Netherlands regained independence in 1813. According to the 1815 Netherlands Constitution ( Grondwet ), the monarch had an obligation to consult the Council of State before legislative acts and measures of internal administration were enacted. The monarch was further free to consult the Council of State on other matters. 121. A further function of the Council of State was introduced in 1861, namely that of hearing administrative disputes in which an appeal had been lodged with the Crown ( Kroonberoep ) and advising the Crown, consisting of the inviolable monarch and the responsible minister or ministers, on the ruling to be given by the Crown on the appeal. The Crown was free to depart from this advice. For the exercise of this function, the Administrative Litigation Division of the Council of State ( Afdeling voor Geschillen van Bestuur van de Raad van State ) was created. 122. On 1 July 1976 the Act on Administrative Jurisdiction as to Decisions of the Administration ( Wet administrative rechtspraak overheidsbeschikkingen – “ the AROB Act”) came into force, which provided for an administrative appeal procedure in statutorily defined categories of administrative disputes not eligible for an appeal to the Crown. The final decision on such disputes was to be taken by a newly established Division of the Council of State, that is the Judicial Division of the Council of State ( Afdeling Rechtspraak van de Raad van State ). 123. In order to give effect to the Court ’ s judgment of 23 October 1985 in Benthem v. the Netherlands (Series A no. 97), in which it was found that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention, the Interim Act on Crown Appeals ( Tijdelijke Wet Kroongeschillen ) was passed on 18 June 1987. It entered into force on 1 January 1988 and was to remain in force for five years. Under the provisions of this Act, the Administrative Litigation Division of the Council of State was to determine all disputes which formerly were to be decided by the Crown. The function of the Judicial Division of the Council of State was not affected by this Act. 124. On 1 January 1994 the General Administrative Law Act ( Algemene Wet Bestuursrecht ), laying down new uniform rules of administrative procedure, entered into force. On the same date the Interim Act on Crown Appeals and the AROB Act were repealed. The functions of both the Administrative Litigation Division and the Judicial Division, which thereby became defunct, were vested in a new division of the Council of State, the Administrative Jurisdiction Division ( Afdeling bestuursrechtspraak ). D. General features and functions of the Council of State 1. Membership of the Council of State 125. The Council of State is presided over by the monarch and consists of a vice- president and up to 28 ordinary councillors ( Staatsraden ) (section 1 of the Council of State Act ( Wet op de Raad van State )) and 55 extraordinary councillors ( Staatsraden in buitengewone dienst ) (section 4, as worded since 1 April 2001; prior to this date the maximum number of extraordinary councillors was 25). At present, the Council of State is composed of 27 ordinary councillors and 27 extraordinary councillors. 126. All councillors are appointed by royal decree ( Koninklijk Besluit ) following nomination by the Minister of the Interior and Kingdom Relations in agreement with the Minister for Justice. Appointments are for life, the age of retirement being 70 (sections 3 and 4). Extraordinary councillors submit proposals for the number of hours they wish to work, and their number is subsequently determined for five-year periods by royal decree. 127. Any candidate for membership of the Council of State is required to be a Netherlands national and to be at least 35 years old (section 5). In the appointment of ordinary councillors, care is taken to ensure that the composition of the Plenary Council of State ( Volle Raad ), which solely consists of ordinary councillors, reflects political and social opinion in the proportions represented in the Houses of Parliament ( Staten- Generaal ). However, membership of a political party is not a formal or material criterion. 128. Ordinary councillors are appointed primarily on the basis of their knowledge and experience, whether in a specific field or in relation to public administration and administrative law in general. They are mainly selected from the circle of politicians, governors, high-level civil servants, judges and academics. Extraordinary councillors are mainly selected from the judiciary on the strength of their specific judicial knowledge and experience. 129. Section 7 ( 1 ) of the Council of State Act sets out the posts, offices and professional activities that are incompatible with being vice- president of the Council of State and with being an ordinary councillor. These categories are extended in section 7 ( 2 ) of this Act with regard to the extraordinary councillors. This provision reads: “The vice- president, ordinary councillors and extraordinary councillors shall not hold any post the exercise of which is undesirable with a view to the proper discharge of their office, the preservation of their impartiality and independence, or the confidence therein.” 130. Pursuant to section 7 ( 3 ), the vice- president renders public any other positions held by members of the Council of State. This information is published in the Netherlands Government Gazette and posted on the Council of State ’ s official website. 2. Advisory function of the Council of State concerning draft legislation 131. As required by Article 73 of the Constitution, before the government submits to Parliament a bill for adoption, draft delegated legislation or a proposal to approve or denounce a treaty, it must seek the advisory opinion of the Council of State ( section 15 of the Council of State Act ). 132. In cases where proposed legislation does not originate from the government but from one or more members of the Lower House of Parliament, the Lower House will seek the advisory opinion of the Council of State (Article 15a). 133. For the purposes of delivering advisory opinions, the ordinary councillors are divided into five Sections, grouped by ministries. A bill is first scrutinised by officials, who set out their findings in a memorandum. The bill and this memorandum are subsequently transmitted to a rapporteur, who prepares a draft advisory opinion. This draft is then discussed in the Section concerned. It will subsequently be submitted to the Plenary Council of State for examination and adoption. 134. The Council of State examines draft legislation and explanatory memoranda in the light of a large number of criteria bearing on policy, points of law and technical legislative requirements. These criteria include compatibility with human rights conventions, European law, the Constitution, the Charter for the Kingdom of the Netherlands ( Statuut voor het Koninkrijk der Nederlanden ), general legislation and unwritten legal principles, as well as existing law and general regulations on the structure, formulation and presentation of bills and explanatory memoranda. It further examines the anticipated effectiveness, efficiency, feasibility and enforceability of the proposed regulations, the degree of compliance to be expected, as well as the internal consistency of the legislation, the legal certainty it provides and the quality of legal protection. 135. The Plenary Council of State, which is composed solely of the ordinary councillors, adopts the advisory opinions of the Council of State. The extraordinary councillors are not involved in the advisory function of the Council of State. It is further standing practice that the meetings of the Plenary Council of State are not attended by the extraordinary councillors. 3. Judicial function of the Administrative Jurisdiction Division 136. The Administrative Jurisdiction Division of the Council of State is entrusted with adjudicating administrative disputes, including applications for provisional relief, where the law so provides (section 26 of the Council of State Act ). Its cases are heard in accordance with the provisions of the General Administrative Law Act and the relevant provisions of the Council of State Act. 137. The Administrative Jurisdiction Division consists of all the ordinary councillors of the Council of State (not its vice- president) and all the extraordinary councillors. They all hold this position for life until their retirement at the age of 70. Among them a president of the Division is appointed by royal decree, also for life. 138. The president manages the work of the Administrative Jurisdiction Division and decides on the composition of its four Chambers. The first Chamber deals with cases involving town and country planning, the second Chamber with environment cases, the third Chamber with general appeals and the fourth Chamber with appeals in cases concerning aliens. The first two Chambers administer justice at first and sole instance, whereas the third and fourth Chambers hear appeals against judgments given by lower administrative courts. Cases before the Administrative Jurisdiction Division are dealt with by either a three-judge bench or a single judge. 139. With a view to guaranteeing the impartial administration of justice, the Administrative Jurisdiction Division has adopted certain principles, namely that a member who has been involved in an application for provisional relief will not be involved in hearing the proceedings on the merits; if an appeal is dealt with in simplified proceedings ( that is without an oral hearing), any objection ( verzet ) will not be heard by the member who gave the original judgment, and every member must be alert to any conflict of interest and, in case of any reasonable doubts, either withdraw from a case or acquiesce in a challenge to his or her impartiality. 140. Partly to facilitate this, and well in advance of hearings, members of the Administrative Jurisdiction Division assigned to a particular case are sent copies of the principal documents in the case, together with a list of parties involved and their legal counsel. In this way, each member can verify whether there are reasons for withdrawing from the case on grounds of, for instance, a previous position, kinship or any other relation between a member of the Administrative Jurisdiction Division and a party or legal representative. E. Combination of the advisory and judicial functions 141. From the above description it follows that some members of the Administrative Jurisdiction Division combine the judicial function with the advisory function, namely the ordinary councillors of the Council of State, while the extraordinary councillors perform only a judicial function within the Council of State. F. Effect given to Procola v. Luxembourg ( judgment of 28 September 1995 ) 142. In a memorandum appended to a letter dated 12 February 1998 to the Chairman of the Lower House, the Minister for Justice and the Minister of the Interior informed the Lower House that, in view of Procola (Series A no. 326) and given the fact that there was not yet communis opinio about its precise scope and its possible consequences for the Netherlands, the Council of State had adopted a provisional practice in anticipation of further clarification by the European Court of Human Rights in its future case-law (Lower House parliamentary documents 1997-98, 25 425, no. 3). 143. The dual function of the Council of State was subsequently debated at length in Parliament, which accepted the position taken by the government. 144. In parliamentary budget discussions held in 2000, the government confirmed its above position. In reply to a question put in the Lower House on the advisory and judicial functions of the Council of State in relation to the independence of the administration of justice, the government stated that, after Procola, the Council of State had adapted its internal working methods and that, referring to the contents of the Minister for Justice ’ s letter of 12 February 1998, these adaptations were of such a nature that so-called “ Procola risks ” were as good as excluded and that in this light the independent administration of justice was guaranteed (Lower House parliamentary documents 2000- 01, 27 400 II, no. 3). 145. The practice adopted by the Council of State was further set out in the Annual Report 2000 of the Council of State. The relevant section reads as follows: “Since it is as yet unclear how the European Court of Human Rights will decide on the combination of functions within the Netherlands Council of State and the effect thereof on objective independence and impartiality, or what criteria the European Court of Human Rights will apply in this respect and what boundaries will be drawn, the Administrative Jurisdiction Division has for the time being chosen criteria and determined boundaries itself. Also, the Council of State and its Administrative Jurisdiction Division consider it important that justice is also seen to be done. The procedure opted for in this connection, and about which the Ministers for Justice and of the Interior have already made announcements to the Lower House (Lower House parliamentary documents 1997-98, 25 425, no. 3), amounts to the following: If in an appeal which has been lodged in time with the Administrative Jurisdiction Division, the lawfulness is disputed of a legal provision which has previously been applied in the case or of another regulation concerning an aspect – for example incompatibility with European law – in respect of which the Council of State has in the past explicitly expressed an opinion in its advice on the proposed provision, and if a party has voiced doubts as to the independence and impartiality of the bench dealing with the appeal, the composition of this bench will be changed so as to ensure that only members who have not participated in the advice sit on this bench. For this are in any event eligible the extraordinary councillors, who are not involved in the advisory function, and those ordinary councillors appointed after the giving of the advice and those ordinary councillors in respect of whom it is objectively certain that they have not participated in the adoption of the advice in the Plenary Council of State. In such a situation, this will – thanks to this way of proceeding in the Division – therefore prevent appellants as far as possible from relying on Procola in a challenge or otherwise.” G. Challenge of members of the Administrative Jurisdiction Division 146. Members of the Administrative Jurisdiction Division to whom a case has been assigned may be challenged by any of the parties on the grounds of facts or circumstances which may affect their judicial impartiality (section 8(15) of the General Administrative Law Act taken together with section 36 of the Council of State Act ). 147. The challenge will be examined as soon as possible by a Chamber composed of three members of the Council of State, which shall not include the councillor(s) challenged. The challenging party and the councillor(s) challenged are offered the opportunity to be heard. A reasoned decision shall be given as soon as possible, against which no appeal lies (section 8(18) of the General Administrative Law Act taken together with section 36 of the Council of State Act ). 148. In the case-law developed by the Administrative Jurisdiction Division in relation to challenges based on the Council of State ’ s combined advisory and judicial functions in the light of Article 6 of the Convention, decisive importance is attached to the question whether or not the challenged councillor was involved in advising on the disputed legislation and whether the substance of the appeal concerns a point that was explicitly addressed in the advisory opinion given by the Council of State. 149. The Administrative Jurisdiction Division initially took as one of its criteria the degree to which members of the bench hearing the appeal had contributed to the advisory opinion. This criterion was dropped in later case ‑ law, as this information is not accessible to the general public and therefore the parties. The key questions remain whether the challenged member of the bench belonged to the Plenary Council of State at the time when the advisory opinion was given and whether any position was adopted in the advisory opinion that is opposed by the party that has lodged the challenge. Only in cases where these questions can be answered in the affirmative is it accepted that a party has justified grounds to fear that the councillor concerned is biased in respect of the subject of the dispute (see Administrative Jurisdiction Division, case no. E10.95.0026/W, judgment of 9 October 1997, and case no. EO1.96.0532/W, judgment of 10 December 1997, Jurisprudentie Bestuursrecht 1998/28). 150. The rejection of a challenge does not however preclude the possibility that members of the bench concerned subsequently decide to withdraw from the case in view of the substance of the appeal (see Administrative Jurisdiction Division, case no. E03.96.0765/1, Jurisprudentie Bestuursrecht 2001/72). 151. Since Procola was published, it has been relied on in ten challenges lodged before the Administrative Jurisdiction Division. All of these challenges have been rejected, either because members assigned to the appeal were not involved in the previous advisory opinions on the statutory provisions concerned, or because the points of law put to the Administrative Jurisdiction Division by the party having lodged the challenge were so remote from the previous advisory opinion that the fear of bias was found to be unjustified. 152. In an appeal in cassation lodged with the Supreme Court ( Hoge Raad ) against a judgment of 29 March 1999 of the Arnhem Regional Court ( Arrondissementsrechtbank ) in expropriation proceedings in connection with the construction of the Betuweroute railway, the appellant argued that the Regional Court, by confining itself to referring to the administrative procedures already pursued before the Administrative Jurisdiction Division, had neglected to rule on the legality and necessity of the expropriation and, in particular, that the Regional Court had failed to investigate technical alternatives such as tunnelling, which would make expropriation unnecessary. In this connection, referring to the Court ’ s judgment in Procola (cited above), he argued that the Council of State ’ s “structural impartiality” was in doubt and that it followed from this that he was entitled to have these issues reviewed by the ordinary courts. 153. In its judgment of 16 February 2000, the Supreme Court rejected these arguments. It agreed with the Regional Court that issues such as the necessity of building the railway at all and the choice of technical and routing alternatives were matters to be dealt with in administrative proceedings under the Town and Country Planning Act and the Transport Infrastructure Planning Act and not in expropriation proceedings. As to the appellant ’ s point concerning the impartiality of the Council of State, the Supreme Court held as follows: “3.2. [ The appellant] has submitted before the Regional Court – in so far as still relevant – in objection to the expropriation: ... (b) As the Council of State (as a whole, therefore including the Administrative Jurisdiction Division) has been involved in the enactment of the Transport Infrastructure Planning Act and in this respect, as an advisory organ, has issued a generally positive advice, the Council of State cannot be regarded as a structurally impartial tribunal within the meaning of Article 6 of the Convention; ... 3.4.5.1. In Part Ib of the cassation plea, which concerns the objection set out in 3.2 under (b) and with reference to the judgment of the European Court ... in Procola v. Luxembourg, the argument is repeated that was unsuccessfully raised before the Regional Court, namely that the royal decree must be reviewed in its entirety as doubts may arise as to the structural impartiality of the Council of State as a judicial body where members of the Council of State have subsequently advised about the Transport Infrastructure Planning Act and administer justice on a decision that has been taken on the basis of this Act. 3.4.5.2. However, the argument overlooks the point that the mere fact that advice was heard from the Council of State, in accordance with the statutory provisions concerned, about the bill that eventually led to the Transport Infrastructure Planning Act does not warrant the conclusion that fears as to the impartiality of the Administrative Jurisdiction Division of the Council of State, which had to judicially determine objections against the routing decision, are objectively justified. Part Ib of the cassation plea must therefore be dismissed.” THE LAW I. ADMISSIBILITY OF THE APPLICATIONS 154. The Government submitted that, with the exception of Mr and Mrs Raymakers, the applicants had not challenged the Administrative Jurisdiction Division or appealed to the civil courts on the ground that the administrative proceedings at issue did not offer sufficient guarantees of a fair procedure. According to the Government, both remedies were effective and capable of redressing the alleged violation of the Convention. The Government argued that none of the applicants, apart from Mr and Mrs Raymakers, had therefore exhausted domestic remedies as required by Article 35 § 1 of the Convention. 155. The applicants submitted that, although they had misgivings about the impartiality of the Administrative Jurisdiction Division, which some of them did in fact express in their appeal submissions, they had not lodged a formal challenge like Mr and Mrs Raymakers, fearing that this might have adverse consequences. They further pointed out that there were no substantial differences between the appeal lodged by Mr and Mrs Raymakers and those lodged by the other applicants. As to the remedy before the civil courts referred to by the Government, the applicants indicated that, according to the case-law of the civil courts as illustrated by the Supreme Court ’ s judgment of 16 February 2000 (see paragraph 153 above), the Administrative Jurisdiction Division is regarded as complying with the requirements of impartiality under Article 6 § 1 of the Convention. 156. The Court reiterates the relevant principles as to exhaustion of domestic remedies as set out in, inter alia, the Court ’ s judgment of 28 July 1999 in Selmouni v. France ( [ GC ], no. 25803/94, §§ 74-77, ECHR 1999-V). The purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The obligation to exhaust domestic remedies is, however, limited to making use of those remedies which are likely to be effective and available in that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention. An applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show, by providing relevant domestic case ‑ law or any other suitable evidence, that an available remedy which he or she has not used was bound to fail. 157. The Court can agree with the Government that, where it is alleged that a tribunal does not meet the requirements of independence or impartiality under Article 6 § 1 of the Convention, a challenge can be regarded as an effective remedy under Netherlands law for the purposes of Article 35 § 1. 158. In the present case, however, the challenge of Mr and Mrs Raymakers – based on the same grounds as now submitted by all applicants to the Court – was dismissed. The Court fails to see that a further challenge by the other applicants, who were parties in the same set of proceedings as Mr and Mrs Raymakers, could have resulted in a different decision. The Court therefore accepts that, in the particular circumstances of the present case, the other applicants were not required to avail themselves of that remedy because it would have been bound to fail. 159. As regards the civil remedy advanced by the Government, it is true that the Court has previously held this remedy to be an effective one where an administrative appeal procedure is considered to offer insufficient guarantees as to a fair procedure (see Oerlemans v. the Netherlands, judgment of 27 November 1991, Series A no. 219, pp. 21-22, §§ 50-57). However, in that case the applicant ’ s administrative appeal had been heard by the Crown (see paragraphs 121 and 123 above ) after the Court had concluded in Benthem v. the Netherlands ( judgment of 23 October 1985, Series A no. 97) that the Crown could not be regarded as a tribunal within the meaning of Article 6 § 1 of the Convention. 160. In their brief remarks about the remedy before the civil courts, the Government have not cited any domestic case-law in which a civil court agreed to hear an administrative appeal on the ground that, in view of the Court ’ s judgment of 28 September 1995 in Procola v. Luxembourg ( Series A no. 326 ), the Administrative Jurisdiction Division afforded insufficient guarantees as to independence and impartiality. The Supreme Court ’ s case-law referred to by the applicants in fact indicates that this argument was rejected by the Supreme Court. The Court considers that the applicants have sufficiently established that in the present case this remedy too could not be regarded as offering any reasonable prospect of success. 161. In these circumstances, the applications cannot be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. 162. The Court considers that the applicants ’ complaint that, from an objective point of view, the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention raises questions of law which are sufficiently serious that their determination should depend on an examination of the merits. No other grounds for declaring it inadmissible have been established. The remaining part of the applications is therefore declared admissible. In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 11 above), the Court will immediately consider the merits of the applicants ’ complaint. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 163. The applicants complained that the Administrative Jurisdiction Division of the Council of State was not independent and impartial, in that the Council of State exercises both advisory and judicial functions. They alleged a violation of Article 6 § 1 of the Convention, which provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...” A. Applicability of Article 6 164. The applicability of Article 6 § 1 of the Convention was not in dispute between the parties and the Court sees no reason not to find that the proceedings at issue fall within the scope of this provision. B. Compliance with Article 6 1. Submissions before the Court (a) The applicants 165. The applicants submitted that, in the light of the Court ’ s judgments in Procola ( cited above ) and McGonnell v. the United Kingdom (no. 28488/95, ECHR 2000-II), the Administrative Jurisdiction Division cannot be regarded as an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention. In Procola, the Court indicated that, by reason of the combination of different functions within the Luxembourg Conseil d ’ Etat, this “institution ’ s structural impartiality” could be put in doubt. The applicants further submitted that the perception of appellants had to be regarded as decisive where it concerned a tribunal ’ s objective impartiality. Any doubts by appellants – based on reasonable and objectively justified grounds – as to the impartiality of a tribunal had to be dispelled. 166. The applicants considered that in this respect no distinction could be made between, on the one hand, a simultaneous exercise of different functions by one person and, on the other, an institutionalised simultaneous exercise of different structural tasks. To draw such a distinction would, from an appellant ’ s perspective, be artificial. The practical implementation of a norm based on such a distinction was likely to be inadequate and to offer an appellant insufficient guarantees and opportunities for control. 167. It would follow that, in appeals to the Administrative Jurisdiction Division, an investigation would have to be carried out in each case as to which statutory provisions were at issue when the Council of State advised on the relevant provisions, which councillors were then members of the Plenary Council of State, and what the content of the advice was. Apart from the risk of mistakes in such investigations, it was also incumbent on an appellant – who under administrative law was considered entitled to litigate without professional legal assistance – to verify whether such a possible combination of tasks existed. Appellants were often unable themselves to obtain a timely answer on the question how the Plenary Council of State was composed when an advice was given. Furthermore, in most cases appellants only became aware of the definite composition of the bench of the Administrative Jurisdiction Division shortly before the hearing of their case. 168. The applicants further submitted that the Council of State, in its advisory capacity, could not be compared to an independent and impartial judicial authority, in that it was a politically composed body having close ties with the government and the legislator. In this respect the applicants referred to section 22 of the Council of State Act, providing for a general possibility of consultation between the Council of State and the minister concerned, and submitted that no similar provision could be found in regulations on the status of the judiciary. 169. When considering the conditions for appointment as ordinary councillor – which are considerably less strict than for judges of the ordinary courts –, the appointment procedure itself and the role of the Council of State in the Netherlands legal order, it was, from the perspective of appellants, obvious that the Council of State had to be regarded as a part of the legislature and the executive. It was also clear that, in the exercise of its advisory functions, the Council of State dealt not only with questions of lawfulness but also with political and policy considerations. 170. As no distinction was made between the persons involved in the exercise of the Council of State ’ s advisory functions and those involved in the exercise of its judicial functions, the applicants considered that institutionalised simultaneous exercise of both the advisory and the judicial functions of the Council of State was incompatible with the requirement of objective impartiality under Article 6 § 1 of the Convention. 171. The applicants further submitted that the advisory opinions given by the Council of State on the Transport Infrastructure Planning Bill did in fact serve as a prelude to future adjudication of appeals lodged against the Betuweroute routing decision. In its advisory opinion it dealt intensively with the issues going to problems of the legislation applicable to the decision ‑ making process in relation to the planning of the Betuweroute railway. In this context the Council of State suggested the enactment of a special regulation for large-scale projects of (supra - )national importance such as the – expressly mentioned – Betuweroute railway, in order to allow a fast and efficient construction thereof, bypassing the normal legal - protection proceedings and the powers of local and regional public authorities. To this end the Council of State even suggested that, by way of transitory arrangements, the Transport Infrastructure Planning Act be rendered applicable to the decision-making process already underway in respect of the planning of the Betuweroute railway. This considerably restricted the opportunities for, as well as the scope of, judicial control, which was limited to some main aspects of the decision-making process. In its second advice the Council of State further advised that the envisaged routing of the Betuweroute railway be mentioned expressly in the Transport Infrastructure Planning Act. 172. From the perspective of appellants it could not therefore be maintained that the Administrative Jurisdiction Division of the Council of State was an independent and impartial tribunal. From their perspective it appeared that both the political and judicial decisions on the construction of the railway had eventually been taken by the same kind of institution. 173. In this context the applicants further referred to the fact that the bench of the Administrative Jurisdiction Division that heard their appeals had been composed of three ordinary councillors. In the applicants ’ opinion, this gave rise to an objectively justified impression that these members considered themselves bound by the advisory opinions given previously by the Council of State on the Transport Infrastructure Planning Bill in which, in addition, the President of the bench concerned had participated. 174. This impression was confirmed by the reserved manner in which the Administrative Jurisdiction Division had examined the challenged decisions on the construction of the Betuweroute railway. It had relied upon favourable expert opinions, without giving adequate reasons for attaching less value to opposing expert opinions submitted by the appellants. It could be concluded from this that the Council of State, in the exercise of its judicial functions in the instant case, had allowed itself to be too influenced by policy considerations, that is the desirability of a speedy construction of the Betuweroute railway, a point of view which had been subscribed to in the Council of State ’ s advisory opinions. 175. The applicants further argued that the policy adopted by the Council of State for preventing so-called “ Procola risks ” was inadequate and ineffective, in that this policy was formulated with insufficient precision and, further, had not been laid down in a regulation accessible to the general public. Furthermore, the Council of State did not indicate in concrete cases whether this policy had in fact been applied. At the material time the applicants could only deduce the existence of this policy from a memorandum sent by the Minister for Justice and the Minister of the Interior to the Lower House, after the decision on the appeals against the outline planning decision had already been taken. It was further only in the Annual Report 2000 of the Council of State, which was published in 2001, that an attempt was made to describe the “ Procola policy” applied by the Council of State. The applicants were of the opinion that, given the importance of the impartiality of the judiciary in a State respecting the rule of law, it could not be considered sufficient to refer merely to communications addressed to Parliament or to a chapter in an annual report. These kinds of guarantees for judicial impartiality should be laid down in a statutory regulation which was accessible to the general public. 176. The applicants submitted lastly that it was also incompatible with Article 6 § 1 of the Convention that the Council of State, according to the description of its Procola policy in its Annual Report 2000, only examined whether there was a Procola risk when an appellant “had advanced doubts as to the independence and impartiality of the bench dealing with the appeal”. It could be inferred that the Council of State only examined this issue seriously after having been requested to do so. Given the Contracting States ’ positive obligation under Article 6 § 1 of the Convention to organise their judicial systems in such a way that their courts were capable of meeting each of its requirements, including that of judicial impartiality, such a system could not be seen otherwise than as being incompatible with this provision. (b) The Government 177. According to the Government, the decision to construct the Betuweroute railway was taken after obtaining the consent of Parliament and after considering all the relevant interests. Construction projects like the one at issue in the present case were regulated by the Transport Infrastructure Planning Act and involved two stages, namely the taking of an outline planning decision containing the broad principles and the subsequent taking of a routing decision. The Government stressed that the Council of State had no advisory function whatsoever in the process leading to an outline planning decision or a routing decision and that an appeal against both types of decision lay to the Administrative Jurisdiction Division. 178. In administrative appeal proceedings the Administrative Jurisdiction Division examined solely the lawfulness of an administrative decision. The policy on which a decision was based and policy considerations that had played a role in the decision were not examined on their merits. Given the division of powers between the executive and the judiciary, there was no room for a more comprehensive review than an examination of the lawfulness of a challenged decision. Where the Administrative Jurisdiction Division concluded that a decision was unlawful, it quashed the decision and referred the case back to the competent administrative authority for a new decision with due regard to the considerations stated by the Administrative Jurisdiction Division. It did not give a fresh decision of its own. 179. The applicants ’ complaint was based solely on the fact that the bench of the Administrative Jurisdiction Division that dealt with their appeals against the routing decision had been composed of three ordinary councillors who were also members of the Plenary Council of State, which had issued an advisory opinion on the Transport Infrastructure Planning Bill. In the Government ’ s view, by adopting this position, the applicants had misconstrued the link between the Transport Infrastructure Planning Act – and hence the Council of State ’ s advice on it – and the determination of their appeals against the routing decision. 180. The proceedings in respect of the applicants ’ appeals had not involved any matter on which the Council of State had given an advisory opinion and they could not, therefore, have any grounds for fearing that the three judges had felt bound by an opinion previously given, since there had simply been no such opinion in respect of the routing decision. 181. The challenge lodged by Mr and Mrs Raymakers had been determined by three extraordinary councillors, who had never been involved in the exercise of the Council of State ’ s advisory functions. Two of the three ordinary councillors who determined the applicants ’ appeals against the routing decision had not yet joined the Council of State when this body exercised its advisory functions in respect of the Transport Infrastructure Planning Bill, and the advice given by the Council of State on this bill had not discussed or even touched upon the questions which the Administrative Jurisdiction Division had been called upon to determine in the applicants ’ appeals against the routing decision. This was supported by the applicants ’ failure to identify elements of the Council of State ’ s advisory opinion on the Transport Infrastructure Planning Bill which would cast doubt on the Administrative Jurisdiction Division ’ s impartiality in hearing the applicants ’ appeals. The Government therefore failed to see in what manner any member of the bench of the Administrative Jurisdiction Division that dealt with the applicants ’ case could have felt bound by a previous position taken by the Council of State. 182. Although the ordinary councillors sat in the Plenary Council of State as well as the Administrative Jurisdiction Division, the Government considered that there was no general incompatibility between delivering advisory opinions to the executive and exercising a judicial function. It was only in very rare cases that an advisory opinion on draft legislation and a specific ruling by the Administrative Jurisdiction Division in which the finalised legislation was applied related to “the same case” or amounted to “the same decision”. 183. According to the Government, it was clear from the Court ’ s judgments in Procola and McGonnell ( both cited above) that the key question was whether and how the same judge was directly involved in drafting regulations on which he or she was subsequently called upon to rule in a judicial capacity. The Government were therefore of the opinion that the mere fact that advisory and judicial functions were combined within a single body did not in itself vitiate the independence and impartiality of that body. The Government considered that the measures taken by the Administrative Jurisdiction Division in response to Procola constituted sufficient safeguards for securing its objective impartiality. (c) Third-party interventions ( i ) The Italian Government 184. The Italian Government submitted that for the purposes of assessing judicial impartiality, a distinction had to be drawn between an abstract assessment of a provision, such as an advisory opinion, and an evaluation of the application of a provision in a specific case. In their view, a judgment, evaluation or examination of a law did not prevent further judgments or evaluations of that same law. It was incompatible with the requirements of impartiality for a judge to assess specific facts twice, but not for an abstract provision to be assessed by the same judge in different individual cases. (ii) The French Government 185. The French Government drew attention to the fact that the French legislation on the operation of the French Conseil d ’ Etat and the status of its members were based on the principle of a simultaneous exercise of advisory and judicial functions by the same body. The French Conseil d ’ Etat was divided into five Administrative Divisions ( sections administratives ) : interior, finance, public works, social, and report and research, which were responsible for giving advisory opinions to the government, and one Judicial Division ( section du contentieux ) responsible for hearing administrative disputes. 186. The primary function of the Administrative Divisions was to ensure the lawfulness of legislation submitted to them. Their legal advice to the government aimed to prevent illegalities which judicial authorities would only be able to remedy later, once the administrative decision had been made and sometimes already applied. The existence of a body able to analyse an administrative decision or rule and provide legal advice before it was enacted, and hence improve its quality, also guaranteed greater stability of the rule of law. If administrative decisions were better protected against legal errors, they were less likely to be set aside by the judicial authorities and therefore more stable. 187. The inherent advantage of a simultaneous exercise of both advisory and judicial functions was that it was easier for the members of Administrative Divisions who were also members of the Judicial Division to identify illegalities, which meant that the quality of the advisory opinions was guaranteed. It was impossible to separate the judicial function of the Conseil d ’ Etat from its advisory responsibilities. The adviser to the government relied on case- law and the judge took into account the adviser ’ s opinion. This resulted in the best possible guarantee of legal certainty. 188. Nevertheless, the simultaneous assignment of Conseil d ’ Etat members to an Administrative Division and the benches of the Judicial Division was not without limits, in that the requirement of impartiality took precedence over this principle of dual assignment. The Conseil d ’ Etat observed the rule that any judge who had either assisted, in the course of duties performed outside the Conseil d ’ Etat, in drafting an administrative decision which was then challenged before the Judicial Division, or had even dealt with the decision in the past as a reporting judge ( rapporteur ) to an Administrative Division, had to withdraw from the case. 189. The French Government considered that the fact that the same point of law was submitted successively to the Conseil d ’ Etat in its advisory capacity and its judicial capacity did not as such constitute a ground, given its independence in both capacities, for an objective doubt in the mind of an appellant that could undermine the impartiality of the Judicial Division. The impartiality of a body where advisory and judicial responsibilities coexisted did not pose a problem where an advisory opinion concerned merely a point of law. Where it concerned a question of fact, the assessment of the question whether an appellant could have objectively justified fears of bias depended on the merits of each case. 2. The Court ’ s assessment 190. As is well established in the Court ’ s case-law, in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence. 191. As to the question of “impartiality” for the purposes of Article 6 § 1, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges ’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all in the parties to proceedings (see Morris v. the United Kingdom, no. 38784/97, § 58, ECHR 2002-I). 192. The concepts of independence and objective impartiality are closely linked and the Court will accordingly consider both issues together as they relate to the present case (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 281, § 73). 193. Although the notion of the separation of powers between the political organs of government and the judiciary has assumed growing importance in the Court ’ s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002 - IV), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers ’ interaction. The question is always whether, in a given case, the requirements of the Convention are met. The present case does not, therefore, require the application of any particular doctrine of constitutional law to the position of the Netherlands Council of State. The Court is faced solely with the question whether, in the circumstances of the case, the Administrative Jurisdiction Division had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell, cited above, § 51). 194. In deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see, mutatis mutandis, Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154, p. 21, § 48). 195. Having regard to the manner and conditions of appointment of the Netherlands Council of State ’ s members and their terms of office, and in the absence of any indication of a lack of sufficient and adequate safeguards against possible extraneous pressure, the Court has found nothing in the applicant ’ s submissions that could substantiate their concerns as to the independence of the Council of State and its members, the more so as this particular issue was not addressed in the challenge proceedings brought by Mr and Mrs Raymakers. Neither is there any indication in the present case that any member of the bench of the Administrative Jurisdiction Division was subjectively prejudiced or biased when hearing the applicants ’ appeals against the routing decision. In particular, it has not been alleged by the applicants that the participation of the President of the bench in the advisory opinion on the Transport Infrastructure Planning Bill gave rise to actual bias on his part. 196. Nevertheless, as illustrated in Procola (cited above), the consecutive exercise of advisory and judicial functions within one body may, in certain circumstances, raise an issue under Article 6 § 1 of the Convention as regards the impartiality of the body seen from the objective viewpoint. In this context the Court reiterates that it is crucial for tribunals to inspire trust and confidence (see paragraph 191 above). 197. The Government have brought to the Court ’ s attention the internal measures taken by the Council of State with a view to giving effect to Procola in the Netherlands (see paragraphs 142-45 above). According to the description of these measures which is to be found in the Annual Report 2000 of the Council of State, the composition of the bench will only be scrutinised if doubts are expressed by a party; the criterion then applied is that if the appeal goes to a matter explicitly addressed in a previous advisory opinion, the composition will be changed so as to exclude any judges who participated in that opinion. 198. The Court is not as confident as the government was in its statement during the parliamentary budget discussions in 2000 that these arrangements are such as to ensure that in all appeals coming before it the Administrative Jurisdiction Division constitutes an “impartial tribunal” for the purposes of Article 6 § 1 of the Convention. It is not, however, the task of the Court to rule in the abstract on the compatibility of the Netherlands system in this respect with the Convention. The issue before the Court is whether, as regards the appeals brought by the present applicants, it was compatible with the requirement of the “objective” impartiality of a tribunal under Article 6 § 1 that the Council of State ’ s institutional structure had allowed certain of its ordinary councillors to exercise both advisory and judicial functions. 199. In the present case the Plenary Council of State advised on the Transport Infrastructure Planning Bill, which laid down draft procedural rules for the decision-making process for the supra - regional planning of new major transport infrastructure. The applicants ’ appeals, however, were directed against the routing decision, which is a decision taken on the basis of the procedure provided for in the Transport Infrastructure Planning Act. Earlier appeals against the outline planning decision are not at issue as they were based on a different legal framework. 200. The Court is of the opinion that, unlike the situation examined by it in Procola and McGonnell, both cited above, the advisory opinions given on the Transport Infrastructure Planning Bill and the subsequent proceedings on the appeals brought against the routing decision cannot be regarded as involving “the same case” or “the same decision”. 201. Although the planning of the Betuweroute railway was referred to in the advice given by the Council of State to the government on the Transport Infrastructure Planning Bill, these references cannot reasonably be interpreted as expressing any views on, or amounting to a preliminary determination of, any issues subsequently decided by the responsible ministers in the routing decision at issue. The passages containing the references to the Betuweroute railway in the Council of State ’ s advice were concerned with removing perceived ambiguities in sections 24b and 24g of the Transport Infrastructure Planning Bill. These provisions were intended to apply to two major construction projects already under consideration at the relevant time, of which the Betuweroute railway was one. The Court cannot agree with the applicants that, by suggesting to the government to indicate in the bill the names of the places where the Betuweroute railway was to start and end, the Council of State determined, expressed any views on or in any way prejudged the exact routing of that railway. 202. In these circumstances, the Court is of the opinion that the applicants ’ fears as to a lack of independence and impartiality of the Administrative Jurisdiction Division, due to the composition of the bench that heard their appeals, cannot be regarded as being objectively justified. Consequently, there has been no violation of Article 6 § 1 of the Convention.
The Court held that there had been no violation of Article 6 § 1 of the Convention, finding that the applicants’ fears regarding the Administrative Jurisdiction Division’s lack of independence and impartiality could not be regarded as being objectively justified. The Court noted in particular that although the notion of the separation of powers between the political organs of government and the judiciary had assumed growing importance in the Court’s case-law, neither Article 6 nor any other provision of the Convention required States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interaction. The question was always whether, in a given case, the requirements of the Convention were met and the Court was faced solely with the question whether, in the circumstances of the case, the Administrative Jurisdiction Division had the requisite “appearance” of independence, or the requisite “objective” impartiality.